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Petitioner: FEDERAL GOVERNMENT OF PAKISTAN VS Respondent: GENERAL (R) PERVEZ MUSHARRAF
Court Name: Special Court Judge(s): Muhammad Yawar Ali, Faisal Arab, Syeda Tahira Safdar Title: FEDERAL GOVERNMENT OF PAKISTAN vs GENERAL (R) PERVEZ MUSHARRAF Case No.: Criminal Miscellaneous Application No,26 of 2014 Date of Judgment:2014-11-21 Reported As: NLR 2015 Criminal 226, 2015 P Cr. L J 1 Result: Order accordingly
Judgment ORDER FAISAL ARAB, J.---On 3rd November, 2007 all the organs of the State of Pakistan were fully functioning when at the close of the day it was announced that a state of emergency had been declared by the present accused. The accused at that time was holding the office of the President of Pakistan as well as that of Chief of the Army Staff. The reasons which necessitated imposition of emergency were explained by him in his speech on the State Television. On that day the following instruments, were issued:-- (1) The Proclamation of Emergency of 3rd November, 2007. (2) The Provisional Constitution Order No,1 of 2007. (3) The Oath of Office (Judges) Order, 2007. 2. The first two instruments were signed by the accused in his capacity as Chief of the Army Staff and the third as President of Pakistan. By virtue of the Proclamation of Emergency the Constitution of Pakistan was put in abeyance. The Provisional Constitution Order No,1 of 2007 was to the effect that the offices of Judges of the superior Judiciary were made subject to the Oath of Office (Judges) Order, 2007 instead of the Constitution. The purpose of the Oath of Office (Judges) Order, 2007 was to declare that all the Judges of the superior Judiciary had ceased to hold their offices, with a rider added to it that if any of the Judges is either given or does make an oath in the form set out in its Schedule, then he shall be deemed to continue to hold his office. Thus, the main purpose, as it appeared from the contents of these instruments, was to put the Constitution in abeyance, to facilitate removal of those Judges of the Superior Courts who did not take or were not given oath. Only those were to continue in office if oath was administered to them.
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3. The removal of Judges under the Provisional Constitution Order No,1 of 2007 (PCO for short) gave rise to a massive lawyers' movement which finally resulted in the restoration of judiciary as it stood prior to 3-11-2007. The restored Supreme Court took up the matter and declared the 3rd November action unconstitutional. The present Federal Government came to the power as a result of the general elections held in May, 2013. In June, 2013 it decided to initiate criminal proceedings under Article 6 of the Constitution. The investigation was carried out and finally the Government filed the present complaint against the accused, who was then summoned by this Court. One of the pleas the accused took before this Court was that the Proclamation of Emergency of 3rd November, 2007 was not an act of the accused alone, but was an outcome of a consultative process, mentioned in the Proclamation of Emergency itself; and that too was taken on the advice of the then Prime Minister, but the accused is being singled out in the present proceedings with mala fide intent. It is the case of the accused that the motivating factor behind invoking the provisions of Article 6 of the Constitution was the animosity that existed between the accused on one hand and the present Prime Minister and the former Chief Justice of Pakistan on the other; and it is for this reason that the Prime Minister has resorted to prosecution only against him. On taking such plea, this Court passed an order on 7-3-2014 and on the same lines another order was also passed on 8-5-2014. The relevant part of the said orders are reproduced below:-- Excerpt from Order dated 7-3-2014. (III) ACCUSED SINGLED OUT 50. The material that is before us at this stage is only limited to the extent that the accused consulted with certain functionaries of the State, both civil and military, before issuance of the Proclamation of Emergency, therefore, the involvement of any other person would depend on the evidence which would come on the record. Excerpt from Order dated 8-5-2014. 15. We may mention here that we are not leaving the question of joiner of other persons as co- accused till the completion of the trial. The decision to implicate any other person would depend on what material comes on the record in the shape of documents, extrajudicial statements and oral evidence and the evidence so produced might then connect any other person with the commission of the crime. In such eventuality others, if any, can be implicated and tried along with the accused and this Court has ample power to do so. 4. When the evidence of the prosecution was nearing completion, the accused, placing reliance on the above orders of this Court, moved an application, numbered Criminal M.A. No,26 of 2014 wherein he sought (a) dismissal of the Complaint terming it to be based on selective prosecution meant only to target him and thus violative of Articles 9, 10-A and 25 of the Constitution of Pakistan, (b) implication of the persons or classes of persons highlighted in the application or, (c) return the Complaint to the Complainant with the direction to re-file the same after the inclusion of all persons or classes of persons, highlighted in the application as co-accused. 5. Dr. Muhammad Farogh Naseem advanced arguments on behalf of the accused. His submissions are summarized as follows:-- (a) Article 6(2) of the Constitution brings within its ambit such persons as well who had conspired, aided or abetted in the commission of the offence covered under Clause (1) of Article 6 of the Constitution; the accused was not alone in his actions, rather there were several others who committed a series of acts, but they are not being prosecuted, even the Statement of Charges against the accused not only cover the events of 3rd November, 2007 but also includes the acts that were committed subsequently; all these acts committed by others are to be treated as one composite offence. Implicating only the accused in the present case would amount to denying him a fair trial and thus violative of Articles 3, 4 and 10-A of the Constitution. Section 6(1)(g) of the
