IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Sardar Tariq Masood  
Mr. Justice Tariq Parvez  
 
 
Civil Appeal No. 118 of 2016 
(Against the judgment dated 09.12.2015 passed by the Islamabad 
High Court, Islamabad in Writ Petition No. 3980 of 2015) 
 
 
Abdul Hameed Dogar 
…Appellant 
 
 
 
 
 
 
versus 
 
Federal Government through the Secretary, Ministry of 
Interior and two others 
 
  
 
 
     …Respondents 
 
 
For the appellant: 
Syed Iftikhar Hussain Gilani, Sr. 
ASC 
 
For respondent No. 1: 
Mr. Salman Aslam Butt, Attorney-
General for Pakistan 
 
For respondent No. 2: 
Mr. Farogh Nasim, ASC 
 
For respondent No. 3: 
Nemo.  
 
Dates of hearing:  
 
23.02.2016 & 24.02.2016 
 
 
JUDGMENT 
 
Asif Saeed Khan Khosa, J.: A 
criminal 
case 
against 
respondent No. 2 namely General (Retd.) Pervez Musharraf on the 
charge of committing high treason is presently pending trial before 
a Special Court constituted under the Criminal Law Amendment 
(Special Court) Act, 1976 and, therefore, we shall be circumspect 
in what we observe in the present judgment lest any observation 
made by us may prejudice the trial of the said case and shall 
endeavor to confine our comments mainly to what has already 
Civil Appeal No. 118 of 2016 
2
been said or declared on the subject by different courts of the 
country, including this Court, and the legal position relevant to the 
issues raised through the present appeal. 
 
2. 
During the pendency of his trial before the Special Court 
respondent No. 2 had filed a miscellaneous application seeking a 
direction to the Federal Government to investigate all those 
persons who had aided or abetted the said respondent in allegedly 
committing the crime in issue and to submit an amended or 
additional statement as well as a statement of formal charges 
before the Special Court against such other persons in terms of 
sections 5(1) and 5(3)(a) of the Criminal Law Amendment (Special 
Court) Act, 1976. On 21.11.2014 the said application filed by 
respondent No. 2 was disposed of by the Special Court through a 
majority decision and a direction was issued to the Federal 
Government to treat Mr. Shaukat Aziz and Mr. Zahid Hamid, who 
held the offices of the Prime Minister and the Federal Minister for 
Law on 03.11.2007 respectively, and the present appellant namely 
Mr. Abdul Hameed Dogar, a Judge of this Court on the said date, 
as co-accused of respondent No. 2 and to submit an amended or 
additional statement as well as a statement of formal charges in 
terms of the above mentioned provisions of the Criminal Law 
Amendment (Special Court) Act, 1976 against them. The present 
appellant challenged the said order passed by the Special Court 
before the Islamabad High Court, Islamabad through Writ Petition 
No. 5010 of 2014 and the said writ petition was heard by a learned 
Division Bench of that Court along with some other writ petitions 
and Intra-Court Appeals. During the pendency of those matters a 
consensus emerged between all the parties, including the Federal 
Government, that the role of “any person” as an aider or abettor of 
respondent No. 2 may be properly investigated “at large” and that 
all such persons may be provided “full opportunity of hearing” by 
the investigating agency. On the basis of such consensus the 
learned Division Bench of the Islamabad High Court, Islamabad 
set aside the impugned order dated 21.11.2014 passed by the 
Special Court and disposed of all the matters, including the writ 
Civil Appeal No. 118 of 2016 
3
petition filed by the present appellant, on 10.11.2015 with a 
clarification that “The parties to the present litigation shall not be 
prejudiced by the impugned order or any adverse view drawn 
therein. Likewise, I.O, Investigating Agency or JIT whatever the 
case may be shall not be influenced by such observations made in 
the impugned order.”  
 
