The special court trying former President General (retd) Pervez Musharraf for high treason on Friday reserved orders on an application by the defence to include the names of abettors to the emergency declared on November 3, 2007, and have a joint trial.
The court will also pass orders on whether the report of the Federal Investigation Agency (FIA) should be handed over to the accused as demanded by defence counsel Farogh Naseem.
Wrapping up his arguments, Dr. Naseem said citing cases from all over the world that in any event, all documents were to be supplied by the prosecution. He reiterated that this was a case of selective prosecution and if an inquiry has been conducted, then other people would also be involved in the investigation. There would be documents, which are material to the case, he submitted.
He said that if there is no fair trial then there is no trial at all. He demanded an immediate decision on the application as it was fundamental to the case. He also submitted that the FIA report was not a secret document under the Official Secrets Act, to which the prosecution also agreed.
The hearing will continue on April 28 when the defence will argue two more applications.
On Thursday, Dr. Naseem had alleged that the documents relating to the imposition of emergency on November 3, 2007, were destroyed since they were not produced in court. He said that papers, which had advice from those who abetted Musharraf in the imposition of emergency for instance the Prime Minister, Shaukat Aziz and others were not presented. The prosecution had earlier said that no record was available relating to the abettors in the offence of high treason.
Dr. Naseem said the prosecution was not giving the inquiry report by the Federal Investigation agency, which was the basis of the high treason trial and without that report, the entire proceedings were a nullity. Arguing that the special court does have powers to order that the report can be given to the defence, he said there was an inquiry and a report and where in the law does it say that it can be excluded from the case. He stated that the prosecution was not coming to the court with clean hands. The same inquiry report was leaked to the press and it was being discussed on TV. He said what is not expressly prohibited is permitted, arguing that the report should be made available to the defence.
In the interests of a fair trial, then all the relevant documents have to be submitted. He said the defence would have to examine if at every stage approval was taken by the competent authority or not in preparing the report. He said due process was not followed in all this and cited case law from the US to show that withholding or suppressing information would mean overturning the trial. He said exculpating evidence cannot be kept out just because the prosecution claims it does not have the report.