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Criminal Law Amendment (Special Courts) Act, 1976 (Act of 1976) mandates trial of co-offenders jointly, thus to single out the accused for trial is an exemplary case of selective prosecution. (b) Abetment has been defined in section 107 of Pakistan Penal Code (P.P.C.) which covers all those persons who aid and abet a crime or conspire in the commission of an offence. The last recital of the Proclamation of Emergency clearly states that prior to the 3rd November action the accused had consulted various functionaries of the State and acted on their advice, therefore, all those be made co- accused in the present case. As such the members of the Cabinet and the members of the National Assembly who endorsed the 3rd November action and passed a resolution, and all those who voted in favor, be also made co-accused. All holders of high public office, including Judges of the Superior Courts, who had earlier taken oath under the Constitution but accepted and complied with the 3rd November dispensation including the then Prime Minister, members of his Cabinet; the members of the bureaucracy who accepted the 3rd November action may also be added as co-accused. (c) The Investigation Report though recognized presence of aiders and abettors, but the Joint Investigation Team deliberately and with mala fide intent failed to identify them, and despite this deficiency in Investigation Report there was no direction by the Competent Authority for conducting further inquiry to ascertain who were the unidentified aiders and abettors. (d) The accused was implicated alone in violation of the judgment of the Supreme Court reported in 2013 SCMR 1683, whereby a window was left open for prosecuting aiders, abettors and collaborators. The investigators on the contrary have proceeded with the investigation in a manner as if incriminating material is to be collected only against the accused. (e) The prosecution witnesses have themselves admitted in the cross-examination that no enquiry was conducted to identify aiders and abettors, thus admitted to its inconclusiveness; and a trail on such inconclusive report would be travesty of justice. (f) This court has ample power to include any person as co-accused as held in the cases reported in 2006 SCMR 373 whereas the judgment in the case reported in PLD 2007 SC 31 is per incurium. (g) In a case where trial is to proceed against the abettors then by virtue of section 239 (a) and (b) Code of Criminal Procedure it has to be a joint trial with the principal accused. (h) The plea of the accused that he acted on the advice of the Prime Minister would be prejudiced if the then Prime Minister (Shaukat Aziz) does not stand trial in the present case. (i) The pleas taken by the accused that he consulted the functionaries mentioned in the last recital of the. Proclamation of Emergency before taking 3rd November action and that he acted on the advice of the Prime Minister are not mutually destructive as both the situations can happen. Even otherwise, every accused has a right to take more than one plea in his defence. (j) It was the then Federal Law Minister and the then Prime Minister who prepared the summary -for removal of superior Court Judges under the provision of Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007. (k) General Ashfaq Pervez Kiyani became Chief of the Army Staff on 27-11-2007 who could have lifted the emergency, but failed to do so and for this omission he be also made co-accused in this case. (1) In view of the inherent defect in filing the present complaint and on account of inconclusiveness of the investigation, the complaint should be returned back to the competent authority for ordering de novo investigation to be conducted by an impartial team of investigators. 6. Muhammad Akram Sheikh learned Special Public Prosecutor on the other hand made the following submissions:-- (a) Under section 5(3)(b) of the. Criminal Law Amendment (Special Court) Act, 1976 power to impaled any other person as co-accused vests with the Federal Government or the prosecution
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and the Special Court is not empowered to do so. (b) Section 351 of the Code of Criminal Procedure is not attracted to the present case. The necessary ingredient for exercise of the power under section 351, Cr.P.C. Is that such person must be in attendance before the court, only then he can be joined as co-accused. Even otherwise, to order joint trial is not a rule nor a mandatory requirement but an exception. (Reliance was placed on PLD 1969 SC 158 and AIR 1988 SC 1531). (c) The accused seeks some 600 persons to be summoned and to face trial jointly with him, which amounts to causing injustice and unnecessary delay in completion of the trial. Even otherwise such a plea cannot be raised by an accused as of right. Reliance was placed on AIR 1988 SC 1531. (d) Plea of selective prosecution is attracted where prosecution is mounted only against one class of persons, leaving the others out from the trial. (Reliance was placed on 517 US 456 and 470 US 598). (e) The offence in the present case was completed upon signing of Proclamation of Emergency, Provisional Constitution Order No,1 of 2007 and Oath of the Office (Judges) Order, 2007 and was committed by the accused alone, which fact was admitted by the accused in his speech which he made to the nation on Television on 3rd November, 2007. (f) Issuance of the notifications regarding removal of Judges was only a ministerial act and cannot be treated as an offence in the present proceedings. (g) The reasons disclosed in the Investigation Report do not assign any role to any other person as aider or abettor of 3rd November action. (h) The Prime Minister, Law Minister, members of Cabinet and National Assembly at best can be regarded as accessory after the fact and cannot be made co-accused in this case. (i) The 3rd November action was a ,self motivated act taken by the accused for personal reasons and no one else could be made responsible for wrong doings of the accused. 