3. 
The ensuing date of hearing before the Special Court was 
27.11.2015 and on that date the Special Court passed an order 
which has generated the controversy that has been brought before 
this Court through the present appeal. The relevant portions of the 
order passed by the Special Court on 27.11.2015 are reproduced 
below: 
 
“3. 
Mr. Muhammad Akram Sheikh, while appearing on behalf 
of the prosecution stated before us in clear and unequivocal 
terms that fresh investigation in this case has to take place. ------ 
 
4. 
From the contents of the judgment it appears that all the 
parties gave consent before the Islamabad High Court that the 
matter be reinvestigated as the investigation that was carried out 
earlier was not conclusive and hence defective. ------- 
 
--------------------- 
 
6. 
Let the process of the investigation commence. The 
Investigation Team shall record statements of Mr. Pervaiz 
Musharraf, Mr. Justice Abdul Hameed Dogar, Mr. Shoukat Aziz 
and Mr. Zahid Hamid afresh. -------” 
 
4. 
The appellant assailed the said order passed by the Special 
Court before the Islamabad High Court, Islamabad through Writ 
Petition No. 3980 of 2015 but the said writ petition was dismissed 
by the said Court in limine on 09.12.2015. Hence, the present 
appeal by leave of this Court granted on 27.01.2016. 
 
5. 
We have heard the learned counsel for the parties at some 
length and have perused the relevant record of the case with their 
assistance. It has been pointed out by the learned counsel for the 
appellant that it was for the first time that through the order dated 
21.11.2014 the Special Court had introduced the appellant as an 
accused person in the case of high treason which order had 
Civil Appeal No. 118 of 2016 
4
subsequently been set aside by the Islamabad High Court, 
Islamabad on 10.11.2015 but despite setting aside of its earlier 
order dated 21.11.2014 the Special Court had reintroduced the 
appellant as a suspect in the said criminal case through its order 
dated 27.11.2015 and a writ petition filed by the appellant against 
the said order had been dismissed by the Islamabad High Court, 
Islamabad on 09.12.2015. It has been argued by the learned 
counsel for the appellant that after setting aside of its order dated 
21.11.2014 the Special Court was left with no basis or material 
whatsoever for reintroducing the appellant as a suspect in the 
relevant case for the purposes of investigation qua his involvement. 
It has also been contended by the learned counsel for the appellant 
that in a number of judgments handed down by this Court as well 
as by some High Courts it had categorically been held and declared 
that it was General (Retd.) Pervez Musharraf alone who was 
responsible for imposition of emergency in the country on 
November 03, 2007 and that introduction of the appellant as a 
suspect in the said matter by the Special Court was not only 
purely speculative in nature but was also based upon no material 
whatsoever. In support of this contention the learned counsel for 
the appellant has placed reliance upon the cases of Sindh High 
Court Bar Association through its Secretary and another v. 
Federation of Pakistan through Secretary, Ministry of Law and 
Justice, Islamabad and others (PLD 2009 SC 879), Gen. (R.) Parvez 
Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 
585) and Moulvi Iqbal Haider and others v. Federation of Pakistan 
through Secretary M/o Law and Justice and others (2013 SCMR 
1683). He has further argued that the Special Court had no 
jurisdiction to add the appellant as a co-accused of respondent No. 
2 in the trial of the relevant criminal case instituted by the Federal 
Government or to direct that the appellant was to be associated 
with any fresh investigation of the said case to be conducted by an 
investigating agency. The learned counsel for respondent No. 2 
started his arguments by contesting this appeal with reference to 
some parts of the judgments rendered by this Court in the cases of 
Justice Hasnat Ahmed Khan and others v. Federation of 
Civil Appeal No. 118 of 2016 
5
Pakistan/State (PLD 2011 SC 680),  Gen. (R.) Parvez Musharraf v. 
Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and 
Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 
2009 SC 866) but he has finally submitted that he has no 
objection to acceptance of this appeal, setting aside of the 
impugned order passed by the Islamabad High Court, Islamabad 
on 09.12.2015 and removal of the names of the appellant and two 
others from the impugned order passed by the Special Court on 
27.11.2015. He has, however, prayed that this Court may clarify 
that the Federal Government may associate any person with the 
fresh investigation being conducted into the matter of the alleged 
commission of high treason. The learned Attorney-General for 
Pakistan has referred to the provisions of section 5 of the Criminal 
Law Amendment (Special Court) Act, 1976 and has maintained 
that in “a case” regarding commission of high treason it lies within 
the exclusive jurisdiction of the Federal Government to determine 
as to against whom a complaint is to be forwarded to the Special 
Court for trial, who is to be included in the list of accused persons 
to be tried in “the case”, what are to be the charges against the 
persons to be tried and who would be the witnesses to be produced 
in support of the charges. He has gone on to submit that the 
Special Court has no jurisdiction to introduce any person to be 
tried in such a case or to require any person to be associated with 
investigation of such a case. Upon a query made by the Court the 
learned Attorney-General has categorically stated that the Federal 
Government firmly stands by its written comments submitted 
before the Islamabad High Court, Islamabad in connection with the 
appellant’s Writ Petition No. 5010 of 2014. In the said comments 
the Federal Government had clearly maintained that the Special 
Court had no jurisdiction to name the appellant and two others as 
co-accused of respondent No. 2 and that “This will tend to defeat 
the ends of justice and trial against the only accused and 
beneficiary of the Emergency”.     
 
