THE FALSE, FAKE AND FICTITIOUS CASES AGAIANST GENERAL (R) SYED PERVAIZ MUSHARRAF WITH A POLITICAL UNDERTONE AND ITS REPURCUSSIONS BOTH WITHIN THE COUNTRY AND ABROAD.
Principles of a Judge’s Bias:
Fair trial is in an inalienable right of an accused. It is due to this reason that the Constitution of Pakistan by virtue of Article 10-A has made it a fundamental right. “Right of fair trail”, requires that accused be given opportunity to hear and decide his case by an impartial judge. Legal maxim “nemo debet esse judex in propria causa” (no man can be a judge in his own cause), provides the basis of this rule. The Courts in Pakistan invariably have held that Judges should have no bias towards their party to litigation and where a party has sufficient apprehension of bias the judge should avoid hearing the case.
The bias is considered to be of three kinds (1) A judge may have a bias in the subject matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A “legal interest” means that the judge is in such a position that a bias must be assumed. (2) The judge has pecuniary interest in the case. Pecuniary interest in the cause however slight will disqualify the judge, even though it is not proved that the decision has in fact been by reason of such interest. For this reason, where such a person having such interest sits as one of the judges, the decision is vitiated. (3) A judge may have personal bias towards the party owning to relationship or he may be personally hostile to a party as a result of events happening either before or during the trial. The superior courts have held that whenever there are allegations of personal bias, the question which should be satisfied is – “Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?” The test is whether there is a real likelihood of prejudicial, but it does not require certainty. Real Likelihood is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or capricious persons.
The facts leading to the bias:
General (R) Syed Pervez Musharraf is facing the following cases before various legal forums:
1. Prosecution of General (R) Pervez Musharraf under Article 6 of the Constitution read with Section 2 of High Treason (Punishment) Act, 1973.
2. Benazir Murder case
3. Akbar Bugti case
4. Judges Illegal Detention case
5. Disqualification of General Musharraf from four National Assembly Constituencies, namely NA 32 (Chitral), NA 48 (Islamabad), NA 139 (Kasur City) and NA 250 (Karachi).
As far as case no. 1 is concerned the following points were agitated before Supreme Court of Pakistan by Mr. Ahmad Raza Khan Qasuri, Senior Advocate Supreme Court of Pakistan (ASC), which are inter alia as under:
a) It is an inalienable right of an individual to be dealt in accordance with law as guaranteed by Article 4 of the Constitution. Any violation of this Article would adversely affect the administration of Justice.
b) The right to fair trail is an integral part of fundamental rights of a citizen, as guaranteed by Article 10-A of the Constitution, both in Civil and Criminal proceedings.
c) According to section 3 of High Treason (Punishment) Act 1973, (ACT LXVIII OF 1973), “ No Court” shall take cognizance of an offence, punishable under this Act, except upon a complaint in writing made by a person authorized (Secretary Interior), by the Federal Government on its behalf. In this section expression “No Court” also includes the August Supreme Court of Pakistan, thus instant matter is corum non judis, thus, this August Court’s jurisdiction is barred even under Article 187 of the Constitution.
d) The judgment concluded (31-07-2009) and having attained finality, its implementation cannot go beyond the scope of such judgment, thus Honorable Supreme Court cannot give direction to Federal Government to initiate proceedings against General Pervez Musharraf under High Treason (Punishment) Act 1973.
e) It is a settled Principle of Law that what cannot be achieved directly, cannot be achieved indirectly, since the only remedy available to be achieved directly is under section 3 of High Treason (Punishment) Act 1973 and not through petition under Article 184 (3) of the Constitution, to achieve the said remedy indirectly.
f) Under section 3 of High Treason (Punishment) Act 1973 it is the exclusive domain to initiate proceedings against any person, who abrogates or subverts or suspends or holds in abeyance or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show of force or by any other Constitutional means shall be guilty of high treason. Besides any person aiding or abetting or collaborating the acts mentioned above shall likewise be guilty of high treason.
g) That only an authorized officer (Secretary Interior) of the Federal Government is competent to lodge a report against someone who is accused of subverting or abrogating the Constitution and none else, this law has virtually closed all doors for anyone else in the Country to initiate such proceedings.
h) The judgment passed by the Sind High Court Bar Association Versus Federation of Pakistan (PLD 2009 SC, 879), dated 31-07-2009, the observation of the Court is not a direction/order but is an obiter dicta in a collateral proceeding. This judgment was passed by a 14 member bench of this August Court, headed by Justice Iftikhar Muhammad Chuadary (CJP), incidentally all the Judges had taken oath under PCO of 2000, thus they are all liable to be prosecuted under Article 6 (2) of the Constitution.
