Tuesday, 9 April 2013

Asghar Khan Case

INDEX
Sl.
No.
Contents Para No. Pages
1. Historical Background of general
election of 1990 and exercising of
power under Article 58(2)(b)
2-3 2-4
2. Disclosure made by Maj. General (R)
Nasirullah Khan Baber on the Floor of
the house, regarding distribution of
money
4 4-5
3. Affidavit of Lt. Gen. (R) M. Asad
Durrani dt: 24.07.1994 providing
logistic support for distribution of
money on the instructions of Gen. (R)
Mirza Aslam Beg
(names of recipients have been
provided in para 101 at page 130)
4 5
4. News clipping of Daily Jang dated
12.06.1996 mentioning the statement
of Nasirullah Baber made on the floor
of the House and containing the names
of recipients.
5 6-7
5. Letter of Air Marshal (R) Muhammad
Asghar Khan dated 16.06.1996
addressed to Mr. Justice Sajjad Ali
Shah.
6 7-8
6. Letter of Lt. Gen. (R) M. Asad Durrani
(the then Ambassador of Pakistan to
Germany at Bonn) dt: 07.06.1994
addressed to the then PM mentioning
the names of remaining recipients
7 8-10
7. Gen(R) Aslam Beg, Lt. Gen. (R) M.
Asad Durrani and Mr. Yunus Habib were
arrayed as respondents.
8 10
8. CMA No.109/97 by Brig. (R) Kamal
Alam, naming the officers, involved in
the distribution of money
9 10-11
9. Order dt.18.10.2012 with regard to
statement of Brig. (R) Hamid Saeed
Akhtar requesting it to be treated as
“confidential”.
9 11-12
10. Statement of Brig.(R) Hamid Saeed
Akhtar, as well as hand written Diary
providing details of accounts/ list of
recipients
9 12-15
ii
11. Statement of Yunus Habib, u/s 161
Cr.P.C naming the recipients is not
admissible
10 16
12. Brief of reply of Mirza Aslam Beg
dt.23.02.1997 a/w reproduction of the
same wherein he acknowledged the
fact that money was provided by Yunus
Habib and distributed by Asad Durrani
on the direction of Election Cell.
(relevant portions have been
highlighted for reference)
11 16-25
13. Observations of petitioner on reply of
respondent No.1 about his involvement
in the distribution of money,
contradicting the defences made by
Aslam Beg
12 25-28
14. Affidavit of Lt. Gen. (R) M. Asad
Durrani dated 31.10.1997 explaining
his position and confirming the
distribution of money.
12 28-29
15. CMA No.1006/2012 and discussion on
reports of Commission on Mehran Bank
and HBL Scandals
14-18 30-33
16. Discussion regarding supply of
‘confidential statement’ of Lt. Gen.
Asad Durrani to PM, Mohtarma Benazir
Bhutto, which was not produced in
Court.
20 36-37
17. Observation of Court regarding
involvement of Mirza Aslam Beg in
disbursement of money and his denial
in reply CMA 1973/12.
21 37-38
18. Affidavit of Mr. Yunus Habib dated
8.3.2012 giving details of his meetings
with Gen. (R) Aslam Beg and President
Ghulam Ishaq Khan as well as the
details about the generation of funds
22 38-42
19. Counter affidavit of Mirza Aslam Beg
dt.9.3.2012 leveling allegations against
Yunus Habib
23 42-47
20 Concise statement of Lt. Gen. (R) M.
Asad Durrani dated 8.3.2012 clarifying
that money was deposited by Yunus
Habib in MI accounts and not ISI
24 47
iii
21. Affidavit of Mr. Yunus Habib dated
10.3.2012 in response to affidavit of
respondents No.1 & 2.
24 47-50
22. CMA No.1034/12 filed by Yunus Habib
disclosing the names of persons who
did not receive the money directly
(Javed Hashmi).
24 50-51
23. Report of NAB regarding plea-bargain
in HBL scam
25 51
24. Prayers/declarations sought by the
petitioner
25 51
25. Court Proceedings dt.26.6.1997,
regarding creation of political cell in
ISI, in 1975 and detailed discussion
25-29
51-57
26. Cross-examination of Nasirullah Babar
and Asad Durrani, produced in Court,
and Discussed in order dated
08.03.2012
27 54-57
27. Observation that prima facie cell was
functioning in the Presidency
29 57
28. Notice to Secretary to President and
the statements made by officers of the
Presidency
30 58
29. Clarification of Yunus Habib that the
amount was withdrawn from HBL and
not from Mehran Bank. Detail
discussion regarding meetings with
Aslam Beg and President Ghulam Ishaq
Khan
31 58-59
30. CMA No.3196 and 4350/12 filed by
Roedad Khan denying his involvement
in political activity
32 59-60
31. Discussion regarding establishing of
Election Cell in the presidency and
distribution of money
32-33 59-61
32. Allegations of disbursement of money
to “Friends” and General Asif Nawaz
and exception taken to it by him
34 61
33. Maintainability:
Arguments of Mr. Akram Sheikh
Arguments of Salman Akram Raja
Discussion
35
36-38
39-41
61
61-64
64-68
iv
34. Bias
Arguments of Attorney General
Discussion/findings
42
43-44
69
69-71
35. Role of President
Involvement of President in Politics
Findings regarding President’s role
Use of 58(2)(b)
Article 41 and Oath of President
Arguments of Attorney General that
office of President is a political office
Discussion on role of President
President is included in service of
Pakistan
Arguments of AG with regard oath of
President similar to PM etc.
45
46-49
50
51-53
54
55
56-74
75-79
80
69
69-80
80
80-84
85-86
86-87
87-102
103-111
111-112
36. Act of individual or Institution
Arguments of Salman Akram Raja
Arguments of Attorney General
Finding
81
82
82
112
112
113
37. Role of Armed Forces
Article 243 and 245
Section 33 of Pakistan Army Act
Oath of Armed Forces
Observation that distribution of money
stands admitted by the respondents.
Observation that Political Cell was
created in Presidency.
Conclusion that President has no
authority to create Election Cell
Officers are not bound to obey illegal
Orders.
83-84
85
86-92
93-95
97
98
99-100
113-115
115-116
116-121
121-123
125
125-126
126-128
38. Detail of distribution/recipients
Concise statement of Asad Durrani
through CMA 3307/12
List of recipients as per list attached
with affidavit dt: 27.07.94 of Asad
Durrani
List of recipients given by Asad Durrani
in letter dt: 07.06.94
Detail of distribution of money given by
Asad Durrani in his concise statement
dt:30.07.12
Detail of distribution/recipients given
by Hamid Saeed in statement
dt:18.10.12
Information regarding drawl/transfer of
money at page 163 of paper-book.
Account of distribution of money, page
220 & 221 of paper-book.
Details/names of beneficiaries given by
Yunus Habib in CMA 1034/12
Acknowledgement of Abida Husssain
101
101
101
101
101
101
101
101
101
128-129
130
130-131
131
131-132
132-133
133-135
135
135
v
39. Short Order 102 135-140
40. Thanks to the learned counsel 103 140
41. Order regarding fixation of case, in
respect of 270 million doled out from IB
account in the year 2008-09
104 140-141
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
HUMAN RIGHTS CASE NO.19 OF 1996
[Application by Air Marshal (Retd.) Muhammad Asghar Khan]
Air Marshal (Retd.) Muhammad Asghar Khan … PETITIONER
VERSUS
General (Retd.) Mirza Aslam Baig, former Chief of Army Staff & others
… RESPONDENTS
For the petitioner: Mr. Salman Akram Raja, ASC
Assisted by Malik Ghulam Sabir, Adv.
a/w Air Marshal (R) M. Asghar Khan
For the Federation/: Mr. Irfan Qadir Attorney General for Pakistan
M/o Defence Mr. Dil Mohammad Khan Alizai, DAG
Raja Abdul Ghafoor, AOR Assisted by:
Barrister Shehryar Riaz Sheikh, Adv.
Commander Hussain Shahbaz, Director (L)
Wing Comd. M. Irfan, Deputy Director
For Respondent No. 1: Mr. Muhammad Akram Sheikh, Sr. ASC
Assisted by Ch. Hassan Murtaza Mann, Adv.
a/w Gen. Retd. Mirza Aslam Baig
Respondent No. 2: Lt. Gen. Retd. Asad Durrani, Ex-DG, ISI
In Person
For Respondent No. 3: Mr. Muhammad Munir Piracha, Sr. ASC
For the Applicant(s): Sh. Khizar Hayat, Sr. ASC
(CMA No. 918/2007)
Mr. Roedad Khan in person
(CMA No. 3196/2012)
Raja Abdul Ghafoor, AOR
(in CMA 3410/12)
On Court’s notice:
For President Secretariat: Malik Asif Hayat, Secretary to the President
Mr. Arshad Ali Chaudhry, Director Legal
For SBP: Raja Abdul Ghafoor, AOR
HRC 19/1996 [Detailed Judgment] 2
For NAB: Mr. Mazhar Ali Chaudhry, DPG
Brig. (R) Hamid Saeed, in person
For HBL: Nemo
Date of Hearing: 19.10.2012.

J U D G E M E N T
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – The instant
Human Rights Case was registered under Article 184(3) of the
Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred
to as ‘the Constitution’] on the basis of letter dated 16.06.1996 written
by Air Martial (R) Muhammad Asghar Khan, a former Chief of Air Staff
[hereinafter referred to as ‘the petitioner’] to the then Chief Justice of
Pakistan.
2. For the purposes of disposal of this petition, it is necessary
to recapitulate the historical background in which the general elections
of 1990 were held. On 17.08.1988, General Zia-ul-Haq (late), Chief of
Army Staff who had imposed martial law in the country on 05.07.1977
and later assumed the office of President of Pakistan, died in C-130
airplane crash carrying top military brass of the time and some other
notable international figures of the time, few moments before its
arrival at the Bahawalpur Military Airbase. General Mirza Aslam Beg,
the then Vice Chief of Army Staff [hereinafter referred to as
‘respondent No.1’] was also flying to Bahawalpur but in a separate
plane and survived. The same day, Mr. Ghulam Ishaq Khan (late), the
then Chairman, Senate of Pakistan was sworn in as the Acting
President under the Constitution and respondent No.1 was appointed
as Chief of Army Staff. On 16.11.1988, general elections were held in
the country and Pakistan People’s Party (PPP), which captured the
HRC 19/1996 [Detailed Judgment] 3
largest number of seats in the National Assembly in comparison to
other parties, formed the Federal Government. Mr. Ghulam Ishaq Khan
(late) was elected as the new President. Political differences arose
between the President and the elected government of Late Mohtarma
Benazir Bhutto. On 06.08.1990, the President, in exercise of powers
conferred upon him under Article 58(2)(b) of the Constitution, which
was inserted by the Eighth Constitutional Amendment, dissolved the
National Assembly and dismissed the government on the ground that
the Government of the Federation was not being carried out in
accordance with the provisions of the Constitution. The dissolution
order was challenged before this Court in the case of Ahmed Tariq
Rahim v. Federation (PLD 1992 SC 646)], but the same was upheld.
3. Mr. Ghulam Mustafa Jatoi was appointed as the Caretaker
Prime Minister and fresh elections were scheduled to be held on
24.10.1990. An electoral alliance of nine political parties, known as the
Islami Jamhoori Ittehad (IJI), also called Islamic Democratic Alliance
won the largest parliamentary seats and formed the government with
Mian Muhammad Nawaz Sharif as the Prime Minister of Pakistan. On
19.04.1993, Mr. Ghulam Ishaq Khan invoked Article 58(2)(b) of the
Constitution and dissolved the National Assembly on
grounds/allegations of mal-administration, corruption, nepotism etc.
This led, once again to forming an interim government headed by
Caretaker Prime Minster Balakh Sher Mazari. The dissolution order was
challenged before the Supreme Court in the case of Mian Nawaz Sharif
v. Federation (PLD 1993 SC 473) wherein the exercise of power by the
President under Article 58(2)(b) of the Constitution was held to be
unconstitutional. In consequence, the National Assembly and the
HRC 19/1996 [Detailed Judgment] 4
Government were restored. However, as the political standoff
continued, which created a passé, the President dissolved the National
Assembly on the advice of Prime Minister Mian Muhammad Nawaz
Sharif and proceeded on leave as part of the political arrangement.
This time, Mr. Waseem Sajjad, the then Chairman Senate became the
Acting President under the Constitution while Mr. Moeen Qureshi, a
banker from New York was appointed as the Caretaker Prime Minister.
Elections were held on 06.10.1993 and the PPP emerged as the
biggest winner of seats in the National Assembly and formed
government with Mohtarma Benazir Bhutto (late) as the Prime
Minister. Mr. Farooq Ahmed Khan Leghari, a political worker of the PPP
was elected as the new President of Pakistan. On 06.11.1996,
President Farooq Ahmad Khan Leghari too invoked Article 58(2)(b) of
the Constitution and dissolved the National Assembly on various
charges/allegations.
4. On 11.06.1996, while the PPP government was in office,
Maj. General (R) Nasirullah Khan Babar, the then Minister for Interior,
made a speech on the Floor of the National Assembly wherein he
presented an affidavit dated 24.07.1994, sworn by the former Director
General, Inter-Services Intelligence (ISI), Lt. General (R) Asad Durrani
[hereinafter referred to as ‘respondent No.2’] wherein it was asserted,
inter alia, that different sums of money were disbursed to various
politicians/political parties forming part of IJI to enable them to win
election. It may be noted that at the time of making affidavit,
respondent No.2 was posted as Ambassador of Pakistan in Bonn,
Germany. He stated in the affidavit that in September 1990 while he
was posted as DG ISI, he received instructions from respondent No.1,
HRC 19/1996 [Detailed Judgment] 5
the then Chief of Army Staff (COAS) “to provide logistic support to the
disbursement of donation made by some businessmen of Karachi to
the election campaign of IJI”. He was also told that the operation had
the blessings of the Government and proceeded to act in accordance
with the instructions received by him. The contents of his affidavit are
reproduced hereinbelow in extenso: -
“AFFIDAVIT
I, Lt. Gen. (R) M. Asad Durrani, Muslim, adult,
former DG. ISI, presently posted as Ambassador of
Pakistan, Bonn, Germany, do hereby my oath and state on
solemn affirmation as under:
(1) In September, 1990, as DG, ISI, I received
instructions from the then COAS, (now retired)
General Mirza Aslam Beg to provide “logistic support”
to the disbursement of donations made by some
businessmen of Karachi to the election campaign of
IJI. I was told that the operation had the blessings
of the Government.
(2) Accordingly I tasked some officers, and took the
following actions:
(a) Opened a few cover accounts in Karachi,
Quetta and Rawalpindi.
(b) Money – eventually 140 million rupees – was
deposited in Karachi accounts by one Mr.
Yunus Habib.
(c) As required amounts were transferred to
Quetta and Rawalpindi accounts.
(d) A total of 6.0 million rupees were distributed
as directed by the COAS or at time directly by
the election cell in Presidency.
(e) The remaining money was transferred to a
special fund.
Distribution of 6.0 million is attached:
--Sd.--
Lt. Gen. (Retd.)
24 July, [***] 94
(M. ASAD DURRANI)
The names of the recipients are detached from his affidavit and shall
be noted at an appropriate place.
HRC 19/1996 [Detailed Judgment] 6
5. The contents of the speech of the then Minister for
Interior/affidavit of respondent No.2 were carried by the daily Jang in
its issue of 12.06.1996 as under: -
HRC 19/1996 [Detailed Judgment] 7
6. Air Marshal (R) Muhammad Asghar Khan, a former Chief of
Air Staff who had rendered meritorious services as a fighter pilot after
his retirement, and had joined politics by forming a political party with
the name and style of Tehrik-e-Istaqlal Pakistan, in his above referred
letter had averred as under: -
“BY TCS PERSONAL
16th June, 1996
Dear Mr. Justice Sajjad Ali Shah,
I should like to draw your attention to the disclosure
by the Minister for Interior in the National Assembly on
11th June, 1996 that General (R) Mirza Aslam Beg, a
former Chief of the Army Staff, had drawn Rs. 15 Crores
from the Mehran Bank and had distributed this amount to
various people prior to the 1990 elections. He disclosed
that this had been done through Lt. Gen. (R) Assad
Durrani, the Director General of the Inter Services
Intelligence Directorate, at that time. General Duran’s
statement was read out in the National Assembly. I am
enclosing a cutting from the Daily ‘JANG', Rawalpindi of
12th June, 1996 which gives the details (Encl.1).