6. 
After hearing the learned counsel for the parties and going 
through the record of the case we have straightaway observed that 
Civil Appeal No. 118 of 2016 
6
the confusion prevailing with the Special Court as well as the 
Islamabad High Court, Islamabad over the issue of aiders and 
abettors of respondent No. 2 in the alleged commission of high 
treason by him would have been removed or would have become 
easier to resolve if the relevant extracts of different judgments 
handed down by this Court and the High Court of Sindh, Karachi 
read out before us by the learned counsel for the appellant and 
reproduced in the following paragraphs had been adverted to by 
those courts. 
 
7. 
In the case of Sindh High Court Bar Association through its 
Secretary and another v. Federation of Pakistan through Secretary, 
Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 
879) a 14-member Bench of this Court had categorically held on 
31.07.2009 as follows: 
 
“80.  
Seen in the above perspective, the actions of General 
Pervez Musharraf dated 3rd November, 2007 were the result of 
his apprehensions regarding the decision of Wajihuddin Ahmed's 
case and his resultant disqualification to contest the election of 
President. Therefore, it could not be said that the said actions 
were taken for the welfare of the people. Clearly, the same were 
taken by him in his own interest and for illegal and unlawful 
personal gain of maneuvering another term in office of President, 
therefore, the same were mala fide as well. The statement made 
in Proclamation of Emergency that the situation had been 
reviewed in meetings with the Prime Minister, Governors of 
all the four Provinces, and with Chairman, Joint Chiefs of 
Staff Committee, Chiefs of the Armed Forces, Vice Chief of 
Army Staff and Corps Commanders of the Pakistan Army, and 
emergency was proclaimed in pursuance of the deliberations 
and decisions of the said meetings, was incorrect. The 
Proclamation of Emergency emanated from his person, which was 
apparent from the words "I, General Pervez Musharraf...." used in 
it.” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
  
The said portion of the judgment rendered in the case of Sindh 
High Court Bar Association was reproduced and reiterated by 
another 14-member Bench of this Court in the later case of Gen. 
(R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another 
(PLD 2014 SC 585) decided on 30.01.2014.  
 
Civil Appeal No. 118 of 2016 
7
8. 
In the above mentioned case of Gen. (R.) Parvez Musharraf v. 
Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) decided 
by a 14-member Bench of this Court on 30.01.2014 Jawwad S. 
Khawaja, J. had, in his concurring separate opinion, concluded as 
follows regarding the persons placed in the appellant’s position: 
 
“15.       Nowhere in the above quoted texts is the former Chief 
Justice mentioned as the cause for declaring the emergency and 
he was certainly not the only one affected by it. In a narrow 
context, all judges of the superior courts in office on November 
3rd, 2007 were directly affected by the Proclamation of 
Emergency. The majority of these judges suffered from this act, as 
they were unlawfully prevented from performing the duties of 
their Constitutional office. The remaining judges in the 
minority who decided to take the unconstitutional oath of 
office, on the other hand, could be perceived as beneficiaries 
of the aforesaid act of the petitioner. -------” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
The difference between an aider/abettor and a beneficiary is quite 
obvious. A person aiding or abetting another in an act is privy to 
the act itself but a beneficiary takes benefit or advantage of the act 
after the event and he may not necessarily be a party to the act 
itself. 
 
