Pakistan lawyer challenges HC's verdict

Pervez Musharraf. File pic

Islamabad: A Pakistani lawyer has appealed to the Supreme Court to set aside the verdict of a high court that annulled the death sentence of self-exiled former dictator Pervez Musharraf. The special court in Islamabad on December 17 last handed down the death penalty to the 74-year-old retired general, now based in Dubai, after six years of hearing a high-profile treason case against him. The Pakistan Muslim League-Nawaz (PML-N) government led by former prime minister Nawaz Sharif had filed the treason case against the former army chief in 2013 over the imposition of an extra-constitutional emergency in November 2007, which led to the confinement of a number of superior court judges in their houses and sacking of over 100 judges.

On January 13, Musharraf's trial in the high treason case was declared as "unconstitutional" by the Lahore High Court (LHC), leading to the annulment of the death sentence against the former president. The LHC declared that the formation of the special court was "unconstitutional" and that the treason case against Musharraf was not prepared in accordance with the law. In an appeal on Monday, senior counsel Hamid Khan, representing petitioner Advocate Taufiq Asif, requested the apex court to set aside the LHC verdict by declaring it illegal and without lawful authority, Dawn newspaper reported on Tuesday.

The petitioner argued that the high court through its order had virtually invalidated and rendered ineffective Article 6 of the Constitution, which has a special significance and importance in the constitutional history of Pakistan. In its order, the high court had declared constitution of the special court a violation of the Criminal Law Amendment (Special Court) Act, 1976 and said the amendment to Article 6 of the Constitution, which deals with high treason under the 18th Amendment, could not be given retrospective effect to constitute an offence committed much earlier. The trial in absentia by the special court was also held to be illegal by the high court. The senior counsel questioned the acceptance of Musharraf's petition by the high court when a similar matter was pending before the Supreme Court, particularly when an effective order was already issued by the apex court on April 1, 2019.

He argued that the entertainment of such a petition on the part of the high court violated the constitutional hierarchy of the courts. It is established on the record, the petition argued, that Musharraf had already been declared an absconder and, therefore, he had no right under the law to seek stay of the trial against him before the special court. He even has no right to seek a stay against announcement of the verdict by the special court. Therefore, the entire proceedings before the high court were contrary to the law and the Constitution, the petition said, adding that the high court could not sit over the April 1, 2019 verdict in which the apex court, while deciding the case of the Lahore High Court Bar Association, had issued directives to the special tribunal to proceed with Musharraf's trial. Musharraf, who ruled Pakistan from 1999 to 2008, was the first military ruler convicted for subverting the Constitution. Though he was not the first General to do so.

Three Pakistan Army chiefs including Gen Ayub Khan, Gen Yahya Khan and Gen Zia-ul-Haq also abrogated the Constitution but never faced any court. The former military ruler, who has been living in Dubai since March 2016, left Pakistan for medical treatment and has not returned since, citing security and health reasons. Dr Muhammad Amjad, Musharraf's close aide and the ex-chairperson of his All Pakistan Muslim League (APML) party, has said that the former president was rapidly becoming weaker due to an unknown disease, which is why he was unable to return to Pakistan to face the treason case. On January 18, the Supreme Court returned a petition against his conviction and sentencing by the special tribunal with objection that he is not allowed to appeal without surrendering to the law.

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