HRC 19/1996 [Detailed Judgment] 8
The action of General (R) Mirza Aslam Beg and of Lt.
Gen. (R) Assad Durrani amounts to gross misconduct and I
am writing to ask that you may be pleased to initiate legal
proceedings against both these persons who have brought
the Armed Forces of Pakistan into disrepute and have been
guilty of undermining the discipline of the Armed Forces.
I am also sending a copy of this letter to the Chief of
the Army Staff for his information.
Sincerely
Sd/-
(M. Asghar Khan)”
7. Major General (R) Nasirullah Khan Babar, the then Interior
Minister had raised the issue of distribution of money to a group of
politicians on the floor of the House of the National Assembly by
reading out the affidavit of respondent No.2 wherein he had admitted
that amounts were distributed to certain persons for the purpose of
election campaign of Islami Jamhuri Ittehad (IJI). Prior to the affidavit,
respondent No. 2 had sent a handwritten note to the then Prime
Minister of Pakistan, wherein he had stated as hereunder: -
“Eyes Only Embassy of Pakistan
5300 Bonn 2
Rheinallee 24
Telephone 35 20 04
7 June 94
My dear Prime Minister
A few points I want to include in my “confessional
statement” handed over to the Director FIA. These could
be embarrassing or sensitive.
a. The recipients included Khar 2 Millions, Hafeez
Pirzada 3, Sarwar Cheema 0.5 and Mairaj
Khalid 0.2 Millions. The last two were not on
the wrong side. It was merely someone’s “soft
corner” that benefited them.
HRC 19/1996 [Detailed Judgment] 9
b. The remaining 80 Ms were either deposited in
the ISI’s ‘K’ fund (60 M) or given to Director
External Intelligence for special operations
(perhaps the saving face of this disgraceful
exercise, but it is delicate information).
c. The operation not only had the “blessings” of
the President and the whole hearted
participation of the caretaker PM, but was also
in the knowledge of the Army High Command.
The last mentioned will be the defence of many
of us including Gen. Beg (who took his
colleagues in “confidence”) but that is the
name that we have to protect.
The point that I have “wargamed” in my mind very
often is: what is the object of this exercise?
a. If it is to target the opposition; “it might be
their legitimate right to take donations,
especially if they came through “sacred
channels”. Some embarrassment is possible,
but a few millions are peanuts now a days.
b. If the idea is to put Gen. Beg on the mat; “he
was merely providing “logistic support” to
donations made by a community “under
instructions” from the Government and with
the “consent” of the military high command.”
In any case, I understand he is implicated in
some other deals in the same case.
c. GIK could pretend ignorance, as indeed he
never involved himself directly.
d. Of course one has to meet the genuine ends of
law. In that case, let us take care of the
sensitivities like special operations and possibly
that of the Army.
HRC 19/1996 [Detailed Judgment] 10
It was for these reasons that I desperately wanted to
see you before leaving. I also wanted to talk about my
farewell meetings with the COAS. In the meantime, you
must have met often enough and worked and what is in
the best interest of the country.
I keep praying that all these natural, and man made
calamities are only to strengthen us in our resolve and not
in any way reflective of our collective sins.
With best regards and respects
Yours sincerely
Sd/-
Asad”
8. General (R) Mirza Aslam Beg, former Chief of Army Staff,
Lt. Gen. (R) Asad Durrani, Ex-DG, ISI and Mr. Yunus Habib, Ex-Chief
Mehran Bank Limited, being the main figures in the alleged scam of
distribution of funds to a group of politicians to influence the outcome
of the 1990 general elections, were arrayed as respondents No.1 to 3,
and notices were issued to them.
9. It is to be noted that one Brig. (R) Kamal Alam Khan sent
an application to the then Chief Justice of Pakistan requesting therein
that he may be impleaded as a party in the proceedings. The said
application was registered as CMA No.109/1997. In the application, he
named the following officers of the Armed Forces who, according to
him, were part of this operation: -
(a) Brig (R) Hamid Saeed Akhtar
(b) Brig (R) Amanullah
(c) Lt. Col (R) Eqbal Saeed Khan
(d) Lt. Col (R) Ejaz
(e) Lt. Col (R) Mir Akbar Ali Khan
(f) Lt. Col Salman Butt
HRC 19/1996 [Detailed Judgment] 11
As per Court order dated 24.02.1997, though the above named officer
was allowed to attend the proceedings of the Court but according to
Mr. Salman Akram Raja, learned ASC he was not allowed to join the
proceedings and now he had passed away. In the said application, as
noted, the name of Brig. (R) Hamid Saeed Akhtar was also mentioned.
Therefore, on the Court’s direction, respondent No.2 furnished his
address and notice was issued to him. Accordingly, he appeared and
filed a written statement, which was marked as ‘confidential’, but
during hearing he stated that his written statement may not be treated
as confidential. For facility of reference, order dated 18.10.2012 is
reproduced hereinbelow: -
"Brig. (Retd.) Hamid Saeed has appeared and filed a
statement in writing on top of which, word “Confidential” is
mentioned. We have pointed out to him that the Court is
seized of the information contained in Paras 9 onwards of
his statement because the facts mentioned therein
pertaining to distribution/donation of funds to a group of
politicians/IJI before the 1990’s general elections and
same are already on the record of the case. Prima facie,
the contents of Paras 1 to 8 of his statement are not
relevant for the purpose of decision of the present case,
therefore, if he so wishes, he may claim confidentiality in
respect thereof. However, he stated that either a
document is to be treated ‘confidential’ as a whole or not
at all. He explained that if Paras 1 to 8 are deleted from
his statement, the whole object and purpose he wanted to
convey to the Court vide Para 9 onwards would not be
conveyed. Thus, he has expressed the desire not to treat
his statement as ‘confidential’ and has scored off the word
‘confidential’ written on the top of the document. He has
also stated that he wants to explain the events and dates
in respect of disbursement of funds to a group of
politicians with the assistance of a diary, which he was
HRC 19/1996 [Detailed Judgment] 12
maintaining at the relevant time. He has handed over this
document for our perusal in Court.”
The statement of Brig. (R) Hamid Saeed dated 18.10.2012 as well as
extracts of his handwritten diary, of which he took full responsibility,
filed in Court are also reproduced hereinbelow: -
(1) In 1990 I was commanding an Artillery Brigade in D.I.
Khan. In the same year following an indigenous uprising of
Kashmiris in the Indian Held Kashmir both India &
Pakistan deployed their forces in the border areas. My
Brigade had just reached the border area when I received
the orders to join regional office of Military Intelligence in
Karachi. I talked to the Corps Commander and submitted
that I wished to be with my troops during combat. I
further pleaded that I had no intelligence back ground or
formal training. Corps Commander advised that my
services were very urgently required at Karachi to control
the deteriorating internal security situation in Sindh.
Accordingly I reported to my new duty station and
assumed command w.e.f. 23rd July 1990.
(2) At that time MQM had recently fallen apart from the ruling
political party (PPP). PPP workers had resorted to taking
revenge from MQM for their political betrayal through the
use of force. MQM reacted even more violently through
their armed political workers. PPP, MQM, PPI, JI and JSM
activists were relentlessly killing each other. The daily
death toll was 100-110 besides countless left wounded and
incapacitated. PSF, APMSO, IJT and JSQM had taken
prisoners, the activists of their rivals and committed
horrendous & inhuman atrocities on them e.g. drilling
holes in knee joints with the drill machines and burning
their delicate parts with electric soldering machines. I
immediately held meetings with Mr. Tariq Azeem, Dr.
lmran Farooq, and Mr. Saleem Shahzad of MQM, Prof.
Ghafoor of JI, Dr. Hameeda Khoro & Mr. Mumtaz Bhotto
JSF, Abdul Waheed Aresar of JSQM and Mukhtar Awan of
PPI and gave them strong message that if they did not
stop killing, arson and looting, army may be forced to step
in to restore peace.
(3) Initially the belligerent forces totally denied their
involvement in the unlawful activities. However when
irrefutable evidence of their crimes was produced, they
took the advice more seriously. Following were the visible
effects of intelligence intervention on the security situation
in Karachi:-
a. Within 1 week killing reduced drastically from 100-
110 to 20-30 per day.
b. Exchange of prisoners of the belligerent sides was
HRC 19/1996 [Detailed Judgment] 13
arranged and this exchange took place at Karachi
Corps HQ.
(4) All the above was achieved through negotiations and
dialogue. Not a single bullet was fired, nobody was kept in
illegal confinement and no torture was committed to
extract information. The importance of my primary task
i.e. intelligence & counter intelligence operations far
outweighed my involvement in the internal security
matters but at that time internal security had assumed
greater importance.
(5) Soon after, the provincial Govt launched a police operation
against Mohajir populace residing in Pukka Qila Hyderabad
on a day when the PM, COAS and Karachi Corps
Commander were on tour abroad and the army units were
out annual exercise. In this operation police killed dozens
of men, women & children. The matter was reported to
higher echelons. The president Mr. Ghulam lshaq Khan
ordered the Army to intervene and stop this carnage.
Station Commander Hyderabad gathered about 300
soldiers from the personnel left behind for guard duties
and reached the site. On his intervention police force
withdrew. PM Benazir Bhutto on return to Pakistan gave a
press statement that "Army had supplied POF made
weapons to Mohajirs”. Police had besieged Pukka Qila to
recover these weapons. When police force was about to
reach the cache in Pukka Qila, Army stepped in and took
away the weapons in military vehicles". Everybody was
shocked by this statement.
(6) After this mayhem MRC (Mohajir Rabita Committee) gave
a press statement that they (Mohajirs) were being forced
to look towards India for the protection of their rights.
India readily responded to this call by stating that Mohajirs
were India's ex-citizens and India was obliged to ensure
their safety and protection against state terrorism and
genocide. Such statements reminded one of the Indian
interventions in former East Pakistan which finally resulted
in the dismemberment of our country.
(7) Earlier that year, the PM had also publicly criticized the
army for crossing the red line by enriching uranium to a
level which was not acceptable to big powers. She also
gave an interview to BBC in which she mentioned of her
support to India in crushing Khalistan Movement.
Sometime later PM criticized the Army for conducting the
annual exercise in the Sindh province without her consent.
ISPR had to clarify through a press release that under the
law COAS was not obliged to seek anyone's permission for
conducting training exercises in any part of the country. All
such events were reported by the print media.
(8) During the same year the government also gave attractive
jobs to AI-Zulfiqar activists in Railways, PIA, Customs,
KPT, Immigration, Excise & Taxation and other sensitive
departments, thus endangering national security. These
activists of AZO had been imparted proper training by
India in sabotage, arson, bomb blasts, mass killing and
other acts of terrorism. The authentic record of these
HRC 19/1996 [Detailed Judgment] 14
terrorists was available with all the intelligence agencies.
All these matters were reported to higher ups through
normal command channels.
(9) General perception of the common man was that the ruling
party had got the votes but lacked the vision to run the
country. Something appeared to be in the offing. On 16th
August 1990 President Ghulam lshaq Khan dissolved the
PPP Govt using power under Article58 (2) (b). In Sindh an
interim Government was formed under Jam Sadiq Ali as
the Chief Minister.
a. On 12 September 1990 DG Ml Maj. Gen Muhammad
Asad Durrani visited Karachi and gave following
directions to me:-
b. Open six accounts in different banks and send me the
title and number of each account.
c. Keep on monitoring these accounts. Some funds shall
be deposited in these accounts from time to time. You
will keep me updated regarding the balance in each
account on weekly basis.
(10) All transactions in these accounts shall be treated as secret.
You will be personally responsible to me for their accounting
and no information in this regard shall be shared with any
unauthorized person. Services of a grade-1 staff officer may
be used for opening and handling of these accounts.
(11) In compliance with these directions six accounts were
opened in different banks. Funds started pouring in from 16th
September 1990 onwards. By 22nd October 1990, Rs. 140
Million had been received in these accounts. Thereafter
following amounts were remitted as ordered by DGMI:-
a. Rs.40 Million to GHQ account.
b. Rs.10.5 Million to regional office of MI Quetta.
c. Rs.5 Million to interim PM Mr. Ghulam Mustafa
Jatoi
d. Rs.5. Million to interim CM Sindh Mr. Jam
Sadiq Ali
e. Rs.2.5 Million to Mr. Muhammad Khan
Junejo.
f. Rs.3 Million to Mr. Abdul Hafeez Pirzada
g. Rs.2 Million to Mr. Sibghat-Ullah Pir sahib Pagara.
h. Rs.03 Million to Mr. Muzaffar Hussain Shah.
i. Rs.03 Million to Mr. Muzaffar Hussain Shah
j. Rs.0.3 Million to Mr. Ghulam Ali Nizamani.
k. Rs.02 Million to Mr. Arbab Ghulam Rahim
l. Rs.03 Million to Mr. Salah-ud-Din (Takbeer).
HRC 19/1996 [Detailed Judgment] 15
m. Rs.05 Million to Mr. Yousaf Haroon
n. Rs.3,828 Million to Sindh
Regimental Centre, and also used for
construction of men’s living barracks,
interrogation cells
(12) The remaining balance of Rs.67, 628,511/- including interest
was later on sent to GHQ along with up to date bank
statements. I would like to state that during my service with
the Military Intelligence, I was of the opinion that the funds
were coming from GHQ.
(13) In 1991 I learnt through news media that one Mr. Yunus
Habib had been arrested for fraud in Habib Bank Ltd. At that
occasion Gen. Durrani rang me up to explore the possibility
of having him bailed out. He said that the COAS had desired
to have him bailed out because he had been helpful in doing
a work of national importance. I showed my inability to do so
because this case was sub judice. In September 1991 I was
posted out from Ml to Kharian. Finally I retired from service
in December 1994.
(14) In 1994, during the second tenure of PPP government, when
Gen. Durrani gave an affidavit to the court and the matter
became public, I for the first time learnt through the news
media that these funds were stated to have been provided
by Mr. Yunus Habib.
Sd/-
Brig (R) Hamid Saeed Akhtar
18 Oct 2012”
HRC 19/1996 [Detailed Judgment] 16
10. As regards the statement under Section 161 Cr.P.C., of
Mr. Yunus Habib [hereinafter referred to as ‘respondent No.3’], it may
be mentioned that such statement is not per se, admissible under the
Qanoon-e-Shahadat Order, 1984 as proof of the facts stated therein
unless the same are otherwise proved in a court of law in accordance
with law. But here reference is being made to it as the Mehran Bank
Scandal report containing the said statement has been made part of
the record. It is also to be noted that investigation would be required
to be made in respect of distribution of the sums of money paid before
the 1990 general elections after withdrawal thereof from HBL or
subsequent thereto from the Mehran Bank Ltd, as in the year 1990, it
was Habib Bank Ltd and not Mehran Bank, from where these amounts
were drawn.
11. Respondent No.1, filed his reply on 23.02.1997 through
Mr. Muhammad Akram Sheikh, Sr. ASC stating therein, inter alia, that
in the year 1990 when the National Assembly was dissolved and a
Caretaker Government was formed to hold elections within 90 days, an
Election Cell was set up in the Presidency, which functioned directly
under the then President (late Ghulam Ishaq Khan) and was managed
by M/s Roedad Khan and Ijalal Haider Zaidi. It was further stated that
uptill 1975, the ISI was responsible for countering intelligence and
strategic operational intelligence and functioned under the Joint
Services Secretariat. In 1975, the then Prime Minister Mr. Zulfiqar Ali
Bhutto, created a Political Cell within the ISI, as a result whereof it
was made responsible to the Chief Executive, i.e. the Prime
Minister/President for all matters of national and political intelligence.
