- SC says special court does not have jurisdiction to associate any individual with the high treason probe
The Supreme Court accepted on Friday Justice (r) Abdul Hameed Dogar’s appeal to exclude him from the investigation into the treason case against former president Pervez Musharraf.
Justice (r) Dogar had challenged the Dec 12, 2015, order of the Islamabad High Court (IHC) which upheld the Nov 27, 2015, order of the three-man special court hearing a treason case against former president Pervez Musharraf which had ordered the investigation team concerned to re-investigate the treason case by ‘interrogating’ Musharraf, former prime minister Shaukat Aziz, former minister Zahid Hamid and former chief justice of Pakistan Abdul Hameed Dogar as well as people who could be presumed to be associated with the commission of the alleged crime.
In accepting Dogar’s plea, the Supreme Court has annulled a special court’s decision to include the names of the former prime minister Shaukat Aziz, former chief justice and federal minister Zahid Hamid in the trial against Musharraf and a subsequent Islamabad High Court order which rejected Dogar’s plea to not implicate him in the probe.
The special court does not have the jurisdiction to associate any individual with the high treason probe, the court ruled.
“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,” Justice Asif Saeed Khosa, who announced the verdict, said in the judgement.
Dogar had contended in his application that the special court had no jurisdiction to add the appellant as a co-accused in the trial of the relevant criminal case instituted by the federal government or to direct that the appellant was to be associated with any fresh investigation of the said case to be conducted by an investigating agency.
The genesis of Justice Dogar’s appeal was in fact the Nov 27, 2015 direction by the three-man special court hearing the treason trial against Musharraf that had ordered the investigation team to re-investigate the case by ‘interrogating’ the former dictator, ex-prime minister Shaukat Aziz, Zahid Hamid and Dogar as well as persons who could be presumed to be associated with the commission of the alleged crime.
Being aggrieved of the special court’s order, Dogar through his counsel Iftikhar Gillani instituted a challenge before the IHC with a plea that by passing directions to investigate him, the special court had assumed a suo motu jurisdiction which had not been conferred upon it, adding that the special court through its Nov 27 order had treated him on a par with the principal accused (Musharraf) in utter violation of the law and beyond the jurisdiction of the special court.
The high court, however, rejected the plea on Dec 12.
In his appeal before the Supreme Court, Dogar contended that he being the former chief justice as well as a judge of the apex court had never been held responsible for high treason in the July 31, 2009, judgment in which the Nov 3, 2007 emergency was declared unconstitutional.
Likewise, the apex court did not issue any adverse strictures while deciding a contempt case against him rather he was exonerated from the charges in the Nov 3 emergency case.
The petitioner recalled that after the lifting of the emergency and the restoration of the constitution on Dec 15, 2007, all judges of the apex court who had taken oath under the PCO (provisional constitutional order) took fresh oath under the constitution.
Dogar said that he continued to function during the emergency period from Nov 3 to Dec 15, 2007, till the time he retired on March 22, 2009.
There is no evidence on record to connect him with the alleged crime of imposing emergency, he said, adding that under the principle of ‘trichotomy of power’, as enshrined in the constitution, he as the former chief justice had nothing to do with the functioning of the executive.