The special court trying former President and General (retd) Pervez Musharraf for high treason on Friday dismissed an application seeking transfer of the complaint to a court martial under the Pakistan Army Act.
Justice Faisal Arab asked Mr. Musharraf to be present in court on March 11 in the light of the previous order that once the question of jurisdiction was decided, the accused can be summoned for indictment.
The defence had contended that in the Pakistan Army (Amendment) act of 1977, the offences punishable under the High Treason (Punishment) Act, 1973, were included in the ambit of the Army Act. However, the court in its order passed on Friday, said that the Pakistan Army (Amendment) act of 1977 stand repealed by virtue of the Federal Law (revision and declaration) Ordinance, with effect from July 1981 and the accused on his retirement in 2007, is no more subject to the Army Act. Under section 2 (2) of the Army Act, a person who had retired would be subject to the act if his trial for any offence that he committed while in service, had begun within six months of ceasing to be in service, which is not the case here.
Importantly, the order said that offences under the High Treason (Punishment) Act, 1973 are exclusively triable by the special court established under the Criminal Law Amendment (Special Court) act, 1976 as one of its provisions ousts the jurisdiction of all other courts.
Even if Mr. Musharraf was still subject to the Army Act, it would have made no difference as the offences described in the High Treason (Punishment) Act, 1973 are within the exclusive jurisdiction of the special court, the order said.
One of the defence lawyers, Rana Ijaz Ahmed Khan, reacted to the order and said it's a bad decision loudly in court and accused the judge of being a "kiraye ka kaatil'(a hired killer). Justice Arab told him not to make a scene in court and file an appeal if he didn't accept the order.
The defence had filed a criminal miscellaneous application on behalf of Mr. Musharraf praying that the trial of this case be transferred to the commanding officer of the regiment to which he belonged for a court martial under the Pakistan Army act, 1952. The jurisdiction of the court was questioned on the grounds that Mr. Musharraf was charged for committing the offences at a time when he was serving in the Pakistan Army and by virtue of section 92 of the Army Act, he is to be treated as subject to the act even after his retirement. The special court found this to be without merit.