After establishment of the Higher Defence Organization in 1976, the
HRC 19/1996 [Detailed Judgment] 17
ISI continued to be responsible to the Chief Executive while the Joint
Staff Headquarters maintained administrative control only. He further
stated that the ISI used to support the candidates during election
under the direction of the Chief Executive of the Government. The
receipt of the amount by IS1 from respondent No.3 in 1990 was also
under the direction of the Chief Executive. DG, 1SI also informed him
that the funds so received were properly handled and accounts were
maintained, and that the then President was briefed by him on this
matter. He averred that the aforesaid statement of Gen. (R) Nasirullah
Khan Babar was self-contradictory inasmuch as on 20.04.1994 the
latter had stated on the floor of the National Assembly that a sum of
Rs.140 million was given to him (General Beg) whereas in his
aforesaid statement he had alleged that the said amount was in fact
distributed amongst the politicians and various other persons. He
averred that Maj. General (R) Nasirullah Khan Babar knew that the
said amount was not given to the answering respondent for his
personal use and he also knew that Mehran Bank was not in existence
in 1990. Relevant portions from the said reply are reproduced
hereinbelow: -
(1) That the answering respondent never received the
alleged amount from Mr. Yunus Habib, respondent No. 3 in
person or through any other means and emphatically
denies the allegation made by Maj. General (R) Nasirullah
Babar, the then Interior Minister on the floor of the
National Assembly on 20th April, 1994. The answering
respondent promptly denied the allegations made through
a press release (Exhibit A-I) which was published in
various newspapers.
“The fact of matter is that no such amount was paid
to answering respondent nor was it placed in any
army account, rather the amount was paid in the
I.S.I’s account as donation by Yunus Habib and his
community. This was deposited by Yunus Habib
directly in the accounts of a government agency,
HRC 19/1996 [Detailed Judgment] 18
which maintained full details of all transactions
according to the policy and laid down procedures of
the Government”. (Exhibit A-2 attached). The Daily
“The News” of 10th April 1994 carried the following
story:
“It was briefly reported last week that Yunus Habib
had deposited Rs. 140 million in an account
mentioned by the then COAS, General Aslam Beg.
It was initially thought that the money went to
Beg’s organization called Friends, but in a brief
statement to the press, a few days ago, the former
COAS disclosed that the donation actually went to
an account run by a secret service. The NIU
investigations confirmed Beg’s statement as it was
revealed that the money was deposited in a secret
account run by the Military Intelligence (MI)
Directorate.
(2) That in early September, Mr. Yunus Habib then
serving in the Habib Bank Ltd., as Zonal Chief had called
on the answering respondent and informed him that he
was under instructions from the President’s Election cell to
make available a sum of Rs. 140 million for supporting the
Elections of 1990. He had stated that he will be available
to collect this amount through his own efforts from his
community as donations and that he was under the
instructions of the Election Cell to place this amount at the
disposal of the Director General Inter Services Intelligence
who would handle this amount as per instructions of the
President’s Election Cell.
(3) That in 1990 when the National Assembly was
dissolved and the Government of Mrs. Benazir Bhutto was
dismissed. Care Taker Government was formed to hold
elections within 90 days. The then President Mr. Ghulam
Ishaq Khan had formed an Election Cell directly under him,
and managed by Mr. Roedad Khan / Mr. Ijlal Haider Zaidi.
(4) That letter on the answering respondent was
informed by the Director General Inter Services
Intelligence that various cover accounts were opened by
Inter Services Intelligence and the amount of Rs.140
million was deposited in those accounts directly by Mr.
Yunus Habib. Director General Inter Services Intelligence
made arrangements to distribute these amounts amongst
the politicians belonging to various political parties and
persons as instructed by the Election Cell.
HRC 19/1996 [Detailed Judgment] 19
(5) That the fact that the amount of Rs. 140 million was
made available on the instructions of the Election Cell was
confirmed by Mr. Yunus Habib in his voluntary statement
made by him during enquiry in connection with Mehran
Bank Scam. In his statement he has conceded that: -
“That Rs. 140 million donation to the “Military
Intelligence” Yunus revealed that donation was
approved by the Board of Directors of the Habib
Bank Ltd. And the bank had fulfilled all formalities.
In a vague answer he said that the request was
initially made by President Ghulam Ishaq Khan, who
had communicated to him through General Beg that
the Government of Pakistan needed money to hold
elections in the country. Yunus said, that donation
was also in the full knowledge of Ijlal Hyde Zaidi
and Roedad Khan” (Exhibit A-3 attached.)
(6) That the allegation that funds were deposited in the
in the Military Intelligence was absolutely wrong. The cover
account were opened by 202 Survey Section under the
command of Inter Services Intelligence since August 1990.
Therefore, 202 Survey Section, a unit of the Army for all
political and technical purposes, was under the command
of Inter Services Intelligence and functioned as per of ISI
organization which was the “competent authority” to task
it.
(7) That until 1975 the Inter Services Intelligence
Organization was responsible to the 3 services for
countering intelligence and strategic operational
intelligence and functioned under the Joint Services
Secretariat.
In 1975, Mr. Zulfiqar Ali Bhutto, the then Prime
Minister, created a Political Cell within the ISI
Organization. As a result, the ISI was made responsible to
the Chief Executive, i.e. The Prime Minister/ President for
all matters of national and political intelligence. After the
establishment of the Higher Defence Organization in 1976,
ISI continued to be responsible to the Chief Executive,
HRC 19/1996 [Detailed Judgment] 20
while the Joint Staff Headquarter, maintained
administrative control only. This was the situation which
existed in 1990 and continues even today.
(8) That ISI draws its manpower from three services,
with Army taking the major share. About 7% to 8% are
civilians. It is headed by any Army Officer in uniform
except for the period of Benazir Bhutto’s first tenure, when
Lt. Gen. Shamsur Rehman Kallu, a retired officer, was
appointed DG ISI in 1989, who relinquished the job when
Benazir Government was dismissed in 1990. He was
replaced by Lt. Gen Mohammad Asad Durrani, in August
1990.
It is submitted that the amount in question, was Rs.
140 million and not Rs. 15 Crore (150 Million) as
mentioned in the petition. This is doubtful
misrepresentation of the facts.
(9) Furthermore, the name of Mehran Bank mentioned in
the petition is again a misquotation of fact. This Bank has
neither been mentioned in the press report of daily “The
Jang” of 12 June, 1996 which formed the basis of the
petition, nor the Mehran Bank existed in 1990. The
petitioner made no efforts to ascertain the facts, before
filing the petition in the Supreme Court. His hasty action,
without confirming the authenticity of the press report, is
expressive of a mala fide intention, especially, when the
petitioner is the head of a political party, namely Awami
Qiadat Party and at the time of petition (June 1996) was
fully involved in organizing his party.
(10) That it is in the knowledge of the answering
respondent that it was the practice with the ISI to support
the candidates during the elections under the directions of
the Chief Executive of the Government. The receipt of this
amount by ISI from Yunus Habib in 1990 was also under
the directions of the Chief Executive. DG ISI also informed
the answering respondent that funds so received were
properly handled and the account were maintained, and
HRC 19/1996 [Detailed Judgment] 21
that the President Mr. Ghulam Ishaq Khan was briefed by
him on this matter.
(11) That the answering respondent was also informed by
the DG ISI that the policy for financial support to the
candidates was laid down by the President’s Election Cell
and that the DG ISI was acting on their behalf and made
payments to various politicians and persons as directed.
(12) That by late November, 1990 the DG ISI Lt. Gen.
Muhammad Asad Durrani informed the answering
respondent that out of Rs. 140 million deposited in the ISI
accounts, approximately Rs. 60 million were spent for
election purposes and for acquisition of election
intelligence, while the remaining amount of Rs. 80 million
was deposited in the accounts of the Special Funds of ISI.
(13) That during this period, in his meeting with the
President, Mr. Ghulam Ishaq Khan, the answering
respondent had inform him about the donations made by
Yunus Habib and its utilization by DG ISI under
instructions of the President’s Political Cell.
(14) That on 20 April, 1994 the then Interior Minister Mr.
Nasirullah Babar made the disclosure in the National
Assembly as reported in the “The Daily Muslim” dated 21st
April, 1994:
“That Yunus Habib, the Chief Operator of
Mehran Bank Limited (MBL) misappropriated
Rs.2.10 billion through a number of fake
accounts”
“The Interior Minister told the House that
Yunus Habib gave Rs.140 million to Mirza
Aslam Beg, the former COAS in 1991” Rs.70
million to late Jam Sadiq Ali Khan, the then CM
Sindh, Rs.20 Million to Altaf Hussain, the MQM
Chief, and huge amount to other politicians”.
(Exhibit-C attached.)
(15) That mala fide intentions of Maj. General (R)
Nasirullah Babar were further supported by the fact that
while divulging this information, the Interior Minister
HRC 19/1996 [Detailed Judgment] 22
claimed to have in his possession a computer diskette
which contained the full information with respect to the
disbursement of the funds arranged by Yunus Habib, but
during the proceedings of the Mehran Bank Judicial
Commission, the existence of such a diskette was
completely denied.
“A very important computer diskette of the
jailed banker Yunus Habib and some vital
documents seized by the Federal Investigation
Agency (FIA) during its search of Habib’s
residence and from the possession of his most
trusted confidante Salim Sattar in the last
week of March o this year are now missing
from the FIA record Senior Federal Interior
Ministry and FIA sources confirmed this to the
News Intelligence Unit (NIU) in his computer
diskette Yunus Habib had maintained complete
details of the pay-offs made from various
fictitious accounts at Habib Bank Limited (HBL)
and Mehran Bank Limited (MBL) to politicians,
bureaucrats and to a dozen FIA officials. In a
recent move the FIA has decided to deny the
existence of the Computer diskette before the
Judicial Commission.” (Exhibit-D attached).
(16) That two years later Maj. Gen. Nasirullah
Babar, the then Interior Minister made a self contradictory
statement in the Assembly on Monday 11 June 1996:
“Interior Minister Nasirullah Babar and told the
National assembly on June 11 that Mirza Aslam
Beg had drawn Rs.15 Crores from the Mehran
Bank and had distributed this amount to
various people prior to the 1990 elections
(Exhibit-e attached)
(17) That above statement contradicts the pervious
allegation, because in his earlier statement made on the
floor of the National assembly on 20 April 1994, he had
HRC 19/1996 [Detailed Judgment] 23
alleged that the amount of Rs.140 million was given to the
answering respondent, who misappropriated the amount
for himself, while in his subsequent allegation made on
June 11, 1996 on the floor of National Assembly it was
alleged that the amount of Rs.140 million, was in fact
distributed amongst the politicians and other personalities.
It is amazing as to how the facts were distorted, knowing
fully well that the said amount was not given to the
answering respondent for his personal use and also he
knew fully well, that the Mehran Bank was not in existence
in 1990. This act of his amount to deliberate disinformation
for mala fide intentions to cause discredit and disrepute to
the answering respondent.
(18) That the above fact clearly brings out the fact
that the then Interior Minister, Maj. General Nasirullah
Babar, holding official classified information, relating to ISI
activities, used it for political ends of his party, thus
violating the “Official Secrets Act”. In doing so, he has
brought two important national institutions i.e. Pakistan
Army and ISI in disrepute.
(19) The Nasirullah Babar also intentionally denied
information to the Judicial Commission and failed to
produced the computer diskette, he claimed to have, in the
National Assembly. (Exhibit-D attached).
(20) That the petitioner has made following
allegations:
a) Actions of General Mirza Aslam Beg and
Lt. General Muhammad Asad Durrani
amounted to gross misconduct.
b) Both have brought the Armed Forces of
Pakistan into disrepute.
c) Both have been guilty of undermining the
discipline of the Armed Forces.
G R O U N D S
(a) That the answering respondent did have the
knowledge about the transaction of Rs. 140 million
but had no other involvement regarding the
HRC 19/1996 [Detailed Judgment] 24
disbursement of this amount nor did he receive
directly or indirectly any portion of this amount.
(b) That the amount of Rs. 140 million so donated by
Yunus Habib was deposited directly in the accounts
maintained by the ISI, who properly maintained the
accounts.
(c) That DG ISI acted within the limits of the “lawful
command” received from the President’s Election
Cell. Definition of “lawful command” as interpreted
by Pakistan Army Act Section 33 Note b(3) is:
“A superior can give a command for the purpose of
maintaining good order or suppressing a disturbance
or for the execution of a military duty or regulation ".
and
Pakistan Army Act Section 33 Notes b(11):
“A civilian cannot give a “lawful command” under
this sub-section to a soldier employed under him;
but it may well be the soldier's duty as such to do
the act indicated”
(d) That a full account maintained of all the payments
made by the DG ISI and no amount was misappropriated
or misused.
(e) That actions of answering respondent and General
Asad Durrani did not amount to gross misconduct.
Orders were carried out under a lawful command.
(f) That doing so, the answering respondent and
General Asad Durrani have not brought the Armed
Forces of Pakistan into disrepute nor they are guilty
of undermining the discipline of the Armed forces.
(g) That Air Marshal (R) Mohammad Asghar Khan has
acted out of personal grudge and for political gains
by approaching the Honourable Supreme Court of
Pakistan to take action against the answering
respondent at this juncture when the answering
respondent was fully involved in organizing his
political party and participation in the general
elections 1997 as political main stream.
(h) That Air Marshal (R) Asghar Khan has acted
irresponsibly in that he failed to investigate the
matter properly and in hot haste, proceeded to level
charges against the answering respondent as based
on unfounded reports of the news papers. This act of
HRC 19/1996 [Detailed Judgment] 25
the petitioner amounts to character assassination
with intent to cause political damage and to bring
into disrepute the name of the answering
respondent.
(i) That the disclosure made by Maj. General Nasirullah
Babar on the floor of the National Assembly on 20
April 1994 and on June 11, 1996 was in patent
violation of the Official Secrets Act, as well as a
malicious act, with intent to bring into disrepute the
name of the answering respondent and to cause
political damage to his reputation and other
members of the political parties while not disclosing
the name of the politicians belonging to his own
party.” [Underlining provided for emphasis]
Few concluding Paras from the reply being informal have not been
reproduced hereinabove.
12. On 11.06.1997, in response to the reply filed by
respondent No.1, the petitioner filed his observations as under: -
“OBSERVATIONS OF PETITIONER ON REPLY OF
RESPONDENT NO.1
Respectfully Sheweth: -
(1) That being the Chief of the Army Staff at the time,
the Respondent by being directly involved in the
disbursement of public money and in its misuse for
political purpose has infringed on the fundamental
rights of the citizens of Pakistan. Further by thus
involving the Armed Forces in politics, the
Respondent has affected adversely the morale and
the fighting efficiency of the Armed Forces, reduced
its defense capability, affected adversely the security
of the country and has thus created conditions which
infringe on their human and fundamental rights.
(2) That the Petitioner has brought this matter before
this Honourable Court also with the purpose of
seeking a judgment which would set an example for
other and improve the discipline and fighting
efficiency of the Armed Forces. It would also be
beneficial for their morale.
(3) That Para 4 of the Respondent’s reply regarding subclause
3 of article 199 of the 1973 Constitution
relates to terms and conditions of service of a person
subject to military law and is not relevant to this
case.
(4) The Petitioner sent a copy of his letter to the Chief of
HRC 19/1996 [Detailed Judgment] 26
the Army Staff purely for information. The Chief of
the Army Staff is not the only competent authority
and proper person to look into the allegation and
take any action thereupon’ as stated by the
Respondent. Because the Respondent was the Chief
of the Army Staff and the present incumbent to this
post was his subordinate, it would be appropriate if
this case is dealt with by this Honourable Court.
(5) This Respondent has stated in Para 6 of his reply
that the funds were deposited with the I.S.
Intelligence which has been denied by the Secretary,
Ministry of Defence. The Respondent has
further stated that he was aware of Lt. Gen. (R)
Asad Durrani having received the money and
distributed it (Para 12 of Respondent’s reply) to
various people. Lt. Gen. (R) Asad Durrani though
head of an organization which was, according to the
Respondent under ‘Chief Executive’, was still a
serving Army Officer, subject to the service discipline
and military law. His conduct should therefore have
been of direct concern to the Chief of the Army Staff.
To have been aware of all this going on and not to
have taken any action itself amounts to abetting the
crime. However, the Respondent in Para 17 of his
reply states that the amount was not given to him
‘for his personal use’. This is admission that he did
receive the amount.