9. 
In the case of Sindh High Court Bar Association (supra) this 
Court had concluded and declared that emergency had been 
imposed by respondent No. 2 on 03.11.2007 while acting on his 
own and in his personal interest. The following extracts from the 
judgment delivered in that case are relevant in this regard: 
 
“60.  
From the contents of the letter of the Prime Minister, it 
cannot be said that he issued any direction to the Armed Forces 
in terms of Article 245 of the Constitution to act in aid of the civil 
power, nor the actions of General Pervez Musharraf of 3rd 
November, 2007 could be said to have been taken or done while 
acting in aid of the civil power. Even otherwise, the letter was 
addressed to the President of Pakistan and not to the Chief of 
Army Staff. But for the sake of argument, it may be stated that 
even if the letter was addressed to the Chief of Army Staff, it could 
not be construed to give to the latter any power to take the kind 
of steps that he took in pursuance of the aforesaid letter. ------- 
In the instant case too, no power vested in the Chief of Army Staff 
General Pervez Musharraf under the Constitution and the law to 
issue Proclamation of Emergency and PCO No. 1 of 2007 on a 
letter of the Prime Minister written to the President bringing to his 
notice the national security situation, which was worsening on 
account of terrorism, extremism, militancy, suicide attacks and 
Civil Appeal No. 118 of 2016 
8
the erosion of trichotomy as a result of suo motu actions being 
taken by some members of the superior judiciary. If the President, 
on receipt of such a letter, wanted to take any action including 
imposition of emergency, the same would have been in terms of 
constitutional provisions on emergency. Nowhere the Prime 
Minister asked the President to take the actions that he took 
on 3rd November, 2007. In any case, it was not an advice 
tendered by the Prime Minister in terms of Article 48 of the 
Constitution. Neither on receipt of such a letter, could the 
President have authorized Chief of Army Staff to take that 
kind of steps. The Constitution does not empower the President 
to issue an Oath Order, which he did in pursuance of 
Proclamation of Emergency and PCO No.1 of 2007. Instead of 
upholding the Constitution in terms of the oath taken by him as 
member of the Armed Forces he violated the Constitution, 
suspended it, assumed to himself unconstitutional and illegal 
powers and imposed upon the country unconstitutional and 
illegal emergency and PCO No. 1 of 2007. Likewise, in terms of 
his oath as President of Pakistan, instead of preserving, 
protecting and defending the Constitution, and performing his 
functions, honestly, to the best of his ability, faithfully in 
accordance with the Constitution and the law, and always in the 
interest of the sovereignty, integrity, solidarity, well-being and 
prosperity of Pakistan, issued Oath Order, 2007, illegally 
assumed to himself power to remove Judges of the superior 
Courts in violation of Articles 2A and 209 of the Constitution, 
which respectively required the securing of independence of 
judiciary and the guaranteeing of the tenure of the Judges of the 
Supreme Court and the High Courts. 
 
--------------------- 
 
80.  
Seen in the above perspective, the actions of General 
Pervez Musharraf dated 3rd November, 2007 were the result of 
his apprehensions regarding the decision of Wajihuddin Ahmed's 
case and his resultant disqualification to contest the election of 
President. Therefore, it could not be said that the said actions 
were taken for the welfare of the people. Clearly, the same were 
taken by him in his own interest and for illegal and unlawful 
personal gain of maneuvering another term in office of President, 
therefore, the same were mala fide as well. The statement made in 
Proclamation of Emergency that the situation had been reviewed 
in meetings with the Prime Minister, Governors of all the four 
Provinces, and with Chairman, Joint Chiefs of Staff Committee, 
Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps 
Commanders of the Pakistan Army, and emergency was 
proclaimed in pursuance of the deliberations and decisions of the 
said meetings, was incorrect. The Proclamation of Emergency 
emanated from his person, which was apparent from the 
words "I, General Pervez Musharraf...." used in it. 
 
