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).
