Power of Special Court to Introduce Suspects in Hi-Treason Trial

Power of Special Court to Introduce Suspects in Hi-Treason Trial Case Laws Complaint Case Constitutional Law Criminal Law Hi-Treason Trial Knowledge - Constitutional Law Knowledge - Criminal Law Litigation & Arbitration Solutions - Constitutional Law Solutions - Criminal Law Special Court Supreme Court Mr. Justice Asif Saeed Khan Khosa in his judgment has decided the issue regarding power of special court to introduce suspects in hi-treason trial of General (R) Pervez Musharraf in Civil Appeal No. 118 of 2016.

1. A criminal case against respondent No. 2 namely General (Retd.) Pervez Musharraf on the charge of committing high treason is presently pending trial before a Special Court constituted under the Criminal Law Amendment (Special Court) Act, 1976 and, therefore, we shall be circumspect in what we observe in the present judgment lest any observation made by us may prejudice the trial of the said case and shall endeavor to confine our comments mainly to what has already been said or declared on the subject by different courts of the country, including this Court, and the legal position relevant to the issues raised through the present appeal.

2. During the pendency of his trial before the Special Court respondent No. 2 had filed a miscellaneous application seeking a direction to the Federal Government to investigate all those persons who had aided or abetted the said respondent in allegedly committing the crime in issue and to submit an amended or additional statement as well as a statement of formal charges before the Special Court against such other persons in terms of sections 5(1) and 5(3)(a) of the Criminal Law Amendment (Special Court) Act, 1976. On 21.11.2014 the said application filed by respondent No. 2 was disposed of by the Special Court through a majority decision and a direction was issued to the Federal Government to treat Mr. Shaukat Aziz and Mr. Zahid Hamid, who held the offices of the Prime Minister and the Federal Minister for Law on 03.11.2007 respectively, and the present appellant namely Mr. Abdul Hameed Dogar, a Judge of this Court on the said date, as co-accused of respondent No. 2 and to submit an amended or additional statement as well as a statement of formal charges in terms of the above mentioned provisions of the Criminal Law Amendment (Special Court) Act, 1976 against them.

The present appellant challenged the said order passed by the Special Court before the Islamabad High Court, Islamabad through Writ Petition No. 5010 of 2014 and the said writ petition was heard by a learned Division Bench of that Court along with some other writ petitions and Intra-Court Appeals. During the pendency of those matters a consensus emerged between all the parties, including the Federal Government, that the role of “any person” as an aider or abettor of respondent No. 2 may be properly investigated “at large” and that all such persons may be provided “full opportunity of hearing” by the investigating agency. On the basis of such consensus the learned Division Bench of the Islamabad High Court, Islamabad set aside the impugned order dated 21.11.2014 passed by the Special Court and disposed of all the matters, including the writ petition filed by the present appellant, on 10.11.2015 with a clarification that “The parties to the present litigation shall not be prejudiced by the impugned order or any adverse view drawn therein. Likewise, I.O, Investigating Agency or JIT whatever the case may be shall not be influenced by such observations made in the impugned order.”

3. The ensuing date of hearing before the Special Court was 27.11.2015 and on that date the Special Court passed an order which has generated the controversy that has been brought before this Court through the present appeal. The relevant portions of the order passed by the Special Court on 27.11.2015 are reproduced below:

“3. Mr. Muhammad Akram Sheikh, while appearing on behalf of the prosecution stated before us in clear and unequivocal terms that fresh investigation in this case has to take place. ——

4. From the contents of the judgment it appears that all the parties gave consent before the Islamabad High Court that the matter be reinvestigated as the investigation that was carried out earlier was not conclusive and hence defective. ——-

6. Let the process of the investigation commence. The Investigation Team shall record statements of Mr. Pervaiz Musharraf, Mr. Justice Abdul Hameed Dogar, Mr. Shoukat Aziz and Mr. Zahid Hamid afresh. ——-”

4. The appellant assailed the said order passed by the Special Court before the Islamabad High Court, Islamabad through Writ Petition No. 3980 of 2015 but the said writ petition was dismissed by the said Court in limine on 09.12.2015. Hence, the present appeal by leave of this Court granted on 27.01.2016.

5. We have heard the learned counsel for the parties at some length and have perused the relevant record of the case with their assistance. It has been pointed out by the learned counsel for the appellant that it was for the first time that through the order dated 21.11.2014 the Special Court had introduced the appellant as an accused person in the case of high treason which order had subsequently been set aside by the Islamabad High Court, Islamabad on 10.11.2015 but despite setting aside of its earlier order dated 21.11.2014 the Special Court had reintroduced the appellant as a suspect in the said criminal case through its order dated 27.11.2015 and a writ petition filed by the appellant against the said order had been dismissed by the Islamabad High Court, Islamabad on 09.12.2015. It has been argued by the learned counsel for the appellant that after setting aside of its order dated 21.11.2014 the Special Court was left with no basis or material whatsoever for reintroducing the appellant as a suspect in the relevant case for the purposes of investigation qua his involvement. It has also been contended by the learned counsel for the appellant that in a number of judgments handed down by this Court as well as by some High Courts it had categorically been held and declared that it was General (Retd.) Pervez Musharraf alone who was responsible for imposition of emergency in the country on November 03, 2007 and that introduction of the appellant as a suspect in the said matter by the Special Court was not only purely speculative in nature but was also based upon no material whatsoever.

In support of this contention the learned counsel for the appellant has placed reliance upon the cases of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and Moulvi Iqbal Haider and others v. Federation of Pakistan through Secretary M/o Law and Justice and others (2013 SCMR 1683). He has further argued that the Special Court had no jurisdiction to add the appellant as a co-accused of respondent No. 2 in the trial of the relevant criminal case instituted by the Federal Government or to direct that the appellant was to be associated with any fresh investigation of the said case to be conducted by an investigating agency. The learned counsel for respondent No. 2 started his arguments by contesting this appeal with reference to some parts of the judgments rendered by this Court in the cases of Justice Hasnat Ahmed Khan and others v. Federation of Pakistan/State (PLD 2011 SC 680), Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866) but he has finally submitted that he has no objection to acceptance of this appeal, setting aside of the impugned order passed by the Islamabad High Court, Islamabad on 09.12.2015 and removal of the names of the appellant and two others from the impugned order passed by the Special Court on 27.11.2015.

Further information regarding power of special court to introduce suspects in hi-treason trial of General (R) Pervez Musharraf can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.