---------------------  
 
82.  
As to the constitutionality and the legality of the 
acts/actions of 3rd November, 2007, General Pervez Musharraf 
himself, in an interview to a foreign TV news channel (BBC) 
admitted that he had taken unconstitutional steps. Relevant 
portion from his interview, as reported in the Daily DAWN of 18th 
November, 2007 is reproduced below: 
  
The daily DAWN, Islamabad, 18th November, 2007 
  
NO ILLEGAL STEP TAKEN BEFORE NOV. 
PRESIDENT: 
Civil Appeal No. 118 of 2016 
9
  
"Before March, I was very good. Suddenly did I go 
mad after March or suddenly my personality 
changed, am I Doctor Jekyll and Mister Hyde or 
what is it?" He said. 
  
"Am I such a person? 
  
"Please go into the details, the causes. What I am 
doing? Have I done anything unconstitutional, yes, 
I did it on Nov. 3. 
  
"Did I do it before? Not once." 
 
--------------------- 
 
85.  
In the light of the above discussion, the actions of 
General Pervez Musharraf dated 3rd November, 2007, viz., 
Proclamation of Emergency, PCO No. 1 of 2007 and Oath 
Order, 
2007, 
etc. 
are 
held 
and 
declared 
to 
be 
unconstitutional, illegal, mala fide and void ab initio. ------- 
 
--------------------- 
  
176.  It has already been held that Abdul Hameed Dogar, J, and 
other Judges who made oath, or were appointed, in violation of 
the order dated 3rd November, 2007 passed by a seven-member 
Bench of this Court in Wajihuddin Ahmed's case were not even de 
facto Judges, inter alia, on the ground that the actions taken by 
General Pervez Musharraf from 3rd November, 2007 to 15th 
December, 2007, including the appointments and/or oaths of 
such Judges, were mala fide as the same were taken by him 
for his own benefit, and did not fall within the scope of his 
authority under the Constitution and the law and in any case, 
they were not taken in the interest of the State, or for the welfare 
of the people.” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
 
In his separate and concurring opinion recorded in that case 
Jawwad S. Khawaja, J. had observed as under: 
 
“3.  
For reasons which have been spelt out in the main 
judgment, there can be no doubt at all that the aforesaid actions 
of 3rd November, 2007 were un-Constitutional. It is for this 
obvious reason that General Musharaf, lacking legitimate 
authority abused the office of Chief of Army Staff and relied 
on the physical force which had been placed under his 
command. -------” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
After such conclusions reached and declarations made by this 
Court in the said case it was for the Federal Government to 
consider the advisability or otherwise of getting a fresh 
investigation conducted for tracing out or identifying the aiders 
and abettors of respondent No. 2 in the matter but it was surely 
Civil Appeal No. 118 of 2016 
10
not for the Special Court or the Islamabad High Court, Islamabad 
to require or approve a fresh investigation for the search of such 
phantoms or apparitions. 
 
