ISLAMABAD - The Supreme Court on Wednesday questioned how Special Court could suspend or stay off high treason trial, under Article 6 of Constitution.

Justice Asif Saeed Khan Khosa said: “When there is no provision in Criminal Law Amendment (Special Courts) Act, 1976 and Code of Criminal Procedure then how trial was suspended or stayed off.” “It is hard and we failed to understand this,” he added. Dr Farough Naseem, representing Pervez Musharraf, said under section 6 (1)(g) of CLA Act 1976 if after reinvestigation it was found that there were other accused then the court had to conduct the trial afresh. In view of that the case was suspended, he said.

However, Justice Khosa remarked on mere hypothesis and investigation result the criminal trial couldn’t be delayed for years. He said Special Court , which had nothing else to do should not wait for the investigation rather it should proceed with the trial. Justice Khosa was heading a three-judge bench that heard Justice (retd) Abdul Hameed Dogar’s appeal against the Special Court order 27-11-2015. After hearing the counsels of all parties, the bench reserved the judgment, which is expected to be announced on Friday.

Justice Khosa said: “Whatever General (retd) Pervez Musharraf has done with the judges but they would do justice in accordance with the constitution and law.”

Attorney General for Pakistan Salman Butt again told the court; “It is the sole prerogative of the federation to file a complaint [in high treason case], modify it or add others as abettor, aider or facilitator.” “It is the federal government that under the Criminal Law Amendment (Special Courts) Act, 1976 send the case to any investigative agency for investigation or re-investigation.

The AGP said there should be no bar on the investigation ordered by the federation, adding under the law the court could not direct the agency for investigation as it is the sole prerogative of the federation.

Barrister Farogh Naseem requested the court not to pass any adverse observation as it would prejudice the case, pending before the trial court. He asked the court to direct the investigative agency to complete the investigation in four months. However, Iftikhar Gilani, representing the former chief justice, opposed this and said the court cannot give direction regarding investigation. Justice Khosa said they are very careful, therefore, they would not say anything on their own that may prejudice the case, but what about the judgments twice passed by the 14-member bench of Supreme Court that Musharraf was solely responsible for the 3rd November 2007 emergency, adding those judgments have attained finality. He said when it was held by the superior courts then why it was required to include others as abettor and collaborator. The judge said for a long time he had been hearing criminal cases but never an accused had pleaded to include others. He said it was the first time that the accused is asking the trial court to include others in the high treason case.

Justice Khosa questioned on what basis the Special Court had passed the order dated 27-11-15 nominating former Prime Minister Shaukat Aziz, the then chief justice Hameed Dogar and ex-Law Minister Zahid Hamid, when the Islamabad High Court dismissed its order 21-11-14 regarding the same matter. Justice Tariq Pervaiz asked whether any application was filed before the Special Court for nomination of others as accused.

Farough Naseem replied that the 27-11-15 order was passed on the basis of IHC judgment, adding the high court order was the consensus order as all the parties agreed that there should be investigation at large. The counsel told that PM Shaukat Aziz before 3rd November 2007 wrote a letter to General (retd) Musharraf urging him to impose emergency and in that regard he had moved a summary which had been wiped out. Justice Khosa remarked whether that letter was got written earlier or after the emergency, adding as no one knows, therefore, we should talk about it.

Farough Naseem argued that Justice (Dogar) is responsible for the ouster of other judges of superior courts. He said the petitioner has not come to this court with clean hands. The bench and Dr Farough also exchanged some off-the-record remarks regarding Justice Hameed Dogar and General Musharraf.