The answer we seek is, did Special Court defy clause 14 of International Covenant on Civil and Political Rights which provides for the due process of law including ‘Fair Trial’ and Article 10-A of Constitution ‘Right to Fair Trial’ where trial in absentia is discouraged, giving the accused safeguards against being tried behind their backs? The safeguards include: Firstly, the accused person must be informed of the proceedings against him but he refuses to attend the court. Secondly, summon (proclamation) is issued to notify him of court proceedings. Thirdly, the right to appear through a pleader must be observed. And whether in an incident that took place in 2007, Article 6 ‘High Treason’ added after Constitution (18th amendment) Act, 2010 can be retrospectively applied in violation of article 12 ‘Protection against retrospective punishment’ of the Constitution?
The Judiciary made clause 9 of Special Court Act, 1976, basis of his conviction, which says trial shall be proceeded with and not be adjourned or delayed by reason of absence of any accused person due to illness or if behavior of the accused is such as to impede the course of justice, all the safeguards being provided, maximum flexibility of law shown in shape of summons, representation through pleader, commission to record statement through video link, even though he was declared a proclaimed offender, all of which proved counterproductive.
Paragraph No. 66 of the judgment of special court, as authored by Chief Justice Peshawar High Court regarding dragging the corpse of a dead traitor and public hanging thereafter for three days is no doubt disgusting; Whereas, the words used by Chief Justice Waqar Ahmad Seth, currently subject to harsh criticism of public both for and against the conviction, seem to be used to depict the gravity of the offense committed by the Former President and Military chief, which, however, should be subject to judicial review.
Government is set to file an appeal in the Apex Court, but how fruitless would it be if appeal against conviction is filed by the complainant itself, who is prima facie incompetent to file it and should be in favor of shielding and uplifting the constitution; Heard by a court who has already declared him an absconder and struck off his right to counsel because he did not surrender before the court of law, in light of which the trial was continued in absentia.
As per the law laid down by the Supreme Court of Pakistan and the general practice of High Courts of all provinces and in absence of provisions for appeal in absentia. An appeal can only be filed by a person aggrieved of conviction in absentia if he surrenders before the process of law, which is unlikely to happen in the present case.
Death Sentence being the extreme sentence especially in this case when the judiciary has an axe to grind against General Rtr. Musharaf because of their dismissal and supposed humiliation at his hands and the Government being incompetent to move the court, can only take resort in Article 45 of the constitution which says ‘President’s power to grant pardon, etc., which will be extremely fair in this case for pardon or commuting former generals sentence to life imprisonment.
Otherwise, appeal to the Supreme Court of Pakistan is the only remedy available to General Rtr. Pervez Musharaf by surrendering, which will be like sleeping in a deathbed full of roses.
Will the retired military chief convicted of high treason return to Pakistan to fight against the stigma attached to his name or die a legal death and be buried in history for conspiracy, and suspension of the constitution of Pakistan along with judicial medal and title of a Traitor?
By: Nouman Muhib Kakakhel, Advocate
Originally Published in Daily Times