10. 
In the subsequent case of Moulvi Iqbal Haider v. Federation of 
Pakistan & others (Constitution Petition No. D-454 of 2009 decided 
on 14.10.2010) a learned Division Bench of the High Court of 
Sindh, Karachi had unmincingly declared as follows: 
 
“11. 
------- We are also of the opinion that the proclamation of 
PCO dated 03.11.2007, promulgated by Rtd. General Pervaiz 
Musharraf clearly shows that certainly he is the person who is 
responsible for abrogation and subversion of the Constitution 
and is liable to be prosecuted for committing high treason. ---
----” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
The said judgment passed by the High Court of Sindh, Karachi had 
been challenged before this Court but a 3-member Bench of this 
Court had disposed of the civil petition for leave to appeal filed in 
that regard on 03.07.2013 without interfering with the impugned 
judgment. A reference in this respect may be made to the case of 
Moulvi Iqbal Haider and others v. Federation of Pakistan through 
Secretary M/o Law and Justice and others (2013 SCMR 1683). 
Later on in the case of Gen. (R.) Parvez Musharraf v. Nadeem 
Ahmed (Advocate) and another (PLD 2014 SC 585) this Court had 
noticed in the above mentioned context as under: 
 
“11.       During the course of arguments, Raja Muhammad 
Ibrahim Satti admitted, on Court query, that petitioner General 
(R) Pervez Musharraf had a notice of the petition filed by Moulvi 
Iqbal Haider before the Sindh High Court through citation 
published in Daily Dawn and further that after dismissal of the 
said petition by the said Court Moulvi Iqbal Haider challenged the 
order before the Supreme Court in which General Musharraf was 
represented by him (Raja Muhammad Ibrahim Satti). The case is 
reported as Moulvi Iqbal Haider v. Federation of Pakistan through 
Ministry of Law and Justice (2013 SCMR 1683).” 
 
It is not denied that after fixing of the entire and exclusive 
responsibility of committing high treason upon him by the High 
Court of Sindh, Karachi respondent No. 2 herein had never 
Civil Appeal No. 118 of 2016 
11
challenged the same before this Court despite having the requisite 
knowledge in that regard. 
 
11. 
The following portions of the later judgment handed down by 
a 14-member Bench of this Court on 30.01.2014 in the case of 
Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and 
another (PLD 2014 SC 585) had made the matter even simpler:  
 
“12.       The petitioner had proclaimed State of Emergency 
pursuant to a letter received from the then Prime Minister of 
Pakistan (letter reproduced in PLD 2009 SC 879 supra at page 
1035 para 58). At this stage, the Court asked him as to 
whether the Prime Minister advised the President to act in 
violation of the Constitution to which the answer was no. The 
Court further asked him whether the Prime Minister had 
given any advice to impose State of Emergency or the 
petitioner acted in his own discretion, to which Mr. Satti 
replied that the petitioner acted in his own discretion. ------- 
 
--------------------- 
 
37.       ------- in fact, petitioner's learned counsel frankly 
admitted, on Court query, first that the then Prime Minister 
Mr. Shaukat Aziz had written a letter to the President of 
Pakistan and not to the Chief of Army Staff; second that the 
Prime Minister had not advised him to impose the State of 
Emergency 
rather 
"the 
petitioner 
acted 
in 
his 
own 
discretion". This frank admission by his counsel has further 
weakened his case for review. How could petitioner in his capacity 
as Chief of Army Staff or even as President act on his own 
discretion. He had no power under the law to impose State of 
Emergency and make Judges of the Supreme Court and High 
Courts dysfunctional notwithstanding the mandate of Article 48 
of the Constitution -------” 
 
(Underlining and bold letters have been supplied for emphasis) 
 
 
12. 
We have reproduced above what this Court and the High 
Court of Sindh, Karachi have already observed and declared in 
various judgments and such observations and declarations are 
relevant to the issue of aiders and abettors of respondent No. 2 in 
the alleged commission of high treason by him brought before us 
through the present appeal. As the trial of respondent No. 2 for the 
said offence is presently pending before the Special Court, 
therefore, we have restrained ourselves from recording our own 
opinions on the issue lest any opinion expressed by us may 
prejudice the case of the said respondent before the Special Court. 
The observations and declarations made by this Court and the 
Civil Appeal No. 118 of 2016 
12
High Court of Sindh, Karachi in the cases mentioned above have 
already attained finality and they are in the public domain and, 
thus, any reference to the same by us in the present judgment may 
not be inappropriate.  
 
