The special court trying former president general (R) Pervez Musharraf for high treason on Friday dismissed an application filed by the defence relating to the bias of the judges, the constitution of the court and appointment of judges.
The delighted prosecution said that the trial could now proceed with hindrance and that Musharraf will have to appear in the court for indictment on March 11 as summoned.
Justice Faisal Arab, who heads the three-judge bench, while dismissing the application, said in the order that the court found no merit in it. The defence had contended that the proclamation of emergency issued on November 3, 2007, was not an act by Musharraf alone but an outcome of a consultative process. Musharraf was being singled out to face the case leaving the remaining persons who were equally involved and so the case was tainted with malice, it was submitted. Setting this aside, the order said that the involvement of any other person would depend on the evidence which would come on the record in the course of the trial.
This criminal miscellaneous application filed on behalf of Musharraf when the trial began on December 24, 2013, said that the action taken against him was prompted by Prime Minister Nawaz Sharif and the former chief justice of Pakistan Iftikhar Chaudhary, who were inimical to him and so it was illegal and void. Defence lawyer Anwar Mansoor had submitted that the Constitution provided for a collective decision to file charges of high treason but in this case it was the sole decision of Nawaz Sharif, which was in violation of the law. The judges were appointed in consultation with the former chief justice when there was no requirement legally, and the members of the court were biased and they may under compulsion decide the case against Musharraf and therefore may recuse themselves from the case, he had argued.
Special prosecutor Akram Sheikh had stated that in this case that the approval of the cabinet or the prime minister was not needed to initiate the process and the investigation and prosecution lies within the domain of the interior division whose secretary had filed the formal complaint in the special court. He was authorised by law to do so, Sheikh had said, brushing aside the contentions of illegality.
The order upheld the constitution of the court and said the names of the judges were in fact nominated by the respective chief justices of the high courts concerned and not by the then chief justice of Pakistan.
The defence had also contended that the bench was biased due to certain factors. For instance Justice Arab had not taken oath under the Provisional Constitutional Order (PCO) of 2007 (promulgated by Musharraf) as he considered it to be against of the Constitution.
Justice Arab cannot remain impartial to the case where one of the charges is the issuing of the PCO, the defence said, and he had also dismissed Musharraf’s appeal disqualifying him from contesting the general elections last year.
The order said the plea of a judge’s bias on the basis of his decision in a case previously heard and decided before a different forum was not sustainable. The order also dismissed allegations of bias against another judge Yawar Ali. No animosity is attributed to any of the members of the court against the accused, rather only an apprehension of bias is alleged on certain grounds which in fact do not attract any rule of disqualification, the order ruled. The defence had earlier withdrawn the charge of bias against Justice Syeda Tahira Safdar.
JUDGES DETENTION HEARING ON MARCH 21:
The anti-terrorism court (ATC) in Islamabad, which was hearing the judges’ detention case against Pervez Musharraf, adjourned the matter to March 21 after lawyers representing the former president failed to appear in court, according to a private news channel.
The ATC judge Atiqur Rahman, was hearing the case against the former army strongman.
During the hearing, the defence team representing Musharraf could not appear in court in accordance with a boycott of court proceedings by lawyers representing the district bar and Islamabad High Court in the federal capital due to the Islamabad court attack.
The court subsequently adjourned the hearing of the case to March 21.
The judges’ detention case is based on an FIR against the retired general registered in August 2009 on the complaint of Chaudhry Mohammad Aslam Ghumman.
He had asked the police to initiate legal proceedings against Musharraf for detaining over 60 judges, including the then CJP Iftikhar Muhammad Chaudhry, after proclamation of a state of emergency in the country on Nov 3, 2007.
