The Registrar's Office of Islamabad High Court (IHC) had raised objections on a writ petition that the court could not hear any petition filed against special court's proceedings and a proper appellate forum for such a petition was the Supreme Court. However, the petition was accepted for hearing along with the registrar's office objections before a single-member bench of Justice Athar Minallah on Monday.
The former federal minister through his counsel Khawaja Haris Ahmed under article 199 of the constitution of the Islamic Republic of Pakistan, 1973 filed the petition and made the Federal Government through the Secretary Ministry of Interior, General Pervez Musharraf (Retd) and the Special Court respondents in the matter. Hamid prayed before the court to declare that a special court judgement passed on November 21 was illegal without any lawful authority, and of no legal effect.
He added under the provisions of Section 5 of the Criminal Law Amendment (Special Courts) Act, 1976 (hereinafter referred to as Act XVI of 1976), it is the prerogative of the Federal Government to specify not only the precise case to be tried by the Special Court, but also the names of the accused to be tried, and also the precise charge/charges under which the accused is/are to face trial.
He maintained that the special court by passing the verdict, appropriated this power to itself and, as such, the Order dated 21.11.2014 is repugnant to the provisions of Act XVI of 1976 and, therefore, in excess of jurisdiction and of no legal effect. Therefore the Impugned Order is repugnant to and in utter derogation of the Criminal Law Amendment (Special Court) Act, 1976, he stated.
The petitioner further stated that the special court was constituted specifically to conduct trial of Musharraf on the formal charges forwarded by the Federal Government under Section 5 of Act XVI of 1976, so that the special could not traverse beyond the ambit of the said charges or the statement of the case as set up by Federal Government in the Complaint.
He contended that the impugned order has been passed in breach of section 13 of the Criminal Law Amendment (Special Court) Act, 1976. He added that the special court order is additionally violative of the Petitioner's Fundamental Rights inter-alia under Article 10-A of the Constitution, it tantamount to forcing the Petitioner to be put on trial without any investigation conducted to ascertain whether any incriminating evidence existed against him, and without providing him an opportunity to submit his defence during the course of an investigation.
Hamid further contended that the findings recorded and a direction given by the special court vide the Impugned Order , are based on gross misreading and non-reading of essential evidence, and by placing reliance on oral testimonies and contents of documents which are inadmissible in evidence, and as such, the Impugned Order is manifestly illegal and without jurisdiction.
He said that there is no evidence on record that the Petitioner has facilitated any act of Pervez Musharraf within the terms of explanation to section 107 of the PPC. It is pertinent to mention that former president High Court Bar Association Rawalpindi, Taufiq Asif, has already challenged the verdict of the special court in the IHC and the case was sub judice before the same bench. Justice Athar Minallah asked Attorney General for Pakistan Salman Aslam Butt to inform the bench whether or not the petition is maintainable. The court remarked that the special court has a status similar to that of the high court; therefore, its decision can't be challenged.