(6) In Para 21(c) and 21(e) of his reply, the Respondent
has stated the orders to collect and distribute,
funds were carried out under a ‘lawful command/
The interpretation of the Pakistan Army Act
Section 33 Note B(3) as quoted in Para 21(c) of the
Respondent’s reply in erroneous. This relates to
suppressing of a disturbance and Section 33 Note
b(11) quoted in the same Para of the Respondent’s
reply i.e. Para 21(c) is also irrelevant. This states
that ‘a civilian cannot give a lawful command
under this sub-section to a soldier employed under
him but it may well be the soldier’s duty as such
to do the act as indicated’.
(7) A person subject to military law is only required to
obey ‘lawful commands and it is in fact his duty to
disobey an unlawful order or an unlawful command.
The onus for deciding what is lawful and what is an
unlawful command rests on the individual. Recent
history is replete with examples where soldiers have
been punished for carrying out unlawful
commands. In the Nuremberg trials held after World
War II for he killing of jews by German soldiers,
the plea put forward was similar to that being put
forward by the Respondent that what was done was
in response to a ‘lawful’ command. In the Nuremberg
HRC 19/1996 [Detailed Judgment] 27
trial, the Germans soldiers accused of murder
pleaded that they had only carried out the orders of
their superior officers. The Court awarded the
death sentences to those who carried out these
illegal orders.
(8) In my own case when I had barely two years service
and was stationed in Hyderabad Sindh, during the
‘Hur disturbances’, and the Marshal Law of 1942, I
was ordered personally by Maj. General Richardson,
the Marshal Law Administrator Sindh, to lead a flight
of aircraft and machine-gun the caravan of the Pir of
Pagara which was moving eat of Sanghar. I took
the flight of 4 aircrafts as ordered but when I saw
that the camel caravan comprised unarmed men,
women and children I refused to carry out the
orders and returned without firing a shot. When
asked to explain, I told the General who was
waiting at the airfield for our return that to shoot
unarmed civilians was not a lawful command and I
would not obey it. What followed is not relevant to
this case.
(9) Throughout my political career I have practiced the
same philosophy and have called upon the police to
obey only lawful commands. I have been stopped
illegally on numerous occasions and either detained
or removed hundred of miles away illegally. On one
occasion, in the company of the Late Mian Mahmud
Ali Kasuri, Bar-at-Law, M. Anwar, Bar-at-Law and
Miss Rabia Qari, I was stopped illegally from walking
on Fane Road near the Lahore High Court, Lahore.
We resisted this illegal order but not before we had
told the police officers that their orders was illegal
and since we were not violating the law the police
force under their command was duty bound to
disobey it.
(10) In the Nawab Ahmed Khan murder case, four
policemen were given the death sentence for
carrying out unlawful orders. More recently in the
Tando Bahawal case a Major was sentenced to
death for giving unlawful orders and some
servicemen were given long sentences for obeying
unlawful commands of their superior officers.
(11) It is my submission that the Chief of the Army Staff
should have set an example and should himself have
carried out only lawful orders. He should also have
ensured that others subjects to military law did the
same.
(12) The Respondent has also stated that I have acted
out of personal grudge and mala fide intentions. I
have no personal grudge against the respondent and
HRC 19/1996 [Detailed Judgment] 28
have moved this august Court so that an example
should be set for the Armed Forces so that they may
in future concentrate on their main function, not
obey unlawful commands and not involve themselves
in politics which infringe on human rights and
national security.
-Sd.-
(M. Asghar Khan)
11.06.1997 PETITIONER”
Respondent No.2 filed in Court affidavit dated 31.10.1997, which reads
as under: -
“AFFIDAVIT OF LT. GEN. (R) M. ASAD DURRANI
I, Lt. Gen (R) M. Asad Durrani S/o Dost Mohammad
Durrani (late), resident of 189-E, Gulraiz II, Chaklala,
Rawalpindi, do hereby solemnly affirm and declare as
under:-
(1) In April 1994, there was a press release issued on
behalf of Gen. (R) Mirza Aslam Beg that one Mr.
Yunus Habib and his community had donated Rupees
One Hundred Forty Million and Mr. Habib deposited
this amount in the account of a government agency.
It was later reported in the press that Gen. Beg had
further elaborated that the ISI had spent Rupees
Sixty Million out of this donation for “political
intelligence” prior to the 1990 election, and put the
rest in a special fund. At that time I was the Director
General of ISI and Gen. Beg confirmed to me that
these statements had been given.
(2) In May 1994, I took up my assignment as Pakistan’s
Ambassador to Germany. In early June 1994, I was
contacted by Maj. Gen. (R) Nasirullah Khan Babar,
the Interior Minister who told me that a commission
o0f inquiry had been constituted to ascertain the
facts regarding Gen. Beg’s statement. He also added
that he had discussed with General A. Waheed at
that time the COAS, who after consulting with the
JAG assured army’s cooperation. Gen. Babar said
that a Director of FIA was on his way to take my
statement. He also added that he had discussed with
General A. Waheed at that time the COAS, who after
consulting with the JAG assured army’s cooperation.
Gen. Babar said that a Director of FIA was on his
way to take my statement.
(3) On 6th of June 1994, Mr. Rehman Malik, a Director in
FIA, contacted me in Bonn and presented a letter
from the Director General, FIA asking me for
necessary details. I talked to Gen. Babar and pointed
HRC 19/1996 [Detailed Judgment] 29
out that there were certain sensitivities of the case
and he suggested that I could address a confidential
statement to the Prime Minister. I agreed.
(4) I wrote down a hand-written “eyes only” letter to the
Prime Minister, providing the information. I also
pointed out the implications that I believed were of
sensitive nature and requested for discrete handling.
Mr. Rehman Malik came back to Germany after a few
weeks. My statement had been typed out on a court
paper and I was required to sign it for perusal by the
commission. I was told that it had the approval of
the chief executive and that the matter would be
handled confidentially. I Signed the prepared
statement which was given to me by Mr. Rehman
Malik, Director FIA.
(5) For the next about two years, I heard nothing more
on the subject till the press reported that the Interior
Minister Mr. Nasirullah Khan Babar had made a
statement in the National Assembly referring to an
affidavit that he said was given by me.
(6) The statement was got signed by me by Mr. Rehman
Malik under special circumstances and I was given
the assurance that the matter would be dealt with
confidentially. I do not know under what
circumstances the then Interior Minister made the
statement in the National Assembly. I was unaware
about his intentions that are known to him.
(7) The affidavit was got signed from me on the
understanding that it would only be used for specific
purpose. Having recommended that the information
be treated confidentially, I humbly submit to this
Honourable Court that I am unable to comment on
the contents of the affidavit in an open court because
I am bound by the official secret act. I am of course,
prepared to answer your questions in your Chamber
or in camera proceedings.
(8) I am proceeding to Germany to take part in a
seminar in the first week of November 1997, that
had been scheduled long time ago and I am,
therefore, unable to personally attend the
proceedings. I will be back by the 16th of November
1997.
The contents of this affidavit are true and correct to
the best of my knowledge and belief. Nothing has been
stated incorrect nor concealed, as required by Law.
Sd/-
Islamabad Deponent
31.10.1997 Lt. Gen. (R) M. Asad
Durrani”
HRC 19/1996 [Detailed Judgment] 30
13. Respondent No.1 filed CMA 1006/2012, wherein it was
stated that two Commissions of Inquiry, one on the Mehran Bank
Scandal and the other on Habib Bank were presided over by Hon’ble
Judges of superior courts, but, till date these two reports have not
been made public. He prayed for issuance of appropriate direction to
the Federation, the learned Attorney General and the Registrar to
make available statements recorded in camera and reports of two
Commissions of Inquiry to him on the condition, assurance and
undertaking of confidentiality of the same from the public domain and
only to be used for properly defending the respondent in the case. In
view of the prayer so made, directions were issued to the learned
Attorney General for producing copies of the reports.
14. It may be noted that Federal Government on having taken
notice of allegations vide SRO No.617(1)1994 dated 17.06.1994
appointed a Commission of inquiry under Pakistan Commissions of
Inquiry Act, 1956 to inquire into the matters relating to Mehran Bank,
specified in the said notification as the terms of reference, comprising
following: -
(1) Mr. Justice Abdul Qadeer Chaudhry
Judge, Supreme Court of Pakistan
(2) Mr. Justice Zia Mahmood Mirza
Judge, Supreme Court of Pakistan
(3) Mr. Justice (Retd.) Z.A. Chana
Form Judge, High Court of Sindh
(4) Mr. Justice Nazir Ahmed Bhatti
Judge, Federal Shariat court; and
(5) Mr. Justice Qazi Muhammad Farooq
Judge Pehsawar High Court
HRC 19/1996 [Detailed Judgment] 31
15. The Commission completed its task and submitted the
report. Unfortunately despite Court’s direction, the report was not
made available. However, in the meanwhile, Mr. Hamid Mir, a
renowned journalist/anchor person working for private TV channel
(GEO Network), handed over a copy of such report to Mr. Salman
Akram Raja, learned counsel for the petitioner and also to the Court
for perusal. We intended to seek its authenticity from the Law Ministry,
but the Ministry did not do so on the pretext that its original was not
available with it. As regards the inquiry report relating to Habib Bank
Ltd. Scam. In pursuance of such scam an amount of Rs.140 million
was withdrawn by respondent No.3 for handing over to the Election
Cell created in 1990 before election, in the Presidency for the purpose
of extending financial support to certain favoured candidates
contesting the election. It may be noted that the Commission on HBL
was headed by Mr. Justice Muhammad Ilyas, who submitted an interim
report on 22.04.1997. It is mentioned in the interim report that Mr.
Justice Muhammad Munir Khan was originally Chairman of the
Commission appointed by the Federal Government, whereas Mr.
Justice Raja Abdul Aziz Bhatti, Judge Lahore High Court and Mr. Justice
Sardar Muhammad Raza Khan, Judge Peshawar High Court were its
Members. Its term, however, was extended from time to time with the
result that total period consumed by the original Commission was
about one year. After sad demise of Mr. Justice Muhammad Munir
Khan, the Commission was re-constituted on 29.01.1997 with Mr.
Justice Muhammad Ilyas (former Judge of Supreme Court) as
Chairman and Mr. Justice Javed Nawaz Gandapur and Mr. Justice Faqir
Muhammad Khokhar as its Members. The Commission inquired from
the Secretary of the Ministry of Law as to whether the new
HRC 19/1996 [Detailed Judgment] 32
Commission was required to hold de-novo inquiry or to proceed with
the inquiry from the stage where it was left by the original
Commission. Be that as it may, the Commission did not complete its
report, as is evident from the report dated 17.05.2012 submitted on
behalf of the Ministry of Law and Justice vide CMA No.2096/12 wherein
it is stated that report of Commission in the affairs of Mehran Bank
Ltd, is not available. As regards the report on Habib Bank Scam, it was
submitted that Mr. Justice (R) Muhammad Ilyas, Chairman, HBL
Inquiry Commission vide letter dated 22.04.1997 sent only an interim
report, and did not send the final report to the Ministry. A copy of the
interim report is annexed with the above CMA. Therefore, vide order
dated 17.05.2012, the President HBL was directed to appear in person
and to produce the statement/ledger showing the withdrawal of the
amount on the direction of the then Vice President HBL, respondent
No.3 and also to assist the Court as to whether any other material was
available, which showed that those amounts were taken out without
adopting the proper procedure as alleged, for the purpose of
distribution to certain politicians and others before the 1990 general
elections. Likewise the Governor, State Bank of Pakistan was also
asked to look into the matter and if some information in that behalf
was available with him, he would share the same with the Court.
Accordingly, vide CMAs No.2372/2012 and 2373/2012, a copy of the
reply submitted by Habib Bank Ltd. to the Secretary Commission of
Inquiry (in two parts) was filed. Similarly, the Governor, State Bank of
Pakistan through CMA No.2374/2012 also filed a statement along with
certain documents.
16. It is to be noted that the HBL in its reply has mentioned
about the withdrawal/deposit of Rs.140 million from Habib Bank Ltd.
HRC 19/1996 [Detailed Judgment] 33
under the instruction of respondent No.3. Likewise, the Governor,
State Bank of Pakistan in his statement dated 01.06.2012 has
confirmed that “the HBL Reports, inter alia, deal with the issue of
‘withdrawal & deposit of Rs.140.000 (M) from HBL under the
instructions of Mr. Yunus Habib.’ It is submitted that the details given
in HBL Reports appear to be correct”. The factum of withdrawal and
deposit as well as disbursement has also been confirmed by Brig. (R)
Hamid Saeed Akhtar in his non-confidential report noted hereinabove.
Besides confirmation of the same, respondent No.2 in his affidavit has
also confirmed the same.
17. In this regard, it is noteworthy that CMA 785/97 dated
22.10.1997 was filed by Mr. Akhtar Ali Chaudhry, AOR on behalf of
Ministry of Law for holding the proceedings of the case ‘in camera’,
inter alia stating therein as follows: -
“3. In the Petition, filed by Air Marshal (Retd.)
Mohammad Ashgar Khan, it has been alleged that some
money was disbursed to Gen. (Retd.) Mirza Aslam Beg by
the ISI. An affidavit of Lt. General (Retd.) Mr. Asad
Durrani, former Director General, ISI, has also been placed
on record to allege the distribution of funds to the former
Chief of Army Staff (COAS) and others as donation to the
election campaign in September/October, 1990, which fact
has been denied in the letter of Secretary, Defence,
Government of Pakistan, addressed to the Attorney
General for Pakistan on 25.6.1997. However, regardless of
the truth or otherwise of the allegations, if the proceedings
are held in the open court, it may not be in national
interest as well as in the interest of highly sensitive
Institution of the Country. Accordingly, prayer is hereinmade
for holding the proceedings of the case in Camera by
this Hon’ble Court.”
Respondent No.1 vehemently opposed the request by filing the reply in
the CMA noted above through his counsel, inter alia, contending as
under: -
HRC 19/1996 [Detailed Judgment] 34
“2. Para 2 is incorrect. This learned court is not holding
any proceeding with to the working of Inter Services
Intelligence Bureau. The Honourable court is only looking
into the Political Cell of this institution which was opened
by virtue of an executive order in 1975 by Mr. Zulfiqar Ali
Bhutto, a former Prime Minister of Pakistan. This Political
Cell as per the press reports have allegedly manipulated
people’s right to form associations under Article 17 of the
Constitution and have also reportedly acted to frustrate
the will of the citizens of the Country. It is, therefore, in
the interest of the national security that a disputed Political
Cell be treated differently and distinctly from rest of the
institution and may also be dealt with separately so as to
rid political process of the country from undesirable,
unhealthy and extraneous influence. The work of ISI is not
at all in question or the subject matter of probe or
adjudication by this honorable court. The only question
which falls for the determination of the Honourable
Supreme Court is as to whether the public funds which are
property to 130 million people of Pakistan and are
deposited with the banks could be siphoned to manipulate
people will during elections. This, by no stretch of
imagination or interpretation could be extended to include
in the domain of the national security issues. Therefore,
the issue raised in paragraph 2 demonstrates an obvious
confusion and lack of comprehension of the substance of
subject matter of inquiry by the court.
3. Contents of Para 3 are absolutely incorrect hence
denied. In the letter of Air Marshal (Retd.) M. Asghar Khan
which has been treated as a petition by this learned court,
disbursement of money to respondent has never been
alleged. Even the alleged affidavit of Lt. Gen. (Retd.) M.
Asad Durrani is not part of the record. Regardless of the
defence taken by the Government of Pakistan, none of the
above referred issues relate to the national security. The
proceedings in camera because such proceedings give rise
HRC 19/1996 [Detailed Judgment] 35
to suspicions, speculations and mistrusts. Disbursement of
money to individuals for politics does not make the issue
as sensitive or one pertaining to the national security. If at
any stage of the proceedings it is found that any issue
relating to defence of the country or working of the ISI in
its national security pursuits comes under question that
specific situation may be dealt with differently otherwise
the request for holding camera proceeding in arbitrary
desire which cannot be countenanced.”