7. The accused is charged for the offence of high treason as defined under Article 6 of the Constitution. It reads as under:-- (1) 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 unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason. 2A. ----------------------------------- 3. ------------------------------------ 8. Clause (1) of Article 6 of the Constitution defines what constitutes offence of high treason, while its Clause (2) describes the liability of a person who aids and abets the offence described in Article 6(1). Thus Article 6 is attracted not only when the Constitution is abrogated or subverted or suspended or held in abeyance, but also when an attempt is made or conspiracy is hatched to abrogate, subvert or suspend it. Clause (2) goes further and provides that if a person with his action aids, abets or collaborates with the person in acts mentioned in Clause (1) then he shall likewise be guilty of high treason. The words aiding or abetting appearing in Clause (2) of Article 6 are not defined in the Constitution; therefore the Court can resort to the definition of these terms contained in Pakistan Penal Code (P.P.C.). Section 107 of Pakistan Penal Code (P.P.C.) defines what abetment is. For the sake of convenience it is reproduced as under:-- Section 107, P.P.C. Abetment of a thing. A person abets the doing of thing, who-- First.---Instigates any person to do that thing; or,
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Secondly. ---Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.---Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.---A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully 'represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.---Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilities the commission thereof is said to aid the doing of that act. 9. From the above quote of section 107 of the Pakistan Penal Code, it is evident that three distinct acts fall within the definition of abetment. First is the act of instigation by one to another to do an illegal thing. Second is the act of engaging with one or more persons in any conspiracy which results in taking place an illegal omission or commission. Third is the act when a person either intentionally does anything or illegally omits to do that result in facilitating someone in doing an illegal act. Explanation 2 to section 107 of the Pakistan Penal Code explains that where one does anything, either prior to or at the time of commission of an offence whereby he facilitates the other in the commission of an offence then the acts of former would also amount to committing the offence. To fall in the third category of definition of abetment it is not necessary that the aider or abettor has committed such an act that is identical to 'the acts committed by the principal offender. It would be sufficient to describe a person aider or abettor if his act has facilitated the principal offender for committing any offence. Thus any kind of act of a person, intended to facilitate another to commit an offence, would fall within the third category of the definition of abetment. 10. We may point out here that the act of removal of Judges of the Superior Judiciary is part of the third Charge contained in the Statement of Formal Charges filed by the Complainant in this case. For the sake of convenience the third Charge is reproduced as under:-- (c) Thirdly, on 3rd November, 2007 at Rawalpindi as President of Islamic Republic of Pakistan, he issued an unconstitutional and unlawful "Oath of Office (Judges) Order, 2007" whereby an oath was, unconstitutionally and unlawfully, introduced in the Schedule which required a judge to abide by the provisions of the Proclamation of Emergency dated 3-11-2007 and the Provisional Constitutional Order dated 3-11-2007 to perform acts and functions in accordance thereof and this order also resulted in removal of numerous Judges of the Superior courts including the honorable Chief Justice of Pakistan and he thereby subverted the Constitution of Islamic Republic of Pakistan, 1973 and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976). 11. To establish that the 3rd November, 2007 action was the outcome of a consultative process, Dr. Muhammad Farogh Naseem referred to the last recital of the Proclamation of Emergency, which states "And whereas the situation has been reviewed in meetings with the Prime Minister, Governors of all four Provinces, and with the Chairman Joint Chief of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff Corps Commanders of the Pakistan Army;" It was asserted
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that the said officials participated in the decision making process which culminated in taking 3rd November action therefore they all be joined as co-accused in this case. 12. To examine the above assertion we perused the material brought on the record. One of the consultees mentioned in the last recital of the Proclamation of Emergency is the Governor of Sindh, Dr. Isharat-ul-Ebaad. He was Governor then also. Before the investigation team he submitted a statement in the form of question and answer. The same was produced in evidence as Exhibit P- 9/18 in which four questions were answered. The relevant answer is the third, which is reproduced below:-- Question No, iii:-- Gen. Pervaiz Musharaf consult me on this issue? When? And in which manner i,e, through a document, verbal, meeting or telephonic? Answer:--Nearly six years have elapsed since 3rd November, 2007; I recollected that perhaps in the last week of October, 