By Sajjad Shaukat
The three judges of the special court, comprising Justice Waqar Seth, Justice Nazar Akbar and Justice Shahid Karim awarded the former President of Pakistan General (Retd) Pervez Musharraf death sentence for abrogating the Constitution. In the detailed judgment (split 2-1), issued on December 19, this year, the presiding judge Justice Waqar Seth wrote in a bizarre verdict: “We direct the law enforcement agencies to apprehend the convict [Musharraf] and to ensure that the convict be hanged by his neck till he dies on each count…if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days”.
Justice Karim, while supporting Justice Seth’s judgment, opposed the dragging and hanging of Musharraf’s body at D-Chowk.
In his dissenting note, Justice Akbar said: “In the offence under Article 6 of the Constitution, the charging word is ‘high treason’; therefore, without properly appreciating what does it mean, this court cannot pass a just and fair verdict.”
An adverse reaction on Gen. Musharraf’s death sentence has been witnessed by the politicians, legal experts, renowned dignitaries, religiously scholars and media analysts, including army and the public at large especially regarding paragraph 66 of the verdict which mentioned that Gen. Pervez Musharraf be “dragged to D-Chowk” and “hanged for 3 days.”
On the same day, Law Minister Farogh Naseem announced the federal government’s decision to approach the Supreme Judicial Council (SJC) for the restraining…subsequent removal of the judge who had authored the detailed verdict in the Musharraf treason case, as he has proven himself to be mentally unfit and incompetent”.
Referring to a past judgment by Supreme Court Justice Naseem Hasan Shah in which the universal declaration of human rights in Islam had been referenced as well Article 14 which speaks of the fundamental right of the dignity of man was invoked, the Law Minister Naseem elaborated: “It was ruled that public hangings are in contravention to the Constitution and Islam. There is no room in Article 6 of the Constitution; in the High Treason Act, 1973; in the Criminal Amendment Act of the special court, 1976; for a judge to have the authority to present such an observation”.
Attorney-General for Pakistan Anwar Mansoor Khan stated: “The verdict is unconstitutional, unethical, inhuman, and was given by an individual whose sanity is questionable”. Earlier, regarding the brief judgment, announced by the special court on December 17, 2019, attorney-general said: “The special court was requested to record Musharraf’s statement, the court didn’t let Musharraf record his statement through video links…As President Musharraf is bed-ridden… he is in the ICU in hospital…he [Mansoor] tried to obtain a copy of the special court’s decision but he was told that it would be provided after 48 hours[not now]…Our institutions are our power and we should not be a part of any conspiracy to weaken our institutions”.
However, reacting to the detailed judgment of the special court, renowned Barrister Aitzaz Ahsan said that he “personally opposes the death sentence…para 66 has raised serious questions over the intellectual capacity of these judges…The Supreme Court must take suo motu notice of this judgment…the special court is not a court under the Constitution…These judges have delved into politics”.
A number of senior advocates and law experts such as Hamid Khan and Salman Akram Raja almost expressed similar feelings, while condemning the verdict.
Particularly, Advocate Malik Ahmed Ali opined that the judgment was faulty and in violation of the procedures and reflected an indecent haste by the bench. He explained: “Under CrPC [Cod of Criminal Procedure 1898], no punishment can be given to the accused in absentia…evidence has not been recorded by prosecution, something which was totally against the law…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…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…the reference cannot be carried after a delay from 2007 to 2013.”
In this regard, All Pakistan Ulema Council (PUC) Chairman Tahir Ashrafi said: “The special court’s judgement against former ruler General Pervez Musharraf is against the Islamic constitution…the law of the land and Shariah” [Islamic Laws].
Islamic scholar Mufti Muhammad Naeem stated: “dragging and hanging of Musharraf’s corpse, billed the ruling as extremely dangerous…the verdict is unfair as it does not comply with Shariah and Islam…does not permit treating a corpse with contempt”.
Following the detailed verdict, on the same day, Director General of Pakistan Army’s media wing, the Inter-Services Public Relations (ISPR), Maj-Gen. Asif Ghafoor said in a short press conference: “Today’s detailed judgement in the case against Musharraf…especially the words used in the written order transgresses humanity, religion, culture and any other values…Pakistan armed forces is an organised institution and its members have taken the oath to sacrifice their lives for the defence of the national security…We have demonstrated it practically in the past 20 years [and] achieved what no other country or army in the world could achieve. We are today facing a hybrid war…We also understand the enemy, its facilitators, supervisors and their possible designs…the country is currently facing threats from both internal and external sources”. And Maj Gen Asif Ghafoor cited a recent statement by the Indian army chief in this regard.
He added: “Some people want to provoke us through internal and external attacks into fighting amongst ourselves in the current circumstances, and are dreaming of defeating Pakistan in this manner. This will not happen. If we are aware of the threat, our response too is in place”.