18. In pursuance of above reply filed by respondent No.1, his
statement was recorded on oath in open court on 16.06.1997, wherein
he reaffirmed the contents of his reply and reiterated that the ISI had
been created by the Government of Pakistan, which was directly
answerable/responsible to the three Services through JCS till 1975. In
1975 the then Prime Minister of Pakistan through an executive order,
created a political cell within the Organization of ISI and by virtue of
that change in the working of ISI it came directly under the control of
the Chief Executive, particularly on political matters and for all the
security matters concerning the armed forces, ISI, reported to the
Joint Chiefs of Staff Committee. According to him, that position
continued till that date i.e. 16.06.1997. He explained that ISI had
been virtually divided into two parts, namely; political wing and other
wing concerning matters relating to counter and strategic intelligence
of the Armed Forces. During the regime of General Zia-ul-Haq, ISI was
reporting in all matters to the President, who by virtue of his office as
Chief Martial Law Administrator and President of Pakistan controlled its
office. He further explained that after the general elections of 1988,
ISI was completely free from the influence of Army and since then is
virtually under the control of Chief Executive while remaining
HRC 19/1996 [Detailed Judgment] 36
responsible to JCSC. In 1990 when the money was donated by
respondent No.3, ISI was acting under the direction of the higher
authorities. As Chief of Army Staff at that time when he was informed
of this matter, his only concern was that the money received by the
ISI was utilized properly and an account was maintained and beyond
that, he had no concern with that money. Thereafter, on a question
put by the learned counsel for the petitioner, he stated as under: -
“Although the Director General, ISI is an officer in uniform
but the Chief of Army Staff has no authority to take action
against him. The head of ISI was a person from Army of
which I was head at the relevant time.”
19. On 24.02.1997, the Ministry of Defence filed in Court a
letter dated 22.02.1997, wherein it was stated that according to
information provided by the ISI, it did not receive any amount during
September/October 1990, therefore, the question of distribution of
same to the politicians, as stated by respondent No.2, did not arise.
Since the said statement contradicted the statement made by Maj.
Gen. (R) Nasirullah Khan Babar on the floor of the National Assembly,
therefore, the Court vide order dated 24.02.1997, summoned the
record of proceeding of National Assembly dated 11.06.1997 in which
Maj. Gen. (R) Nasirullah Khan Babar had made the statement in
question. On 26.03.1997, record of proceedings was produced and it
was observed that no specific amount had been mentioned allegedly
received by respondent No.2. However, the petitioner produced a copy
of affidavit of respondent No.2, which contained a recital regarding
distribution of 60 million rupees as per direction of the COAS/election
cell. Later, on court’s direction, Maj. General (R) Nasirullah Khan Babar
and respondent No.2 filed their statements in the shape of affidavits.
However, a perusal of the Court orders dated 23.10.1997, 27.10.1997
HRC 19/1996 [Detailed Judgment] 37
and 06.11.1997 reveals that the Court had taken judicial notice of the
facts stated by both of them in their affidavits. The order sheet of 19 &
20.11.1997 also shows that their cross-examination was made by
holding proceedings in camera. On having gone through the ordersheet,
it appears that proceedings to the extent of cross-examination
of these persons were completed. However, portion of the record
regarding their cross-examination has not been de-classified by this
Court.
20. As regards the request made by the learned counsel for
respondent No.1 to supply copy of the ‘confidential statement’ of
respondent No.2, referred to by him in his handwritten letter to the
Prime Minister dated 07.06.1994, it may be mentioned that no such
statement was brought on record by either of the parties, therefore, it
was not possible to supply the same. As for the request of respondent
No.1 made vide CMA No.1006/2012 to supply copy of crossexamination
on the statements of Maj. General (R) Nasirullah Khan
Babar and respondent No.2, the request was not acceded to because
the Court had decided not to make their statements public and we
were of the opinion that if the matter could be decided to the extent of
relief sought by the petitioner Air Marshal Asghar Khan, there would be
no necessity to rely upon the proceedings held in Camera.
21. It is to be noted that during proceedings on 25.04.2012
following observations were made: -
“3. We have undertaken some deliberations and during
course whereof, it transpired that Gen (R) Mirza Aslam Beg
in his concise statement had also taken the position of
possessing knowledge about the distribution of this
amount and maintaining the account by the ISI. Inter alia,
HRC 19/1996 [Detailed Judgment] 38
in the concise statement, one of the factors also finds
mention to the effect that full account was maintained qua
all the payments made by the then Director General, ISI
and no amount was misappropriated or misused.”
As such, Mr. Muhammad Akram Sheikh, learned ASC appearing for
respondent No.1 was required to furnish details of such accounts
before the next date of hearing. Thus, CMA No.1973/2012 was filed by
respondent No.1 under his own signature wherein it was stated that he
had been maintaining from the very outset that he had absolutely no
involvement in the disbursement of donation ordered by President of
Pakistan Ghulam Ishaq Khan and that he merely possessed knowledge
of the same being the Commander of Armed forces.
22. The respondent No.3 whose name has been repeated time
and again in the pleadings, was never asked to file reply, as such,
during instant hearing he was issued notice, in response whereof, he
appeared and filed affidavit dated 08.03.2012 to the following effect: -
“Affidavit for Supreme Court
I, Mohammad Yunus A. Habib S/o A. Habib resident of IIA-
I, Main Sunset Boulevard, DHA Phase II Ext Karachi,
give sworn statement which follows as under:-
(1) That Air Marshal (R) Mohammad Asghar Khan filed a
petition (Human Rights Case No.19/1996 in the
Supreme Court of Pakistan and that deponent is
respondent along with Gen (R) Mirza Aslam Beg, Ex
Chief of Army Staff and Lt. Gen. (R) Asad Durani, Ex
DG I.S.I
(2) That the Honourable Apex Court issued a notice to
appear on 8th March 2012 at 9.00 a.m.
(3) That back in 1979/80 when I was serving as Vice
President of Habib Bank Ltd. and posted at Karachi, I
HRC 19/1996 [Detailed Judgment] 39
had met Brig (later) General Mirza Aslam Beg at the
residence of Brig. Qamar-ul-Islam. One (Brig.
Mohammad Aslam was also present).
(4) The above meeting translated into personal
friendship between Gen (R) Mirza Aslam Beg and
myself.
(5) Gen (R) Mirza Aslam Beg and I frequently talked to
each other. To the best of my memory Gen Beg
called me in March 1990 and asked that late
President Ghulam Ishaq Khan has asked to arrange
Rupees 350.00 Million (Thirty five crores) well before
the election which could be held at any time in
GREAT NATIONAL INTEREST.
(6) Few months later I was invited as a guest in
installation ceremony of Col in Chief (General Beg).
(7) That President Ghulam Ishaq Khan was the Chief
Guest but in actual fact I was treated like the Chief
Guest.
(8) That I enclosed a photo taken on that occasion in
which I was flanked by late President on the left and
Gen Beg on the right which proof above statement.
(9) That ours Bank (Habib Bank Ltd) was a Nationalized
Bank and that I was holding the position of SEVP and
Member Board and Provincial Chief of the said Bank.
(10) During this occasion a meeting was held in which
Gen Beg introduced myself to late President Ghulam
Ishaq Khan and told him that as per your desired I
have discussed with Mr. Yunus Habib for the
arrangement of required funds.
(11) After approximately 45 to 60 days later General Beg
telephoned me and asked that late President Ghulam
Ishaq Khan wants to have a meeting with me in
which President was to be assured that Funds
between 35 to 40 crores will be managed.
(12) As far as I can recall the meeting was held most
probably at Balochistan house Islamabad.
HRC 19/1996 [Detailed Judgment] 40
(13) During the meeting in which only (3) of us
(President, Gen Beg and myself) were present ,
President inquired of me for the arrangement of 35
to 40 crores for the Great National Interest to which
I told the President that arrangement for such a
huge amount was not possible through legal means
and manipulation shall be needed for this purpose.
The President directed that whatever is required
should be done for the National Cause.
(14) That on 29th Sep 1990 a meeting was held most
probably Q block of Islamabad Secretariat. In this
meeting late Attorney General Aziz Munshi and Mr.
Roedad Khan (who was probably Chief of Cell to
initiate cases against President Asif Ali Zardari and
Mohtarma late Benazir Bhutto. During the said
meeting I was personally pressurized by Mr. Roedad
Khan to lodge a complain against President Asif Ali
Zardari to which I refused.
(15) When I went back to Karachi I was arrested from the
Airport and FIA Cell and I was informed I have been
arrested on the orders of Mr. Roedad Knan and I was
again pressurized for the same purpose (Ref Faizi Ali
Kazmi case) but I again refused.
(16) I was kept in FIA Cell for (5) to (6) days and I was
informed that I have not yet arranged required
funds.
(17) That I have met Mr. Ijlal Haider Zaidi a couple of
times in the office of Gen Beg and he was also fully
aware.
(18) That during the days when I was under the custody
of FIA I came to the conclusion that I have to
arrange the funds by hook or crook (The term
frequently used by President & Gen Beg). I was
bulled out through the courtesy of Jam Sadiq Ali.
(19) That the loans worth Rs.148 crores were sanctioned
by Provincial Committee and Executive Committee of
the Habib Bank Ltd in the name of my Friends and
HRC 19/1996 [Detailed Judgment] 41
Business Acquaintances (Yousuf Memon and Rafiq
Moor, etc. etc.)
(20) Gen Beg and Col Akbar I.S.I detachment provided
certain accounts in various Banks i.e. UBL, Allied
Bank and MCB, in which Funds were to be deposited.
(21) Brig Hamid Saeed I.S.I detachment Karachi was
detailed Coordinator/ Supervisor of the operation.
(22) The deposited amount was informed by me to Gen
Beg and Brig Hamid Saeed and counterfoils of the
deposit slips were handed over to Col Akbar and
photocopy of counterfoils to Mr. Yousuf Memon.
(23) A total Rs.(34) crores out of Rs.148 crores were
disbursed as under: -
i. 140 million through Gen Beg as detailed
above.
ii. 70 million to Mr. Jam Sadiq Ali, the then
Chief Minister Sindh.
iii. 15 million to Pir Pagara Sahib through
late Jam Sadiq Ali.
iv. 70 million were paid to Mr. Yousuf
Memon on the instance of the
President/Gen Beg for the politicians who
did not want to get money directly from
ISI.
Some funds were given for Army welfare
scheme the exact details. I did not know the
remaining amount were utilized for purchase of
properties etc. etc. and a portion of these
funds were also given to business
acquaintances who facilitated/provided their
names for as directors/companies.
(24) A total of Rupees 3450.00 millions (three point 45
Billion) have been paid back to the Bankers, and a
sum of Rs.1150.00 million is yet to be paid to Habib
Bank Ltd against with a 32 Acres of land
com/industrial/Residential plots for which a case is
pending with Honourable Supreme Court.
HRC 19/1996 [Detailed Judgment] 42
(25) That this case has been scandalized as Mehran Gate
whereas the fact of the matter is that the money was
taken out of Habib Bank Ltd and Mehran Bank was
not yet born.
(26) That however when the matter came to Surface in
1994 I was then Chief Operating Officer of Mehran
Bank Ltd however I enjoying the full powers of Chief
Executive of Mehran Bank Ltd because of my huge
investment in the Bank.
(27) When Mohtarma Benazir Bhutto Shaheed came to
power in the 2nd tenure and came to know that I was
used against her in the election by providing huge
amount she ordered to close the Mehran Bank and
also ordered to arrest me.
(28) THAT I SPENT (4) YEARS IN JAIL FOR SERVING SO
CALLED SUPREME NATIONAL INTEREST. I NEVER
KNEW THE EXACT PURPOSE AS TO HOW THE MONEY
WAS TO BE UTILIZED.
(29) That I was an employee of the Nationalized Bank and
under the circumstances had no option but to obey
the President and the COAS in the name of Supreme
National Interest.
(30) I apologise my involvement and throw myself at the
mercy of this Honourable Court.
That above is to the best of my knowledge & believe.
Mohammad Yunus Habib
Sd/—
Dt. 08/03/2012”
23. In view of the allegations contained in the affidavit of
respondent No.3, respondent No.1, on 09.03.2012, filed a counteraffidavit
in the following terms: -
“COUNTER AFFIDAVIT OF GENERAL (R) MIRZA
ASLAM BEG, DEPONENT/RESPONDENT NO.1, IN
RESPONSE TO THE AFFIDAVIT FOR MR. YUNUS A.
HABIB
HRC 19/1996 [Detailed Judgment] 43
I, General (R) Mirza Aslam Beg, hereby do solemnly affirm
and state on oath as under:
(1) That the deponent hereby sincerely, firmly and
honestly denies all the contents of the affidavit
sworn by Mr. Yunus A. Habib, on 8th of March, 2012.
(2) That the affidavit filed by Mr. Yunus A. Habib, before
this Honourable Court, on 8th March 2012, is a “bolt
from the blue” and brings out something only to
scandlise the proceedings pending before this August
Court since 1996.
(3) This is a totally mala fide attempt to dramatise and
scandalize the sanctity of the proceedings pending
before this Honourable Court, which have been given
a new direction by the sinister intelligence behind
this whole affair.
(4) That Mr. Yunus Habib has tired to malign the former
President of Pakistan Ghulam Ishaq Khan,
posthumously, myself, and several others in this
sordid game of mixing politics with justice, with the
sordid intent to obstruct the wheel of justice.
(5) That in response to the allegations of Yunus A.
Habib, a self condemned perjurer, I consider it
proper to bring on record for the kind attention of
this honourable Court, the disappearance of the
statements of Gen. Assad Durani, and Maj. General
® N. K. Babar recorded by this Hon’ble Court in
camera but not yet found. This fact supports the
respondent deponent’s apprehension that the
“vested interests, which carry the legacy of the
vendetta of the lady” – Prime Minister Benazir Bhutto
– against the respondent deponent, for allegedly
causing the fall of her government in 1990, continue
to haunt him and endeavour to interfere with even
the record of this August Court.
(6) That the respondent deponent would also draw the
attention of this Hon’ble Court, some crucial facts to
recall the past proceedings for proper perspective.
a. Judgment was reserved by a learned bench
headed by Chief Justice Mr. Justice
Saiduzzaman Siddiqui on 19.5.1999, but the
proceedings were subsequently re-opened by
the Chief Justice on 08.10.1999, when the
following order was passed:
“After judgment was reserved in the case,
the office pointed out that the statements of
two witnesses (Maj. General (R) Nasirullah
Babar and Lt. Gen. (R) Asad Durani)
recorded in the case during in-camera
proceedings were neither signed by the
witnesses nor by the learned Judges who
conducted in-camera proceedings.
According, the two witnesses were called in
HRC 19/1996 [Detailed Judgment] 44
the chamber before one of us (justice
Saiduzzaman Siddiqui) on 2.6.1999 and
shown the record of their respective
evidence. The two witnesses after going
through their statements confirmed the
correctness of their statements and signed
the same.
Thereafter, Maj. Gen. (R) Nasirullah Babar
filed an application in the office under Order
V Rule 1 (19), 1980, along with several
documents, praying that Sardar Farooq
Ahmed Khan Leghari be summoned in the
case to produce the computer disk in
respect of all accounts maintained in the
Mehran Bank and specifically his own
accounts and his evidence be also recorded.
As judgment in the case was reserved, the
office sent the application for orders in the
chambers. The above application filed by
Maj. Gen. (R) Nasirullah Babr could not be
heard and disposed of due to summer
vacations. As the application filed by Mr.
Nasirullah Babar is to be disposed of before
final decision of the case, the office is
directed to fix the application in Court on
11.10.1999 at 1 p.m. after notice to all the
parties and the learned Attorney General.”
The case was last fixed according to record on
12-10-1999, i.e. the day of Military Takeover
by Gen. Musharraf, on which day the following
order was passed:-
“Learned Attorney General submits that he
has received the copy of C.M.A. 1072/99
today and request for time to file reply
thereto. Learned Counsel for respondent
No. 1 states that his client is out of country.
He also requests for time. Adjourned to a
date in office.
b. In 1997, I recorded my statement in ‘Open
Court’. I was questioned by the petitioner’s
lawyer. But regretfully, the statements of Lt
General Asad Durrani and N.K. Babar were
recorded in camera. My defence counsel Mr.