13. 
Another critical aspect of the case in the context of the 
present appeal is that it was for the first time that through the 
order dated 21.11.2014 the Special Court had introduced the 
present appellant and two others as accused persons in the case of 
high treason against respondent No. 2 which order had 
subsequently been set aside by the Islamabad High Court, 
Islamabad on 10.11.2015 but despite setting aside of its earlier 
order dated 21.11.2014 the Special Court had reintroduced the 
appellant and two others as suspects in the said criminal case 
through its order dated 27.11.2015 and a writ petition filed by the 
appellant against the said order had been dismissed by the 
Islamabad High Court, Islamabad on 09.12.2015. We have found 
the learned counsel for the appellant to be quite justified in 
maintaining that after setting aside of its order dated 21.11.2014 
the Special Court was left with no occasion whatsoever for 
reintroducing the appellant and two others as suspects in the 
relevant case for the purposes of investigation qua their 
involvement in commission of the alleged offence. Conducting 
investigation into the matter was surely a prerogative of the 
Federal Government and the Special Court had no jurisdiction to 
direct the investigating agency to associate the appellant or any 
other particular person with such investigation. 
 
14. 
Section 5 of the Criminal Law Amendment (Special Court) 
Act, 1976 contemplates commencement of the proceedings of the 
Special Court through forwarding of a complaint in writing to it by 
the Federal Government against particular accused person or 
persons. By virtue of the provisions of section 202 of the Code of 
Criminal Procedure, 1898, which Code is applicable to a Special 
Court to some extent by virtue of the provisions of  Section 6(1) 
read with section 2(a) of the Criminal Law Amendment (Special 
Civil Appeal No. 118 of 2016 
13
Court) Act, 1976, a court, on receipt of a complaint of an offence of 
which it is authorised to take cognizance may postpone the issue 
of process for compelling the attendance of the person or persons 
complained against and either inquire into the case itself or direct 
an inquiry or investigation to be made “for the purpose of 
ascertaining the truth or falsehood of the complaint”. This clearly 
shows that a court seized of a complaint may or may not direct an 
inquiry or investigation to be made and if it does so direct then the 
direction can only be for ascertainment of truth or falsehood of “the 
complaint”, i.e. the allegations leveled against the person or 
persons complained against by the complainant. There is no 
jurisdiction available with such court under the said provisions of 
the law to direct an inquiry or investigation against a person or 
persons not formally complained against before the court by the 
complainant. Apart from that an inquiry or investigation can be 
directed by a court to be conducted under the said provisions of 
the law before the issuance of process against the person 
complained against and not at a stage where the trial of the person 
complained against has already commenced and is nearing its 
conclusion, as in the present case.  
 
15. 
For what has been discussed above this appeal is allowed 
and all references to the present appellant and two others in the 
impugned orders passed by the Special Court and the Islamabad 
High Court, Islamabad on 27.11.2015 and 09.12.2015 respectively 
as suspects to be associated with any fresh investigation into the 
offence of high treason allegedly committed by respondent No. 2 
are set aside. A fresh investigation into the said offence by 
associating any person with the same lies within the prerogative of 
the Federal Government but the Special Court or the Islamabad 
High Court, Islamabad could not name any individual to be 
associated with any such investigation. There is no provision in the 
Criminal Law Amendment (Special Court) Act, 1976 requiring the 
Special Court to await the result of any fresh investigation or to 
postpone the trial of an accused person till an amended or 
additional statement of the case or list of accused persons or the 
Civil Appeal No. 118 of 2016 
14
charge is submitted by the Federal Government after such fresh 
investigation. The Special Court is, therefore, expected to proceed 
with the trial of respondent No. 2 with all convenient dispatch and 
without any unnecessary delay. 
 
 
 
Judge 
 
 
Judge 
 
 
Judge 
 
 
Announced in open Court at Islamabad on 26.02.2016. 
 
 
 
Judge 
 
Islamabad 
February 26, 2016 
 
Approved for reporting. 
 
 
  
  
 
 
  
 
 
  
 
 
 
 
