'Subversion Of Constitution Is High Treason' : Pak Court In Death Sentence Against Musharaff [Read Judgment]

The Special Court of Islamabad on Tuesday convicted former Army General and former President of Pakistan, Pervez Musharraf for committing "High Treason" and sentenced him to death. The decision against Musharraf was passed in 2:1 majority, for imposing "extra-constitutional" emergency in Pakistan, in November, 2007. While the 2007 emergency was imposed citing feeble judiciary and high threat from militant attacks, the timing of the emergency quite conveniently coincided with the time when Musharraf's government was facing widespread public opposition. During emergency, all high court and Supreme Court judges of Pakistan were asked to take oath under the 'Provisional Constitutional Order', and those who didn't were placed under house arrest. On 31 July 2009, the Pakistan Supreme Court decided the declaration of emergency rule by Musharraf to be unconstitutional under Article 279 of the Constitution of Pakistan. It also declared the steps taken in declaring the state of emergency to be null and void, and specifically stated that the removal of judges was unconstitutional and illegal. Subsequently, in December 2013, Musharraf was booked for High Treason under Article 6 of the Constitution of Pakistan, 1973. Article 6 states "Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason." Considerably, Article 6 was inserted in the Pakistan Constitution in 2010, by way of 18th Amendment. Further, it is punishable with life imprisonment or death under Section 2 of High Treason (Punishment) Act, 1973. The Investigation team, constituted by Federal Investigation Agency, found that a case is made out against Musharraf. While the trial commenced in March, 2014, the matter was kept long pending due to litigation at appellate forums, lending Musharraf time to flee to Dubai. Order of Conviction The majority judgment authored by Peshawar High Court Chief Justice Waqar Ahmad Seth and agreed with by Justice Shahid Karim of the Lahore High Court held Musharraf guilty of the offence. It said that the court had the jurisdiction to pass a verdict even in the absence of the accused. Reliance was placed on a ruling of the Pakistan Supreme Court in Lahore High Court Bar Association v. Genral (R) Pervez Musharraf (2019 SCMR 1029), to hold, "It is patent by the act and conduct of the accused facing trial, that he has persistently and stubbornly strived ever since the commencement of this trial, to delay, retract and in fact evade it…the ordinary sessions trial would halt on willful absence of the accused; as a judgment cannot be pronounced in absence if accused u/s 366(2) CrPC, yet s.9 of the [High Treason (Punishment)] Act is couched in such words as to lead to the conclusion that the legislature had visualized present scenario where the accused is evading the due process of law by willfully absenting himself. Such being the case, the command of s.9 of the Act is to continue the trial and reach it to its logical ending." On the question whether Musharraf had subverted the constitution and had committed the offence of High Treason, the judges held, "These matters have already been decided by the Supreme Court and even the review against this verdict has also been decided against the accused by a unanimous verdict of 14 to nil…the accused alone has been held responsible for the crime cited in the charge." It is noteworthy that the Pakistan Constitution does not define the words "high treason" and the majority judgment was rendered on the basis of the dictionary meaning of the words, as entailed in the Oxford Dictionary. The court went on to consider whether there were justifiable circumstances in favour of the accused leading to legitimization of the act of high treason. Concluding in the negative, the court said, "The act of high treason is an unpardonable act, not even condonable by the top most Courts of the Country and Article 6 is the only safeguard within the constitution that deal with an offender who challenges or attempts to challenge the boundary of the social contract between citizens and the State. The trial of the High Treason is the requirement of the constitution against all those individuals who undermines or attempts to undermine the constitution by any means." Sentencing On the question of sentencing, the judges held that Musharraf should be apprehended from Dubai and must be hanged by his neck till he dies on each count as per charge. The bench however went on to hold that in case he is found to be dead before being apprehended, his body must be hanged in Islamabad for public display, for 3 days. "We direct the Law Enforcement Agencies to strive their level best to apprehend the...

'Subversion Of Constitution Is High Treason' : Pak Court In Death Sentence Against Musharaff [Read Judgment]

Akshita Saxena

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