ISLAMABAD - The Supreme Court has said that former dictator General (r) Pervez Musharraf cannot be prosecuted unless the federation lodge a complaint against him for subverting the Constitution.

A three-member Supreme Court bench headed by Justice Jawwad S Khawaja on Tuesday heard six identical petitions against the former dictator and declared that it was the jurisdiction of the federation to lodge complaint and constitute a special court to try him for subverting and abrogating the Constitution.

Justice Ejaz Afzal said that a mechanism was given in the High Treason (Punishment) Act 1973 for proceeding against a person who abrogated and subverted the constitution. A special court constituted by the Law Ministry has to determine whether Musharraf was guilty of high treason or not, he added. He said that the petitioner did not pray that the direction be issued to federation to prosecute Pervez Musharraf.

Counsel for petitioner AK Dogar pleaded that in the light of the Sindh High Court Bar Association judgment Musharraf had been declared usurper and abrogator of the Constitution therefore it was not needed to determine whether he abrogated and subverted the Constitution.

Referring to the famous case of Marbury vs Madison, he said in that case one of the questions was whether the constitution applies or the law; but the US Supreme Court had declared that constitution applies.

Dogar said that the court had disqualified Yousaf Raza Gillani as member of the Parliament on the basis 45-second sentence. Justice Khilji said the present case was different from that one as Pervez Musharraf had not been convicted for high treason yet. “Neither Musharraf has been convicted nor charges framed against him therefore he could not be declared guilty of committing high treason.”

The learned counsel argued that it was written in the proclamation of November 3, 2007 emergency that Pervez Musharraf acted as the chief of the army staff. Justice Jawwad S Khawaja said the COAS is the subordinate officer of the defence secretary and if he had felt wrong then he should have reported to the defence secretary. Justice Jawwad questioned whether there was any proof that other persons assisted Pervez Musharraf in the act. Dogar replied there was no evidence in this regard.

Justice Ejaz said under section 3 of the High Treason Act, the interior secretary is authorized to lodge complaint against Musharraf and the Law Ministry to constitute the special court. AK Dogar contended that section 3 of the High Treason Act was in direct conflict with the Constitution.Concluding his argument, Dogar said that rumours were circulating that Musharraf wanted to go out of the country.

However, Ahmed Raza Kasuri, counsel for former dictator General (r) Pervez Musharraf, said that his client had no intention to leave the country. He said the interim government had refused to prosecute Pervez Musharraf and ‘now let the elected government take this burden.’The court adjourned the hearing until January 3.