Akram Sheikh was present and I had no access
to these statements, till I got the call-up notice
from this apex court, to appear for haring on
8th March 2012.
c. My Defence Counsel Mr. Akram Sheikh gave
me the copy of Lt Gen Asad Durrani’s affidavit,
but could not find Gen: Nasirullah Babar’s
HRC 19/1996 [Detailed Judgment] 45
statement, which was sealed and kept in safe
custody of the court.
d. The respondent deponent/application was
summoned in a petition alleging commission of
misconduct by the respondent
deponent/applicant and Gen. Asad Durrani, but
the respondent deponent/applicant himself
volunteered to submit that this allegation
would not attract enforcement of any
fundamental right falling within the jurisdiction
of this Hon’ble Court and way back in 1997 in
his concise statement as well as his reply to
CMA No. 785 of 1997 stated:-
“That this Hon’ble Court could very
competently look at the working of
political cell of the ISI which was opened
by virtue of an executive order in 1975
by Mr. Zulfiqar Ali Bhutto, a former Prime
Minister of Pakistan. This political Cell as
per the press reports has allegedly
manipulated people’s right to form
Associations under Article 17 of the
Constitution and has also reportedly
acted to frustrate the will of the citizens
of the country. It is, therefore, in the
interest of the national security that a
disputed Political Cell be treated
differently and distinctly from rest of the
institution and may also be dealt with
separately so as to rid political process of
the country from undesirable, unhealthy
and extraneous influence.”
(7) That the respondent deponent/applicant may also
refer to paragraph 14 of his concise statement/reply
on behalf of respondent No. 1, which is reproduced
here under:-
“14. That on 20 April, 1994 the then Interior Minister
Mr. Nasirullah Babar made the disclosure in the
National Assembly as reported in the “The Daily
Muslim” dated 21st April, 1994:
“That Yunus Habib, the Chief Operator of
Mehran Bank Limited (MBL) misappropriated
Rs. 2.10 billion through a number of fake
accounts.
“The Interior Minister told the House that
Yunus Habib gave Rs. 140 million to Mirza
Aslam Beg, the former COAS in 1991” Rs. 70
million to late Jam Sadiq Ali Khan, the then CM
Sindh, Rs. 20 Million to Altaf Hussain, the MQM
Chief, and huge amount to other politicians”.
HRC 19/1996 [Detailed Judgment] 46
All these allegations have been dealt with and
vehemently denied by the respondent
deponent/applicant in his concise statement as
trumped up charges by Interior Minister of Pakistan
Peoples Party government. It is also part of the
record that Mr. Rehman Malik traveled to Germany
twice to scandalize the issue subject matter of this
petition, which was first blasted by Maj. Gen ® N.K.
Babar on the floor of the National Assembly.
(8) In the earlier statement quoted to have been made
by Mr. Yunus Habib there was no mention of Rs.
1800 million and other allegations that he talks
about now and claims that he was directed to
produce this amount “by hook or by crook”.
(9) That in fact he has tired to develop a new story, to
cover-up his own crimes of having siphoned-of Rs.
1800million from Habib Bank/Mehran Bank for which
he was prosecuted, jailed and made to pay almost
double the amount of over Rs. 3 billion. Thus,
‘politics’ and ‘crime’ mingled together to create space
for denial of justice.
(10) That I find myself handicapped in properly replying
to the affidavit filed by Mr. Yunus Habib, without
having in hand the report of Mehran Bank Scandal
Commission and Habib Bank Scandal Commission
and crave indulgence of this Hon’ble Court to direct
the Federal Government of Pakistan Peoples Party to
supply me a copy of the same, so that I may submit
my detailed response to malicious, prompted, and
absolutely false allegation so far as the respondent
deponent/applicant is concerned.
(11) That the applicant/respondent deponent takes this
opportunity for placing before this Hon’ble Court the
consistent attitude of various PPP governments
towards the judiciary and armed forces and they do
not spare any opportunity to tarnish the image of
these two institutions.
(12) That I have no doubt in my mind whatsoever that
the bundle of lies put together by Mr. Yunus Habib in
his affidavit is inspired by political expediency of the
vested interests and Yunus Habib’s effort to sanctify
his sordid deals, by linking-up the matter with “fund
raising for elections, in national interest.”
(13) That this affidavit is a cover-up for his own crime, he
was found guilty of and punished for under the law.
It was a separate matte, which has been dealt with
by the Habib Bank and Mehran Bank Commissions of
Enquiries.
(14) That in submitting this counter affidavit I sincerely
thank this Hon’ble Court, for making me complete
my ‘hat-trick’, of appearing thrice before this apex
court – first before Chief Justice M. Afzal Zullah,
second time before Chief Justice Sajjad Ali Shah and
now before this Honourable court, under the dynamic
HRC 19/1996 [Detailed Judgment] 47
leadership of Chief Justice Iftikhar Muhammad
Chaudhry. This is an honour, bestowed on me –
which no other COAS can possibly claim.
And yet, I wonder: “Jane kis jurm ki paye hay saza
yad naheen.” (Why I am being punished, I know not)
Submitted with respect by
SWORN at Islamabad this day of 09.03.2012
Sd/-
Respondent Deponent
General (R) Mirza Aslam Beg.”
24. Respondent No.2 also filed a concise statement dated
08.03.2012, which reads as under: -
CONCISE STATEMENT ON BEHALF OF RESPONDENT NO. 2
LT. GENERAL (R) M. ASAD DURRANI
Respectfully Sheweth,
1. That on 8th March, 2012, the Hon’ble Chief Justice of
Pakistan directed me to give my comments on the
affidavit submitted by Mr. Yunus Habib, during the
hearing of HRC No. 19/1996 (Air Marshal Asghar
Khan v. Gen Aslam Beg. These are as under: -
2. Mr. Yunus Habib did deposit Rs. 140 million (Para
No. 23 (1) of the affidavit) in various branches (Para
No. 20) in the accounts opened, on my orders, by
Brig. Hamid Saeed (heading M.I and not I.S.I.
formation in Karachi)
3. This fact was also mentioned by me in the affidavit
that I had signed and handed over to Mr. Rehman
Malik, the then D.G. F.I.A. on 07.06.1994 in
Germany.
4. I have no information on any other issue raised by
Mr. Yunus Habib in the affidavit.
It is therefore respectfully prayed that concise statement
may kindly be placed on record in the interest of justice.
Dated: 08.03.2012 Lt. General (R) M. Asad
Durrani”
Respondent No.3, in response to the above counter-affidavit of
respondent No.1 dated 09.03.2012 and concise statement of
HRC 19/1996 [Detailed Judgment] 48
respondent No.2 dated 08.03.2012 filed affidavit dated 10.03.2012,
which reads as under: -
“AFFIDAVIT in response of affidavit of General (R) Mirza
Aslam Beg dated 9th March 2012 and Lt Gen (R) M. Asad
Durrani dated 8th March, 2012
In the Supreme Court of Pakistan
I, Muhammad Yunus A. Habib s/o A. Habib resident of 11-
A-1 Main Sunset Boulevard, DHA Phase II Extension
Karachi give SWORN Statement which follows as under: -
Gen. (R) Mirza Aslam Beg
(1) In reply to Para (2) of the affidavit, it is submitted
that I submitted the affidavit dated 8.3.2012 in the
Honourable Supreme Court of Pakistan with all
Sincerely, Honesty to bring the truth on record and
there is no Question of Scandalizing the highest
Court of the Country (Supreme Court of Pakistan)
headed by the Chief Justice of Pakistan, Justice
Iftikhar Chaudhry, arises.
(2) I have no interest in dramatizing this case and just
want to speak truth before this Honourable Court
(before death) to enable and empowered this
Honourable Court to reach at correct conclusion. It is
further stated at ever since this case filed by Air
Marshal Asghar Khan in the Supreme Court of
Pakistan, I never met any official of any Civil or
Military Intelligence and never met any Political
figure of any Political Party till I deposited my
affidavit in this Honourable Court on 8th March 2012.
Only Gen (R) Mirza Aslam beg spoke to me in the
last about (2) years only (4) to (5) times. (This is in
reply to Para (3) of affidavit)
(3) In reply to Para (4) of the affidavit again I have no
interest in the politics of the Country and can never
think to malign any person and obstruct the Court of
HRC 19/1996 [Detailed Judgment] 49
Justice. The Photo Submitted by me in the affidavit
dated 8/3/2012 is proof of the fact that the President
and Gen (R) Beg pampered me to the extent that I
should not refuse to their order.
(4) In reply to Para (8) it is submitted that in my
previous affidavit, I stated that Rupees 1480 million
(One hundred forty eight crores) were taken out of
Habib Bank Ltd and not Rupees 1800 Million as
stated by Gen (R) Aslam Beg.
(5) In reply to Para (9) it is stated that Gen (R) Aslam
Beg has mixed up Habib Bank and Mehran Bank
whereas to the best of my knowledge and
understanding, the filed by Air Marshall (R) Asghar
Khan portions to use of money in the Edition in 1990
to block the victory of PPP Govt. and, therefore, I
restricted my disclosure of facts confined to Habib
Bank Ltd and did not touch the issue of Mehran Bank
except Rs. 150 Million paid to Late Jam Sadiq Ali for
licence (as a separate note on the affidavit).
(6) I am ready to file the affidavit in case of Mehran
Bank if a case is filed in the Supreme Court of
Pakistan or the Supreme Court itself orders to
submit the affidavit in this respect.
(7) It is correct to the extent that I paid a sum of
Rupees amount to more than (3) Billion. I actually
have so far paid Rupees 345 crores and only Rs.115
crores is to be paid to Habib Bank Ltd, this amount
can be easily paid out of sale proceeds of plot for 32
Acres situated at Gulshan-e-Iqbal Block 9. I am
100% sure that the case will be decided in my favour
because City District Govt. has taken back its claim
that it paid any amount against this plot to Evacuee
Trust.
(8) In reply to Para 12 & 13 my submission in the above
paragraphs reiterated.
Lt. Gen. (R) M. Asad Durrani
HRC 19/1996 [Detailed Judgment] 50
(1) In reply to Para (2) it is submitted that Brig. Hamid
Saeed and Col. Akbar were introduced to me as ISI
officers. However, after affidavit of Gen (R) Durrani
the word ISI in Para 20 & 21 may kindly be deleted
from my previous affidavit dated 8th March 2012.
That above is to best of my knowledge and belief.
Muhammad Yunus Habib
Sd/-
10.03.2012”
In the meanwhile, respondent No.3 also filed CMA No.1034 of 2012
wherein he stated that in his affidavit dated 08.03.2012 reproduced
hereinabove, he had disclosed that Rs.70 million were distributed
through Mr. Yousaf Memon, Advocate amongst those politicians who
did not want to get money directly from ISI. That Mr. Yousaf Memon
Advocate in two different TV Programmes of GEO News channel (one
by Kamran Khan and the other by Nazir Laghari) admitted that a
house was purchased in F-6/2 Islamabad in the name of Mr. Javed
Hashmi. He also admitted that 50% of the amount was invested in the
purchase of house (Kasim 1 al-Multan). That after release from jail, he
contacted the officials of State Bank of Pakistan and Habib Bank Ltd.
for settlement of liabilities, desired to settle the liabilities with
facilitation of NAB to which he agreed. Thus, against a loan of Rs.148
crores, settlement was reached at Rs. 300 crores (original amount of
loan/advances of Rs.148 crores and markup/interest of Rs.152 crores).
Out of the said liability, he had paid Rs.185 crores, which means that
the principal liability of Rs.148 crores has already been paid while
Rs.37 crores have been paid towards markup and only a sum of
rupees Rs.115 crores was outstanding on account of markup/interest.
He prayed for appointment of a Judicial Commission to effect recovery
of the amount disbursed through ISI and Mr. Yousaf Memon Advocate,
HRC 19/1996 [Detailed Judgment] 51
adjust the same towards the settlement of HBL’s liability; or in the
alternative, the responsibility of recovery of said money may be
assigned to the NAB, which is already engaged in the case.
25. In pursuance of Court notice, learned Deputy Prosecutor
General, NAB appeared and submitted a report pointing out that
following the process of plea bargain under the NAO, settlement of
account had already taken place with HBL. Be that as it may, the Court
while being seized with the matter regarding distribution of the
amounts through election cell would not be extending the scope of
proceeding so as to settle the personal accounts of respondent No.3
and would confine itself only to the extent of the prayers/declarations
sought by the learned counsel for the petitioner, which are as under: -
(a) All members, including Defence Army Officers who
are respondents, who acted so as to interfere with
and maneuver the electoral process in any manner,
including through disbursement of funds subverted
the Constitution.
(b) No member of the Armed Forces is obliged to obey a
command in violation of his oath of his office and
cannot take the defence of command of the
superiors.
(c) Receiving secret funds and non-disclosure thereof
constitutes serious electoral fraud with consequences
under the electoral laws.
(d) A direction to the Federation to initiate appropriate
proceedings under criminal and election laws against
the alleged givers and recipients of funds for political
purposes including the respondents and the various
persons named in Ltd. Gen (R) Durrani’s letter to PM
dated 7.6.94 and affidavit dated 24.7.94.”
26. On 26.06.1997, the then learned Attorney General
produced in Court original letter dated 25.06.1997 addressed to him
HRC 19/1996 [Detailed Judgment] 52
by the Secretary Defence along with the document under which ISI
was created. However, while placing the said document before the
Court, he claimed privilege, which was allowed for the time being and
the document was returned to him on the same date. This fact was
mentioned in the order dated 26.06.1997 wherein it was observed that
it appeared from the contents of the letter addressed to the learned
Attorney General that a political cell was created in the ISI in May,
1975, which was still in existence. When the Court inquired from the
learned Attorney General as to whether the Government intended to
continue with the political cell in the ISI, he requested for time to seek
specific instructions. The matter was then taken up on 23.10.1997 and
26.07.1997, but no response came up in that behalf. As such, on
27.10.1997 again learned Attorney General was asked to inform the
Court whether the Federal Government wanted to retain the political
cell in the ISI as was directed on 26.07.1997. However, despite
repeated directions, the learned Attorney General failed to file any
response of the Government regarding retaining of the political cell in
the ISI. However, on 09.03.2012, the respondent No.2, while changing
his earlier stance, stated in Court that there was no political cell in the
ISI, but political work might have been done by certain designated
persons. On 17.05.2012, the learned Attorney General was asked to
procure notification of 1975 issued by the then Chief Executive in
pursuance whereof a political cell was created in the ISI as alleged by
the respondents. When the case was taken up on 04.06.2012, the
learned Attorney General stated that copy of said notification would be
produced on the next date of hearing. However, on the next date, i.e.
22.06.2012, he stated that despite his efforts, he could not succeed in
getting the said notification traced, whereas Commander Shehbaz,
HRC 19/1996 [Detailed Judgment] 53
Director (Law), Ministry of Defence stated that according to his
information the notification was issued by the Cabinet Division and he
would try to get a copy of the same from the said Division. He, too,
failed to produce the same on the next date of hearing, i.e.,
16.07.2012 when he stated that no such notification was available in
the Ministry of Defence. In the circumstances, vide order dated
13.09.2012, the Secretary, Ministry of Defence, Government of
Pakistan was directed to file a statement in writing in that behalf and
also to explain as to whether presently any such cell was working in
the ISI or any other agency controlled by the Defence Ministry.
Likewise, Secretary, Ministry of Interior was also directed to make a
similar statement in respect of IB and all other agencies controlled by
the said Ministry. On the next date of hearing, i.e., 03.10.2012, the
learned Attorney General placed on record letter dated 28.09.2012
addressed to him by the Ministry of Defence stating therein that no
political cell is functioning in the Directorate General, Inter Services
Intelligence or any other Agency working under the administrative
control of Ministry of Defence. On 04.10.2012, the Interior Secretary
submitted a written statement wherein it was stated that IB/ISI are
not working under the administrative control of Ministry of Interior.
Furthermore, no other agency under the administrative control of
Ministry of Interior is running any political cell.
