ISLAMABAD:
Former military dictator Pervez Musharraf’s counsel Barrister Farogh
Naseem on Tuesday requested the Special Court to also try the associates
of his client for assisting him in declaring the state of emergency on
November 3, 2007.
The three-member Special Court, headed by Justice Faisal Arab and comprising Justice Tahira Safdar and Justice Yawar, resumed hearing into the Federation’s complaint for initiating the treason case against Musharraf for abrogating the Constitution and declaring the state of emergency in the country on Nov 3, 2007.
Justice Faisal Arab told the defence counsel that the court could not open all the cases of abrogation of the Constitution since 1956, as its mandate was limited to hearing the instant case.
The remarks came when Musharraf’s defence counsel Dr. Farogh Naseem argued that in terms of international jurisprudence, there could be no selective prosecution of Musharraf and quoted Article 12(2) of the Constitution requiring a trial under Article 6 with effect from 23.3.1956.
Dr Naseem said the reference had been made in passing for the purposes of the main case and for the time being for the purpose of arguments on the application seeking the disclosure of FIA report Article 12(2) was not relevant and therefore this question should be kept open.
He also requested the courtto take up application (No. 12 of 2014) in which a request had been made for the disclosure and supply of copies of inquiries/investigation report of the FIA, which was the foundational basis of the complaint itself.
He said vide order dated March 7. 2014 the court had clearly held that as and when evidence on material was brought on record that the accused was aided, abetted and collaborated by others, it would decide the issue in that regard.
He said in order to bring such evidence on record, the first step was to require the prosecution to file the FIA report, which clearly contained a dissenting note by one Hussain Asghar that Musharraf alone should not be tried and that his aides and abettors should also be made co-accused.
The defense counsel contended that in the proclamation of emergency the prime minister, all governors and members of the military leadership were disclosed to be the consultees.He submitted that the proclamation of emergency was a public document, duly gazetted and published in the law reports, in view whereof, as per the Qanun-e-Shahadat a presumption of truth of contents of the said gazette was in the field. Therefore, he said the accused had sufficiently discharged the tactical or prima facie burden of proof and the ultimate or legal burden to disprove the same now rested upon the prosecution.
“In terms of the mandate of the court order of March 7, 2014, sufficient material was now on record for the court to pass orders implicating the co-accused,” Farogh Naseem said.The defense counsel further contended that there had been violation of Article 265 © of CrPC that relates to supply of documents to the accused. He cited Zulfikar Ali Bhutto case wherein it was stressed in the interest of justice.
Prosecutor Akram Sheikh however submitted that the law does not require him to disclose the FIA’s report and therefore he would not disclose the same to the accused unless otherwise directed by the court.
“I cannot hand a Kalashnikov and a hand grenade and your lordship has to order me in this regard and I will hand it over to the court”, Sheikh contended. He recalled that the court had ruled earlier that it will cross the bridge when it comes.
“So let things come at the proper stage as it is not a case of oral evidence but a case of documentary evidence,” Sheikh submitted adding, “let cross the bridge when it comes.”
He submitted that the court gave its verdict on March 7 on the trial of others involved in Nov 3 decision according to which if evidences were found against anyone in the records then the court would consider it.
He further recalled to the court that the copies of the complaint in the instant case had already been handed over to Anwar Mansoor Khan. He said the application was filed three-months earlier and the court had already decided it as well.
He further submitted that Article 265 © of CrPC as referred to by the defense counsel was not applicable in this case adding that Article 265 © of CrPC and section 5 of Special Court (Amendment) Act 1976 are different.
“Just throw the CrPC,” Sheikh contended. “Is it your argument that Sections 5 and 6 of the Special Court Act 1976 oust the application of Section 265 ©”, Justice Faisal Arab asked Akram Sheikh.
Yes, Sheikh replied.
He contended that under Section 5 of the Special Court Act, the federal government was obligated to provide only three documents which included details of the crime, complaint and list of witnesses.
He further said that as the special court was not a high court, it could not apply Section 561 of the military law to this case.
Akram Sheikh contended that the government was not obligated to present the joint investigation report (JIT) and the officer who gave the dissenting note was also a witness.
Akram Sheikh submitted that he would submit his reply overnight in the application and the learned defense counsel could cross-examine him then. Sheikh said that he will continue his arguments today (Wednesday).
During the hearing Akram Sheikh asked Farogh Naseem to give him his email address for sending his reply.When Farogh Naseem told Sheikh to send it to Chaudhry Faisal Hussain, his team member, Sheikh in a light tone replied that he was scared of Chaudhry Faisal.In response, Farogh Naseem told Sheikh that he could give him the email address of Rana Ejaz.
Meanwhile, the Special Court ruled that the decision on appointment of prosecutor in the instant case challenged by the defense counsel would be announced on April 18.Dr. Farogh Naseem pointed out that orders on an application pertaining to the disqualification of Akram Shaikh as prosecutor had been reserved for March 26, 2014 and the court observe Shaukat Aziz that before the evidence was to be recorded the application in respect of the prosecutor would be decided.
