LAHORE: The Lahore High Court (LHC) on Monday annulled the death sentence handed to former president Gen (retd) Pervez Musharraf, ruling a special court which found him guilty of high treason last year was unconstitutional and quashed the trial.
A three-member bench, in its short order, stated the special court was not constituted as per constitutional and legal requirements. It also stated the amendments made to Article 6 of the Constitution could not be implemented retrospectively, besides setting aside Section 9 of the Criminal Law Special Court Amendment Act 1976.
The bench, headed by Justice Sayyed Mazahar Ali Akbar Naqvi and comprising Justice Muhammad Ameer Bhatti and Justice Chaudhry Muhammad Masood Jahangir, passed the orders while allowing a petition, filed by Musharraf challenging the formation and proceedings of the special court in high treason case. The bench had reserved the verdict on the conclusion of arguments by Additional Attorney General (AAG) Ishtiaq A Khan earlier in the day.
A special court had convicted Musharraf for high treason on December 17 and handed him death penalty on five counts in a 2-1 split decision. The case was filed by the PML-N government against the former military ruler for suspending the Constitution on November 3, 2007, when he declared an emergency in the country.
As the proceedings resumed on Monday, AAG Khan appeared on behalf of the federal government and submitted the summary about the formation of the special court and other relevant documents, in compliance with the court orders issued on the last hearing. He submitted the issue of lodging a case against Musharraf was never part of the cabinet meeting agenda item.
He submitted the cabinet met again to discuss the appointment of judges to the special court. However, he said, it was true the special court was constituted without the approval of the cabinet, adding the appointment of one of the judges to the special court had come under discussion in the cabinet on May 8, 2018.
He submitted the special court was again dissolved on October 21, 2018, on the retirement of Justice Yawar Ali. The AAG replied in negative after the bench asked whether the issue of filing a complaint had come up in the cabinet meetings. “According to your record, there is no agenda or notification regarding formation of the special court or filing of the complaint,” the bench observed.At that stage, the bench observed emergency was part of the Constitution. “If the situation reaches a point in the country under which a government declares an emergency, if a treason case will be filed against the government,” the bench asked. “Can an emergency be imposed under Article 232?” it added. The law officer admitted such a step would be in accordance with the Constitution.
To which, the bench questioned then how was it a deviation from the Constitution. The law officer stated the word “suspension” was added to Article 6 of the Constitution through the 18th Amendment in the year 2010, which were non-existent in the year 2007. He pointed out under Article 12 of the Constitution, there could not be a retrospective punishment for something which was not an offence at the time it was committed.
To a court query, the law officer submitted 20 to 25 members Federal Investigation Agency team completed the inquiry against Musharraf whereas only one member appeared before the special court.
After conclusion of the arguments, the court reserved its verdict on Musharraf’s petition, and later announced it. Earlier, on the last hearing, Barrister Syed Ali Zafar, as amicus curiae (friend of the court), completed his arguments and questioned the formation of the special court.
He submitted in that case, there was neither any cabinet decision to institute proceedings against Gen (retd) Musharraf for high treason nor was there any cabinet decision for constitution of the special court or authorising a person for filing a complaint.
Instead, he submitted the notification for constitution of the special court was issued by the then law ministry without any cabinet decision backing it.
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