27. On 16.06.1997, the statement of the respondent No.1 was
recorded and petitioner’s counsel Mr. Habib-ul-Wahab Al-Khari, ASC
cross-examined him. Learned Attorney General for Pakistan, appearing
on Court notice, filed an application requesting for in-camera hearing
of the case. Both Mr. Nasirullah Khan Babar and the respondent No. 2
HRC 19/1996 [Detailed Judgment] 54
filed their detailed affidavits stating therein all the facts which they
wanted to state, as such, only cross-examination was to be made. The
Court, vide order dated 06.11.1997, decided to record the further
statement of these persons in-camera. As such, proceedings were held
in camera in which cross-examination of said persons was recorded.
On 19.05.1999, the arguments were completed and judgment was
reserved for orders. However, afterwards, office pointed out that the
statements of Maj. Gen. (R) Nasirullah Khan Babar and the respondent
No. 2, recorded in-camera, were not signed by the witnesses nor by
the learned Judges who conducted in-camera proceedings.
Accordingly, on 02.06.1999, both the witness were called in Chambers
before Mr. Justice Saiduzzaman Siddiqui, J., as he then was (later CJ).
The witnesses, after going through their statements, verified the
correctness of their statements and signed the same. Similarly, as per
order dated 27.05.1998, a sealed cover report on the working of ISI
(parts IV & V) was also filed in Court. Later on, it was pointed out that
the statements of said witnesses, recorded in camera as well as the
report on the working of ISI were not available on record. As such,
vide order dated 29.02.2012, office was directed to trace out the same
and produce in Court in sealed envelope. On the next date of hearing
i.e. 08.03.2012, the requisite documents were produced in Court by
the Court Associate in sealed envelopes. The same were opened, seen,
and returned to him with the direction to deposit the same with the
Registrar of this Court. Relevant portion from the order dated
08.03.2012 reads as under: -
“In obedience to order dated 29.02.2012, the office has
placed on record a sealed envelop under the cover “TOP
SECRETE” “REPORT OF THE COMMISSION TO REVIEW THE
WORKING OF SECURITY & INTELLIGENCE AGENCIES”. The
envelop has been opened in Court, which contains four
HRC 19/1996 [Detailed Judgment] 55
folders Part-II (Report of the Commission to Review the
Working of Security & Intelligence Agencies (MARCH –
1989); Part-III (Correspondence); again Part-II
(photocopy of the same report of the Commission (March-
1989); and again Part-III (Correspondence).
2. A perusal of the same indicates that the Report of
the Commission to Review the Working of Security &
Intelligence Agencies has not been filed. However, Comdr.
Muhammad Hussain Shahbaz, Director (Legal),
representing Ministry of Defence, is allowed to go through
these documents in the office of Registrar of this Court,
who shall facilitate him in this behalf. He is directed to file
the requisite reports pertaining to the year 1990 as well as
up-to-date reports on the Working of Security &
Intelligence Agencies. In the interest of nation, these
documents shall be kept CONFIDENTIAL.
3. The envelop produced before us has been given to
Mr. Rafaqat Hussain, CA/Branch Incharge, Civil-II, who
shall handover the same to Registrar of this Court, who
shall put them under seal.
4. Another envelop has been produced, which contains
the following items: -
“Item No.1
1. 2 Audio Cassettes relating to HRC.19/1996
containing detail, as under:-
Cassette No.1: Dated 20.11.1997 timings
10.30 to 11.00 a.m.
Cassette No.2: Dated 25.11.1997 timing, 10
am to 11 am and 11.30 to
1.00 pm. (side A) dated
26.11.1997 timings 11:45
am to 1:15 pm (side B)
Item No.2
File No.1: Consisting 3 pages in original
Page No.1:
(Note dated 28.5.1999 of the then Additional
Registrar with regard to obtaining the orders of
HJ (1) whether Lt. General ® Nasirullah Babar
and Lt. General ® Asad Durrani may be asked
to read their statements and sign them in the
presence of an officer of this Court).
Page No.2:
Note dated 1.6.1999 regarding submission of
unsigned statements/cross-examination of
Maj. (R) Nasirullah Babar and Lt. General Asad
Durrani to the then HJ(1)
HRC 19/1996 [Detailed Judgment] 56
Page No.3:
Order dated 2.6.1999 of Justice Saiduzzaman
Siddiqui
File No.2 in original:
Srl.
Nos
.
Detail
(All in original)
Page
s
1 Cross examination of Maj.
Gen.(R) Nasirullah Babar by Gen.
Mirza Aslam Beg
1-3
2 Explanation of Gen Babar with
regard to his cross examination
4
3 Cross examination of Maj. Gen.
(R) Nasirullah Babar by Habib-ul-
Wahab ul-Khairi (in Urdu)
5-9
4 Cross examination of Maj. Gen.
(R) Nasirullah Babar by Mr.
Muhammad Akram Sheikh.
10-
21
5 Cross examination of Lt. Gen.(R)
Asad Durrani
22-
25
6 Cross examination of Lt. Gen.(R)
Asad Durrani by Habib-ul-Wahabul-
Khairi
26-
33
7 Cross examination of Lt. Gen.(R)
Asad Durrani by Maj. Gen.(R)
Nasirullah Babar
34-
35
Item No.3:
Copy No.08 of 11 Copies:-
Folder with regard to the report of the
commission to review the working of Security
and Intelligence Agencies (March-1989)
submitted by (i). Air Chief Marshal Zulfiqar Ali
Khan, Chairman, (ii). S.K. Mahmud, Secretary
Interior, Member, (iii). Mr. M.A.K. Chaudhry,
Member and (iv) Air Commodore Muhammad
Yamin, Secretary. (Pages 1-57).
Item No.4:
ADO letter No.RC/1/89 dated 27.3.1989
addressed to the Mohtarma Benazir Bhutto,
Prime Minister of Pakistan, Prime Minister’s
Secretariat, Rawalpindi by the Air Chief
Marshal, Zulfiqar Ali Khan along with its
synopsis of the Commissioner’s Report for
facility of reference. (Pages 1-8)”.
HRC 19/1996 [Detailed Judgment] 57
5. The office has also made efforts to find out as to
whether examination-in-chief of Gen.(R) Nasirullah Khan
Babar and Lt. Gen.(R) Asad Durrani was recorded;
according to the report, no such document is available on
record. However, Mr. Salman Akram Raja, learned ASC,
appearing for the petitioner, states that they were
subjected to cross-examination on the affidavits, which
have already been filed. As these proceedings were drawn
in camera, therefore, the same be sealed and are handed
over to Mr. Rafaqat Hussain for depositing the same with
the Registrar. As regards proceedings drawn by the office
of Registrar to locate these documents, the same are also
made part of the record and are ordered to be deposited
with the Registrar.”
28. Mr. Muhammad Akram Sheikh, learned counsel for
respondent No.1, with reference to the order dated 26.06.1997, stated
that a political cell was created in the ISI in May, 1975 and the
document creating the said cell was shown to the Court, which was
returned after examination. Thus, conclusion can be drawn that a
political cell was working in the ISI since May, 1975 onward and at
initial stage documents were shown, which now have been withheld.
29. It is to be noted that as per contents of various
documents/pleadings, it is, prima facie, evident that a cell was
allegedly functioning in the Presidency in the year 1990 under the
supervision of then President of Pakistan Ghulam Ishaq Khan (late)
and M/s Roedad Khan and Ijlal Haider were in charge/looking after the
affairs of such cell. Inasmuch as, it is also on record that at one point
of time when Mr. Farooq Ahmad Khan Leghari (late) was the President
of Pakistan, some consultation took place between him, late Mohtarma
Benazir Bhutto, the then Prime Minister and late Maj. Gen. (R)
Nasirullah Khan Babar wherein the affairs of the cell constituted to
support alliance of political parties were discussed.
HRC 19/1996 [Detailed Judgment] 58
30. It may be observed that the President, under Article 41(1)
of the Constitution, being the head of the State represents the unity of
the Republic, whereas by virtue of Article 243(2) of the Constitution,
he is the Supreme Commander of the Armed Forces of Pakistan.
Therefore, the President was not supposed to be undertaking any
activities in pursuance whereof a particular group of the political
parties might be allegedly supported in the name of national interest.
On the request of learned counsel for the petitioner, it was deemed
appropriate to implead the office of President as party through
Secretary to the President vide order dated 04.10.2012. On the next
date of hearing i.e. 15.10.2012, Malik Asif Hayat, Secretary to the
President of Pakistan, in response to the notice, appeared and
requested for time. On 17.10.2012, he again appeared and stated that
as per present record, no concrete information was available about
any election cell having ever been created in the Presidency. However,
efforts were being made to lay hand upon any such file. He also stated
that as the Military Secretary to the President was also in possession
of some record of Presidency, information in that behalf, if any, would
be placed before the Court after consulting his office. On 18.10.2012,
Mr. Arshad Ali Chaudhry, Director Legal, President House appeared
and filed a statement on behalf of Military Secretary to the President
stating therein that the record available in the President’s Secretariat
(Personal) was searched, but no document/file pertaining to the cell
allegedly set up in the Presidency in the year 1990 or thereafter was
found.
31. Respondent No.3 has clarified in his affidavit that it was
not the Mehran Bank, but the Habib Bank from where the alleged
HRC 19/1996 [Detailed Judgment] 59
amount was drawn for distribution amongst a group of politicians, who
were intending to contest election from the platform of IJI. He has
stated that respondent No.1 frequently talked to him. In March 1990,
Gen. (R) Mirza Aslam Beg called him and stated that late President
Ghulam Ishaq Khan had asked to arrange Rs.350 Million (thirty five
crores) well before the election, which would be held at any time in the
greater national interest. A few months later, he was invited as a
guest in the installation ceremony of Colonel-in-Chief of respondent
No.1. In the said function, President Ghulam Ishaq Khan was the Chief
Guest, but in actual fact he (respondent No.3) was treated like the
Chief Guest. During the period when he was holding the position of
SEVP and Member Board of Governors as well as Regional Chief of
HBL, a meeting was held in which respondent No.1 introduced him to
President Ghulam Ishaq Khan (late) and told him (President) that as
per his desire he had discussed with him (respondent No.3) matter
regarding arrangement of required funds. He further stated that after
approximately 45 to 60 days, respondent No.1 told him on telephone
that President Ghulam Ishaq Khan (late) wanted to have a meeting
with him, in which President was to be assured that funds between
Rs.35 to 40 crores would be arranged. A meeting was held probably at
Balochistan House, Islamabad, in which only three persons, namely,
President, respondent No.1 and he (respondent No.3) were present.
The President directed that the requisite funds be managed by all
means in the national interest.
32. Mr. Roedad Khan, by means of CMA 3196/2012 filed a
rejoinder to the reply of the respondent No.1 and a supplementary
statement through CMA No. 4350/2012 wherein he denied his
HRC 19/1996 [Detailed Judgment] 60
involvement in the distribution of funds in any manner whatsoever.
According to him, he had never been a member of any such cell, that
he had met respondent No. 2 only once in the office of the Military
Secretary to the President, but had never met respondent No.1 during
the relevant period.
33. From a perusal of the replies/affidavits filed by
respondents No.1, 2 & 3, which have been reproduced hereinabove, it
is clear that the then President Mr. Ghulam Ishaq Khan had formed an
Election Cell directly under his supervision. According to respondent
No. 3, he was informed by respondent No.1 that he was under
instruction from the President’s Election Cell to make available a sum
of Rs.140 million for supporting the 1990 elections and to place this
amount at the disposal of the respondent No.2, who would handle it as
per instruction of the President’s Election Cell. The amount was not
deposited in the MI account, rather various cover accounts were
opened by 202 Survey Section (Brig. Hamid Saeed) under the
command of ISI and an amount of Rs.140 million was deposited in
those accounts directly by respondent No.3. Respondent No.2 under
instruction from respondent No.1 made arrangements to distribute this
amount amongst the politicians belonging to various political parties
and other persons as instructed by the alleged election cell.
Respondent No.1, in a meeting with President Ghulam Ishaq Khan,
brought to his knowledge the fact of donation made by the respondent
No. 3 and its utilization by the respondent No. 2 under instruction of
the President’s Election Cell. Respondent No.1 was fully on board in
the whole exercise. The policy of financial support to the candidates
was laid down by the President’s Election Cell and respondent No. 2
HRC 19/1996 [Detailed Judgment] 61
was acting under its command and making payments as directed from
time to time. Out of Rs.140 million deposited in the cover accounts,
approximately Rs.60 million were spent for election purposes and for
acquisition of election intelligence, while the remaining amount of
Rs.80 million was deposited in the accounts of the special funds of ISI.
34. There was a document, though yet to be proved, which
indicated that about Rs.30 million were deposited under the instruction
of the respondent No.1 in the account of an organization in the name
and style of “Friends” and General Asif Nawaz Janjua, the then COAS
had taken exception to the deposit of the said amount in that account.
As such, on 17.10.2012, Commander Hussain Shahbaz, representative
of Ministry of Defence was asked to inquire from the concerned
quarters and submit as to whether the remaining amount was
available in the said account, or the same had been spent, and if so,
what were the details thereof? But, despite availing opportunity,
needful was not done.
35. Now in the presence of the above material, it would be
proper to first decide the question of maintainability of the petition
raised by Mr. Muhammad Akram Sheikh, Sr. ASC, learned counsel for
respondent No.1 who argued that the instant petition was filed alleging
commission of misconduct by the respondents No.1 & 2, which would
not attract the jurisdiction of this Court under Article 184(3) of the
Constitution, which is available in a case involving a question of public
importance with reference to enforcement of any of the Fundamental
Rights. He submitted that he had raised this objection in the year 1997
in his concise statement as well as in his reply to CMA No. 785 of
1997.
HRC 19/1996 [Detailed Judgment] 62
36. In response to the above, Mr. Salman Akram Raja, learned
ASC has argued that the instant proceedings do raise a question of
great public importance with reference to enforcement of various
Fundamental Rights of the citizens guaranteed under the Constitution
of Pakistan, 1973, e.g., the right to information (Article 19A); the right
of association (Article 17), etc., which have been infringed in the
instant case. He has placed reliance upon following judgments:-
a) Benazir Bhutto v. The Federation (PLD 1988 SC 416) at
518-533.
b) Mian Nawaz Sharif v. The President (PLD 1993 SC 473) at
558, 559.
c) Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election
Commissioner Islamabad (PLD 2010 SC 817) at 826.
d) Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828)
at 838.
e) Workers' Party Pakistan v. Federation of Pakistan (PLD
2012 SC 681) at Paras 38, 46, 49.
37. The learned counsel also argued that it is established in
the instant proceedings that the democratic process was interfered
with at the relevant time by certain functionaries of the State in
derogation of the fundamental rights of the citizens guaranteed under
Article 17 read with Article 2A of the Constitution, which is tantamount
to subversion of the Constitution. Those included, inter alia, the
respondents No.1 & 2 and a number of their subordinate officers, such
as Brig (R) Hamid Saeed, then head of MI in Sindh and others, who
were tasked with the distribution of funds and whose names would be
available with the respondent No. 2 and Brig (R) Hamid Saeed.
38. The learned counsel argued that in the light of law laid
down in Mian Nawaz Sharif’s case (supra), on account of the admission
HRC 19/1996 [Detailed Judgment] 63
made by the respondents, there was a concerted attempt to subvert
Article 17 and thereby to subvert the Constitution. He further argued
that in enforcing fundamental rights of the people, this Court has not
only made the requisite declarations, but has also issued necessary
directions to the concerned agencies to initiate action against all those
liable under applicable civil, electoral and criminal laws. In this behalf,
he has placed reliance on the following cases: -
a) Alleged Corruption in Rental Power Plants (2012 SCMR
773). National Accountability Bureau asked to carry out
prosecution.
b) NRO Implementation proceedings (2012 SCMR 1434),
(PLD 2012 SC 866).
c) Watan Party v. The Federation (Memo Matter) (PLD 2012
SC 292). High powered commission formed.
He also argued that this Court, in exercise of its jurisdiction under
Article 184(3) of the Constitution, is competent to mould the relief to
be granted in the matter before it in accordance with the facts and
circumstances that come to light during the proceedings. In support of
the above proposition, he has referred to the following cases: -
a) Watan Party v. The Federation (Memo matter), PLD 2012
SC 292 at page 359, 360.
b) Watan Party v. The Federation, (Karachi Suo Motu), PLD
2011 SC 997 at 1055, 1112.
c) Shahid Orakzai v. The Federation, PLD 2011 SC 365, Para
28.
d) Mst. Amatul Begum v. Muhammad Ibrahim Sheikh, 2004
SCMR 1934, Para 8.
