ISLAMABAD   -  The Special Court on Thursday accepted former president General (Retd) Pervez Musharaf’s plea to adjourn the case until after Ramazan after he expressed inability to appear citing his medical condition and the circumstances ‘simply beyond his control’.

A three-judge bench of Special Court presided over by Justice Tahira Safdar took up the case of High Treason case against Musharraf for hearing. Musharraf was summoned to record his statement under Section 342 of CrPC.

A Supreme Court’s three-judge bench headed by Chief Justice Asif Saeed Khan Khosa on April 1 had directed the Special Court to proceed with the trial on the next date of hearing (May 2) and further ruled, “but if he failed to appear, being a Proclaimed Offender, the special court is empowered to proceed against him even in his absence under Section 9 of the High Treason (Punishment) Act, 1973.”

As well, the Special Court has also issued notice to the federal government over Musharraf’s plea seeking acquittal.

During the course of hearing before the Special Court , Barrister Salman Safdar representing Musharraf filed application along with medical report and stated that Musharraf’s absence is not deliberate, wilful or an excuse to avoid the ongoing Criminal Proceedings and his health condition is serious, alarming and life threatening.

Taking into account Musharraf’s advanced age 76, his medical complications and precarious condition, the counsel pleaded for an opportunity and reasonable time to appear physically before the Court for his examination under section 342 CrPC.

According to latest assessment dated 29 April, 2019 undertaken by Dr Faraz Khan at Dubai, Musharraf’s condition has been termed as ”unsafe” with very high risk for his health and well being in case he discontinues treatment and travels. The counsel submitted that permission to undertake exertion and travel has plainly been refused by Musharraf’s medical consultant.

Prosecutor Naseer Ud Din Nayyar opposed the adjournment application and submitted that the accused has no legal rights after he failed to appear adding that the Supreme Court has laid down the procedure as to how to proceed the case.

However, Justice Shahid Karim, member of the bench, asked the prosecutor to point out in Supreme Court’s order where it is mentioned that Special Court cannot adjourn the case. However, the prosecutor could not point out any such ruling in the Supreme Court’s order. The Special Court after accepting the adjournment application heard the preliminary arguments of Barrister Safdar on acquittal application.

He argued for acquittal on the grounds that the Federal Government failed to follow the mandatory procedure for filing a complaint for the offence of High Treason. He raised question on the jurisdiction of Special Court and also contended that even otherwise, the case against Musharraf is one of no evidence.

Barrister Safdar contended that following a careful examination of the record, it has come to light that the procedure governing the manner in which the Complaint of High Treason was to be instituted against Musharraf was not complied with.

“The mandatory provisions of Section 5(1) of the Special Courts Act, 1976 read with Section 3 of the High Treason Act, 1973 were blatantly violated,” he argued.

The Federal Government, by failing to follow the mandated procedure laid down in Section 5(1) of the Special Courts Act, 1976 read with Section 3 of the High Treason Act, 1973, lodged the Complaint against the Applicant in an unlawful manner. Therefore, he said, the Complaint against the Applicant is void ab initio.

He maintained that the law clearly prescribes through Section 5(1), Special Courts Act, 1976 that this Court shall only commence proceedings once a complaint of High Treason is competently filed by the Federal Government adding that the Supreme Court in the case of Mustafa Impex held that the Federal Government consisted of the Prime Minister and the Federal Ministers and the term Federal Government for all intents and purposes means the Cabinet of Federal Ministers. He argued that the Complaint could only have been competently filed against the Musharraf if it had been signed by the Federal Cabinet.

“However, the Federal Cabinet neither forwarded the Complaint to this Honourable Court, nor authorised any person to file the Complaint. Quite contrarily, it appears that the Prime Minister, acting on his own, unilaterally authorised the Complaint without any consultation or discussion with the Federal Ministers,” he said. Given that the complaint has been filed in an unlawful manner, Barrister Safdar further contended, this court was not vested with the jurisdiction to take cognizance of the complaint.

“In the absence of jurisdiction, the entire superstructure upon which the case against the Applicant rests breaks down. Moreover, as the issue of jurisdiction goes to the very heart of the case against the Applicant, it would be against the mandate of justice and fairness to proceed with the Applicant’s case without the question of jurisdiction first being resolved,” he said. 

The Special Court while issuing notice to federal government on the instant application of acquittal adjourned the hearing of the case for June 12.