Justice Faisal Arab however observed that orders on the matter of appointment of prosecutor would be announced on Friday, April 18.The court adjourned the hearing till today (Wednesday).
The three-member Special Court, headed by Justice Faisal Arab and comprising Justice Tahira Safdar and Justice Yawar, resumed hearing into the Federation’s complaint for initiating the treason case against Musharraf for abrogating the Constitution and declaring the state of emergency in the country on Nov 3, 2007.
Justice Faisal Arab told the defence counsel that the court could not open all the cases of abrogation of the Constitution since 1956, as its mandate was limited to hearing the instant case.
The remarks came when Musharraf’s defence counsel Dr. Farogh Naseem argued that in terms of international jurisprudence, there could be no selective prosecution of Musharraf and quoted Article 12(2) of the Constitution requiring a trial under Article 6 with effect from 23.3.1956.
Dr Naseem said the reference had been made in passing for the purposes of the main case and for the time being for the purpose of arguments on the application seeking the disclosure of FIA report Article 12(2) was not relevant and therefore this question should be kept open.
He also requested the courtto take up application (No. 12 of 2014) in which a request had been made for the disclosure and supply of copies of inquiries/investigation report of the FIA, which was the foundational basis of the complaint itself.
He said vide order dated March 7. 2014 the court had clearly held that as and when evidence on material was brought on record that the accused was aided, abetted and collaborated by others, it would decide the issue in that regard.
He said in order to bring such evidence on record, the first step was to require the prosecution to file the FIA report, which clearly contained a dissenting note by one Hussain Asghar that Musharraf alone should not be tried and that his aides and abettors should also be made co-accused.
The defense counsel contended that in the proclamation of emergency the prime minister, all governors and members of the military leadership were disclosed to be the consultees.He submitted that the proclamation of emergency was a public document, duly gazetted and published in the law reports, in view whereof, as per the Qanun-e-Shahadat a presumption of truth of contents of the said gazette was in the field. Therefore, he said the accused had sufficiently discharged the tactical or prima facie burden of proof and the ultimate or legal burden to disprove the same now rested upon the prosecution.
“In terms of the mandate of the court order of March 7, 2014, sufficient material was now on record for the court to pass orders implicating the co-accused,” Farogh Naseem said.The defense counsel further contended that there had been violation of Article 265 © of CrPC that relates to supply of documents to the accused. He cited Zulfikar Ali Bhutto case wherein it was stressed in the interest of justice.
Prosecutor Akram Sheikh however submitted that the law does not require him to disclose the FIA’s report and therefore he would not disclose the same to the accused unless otherwise directed by the court.
“I cannot hand a Kalashnikov and a hand grenade and your lordship has to order me in this regard and I will hand it over to the court”, Sheikh contended. He recalled that the court had ruled earlier that it will cross the bridge when it comes.
“So let things come at the proper stage as it is not a case of oral evidence but a case of documentary evidence,” Sheikh submitted adding, “let cross the bridge when it comes.”
He submitted that the court gave its verdict on March 7 on the trial of others involved in Nov 3 decision according to which if evidences were found against anyone in the records then the court would consider it.
He further recalled to the court that the copies of the complaint in the instant case had already been handed over to Anwar Mansoor Khan. He said the application was filed three-months earlier and the court had already decided it as well.
He further submitted that Article 265 © of CrPC as referred to by the defense counsel was not applicable in this case adding that Article 265 © of CrPC and section 5 of Special Court (Amendment) Act 1976 are different.
“Just throw the CrPC,” Sheikh contended. “Is it your argument that Sections 5 and 6 of the Special Court Act 1976 oust the application of Section 265 ©”, Justice Faisal Arab asked Akram Sheikh.
Yes, Sheikh replied.
He contended that under Section 5 of the Special Court Act, the federal government was obligated to provide only three documents which included details of the crime, complaint and list of witnesses.
He further said that as the special court was not a high court, it could not apply Section 561 of the military law to this case.
Akram Sheikh contended that the government was not obligated to present the joint investigation report (JIT) and the officer who gave the dissenting note was also a witness.
Akram Sheikh submitted that he would submit his reply overnight in the application and the learned defense counsel could cross-examine him then. Sheikh said that he will continue his arguments today (Wednesday).
During the hearing Akram Sheikh asked Farogh Naseem to give him his email address for sending his reply.When Farogh Naseem told Sheikh to send it to Chaudhry Faisal Hussain, his team member, Sheikh in a light tone replied that he was scared of Chaudhry Faisal.In response, Farogh Naseem told Sheikh that he could give him the email address of Rana Ejaz.
Meanwhile, the Special Court ruled that the decision on appointment of prosecutor in the instant case challenged by the defense counsel would be announced on April 18.Dr. Farogh Naseem pointed out that orders on an application pertaining to the disqualification of Akram Shaikh as prosecutor had been reserved for March 26, 2014 and the court observe Shaukat Aziz that before the evidence was to be recorded the application in respect of the prosecutor would be decided.
Justice Faisal Arab however observed that orders on the matter of appointment of prosecutor would be announced on Friday, April 18.The court adjourned the hearing till today (Wednesday).