Maj-Gen. Ghafoor quoted Army Chief Gen. Qamar Javed Bajwa as saying that “the country has rendered countless sacrifices to achieve its present stability. We will not let this stability be reversed in any situation”.
Earlier, about the brief judgment of the special court, Maj-Gen. Asif Ghafoor stated: “The high treason case against General retired Pervez Musharraf by special court has been received with lot of pain and anguish by rank and file of Pakistan Armed Forces…An ex-Army Chief [Gen. Musharraf], Chairman Joint Chief of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defense of the country can surely never be a traitor. The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self defence, undertaking individual specific proceedings and concluding the case in haste”.
Besides, since December 17, this year, when the special court announced brief verdict against the ex-President Gen. Pervez Musharraf, people from all segments of society have been staging protests rallies in major cities and towns of the country, raising slogans against the verdict and in favour of Musharraf, while showing solidarity with Pakistan Army.
It is notable that on January 28, 2014, a 14-member larger bench of the Supreme Court, headed by the Chief Justice Tassaduq Hussain Jillani was hearing the review petition, filed by the former President Gen. Pervez Musharraf. During the course of proceedings, petitioner’s counsel Ibrahim Satti appraised the court that Musharraf was given the right to make amendments in the constitution and changes were made in more than 100 articles. The emergency was imposed on November 3, 2007 upon consultation with the armed forces and the chief of the army staff. The November 3 step was given protection in the Tikka Iqbal case. The former president had issued a new oath for judges following the Provisional Constitutional Order (PCO) of 2000 and former chief justice Iftikhar Muhammad Chaudhry was also among those judges, who took oath under the PCO.
It is mentionable that in 2014, when the case was filed by the Pakistan Muslim League-N government against Gen. Musharraf, there was almost a consensus among constitutional experts that as to why only Gen. Musharraf should be tried under Article 6 of the Constitution, while sparing other members of the cabinet, governors and government functionaries who were also guilty of high treason. It was in this backdrop that some analysts stated that instead of Gen. Pervez Musharraf’s act of 12th October 1999, the entire focus was on his proclamation of 3rd November 2007. Moreover, their line of argument was that had the October 1999 act not been legitimized by the judiciary, November 2007 would not have happened.
In this respect, famous lawyer S.M. Zafar had remarked: “Suspension or keeping the constitution in abeyance was not an offence in November 3, 2007, as it was added to the article 6 in the 18th amendment”.
As regards Gen. Pervez Musharraf’s services for the country, he served in the elite Special Services Group (SSG) and his battlefield experience came during the 1965 Indo-Pak war and the 1971 war with India. After 1971, he continued to excel in several military assignments and was given promotions. In October 1998, he was appointed as chief of army staff by the then premier Nawaz Sharif.
Nevertheless, Pervez Musharraf’s political party, the All Pakistan Muslim League (APML) and his lawyers have decided to file an appeal in the Supreme Court against the special court’s ‘one-sided decision”.
Taking cognizance of the December 17’s brief verdict of the special court regarding the death sentence of Gen. Pervez Musharraf, Pakistan’s Prime Minister Imran Khan stated that any confrontation between the national institutions will be harmful for the country. He elaborated that we need unity in order to tackle national challenges and defeat external enemies of Pakistan. The prime minister lauded services of the Pakistan Army in a war against terrorism, saying armed forces have rendered matchless sacrifices and restored peace in the country.
It is noteworthy that Pakistan is facing multiple threats of grave nature externally and internally, which are worrying all the citizens. Externally, Pakistan Army has been responding to India’s unprovoked firing at the Line of Control (LoC) in Kashmir boldly, as India suddenly accelerated its aggressive designs against Pakistan by taking belligerent steps since August 5, 2019 when Indian extremist Prime Minister Narendra Modi’s government ended special status of the Jummu and Kashmir, while scrapping articles 35A and 370 of the Constitution to turn Muslim majority into minority in the Indian Occupied Kashmir (IOK), and lockdown of the IOK continues unabated.
Internally, Pakistan is also facing multi-faceted crises and challenges like corruption, soaring prices, energy-shortage, unemployment, crimes, lack of health facilities, and dependence upon the US-led developed countries, IMF and World Bank for financial aid.
So, in order to castigate the conspiracy of the external enemies who want to create rift among the key institutions of the country, our political leaders, media, human rights groups and general masses must display practical unity with the Pak Army whose image is deliberately being tarnished by the foreign plotters who are also using some internal entities of the country to fulfill their nefarious designs, because, Pakistan is the only nuclear country in the Islamic World.
Sajjad Shaukat writes on international affairs and is author of the book: US vs Islamic Militants, Invisible Balance of Power: Dangerous Shift in International Relations
Email: [email protected]
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