ISLAMABAD - The Supreme Court yesterday set aside court orders to associate former prime minister, law minister and de-facto chief justice as suspects in the high treason case against former General-President Pervez Musharraf and ordered for fresh investigation.

A Special Court on 21-11-14 had nominated former PM Shaukat Aziz , law minister Zahid Hamid and the then chief justice Abdul Hameed Dogar accused in the high treason case.

The Islamabad High Court (IHC) set aside that order on 10-11-15 but the Special Court reintroduced their names in the treason trial. Justice (r) Dogar feeling aggrieved by the order challenged it in the IHC but the high court this time upheld the Special Court decision on 9-12-15.

Abdul Hameed Dogar latter filed an appeal with the Supreme Court to get his name excluded from the case. A three-member bench after hearing the arguments of all the parties had reserved the judgment on February 24, 2016.

The 14-page judgment authored by Justice Asif Saeed Khan Khosa said: “A fresh investigation into the said offence by associating any person with the same lies within the prerogative of the federal government but the Special Court or the Islamabad High Court, Islamabad could not name any individual to be associated with any such investigation.”

The court avoided to give any observation as that may prejudice the high treason trial but reproduced the portions of the judgments of the Supreme Court and Sindh High Court saying “Musharraf is solely responsible for imposing emergency in the country on 3rd November 2007.”

Musharraf counsel, Faisal Hussain Chaudhry, expressed reservation over the judgment and said after going through it in detail he would file a review petition to the extent of top court observation that Musharraf is lone responsible for November 3 action.

“Any observation/direction towards a pending trial amounts to judicial interference, which is not warranted under the law,” he said, adding that the observation about Musharraf’s being lone responsible was not before the apex court.

The judgment said there is no provision in the Criminal Law Amendment (Special Court) Act, 1976 that requires the Special Court to await the result of any fresh investigation or to postpone the trial of an accused person till an amended or additional statement of the case or list of accused persons or the charge is submitted by the federal government after such fresh investigation.

It said: “The Special Court is, therefore, expected to proceed with the trial of respondent No. 2 [Musharraf] with all convenient dispatch and without any unnecessary delay.”

Since the elevation of Justice Faisal Arab, who was president of Special Court, as judge of Supreme Court , the government has so far not appointed any other judge in his place. Peshawar High Court Chief Justice Mazhar Alam Miankhel’s name has been recommended for the judge of Special Court but it is not notified yet.

Justice Faisal Arab along with other two judges of Special Court, Justice Tahira Safdar and Justice Yawar Ali, had passed 27-11-2015 impugn order, which the apex court set aside yesterday.

The court observed: “Conducting investigation into the matter was surely a prerogative of the federal government and the Special Court had no jurisdiction to direct the investigating agency to associate the appellant [Justice Dogar] or any other particular person with such investigation.”

It said Section 5 of the Criminal Law Amendment (Special Court) Act, 1976 contemplates commencement of the proceedings of the Special Court through forwarding of a complaint in writing to it by the Federal Government against particular accused person or persons.

According to section 202 of the Code of Criminal Procedure, 1898, which is applicable to a Special Court under section 6(1) 2(a) of the Criminal Law Amendment (Special Court) Act, 1976 the Special Court on receipt of a complaint it is authorised to take cognizance may postpone the issue of process for compelling the attendance of the person or persons complained against and either inquire into the case itself or direct an inquiry or investigation to be made “for the purpose of ascertaining the truth or falsehood of the complaint”.

The judgment said the court may or may not direct an inquiry or investigation, but if it does so then its direction can only be for ascertainment of truth or falsehood of allegations levelled in the complaint against the person or persons.

However, the court can’t order for the inquiry or investigation against a person or persons who are not formally named in the complaint. The court could order for inquiry or investigation before issuance of process against the person charged in the complaint and not at a stage where the trial of that person is nearing its conclusion.