Special Court has no jurisdiction to try Musharraf: Counsel
11 February, 2014
ISLAMABAD: The legal team of former dictator General (retd) Pervez Musharaf on Monday contended before the Special Court to forget about all the arguments so far made in the high treason case, assuming that it is just an ordinary case.
A three-member bench of the Special Court, headed by Justice Faisal Arab and comprising Justice Syeda Tahira Safdar and Justice Yawar Ali, resumed hearing in the high treason case against the former military dictator for subverting the Constitution while imposing proclamation of emergency in the country on November 3, 2007.
"Forget about what have so far argued on the rostrum in the instant matter and just assume it as an ordinary case," Dr Khalid Ranjha, one of the members of Pervez Musharaf's legal team, told the court while commencing his arguments on the issue of the jurisdiction of the court to hear the case as well as seeking the transfer of the case to a military court.
He contended that the special court cannot conduct a trial of either a person who is in uniform or retired, adding that it is mandatory in law that military personal could only be court martialled under the Army Act 1952 if they commit any offence.
Khalid Ranjha also maintained that the government filed an appeal after six years against the former president not in accordance with law but at the whims and wishes of the incumbent government.
"The successive government could not take notice of the acts of November 3, 2007, but this is a classic example of political vendetta when the present government began to file a complaint against my client for initiating a trial under high treason," Ranjha contended.
He submitted that if an army officer commits an offence, the forum of his trial is only a military court not other courts. "If the law is available for such purpose, then why my client should be denied of this law," Khlaid Ranjha argued, adding that the right of fair trial and due process is a fundamental right of his client.
The learned counsel contended that he is not against the special court and its judges but before initiating the instant case, it should have taken into consideration its jurisdiction. This is not the issue of your jurisdiction, but the issue is as to whether this court can adjudicate the instant case or not.
"I am not saying that your lordship has no jurisdiction to hear this case, but I say that at least before entertaining the government's complaint, you should have simply told the complainant that you have no jurisdiction to hear it," Ranjha contended and added that in their instant appeals, made before this court, including the plea that the instant case should be transferred to a military court.
At this, Justice Faisal Arab observed in a lighter tone that most of appeals filed by the defence side before this court are without dates, adding that the court is not rigidly taking notice of this. Khalid Ranjha, however, replied also in lighter tone that a judge who keeps the anger in his heart is not a judge.
Army officers are accountable only by court-marshal and not by any other court, Ranjha submitted.He contended that the Special Court has no jurisdiction to try military personal under High Treason Act in presence of Pakistan Military Act, 1952, which specifically provides for the court martial of military officers if they committed any offence while being in ranks.
The learned counsel termed the Criminal Law Amendment Act, 1976, as man-specific, adding that it is malice on the part of the complainant and there is an element of bias while putting the case before the Special Court.
He argued that the law requires that under the law trial of any accused amenable to the Pakistan Army Act, 1952, has to be conducted by a court-martial and not by the Special Court established under the Criminal Law Amendment Act, 1976.
Dr Rnajha further submitted that the prosecution can't be allowed to circumvent the law, adding that the defence provided in Section 92, vis a vis the limitation to start the trial can't be taken away from the accused.
Section 92 (1) of the Pakistan Army Act, 1952, reads: "Where an offence has been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody and tried and punished for such offence as if he had continued to be so subject.
Similarly, Clause 2 of Section 92 reads: "No person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act."Khalid Ranjha also referred to section 7 and 8 of the Pakistan Army Act, 1952.
Section 7 relating to power to declare to be an active service reads: "Notwithstanding anything contained in Clause 1 of Section 8, the federal government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or any other law for the time being in force, be deemed to be on active service within the meaning of this Act.
Section 8 (1) reads: "Active service as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force is in military occupation of a foreign country.
Meanwhile, the court adjourned the hearing till Tuesday (today) wherein Khalid Ranjha will continue his arguments.