The Musharraf verdict

In a strongly worded rare judgment, the special court president chief justice Peshawar High Court (PHC) Justice Waqar Ahmed Seth announced capital punishment for ex military ruler.


He also ordered dragging his corpse to the D-Chowk (in front of the parliament) if found dead and leave there for three days, but it turned to be minority view as the second and third judge did not agree on this. The second judge Justice Shahid Karim of Lahore High Court (LHC) concurred with the death sentence awarded by Justice Seth but did not agree on dragging the corpse.

Besides, the court observed that the government may initiate high treason proceedings against the then corps commanders committee and those who abetted the imposition of emergency and lamented that “unfortunately the cronies of the accused has been left free till date.”

The third judge Justice Nazar Akbar of Sindh High Court (SHC) opposed the majority verdict at all on the grounds that there was no constitutional definition for high treason and hence no case of high treason makes out.

The majority of three judge court ordered that “the convict be therefore hanged by his neck till he dies on each count as per charge.” According to the charge sheet, Gen Musharraf was indicted on five charge, for imposition of emergency of Nov 3, issuing unlawful Provisional Constitutional Order, Oath to the Office (Judges) Order 2007, Order 5 of 2007 for Constitutional (Amendment) Order 2007, Order 6 of 2007 Constitutional (Second Amendment) Order 2007. In the concluding paragraphs, the verdict said, “we are of the considered view that the accused in this high treason case has been afforded more than his due share of fair trial. The protected trial of a constitutional and not any ordinary offence that began six years ago in 2013, has yet to see its end in 2019. The accused who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his utter contempt for the law and legal institution in this country.”

The majority judges are of the view that “the trial of the high treason is the requirement of the constitution against those individuals who undermine or attempt of undermine the constitution by any means.” While discussing the successive military take over since 1958 and its subsequent validation by the superior judiciary, the special court observed, “the infamous ‘Doctrine of necessity’ was introduced by the hon’ble apex court of the country in the case of MoulviTameezuddin Khan, which was nourished in the Dosso’s case. In the case of Syed Zafar Ali Shah, this doctrine attained maturity but finally the hon’ble apex court in Syed YousafRazaGillani case, buried their self-endorsed doctrine of necessity, probably forever.”

The verdict said that then chief of army staff, General Pervez Musharraf accused once more, put the constitution in abeyance and the whole Pakistan was brought under the control of armed forces…resultantly as many as 61 judges of superior judiciary including the chief justice of Pakistan and chief justices of three provinces were made dysfunctional. It said, “it is unbelievable and unimaginable that such an extreme act is committed alone by single man in uniform. The then corps commanders committee in addition to all other uniformed officers who were guarding him each and every time, with boots on, are equally and fully involved in the act and deeds of the accused person…the federal government/ complainant is not absolved of not investigating these officers and filing a complaint against them, which they can do at time. If for a moment it is presumed that military high command including corps commanders were not involved then why they failed to defend and protect the constitution.”


It reminded that “each and every member of the armed forces, as per their oath under the 3rd Schedule to the constitution in pursuance to Article 244 is bound to bear true faith and allegiance to Pakistan and uphold the constitution which embodies the will of the people. They have also sworn not to engage themselves in any political activities whatsoever.

A dissenting note

Justice Nazar Akbar – a member of the three-judge special court

who dissented with the majority judgment in the treason trial observed that former President Pervez Musharraf with the help of the then Prime MinistrShoukat Aziz and the cabinet took advantage of the weak and opportunist elements in the lawyers as well as the judiciary.

This weakness encouraged the accused (Musharraf) to attempt and manage the affairs in the judiciary to extend his stay in the political office of the President of Pakistan, the dissenting note said in which Justice Akbar held that the prosecution failed to make out a case of high treason against the accused Gen (retd) Musharraf. Justice Akbar observed that all the actions of Nov 3, 2007, when the emergency was proclaimed, were political actions of the civil government headed by the president as ceremonial head who alone was both the civilian and military commander in chief of the armed forces. Shoukat Aziz as the chief executive and the executive authority had the support of other pillars of the State namely the parliament, the judgment noted. Thus the story of prosecution and the evidence cannot be considered trustworthy for inflicting capital punishment on the accused, Justice Akbar observed.

The acts of Nov 3 may be illegal, malafide and unconstitutional and even if entails any penal liability, the same in view of quality of inquiry and evidence cannot be considered offence of high treason.

Admittedly the word “high treason” has not been defined in the constitution or any other relevant laws, Justice Akbar said and then compared the meaning of high treason by the definitions in the Article 6 as well as the commentary on the constitution by Justice Muhammad Munir. One cannot conclude that the emergency of Nov 3 was subversion or abrogation of the constitution, Justice Akbar said adding neither the constitution was replaced by any framework order nor had even the basic structure of the constitution changed.

Moreover the Proclamation of Emergency and the Provisional Constitution Order (PCO) of Nov 3 had not adversely affected the political rights in the Parliament and in running the federal and the provincial governments. Therefore one can safely say that the parliament by first keeping silence and then amending Article 6 of the constitution through constitution 18th amendment has betrayed the judiciary – the only target of Nov 3. There was not a single formal protest in the National Assembly or in any provincial assembly from the government benches or opposition parties on the legitimacy of the proclamation of emergency by the accused, the judgment said.

Not a single member of the parliament has raised any voice in the parliament, rather to the contrary, evidence has come on the record that the National Assembly through a resolution in its 44th Session on Nov 7, 2007 had endorsed the proclamation of emergency.

It is indeed very pertinent to note that many of the parliamentarians who were lawyers and were participating in the lawyer’s movement, displayed no courage to make any motion in the parliament, the judgment said. And through the 18th amendment, by amending Article 6, the parliament has not only endorsed the resolution of earlier National Assembly of Nov 7, but it had also given its verdict that the acts of Musharraf of Nov 3 were not the acts of high treason as such acts were not included in the definition of the high treason in the constitution prior to April 20, 2010. The chosen representation of the people by suspending or holding in abeyance Article 63(1)(d) of the constitution had only one purpose before them that they wanted to declare that the people of Pakistan want to decorate the office of the president with a serving General in violation of constitutional embargo on the person “holding an office of profit” to even become member of the parliament.

They knew that as a result of suspending Article 63(1)(d), even basic structure of the constitution could be changed and yet they did it, out of their personal needs to retain their seats in the parliament, the judgment said. Many of the parliamentarians on the date of passing 18th amendment were the same who were in the parliament on the date of passing of 17th amendment when the act of abrogation and subversion of constitution through the Legal Framework Order was affirmed and acts of Musharraf were not treated as high treason as if Article 6 was missing from the constitution at the relevant time. In fact the parliament by amending the definition of high treason has clearly approved and understood the definition of the high treason explained by Justice Muhammad Munir in his commentary, he said.

Thus the parliament by amending Article 6 has left no room for this court to charge the accused for an offence of high treason on account of his act of suspending and holding in abeyance certain provisions of the constitution by the proclamation of emergency and PCO.

The dissenting note noted that former Chief Justice Abdul Hameed Dogar despite the installation of the new government on March 25, 2008 completed his tenure till age of attaining superannuation on March 21, 2009.

Moreover it is an open secret that Barrister Aitzaz Ahsan who was spearheading the lawyers movement received a phone call informing that the judiciary will be restored before the next morning.

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