IHC dismisses former CJ’s petition as non-maintainable

ISLAMABAD: The Islamabad High Court (IHC) on Wednesday dismissed a petition filed by former Chief Justice of Pakistan retired Justice Abdul Hameed Dogar against the special court order to the Federal Investigation Agency (FIA) to investigate him in a high treason case.

An IHC division bench comprising Justice Noorul Haq N. Qureshi and Justice Aamir Farooq after preliminary hearing dismissed the petition as non-maintainable.

Headed by Chief Justice of Sindh High Court (SHC) Justice Faisal Arab, three-judge bench of the special court on November 27 directed the Federal Investigation Agency (FIA) to investigate the role of various facilitators in imposition of November 3, 2007 emergency including former prime minister Shaukat Aziz, Justice Dogar and the incumbent federal minister for climate change, Zahid Hamid. Former president retired General Pervez Musharraf is the sole accused so far in the case.

Justice Dogar had challenged the special court order to FIA to grill him in high treason case

Advocate Iftikhar Gillani, the counsel for Justice Dogar, contended before the court that the special court could not direct the investigation agency to interrogate his client adding that Justice Dogar was not among those with whom Gen Musharraf consulted the imposition of emergency on or before November 3.

He argued that the special court through its Nov 27 order has treated his client on par with the principal accused Gen Musharraf in utter violation of the law.

In the criminal jurisprudence under no legal dispensation a tribunal of limited jurisdiction can assume the role of the prosecutor, the counsel for Dogar argued adding the order was thus contradictory, inconsistent and irreconcilable.

Citing July 31, 2009 judgment, he said the Supreme Court had already held that Musharraf had alone imposed the Nov 3, 2007 emergency and no one else was his complicit while issuing unconstitutional and illegal instrument.

The petition recalled that the special court was set up under Section 4 of the Criminal Law Amendment (Special Courts) Act 1976 to carry out the trial under Article 6 of the constitution that deals with the high treason on a complaint forwarded by the federal government which included a list of the accused with formal charges of offences committed.

Thus the special court has no authority to order fresh investigation against persons not cited by the federal government and was bound to proceed with the complaint the federal government had filed in December 2013, the petition said.

According to the petition, the Nov 27 order was contradictory to the Article 10-A of the constitution which ensures fair trial.

Published in Dawn, December 10th, 2015