ISLAMABAD: The legal fraternity on Thursday rejected the judgment of the special court bench against former president General (r) Pervez Musharraf and questioned the merit and legal flaws of the judgment.
Even those jurists who had been demanding severe punishment for Musharraf reacted strongly to the verdict, terming paras 66 and 67 as being in violation of the Constitution and legal, ethical and moral norms.
Barrister Aitzaz Ahsan said that he personally opposes the death sentence and believes that life imprisonment should be handed down to the convict instead. He said that para 66 has raised serious questions over the intellectual capacity of these judges.
“Hanging the dead body of the accused at D-Chowk for three days is not possible under the law. This would destroy the entire judgment. This is not Taliban rule in Pakistan. You cannot disfigure, drag or hang a dead body,” he said, adding that that high treason’s definition is not in the Constitution but it is in the dictionary.
When asked whether the Pakistan People’s Party (PPP) supports the judgment, he said that he cannot answer that question yet but the party is undoubtedly against the death penalty.
“I think the party would reject the death penalty. It would discuss it in detail,” he said.
He also said that Musharraf is staying abroad and he cannot appeal without surrendering. The judgment is effective but it cannot be upheld against an appeal, he added. He added that in his view, an appeal should be filed immediately by Musharraf.
“The Supreme Court (SC) must take suo motu notice of this judgment. There is only one precedent in the history and that is that the Taliban had hanged Afghan President Najibullah,” he added.
He said that the special court is not a court under the Constitution. “These judges have delved into politics by mentioning my name in the judgment and directing for Musharraf to be hanged in D-Chowk,” he added.
Senior Advocate Hamid Khan, while speaking to Pakistan Today Editor Arif Nizami on Channel 92’s programme ‘Ho Kya Raha Hai?’, said that judges cannot be taken to the Supreme Judicial Council (SJC) on the basis of their verdicts.
Attorney General Anwar Mansoor Khan, while speaking to a local news outlet, said that the sanity of the author of the detailed verdict in the Musharraf treason case is “questionable” and called for his trial and removal under Article 209 of the Constitution.
He said that the verdict was “unconstitutional, unethical, inhuman, and was given by an individual whose sanity is questionable”. “He must be tried under Article 209 and I will take appropriate measures for immediate action against him,” he said.
“This is a judgment which I strongly condemn,” he added.
The attorney general said that the law provides for any person to be able to move a petition with the supreme judicial council and he intends on undertaking the requisite measures to put such a petition forward.
He remarked that the judgment was based “on personal enmity and vengeance”.
In further criticism, he said that the judgment had also “attacked the army” in mentioning the fact that army officials have taken an oath and that Musharraf’s actions were against the oath.
“A person who acts against Islam, the law and the Constitution can never be allowed to remain a judge,” he added.
Senior lawyer and law expert Salman Akram Raja said that the apex court can exempt Musharraf from appearing in court to file a plea.
Referring to the controversial paragraph 66 of the verdict against the former army chief by the special court, Raja said that it was not possible to hang Musharraf’s corpse at D-Chowk as the verdict lacked consensus.
Raja said that paragraph 66 was controversial and that he did not expect the court to state an observation in the tone that it was mentioned.
He said that the dissenting note from a judge did not mean that the case was weak. He added that it was not possible for the government to withdraw from the case.
Former attorney general Irfan Qadir said that the Supreme Court (SC) must take a suo motu notice of the verdict and strike it down immediately. He said that the judges should be suspended forthwith and their psychological assessment should be ordered. He added that the language used in the verdict reflects bias and personal vendetta and therefore it cannot be upheld in the appeal too. He further said that the detailed verdict had brought a bad name for Pakistan and the mention of D-Chowk and hanging reflects some personal prejudice.
Senior lawyer Advocate Malik Ahmed Ali said that the judgment was faulty and in violation of the procedures and reflected an indecent haste by the bench. He said that under CrPC, no punishment can be given to the accused in absentia.
Moreover, he added, evidence has not been recorded by prosecution, something which was totally against the law. He said that the basic fact was that the judgment was about the emergency declared by Musharraf in 2007 while the Constitution had been suspended. “Special clauses were added in 18th Amendment in year 2010 and clauses were added on purpose to target Musharraf,” he added.
“Retrospective effect cannot be made of Article 6 and Musharraf cannot be punished as when the Constitution was suspended in 2007, it was not a crime. Moreover, the reference cannot be carried after a delay from 2007 to 2013,” he said.
Senior jurist Advocate Kamran Farooq said that there were major lacunae in the judgment as the cabinet did not approve filing of the reference and rather it was only filed on the direction of the prime minister. He said that Mustafa Impex judgement of the apex court, the reference must be filed after endorsement by the federal cabinet and not the prime minister.
Farooq said that under the law, the prime accused cannot be prosecuted and abettors and facilitators must also be prosecuted along with the prime accused. He said that the judgement reflected some personal vendetta as is reflected in paras 66 and 67.
“I believe that these judges should be hanged and not the accused as these judges have brought a bad name to judiciary. This is totally a biased judgment and in violation of constitutional provisions,” he added.
Advocate Khwaja Shahid Rasool said that basic legal facts had been ignored in the judgment. He said that the basic flaw in the judgment is that the reference had been filed without approval of the cabinet. “This is a violation of high treason act and special law CLA 1976. The constitution of prosecutors, constitution of Special Court – all are illegal as no sanction or approval from cabinet was sought,” he added.
He said that the aiders and abettors mischievously had been excluded from the prosecution. “Instead of following 512 CrPC and putting case to rest till arrest or appearance of Musharraf, the court proceeded with the trial. The statement of accused is mandatory which is bypassed by the court. Musharraf was denied the right to be represented by the defence council of his choice. Application to form the commission and application to hear defence evidence was dismissed,” he added.
Advocate Faisal Chaudhry said that this judgment would incite reactions from human rights organisations from all over the world. “This verdict cannot be upheld. This judgment would be remembered as a black judgment in our history,” he added.
Advocate Ashtar Ausaf said that the November 3 act was not high treason and rather it was violation of the oath taken by Musharraf. Referring to a reported judgment by a bench headed by Justice Tasadduq Jilani in 2014, Ashtar Ausaf said that the bench had rejected the notion of abrogation of the Constitution. He said that the federal government has said that they want to try aiders and abettors along with the prime accused. He further that Prime Minister Imran Khan has a principled stance that aiders and abettors also needs to be tried.
“I do not think PM Imran has been defending Musharraf. Yes, no one can defend the violation by Musharraf but I think hanging the accused is not right,” he added.
Justice (r) Shaiq Usmani said that there is no legal or moral or religious justification for dragging and hanging the dead body of Musharraf.
“This would destroy the judgment. This is very weak judgment and there is no application of mind in this judgment. There is no legal basis for making such a judgment,” he said.
When asked if there is a mention of high treason in the constitution, Usmani said that there is no definition of high treason and an appeal must be filed immediately against the judgment.