The special court trying former President General (retd) Pervez Musharraf for high treason on Friday dismissed an application filed by the defence relating to the bias of the judges, the constitution of the court and appointment of judges. A delighted prosecution said that the trial could now proceed and Mr. Musharraf would have to appear in court for indictment on March 11 as summoned.
Justice Faisal Arab who is heading the three judge bench, said in the order that the court found no merit in the application while dismissing it. The defence had contended that the Proclamation of Emergency issued on November 3, 2007, was not an act by Mr. Musharraf alone and it was the outcome of a consultative process. Mr. Musharraf was singled out to face the case leaving the remaining persons who were with him during a consultative process to declare an emergency and so the case was tainted with malice, it was submitted. Setting this aside, the order said that the involvement of any other person would depend on the evidence which would come on the record in the course of the trial.
This criminal miscellaneous application filed on behalf of Mr. Musharraf when the trial began on December 24, 2013, said that the action taken against him was prompted by Prime Minister Muhammed Nawaz Sharif and former chief justice of Pakistan Iftikhar Chaudhary who were inimical to him and so it was illegal and void. Defence lawyer Anwar Mansoor had submitted that the Constitution provided for a collective decision to file charges of high treason but in this case it was the sole decision of Mr. Sharif, which was in violation of law. The judges were appointed in consultation with the chief justice when there was no requirement legally, and the members of the court were biased and they may under compulsion decide the case against Musharraf and therefore they may recuse themselves from the case, he argued.
Special public prosecutor Akram Sheikh had stated that in this case the approval of the cabinet or the Prime Minister was not needed to initiate the process and the investigation and prosecution lies within the domain of the Interior division whose secretary had filed the formal complaint in the special court. He was authorized by law to do so, Mr. Sheikh had said brushing aside the contentions of illegality. The order upheld the constitution of the court and said the names of the judges were in fact nominated by the respective chief justices of the high courts concerned and not by the chief justice of Pakistan.
The defence had also contended that the bench was biased due to certain factors. For instance Justice Arab did not take oath under the Provisional Constitutional Order (PCO) of 2007 (promulgated by Musharraf) as he considered it to be violative of the Constitution.
Justice Arab cannot remain impartial to the case where one of the charges is the issuing of the PCO, the defence said and he had also dismissed Musharraf's appeal disqualifying him from contesting the general elections last year. The order said the plea of a judge's bias on the basis of his decision in a case previously heard and decided before a different forum was not sustainable. The order also dismissed allegations of bias against another judge Yawar Ali. No animosity is attributed to any of the members of the court against the accused, rather only an apprehension of bias is alleged on certain grounds which in fact do not attract any rule of disqualification, the order ruled. The defence had earlier withdrawn the charge of bias against Justice Syeda Tahira Safdar.