i) The substantive measures (which deal with rights and obligations) are decided through adversarial litigation and not through collateral proceedings. It may be mentioned here that in both the petitions before Sind High Court (Constitutional Petitions) No 8 & 9 of 2008, General Musharraf is neither a party nor in the prayer part any relief is claimed against him. Thus the observation made in the said judgment against General Musharraf is of no legal consequences.
j) Since initiation of proceedings under High Treason (Punishment) Act 1973 is within the exclusive jurisdiction of the Federal Government (Executive Organ of the State), thus, Supreme Court of Pakistan (Judiciary) is not competent under the dictates of the Constitution to issue any direction to Federal Government to initiate proceedings under General Musharraf, since it would be a blatant violation of the well settled principles of tracheotomy of power, which is one of the component of basic structure theory of the Constitution as held by Superior Courts of this Country in their respective judgments.
k) All the organs of the State namely executive, legislature and judiciary are the creation of the Constitution and the parameter of their power has been regulated by the Constitution. As long as all these organs of the State exercise their powers according to the Constitution, it ensures harmonious working of the State, in a peaceful constitutional environment, but as soon as any one organ oversteps its constitutional power and enters into the domain of other State organ’s constitutional powers it results in a constitutional deadlock, thus any direction given by the Honorable Supreme Court of Pakistan to the Federal Government to initiate proceedings against General Pervez Musharraf will be a blatant violation of cardinal principles of tracheotomy of power.
l) Proceedings against General Musharraf cannot be initiated at this belated stage when the Federal Government for reason best known to it did not exercise its discretion to initiate the proceedings from last six years, hence, the present proceedings are hit by the law of limitation and latches.
m) To segregate General Musharraf from the rest of the collaborators, abettors and aiders, which include politicians, senior bureaucrats, armed forces personnel and judges of High Court and Supreme Court under PCO, would be a blatant discrimination, thus violative of Article 25 of the Constitution. When the Pandora box will open the veil will be lifted from many faces, who are hiding from the application of law.
n) The Attorney General of Pakistan who appeared before the Supreme Court made a categorical statement that the Government is heavily occupied in management of law and order and making co-ordination with police and law enforcement agencies for security of over 20,000 candidates and its resources and attention is already stretched to facilitate holding of timely election and implement the smooth transfer of power. He being the principle law officer of the Federation did not show any excitement to initiate any proceedings against General Pervez Musharraf, nor made any commitment to the Court on behalf of the Federal Government.
o) That the judgment dated 31-07-2009 passed by the August Supreme Court of Pakistan was pronounced at the back of General Musharraf, it is hit by judicial maxim Audi Alteram Partem, i.e. nobody should be punished unheard.
p) As far as the judicial demeanor of the Islamabad High Court Judge is concerned it was noticed by all and sundry in Pakistan and abroad with element of surprise that first time in the judicial history of Pakistan a bail was refused by a High Court in a bailable offense, beside a judge never orders a petitioner to be arrested by the police and above all the judge gave a direction to the police to add section 6 of Anti-terrorist Act in the FIR against a person who fought the International War against terrorism and became twice victim of terrorist attack. The world had a big laugh at this judicial error. The judge was a former member of the Jamat-e-Islami, arrested during lawyers movement as a lawyer and was advocate of Maulana Abdul Aziz of Lal Masjid. Thus his bias was so obvious that one does not have to discern it.
q) Peshawar High Court Four Member Bench headed by Chief Justice Dost Muhammad Khan declared General Musharraf as disqualified to contest any election for lifetime, which is a blatant violation of Articles 62 and 63 of the Constitution read with People’s Representatives Act 1976. This order again highlights the bias of the judiciary.
r) As far as Benazir Murder and Bugti Murder cases are concerned they are false, fake and concocted. Prosecution has got not an iota of evidence to connect General Musharraf with the said cases, as they are based on political animosity to settle personal vendetta. Thus they will fall like a house of cards when the actual trial of these cases will commence, before the trial court. As far as illegal detention of judges is concerned a lawyer who was a front runner in lawyers movement lodged this belated FIR (after one and half year), in order to win the sympathy of the judges. It will be pertinent to mention that this case has neither been lodged by any detune judge nor any judge has recorded his statement before the police under Article 161 of the CRPC, leveling any allegation against General Musharraf.
Sahibzada Ahmad Raza Khan Qasuri,
Senior Advocate, Supreme Court of Pakistan,
Senior Vice-President APML.
Tel # 92-51-2654761
Cell # 0300-9558217