2007, I along with the Governors of, the other three provinces was summoned to attend a meeting chaired by the then President Gen. Pervaiz Musharaf. In such meeting the then President informed us, i,e, the Governors that in view of the difficult situation faced by the country, the Government was contemplating to take some measures, permissible under the Constitution. The then President informed us that he would only take such measures, upon the advice of the then Prime Minister, in accordance with legal advice. Except for the above, no other oral or written communication was made with me in this regard nor was any draft or document thereof shown to me. 13. We have given due consideration and weight to the statement of Dr. Ishrat-ul-Ebaad, as it comes from a person who holds the office of a Governor, especially when it was produced in evidence without being controverted in any manner by any of the parties. Evidently, the statement of the Governor Sindh can be said to be the reflection of what may have transpired in the consultative process between the accused and the officials mentioned in the last recital of the Proclamation of Emergency. The statement only spells out that in the consultative process a decision to take constitutional steps was agreed upon. Thus what has come out from the Governor's statement is that except for receiving a briefing from the accused there is nothing to show that any one advised the accused to take action similar to the one that was taken on 3rd November, 2007. We may also mention here that none of the officials mentioned in the referred recital had any constitutional role to play in the imposition of Emergency in any manner except the then Prime Minister. The then Governors of the four Provinces, the then Chairman Joint Chief of Staff Committee, the then Chiefs of the Armed Forces, the then Vice-Chief of Army Staff and the then Corps Commanders of the Army though at the relevant time held responsible positions and were serving this nation by playing their assigned roles, but except for engaging in a briefing, nothing else was attributed to them. Nonetheless active complicity i,e, participation in the commission of a crime is an essential ingredient of abetment as defined in section 107 of the Pakistan Penal Code, which makes a person accessory to a crime. The legal maxim that says Cogitationis poenam nemo patitur'. [The thoughts and intents of men are not punishable.] For the devil himself knoweth not the mind of man (per Brian C.J.)' would be relevant to quote in the circumstances. 14. It was argued that during subsistence of the Emergency, the accused relinquished the charge of Chief of the Army Staff and General Ashfaq Pervaiz Kiyani became his successor on 27-11-2007, but General Kiyani on taking charge of his office did not lift the Emergency, thus on account of such omission he too ought to have been made an accused in this case. No doubt General Kiyani took over the charge of his office in November, 2007 during subsistence of Emergency and he took no action to lift emergency but this was due to the fact that on 14-11-2007 certain amendments were brought about in the Provisional Constitution Order No,1 of 2007 which include insertion of Article 6. The amending law was produced in evidence as Exh.P-10/3. In the newly inserted Article 6 it is stated "6. The President may revoke the Proclamation of Emergency of the 3rd day of November
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2007, on such day as he may deem fit." By virtue of this amendment, the power to revoke Emergency came to vest in the President. The argument of implicating General Kiani in this case is therefore not sustainable. 15. The counsel for the accused next argued that on 6th November, 2007 the Cabinet endorsed the Proclamation of Emergency of 3rd November and the Provisional Constitutional Order No,1 of 2007, and a resolution in this regard was also passed by the National Assembly. Hence by virtue of such endorsements, the members of the Cabinet and the National Assembly, who voted in favor of the resolution, be arraigned as accused in the instant case. We have already expressed our view that under the law only active complicity in the commission of a crime is an essential ingredient which makes a person an accessory of the crime. As mere endorsement lacks this basic ingredient it cannot be treated as an act of abetment. At best those who endorsed the 3rd November action without contributing towards the commission of the offence, can be regarded as 'accessory after the fact'. 16. It was contended that while recommending prosecution against the present accused, the Investigation Report in its concluding part mentions that others have also played role of the facilitators, but they were not identified and thus the Investigation Report was inconclusive suggesting half hearted attempt to identify other suspects of the offence. 17. The record reveals that the Joint Investigation Team, that was constituted to make investigations in the present case, finalized its report on 16-11-2013. This Investigation Report was produced in evidence as exhibit Exh.P-9/5. Its concluding paragraph states.... "the Team further recommends that the Competent Authority may also take into account the role of various facilitators in the unconstitutional Proclamation of Emergency on 3rd November, 2007." It appears from the Investigation Report that the investigators shifted their responsibility of identifying the persons, who allegedly facilitated the accused in taking the 3rd November action upon the Complainant. If the investigators had reasons to suspect someone who contributed towards the reported offence then it was their obligation to do so in order to be implicated as co-accused: We fail to understand why Investigators did not identify others when they found material during the investigation, which in their opinion, connected others as well with the 3rd November action. The…
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