The learned counsel further submitted that instant proceedings are not
adversarial, inasmuch as these are being used to lay before the people
of Pakistan things that had happened in the past with a view to
avoiding same or similar constitutional violations in future. Article 19A
of the Constitution guarantees the right to information. The petitioner
in the instant case is merely an informer and as the information
HRC 19/1996 [Detailed Judgment] 64
develops, it would be for the Court to grant relief. As regards the relief
that can be provided under Article 184(3), learned counsel has
referred to Shahid Orakzai v. Pakistan through Secretary Law (PLD
2011 SC 365) wherein this Court has held as under: -
“28. … … as cancellation of the respondent's earlier
appointment and his fresh appointment as Chairman,
National Accountability Bureau had come about during the
pendency and hearing of the present petitions and as the
said development had been brought to the notice of this
Court by the Federation of Pakistan itself, therefore, we
had decided to treat that development as a part of the
pending issue and had decided to determine its effect on
the same without requiring the petitioners to amend their
petitions in respect of such development. There is no
gainsaying the fact that the law is by now quite settled
that a Court seized of a matter cannot only take notice of
any relevant development taking place during the
pendency of the lis but it can also mould the relief to be
granted keeping in view such development and none of
the learned counsel representing different parties to the
present petitions has disputed that legal position or has
objected to the course adopted by us in that regard.”
39. We have heard the learned counsel for the petitioner,
respondent No.1 and the learned Attorney General. In the context of
the present case, the observation of Mr. Justice Muhammad Afzal
Zullah, J, as he then was, (later Chief Justice) in Benazir Bhutto’s case
(PLD 1988 SC 416) that Article 17(2) of the Constitution provides a
basic guarantee to the citizen against usurpation of his will to freely
participate in the affairs and governance of Pakistan through political
activity relating thereto, is very pertinent. In Benazir Bhutto v.
Federation of Pakistan (PLD 1989 SC 66), Justice Nasim Hasan Shah,
in his note of concurrence held that “the right to form or be a member
of a political party” guaranteed under Article 17(2) of the Constitution
includes the right to contest and participate in the elections. In Mian
Muhammad Nawaz Sharif’s case (supra) this Court relying upon
Benazir Bhutto's case (supra) held that in the scheme of the
HRC 19/1996 [Detailed Judgment] 65
Constitution, the guarantee “to form a political party” must be deemed
to comprise also the right by that political party to form the
Government, wherever the said political party possesses the requisite
majority in the Assembly. It was further held that if the lawful
functioning of a Government or political party is frustrated by an
unlawful order, such an order is an impediment in the healthy
functioning of the political party and would, therefore, constitute an
infringement of the fundamental right conferred by Article 17(2). The
same view was reiterated by this Court in the case of Muhammad
Nasir Mahmood v. Federation of Pakistan (PLD 2009 SC 107).
Recently, this Court, in Workers' Party Pakistan’s case (supra), has
held, inter alia, that Article 2A expressly lays down that “...principles
of democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed” in the State of Pakistan
and that the protection and advancement of these principles is an
integral objective and an essential feature of the Pakistani
constitutional Order It was also held that this constitutional Order
declares that “the authority [is] to be exercised by the people of
Pakistan”. By guaranteeing the observance of ‘principles of democracy’
in Pakistan and mandating that the “State shall exercise its powers
and authority through the chosen representatives of the people” the
Constitution envisages that this authority is to be exercised by and
through a representative and democratic government. Furthermore, by
establishing and enumerating the powers and manner in which the
legislature is to function, Parts II and III of the Constitution cement
‘democracy’ as the chosen system of the people and a fundamental
constitutional dictate. This symbiotic relationship between ‘democracy’
as a governing system and the objective of ‘advancing and protecting
HRC 19/1996 [Detailed Judgment] 66
Fundamental Rights, as enunciated by Islam’, it was held, preserves
and reinforces both these constitutional dictates as cardinal features of
the Constitution. In the above perspective, it was reiterated that the
freedom of association, as enunciated by Article 17 of the Constitution,
confers a Fundamental right on every individual to partake in the
political governance of the State, whilst concurrently reinforcing the
constitutional mandate to protect and advance this right through a
democratic State. Article 51(6)(a) of the Constitution mandates that
the representatives of the people “shall be elected by direct and free
vote, in accordance with law”, therefore, fair, free, honest and just
elections are sine qua non for strengthening of democracy. It was also
noted that the right to form a political party under Article 17 of the
Constitution includes the right to participate in free and fair election
and to form government if such party is successful because
‘participation’ in the electioneering process necessarily implies that
every person and every group in society may genuinely take part in
the process of elections, as voter and candidate, without constraint,
coercion, unlawful inducement or subjugation. Consequently, any
unconstitutional curtailment of the right to participate in election, and
to form government, is tantamount to an abridgement of the right
under Article 17(2) of the Constitution. Thus, it has been emphasized
that a combined reading of Article 17(2) and Article 25 of the
Constitution mandates a ‘level playing field’ for electioneering
processes. The principle of free and fair elections was also highlighted
in the Indian jurisdiction in the case of Smt. Indira Nehru Gandhi v.
Raj Narain (AIR 1972 SC 1302) = [(1975) Supp. 1 SCC 1] wherein the
Court struck down even a constitutional amendment on the ground
that it was violative of the said principle. Later, in People's Union for
HRC 19/1996 [Detailed Judgment] 67
Civil Liberties v. Union of India (2009) it was held that democracy
contemplates that elections should be free and fair and the voters
should be in a position to vote for the candidates of their choice.
40. As already mentioned above, President Ghulam Ishaq
Khan dismissed the PPP Government on 06.08.1990 in exercise of
powers conferred upon him under Article 58(2)(b) of the Constitution.
Fresh Elections were scheduled to be held on 24.10.1990 and Mr.
Ghulam Mustafa Jatoi (late) was made the Caretaker Prime Minister. In
order to contest the elections against PPP, a political alliance namely
IJI was formed. The then President of Pakistan Ghulam Ishaq Khan,
having disputes/rivalry with PPP, supported IJI through the Election
Cell established in the President House. For that purpose, funds were
arranged and the same were distributed to various politicians/political
parties through ISI/IB. In this way, the elections of 1990 were
maneuvered and as stated by learned counsel for the petitioner, the
PPP got half the number of seats in the National Assembly as
compared to the seats won by it in the previous elections. Thus,
allegedly people were deprived of their fundamental right under Article
17 of the Constitution to participate in a free, fair and just election,
particularly in the constitution of national or provincial assemblies
where interference was made by a person not below the status of a
functionary who was head of the State and symbol of unity as per
Article 41(1) of the Constitution, thus succeeded in forming
government through a group of political parties of his choice.
41. It is to be noted that the instant proceedings were initiated
on a letter addressed to the then Chief Justice by a political worker,
who earlier happened to be an officer and Chief of the Pakistan Air
HRC 19/1996 [Detailed Judgment] 68
Force, bringing into Court’s notice certain actions of the highest
functionaries including the then Head of State, Chief of Army Staff and
Director General, ISI. The allegation mainly was that they, with mala
fide intention, and with the object of benefiting a particular group of
politicians, had interfered in the electoral process, whereby the
fundamental right of the people at large of electing their
representatives by fair, free and just election, was violated. In order to
determine the correctness of the allegation, the matter was registered
as Human Rights case and notices were issued to the persons allegedly
involved in the distribution of funds. There is a clear admission by all
that sums were disbursed to a group of politicians by individuals, who
were members of the Armed Forces, in particular ISI and MI with a
view to maneuvering the election results in derogation of the
Fundamental Right guaranteed under Article 17(2) of the Constitution
as interpreted by this Court in the above referred judgments. This case
is of great significance and the Court, in exercise of its jurisdiction
under Article 184(3) of the Constitution is called upon to discharge its
responsibility of enforcing Fundamental Rights of the people
guaranteed under the Constitution. Thus objection on maintainability
of the petition is discarded and it is held that the same is maintainable.
It may also be observed that these proceedings being in the nature of
public interest litigation are inquisitorial, and not adversarial,
therefore, this Court is not called upon to issue notices to all and
sundry allegedly involved in the matter. It is well settled that this
Court has ample powers and jurisdiction to adjudicate upon a case if it
falls within the ambit of inquisitorial proceedings. Reference in this
behalf may be made to the cases of Watan Party v. Federation of
Pakistan (PLD 2011 SC 997), All Pakistan Newspapers Society v.
HRC 19/1996 [Detailed Judgment] 69
Federation of Pakistan (PLD 2012 SC 1) and Workers’ Party Pakistan’s
case (supra).
42. The learned Attorney General argued that there was a
strong appearance of bias on the part of the Hon’ble Judges
constituting the present Bench, therefore, according to him, if justice
was to be seen to be done, then all the three Hon’ble Members may
consider the propriety of recusing themselves from the Bench, and the
Hon’ble Chief Justice may constitute a larger bench, excluding the
present three Hon’ble Members of the Bench.
43. The questions involved in the instant case have to be dealt
with in view of the material brought before this Court already referred
to hereinbefore, therefore, before undertaking the exercise we
consider it appropriate to deal with the arguments of the learned
Attorney General in respect of bias on the part of the Judges and his
request for constitution of larger Bench.
44. A somewhat similar objection was raised in Pakistan v.
Abdul Wali Khan (1975 PSCR 1) regarding the sitting of the two Judges
on the Bench hearing that case wherein, at page 214 of the report, it
was observed as follows: -
“As regards the objection taken to the constitution of the
Bench, learned counsel were informed on the very first day
that no party to a litigation can claim the right to be tried
by a particular Judge or Judges of his choice. In the case of
superior Courts it is entirely a matter for the Judge or
Judges concerned to decide as to whether they will or will
not sit in that particular case. Mr. Wali Khan has been
informed that both the learned Judges, against whom the
objection has been raised, have now recorded minutes in
writing which have been placed on the record of these
proceedings to say that they do not feel embarrassed in
sitting to hear this proceeding. The objection based purely
on conjectures is, therefore, in our view, unwarranted.
Judges concerned are fully conscious of their own
responsibilities. There is nothing to show that they are in
any way disqualified from sitting to hear this reference.
The objection is, accordingly, overruled.”
HRC 19/1996 [Detailed Judgment] 70
In the case of Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) it
has been held as under: -
“… … Mere apprehension in the mind of a litigant that he
may not get justice such as is based on inferences drawn
from circumstantial indications will not justify the raising of
the plea The facts adduced must be such that the
conclusion of bias follow necessarily therefrom on no
weaker ground can any person be permitted to attack the
impartiality of a superior Court and consequently should
the proof fail to satisfy the requisite standard, he may be
found in contempt " (The underlining is by us) S.A.
Rehman, J. who was also one of the Members of the Bench
which heard M.H. Khondker's case (supra), concluded as,
follows, on the plea of bias by a party against a Judge of
Supreme Court:-
Reference may also be made to the Canons of Professional Conduct
and Etiquette of the Pakistan Bar Council, Chapter III (Duty to the
Court) thereof reads as follows: -
(1) It is the duty of an Advocate to maintain towards the
Court a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the
maintenance of its supreme importance. Judges, not being
wholly free to defend themselves, are peculiarly entitled to
receive the support of the Bar against unjust criticism and
clamour. At the same time whenever there is a proper
ground for complaint against a judicial officer, it is the
right and duty of an Advocate to ventilate such grievances
and seek redress thereof legally and to protect
complainant and person affected.
It is thus well settled that in the case of superior Courts it is entirely a
matter for the concerned Judges to decide as to whether they will or
will not sit in any particular case. In the instant case, the objection
raised by the learned Attorney General is based purely on conjectures
and is unwarranted, particularly when the learned Attorney General
himself has been appearing in the instant case and participating in the
proceedings ever since its hearing was taken up by the present Bench
in April this year. During this period, the case was heard on more than
HRC 19/1996 [Detailed Judgment] 71
30 dates. Be that as it may, the Members of the present Bench are
fully conscious of their responsibilities and are capable of dispensing
justice without fear or favour, ill-will or affection. The objection of the
learned Attorney General is untenable and is overruled.
45. It is also established in the instant proceedings that the
then President directly involved himself in the matter of first arranging
funds from an illegal source and then getting the same disbursed to a
group of political parties and various other persons through the
members of Armed Forces in the name of great national interest with a
view to influence the election results in derogation of the people’s right
to freely choose their representatives. The Court is, thus, called upon
to dilate upon the role of President in the scheme of the Constitution.
46. Historically, there is no gain saying that the office of
President, both during military and civil governments, has been
indulging in politics. There have been constitutional deviations, from
time to time, due to which parliamentary system was weakened and
could not flourish in the country as envisaged by the Constitution. The
political stalemate has been summarized by this court in the case of
Sindh High Court Bar v. Federation of Pakistan (PLD 2009 SC 879) as
under: -
“17. … … The first major event in this behalf was the
dissolution of the Constituent Assembly of Pakistan by
Governor-General Ghulam Muhammad in 1954, … … This
act of the Governor-General was challenged by Moulvi
Tamizuddin Khan, President of the Constituent Assembly,
in the Chief Court of Sindh. The Chief Court of Sindh
allowed the petition and declared the dissolution of the
Assembly as illegal. It was held that the Acts of the
Constituent Assembly when it did not function as the
Federal Legislature did not require the Governor-General’s
assent. The Federation of Pakistan challenged the
judgment of the Sindh Chief Court before the Federal
Court. The Federal Court reversed the judgment of the
Sindh Chief Court on the ground that the assent of the
HRC 19/1996 [Detailed Judgment] 72
Governor-General was necessary to the validity of all the
laws and the amendments made in the Government of
India Act, 1935. The Court held that since section 223-A of
the Government of India Act under which the Chief Court
of Sindh assumed jurisdiction to issue the writs did not
receive assent of the Governor-General, it was not yet law,
and that, therefore, the Chief Court had no jurisdiction to
issue the writs. … ….
23. Next case of significant relevance was the Reference
by H. E. The Governor-General reported as PLD 1955 FC
435. The Federal Court having held in Maulvi Tamizuddin
Khan’s case that assent of the Governor-General was
necessary to all laws passed by the Constituent Assembly,
the Governor-General sought to validate such Acts by
indicating his assent, with retrospective operation, by
means of the Emergency Powers Ordinance, 1955
(Ordinance No. IX of 1955) issued under section 42 of the
Government of India Act, 1935. The Federal Court in Usif
Patel’s case, however, declared that the Acts mentioned in
the Schedule to that Ordinance could not be validated
under section 42 of the Government of India Act, 1935,
nor could retrospective effect be given to them. A
noteworthy fact was that the Constituent Assembly had
ceased to function, having already been dissolved by the
Governor-General by a Proclamation on 24th October 1954,
and no legislature competent to validate these Acts was in
existence.
24. The Governor-General made a Reference to the
Federal Court under section 213 of the Government of
India Act, 1935 asking for the Court’s opinion on the
question whether there was any provision in the
Constitution or any rule of law applicable to the situation
by which the Governor-General could, by Order or
otherwise, declare that all orders made, decisions taken,
and other acts done under those laws, should be valid and
enforceable and those laws, which could not without
danger to the State be removed from the existing legal
system, should be treated as part of the law of the land
until the question of their validation was determined by the
new Constituent Convention.
25. The answer returned by the Federal Court (by
majority) was that in the situation presented by the
Reference, the Governor-General had, during the interim
period, the power under the common law of civil or state
necessity of retrospectively validating the laws listed in the
Schedule to the Emergency Powers Ordinance, 1955, and
all those laws, until the question of their validation was
decided upon by the Constituent Assembly, were, during
the aforesaid period, valid and enforceable in the same
way as if they had been valid from the date on which they
purported to come into force.
HRC 19/1996 [Detailed Judgment] 73
The case of State v. Dosso (PLD 1958 SC 533) was commented as
under: -
“28. The Supreme Court, on the basis of the theory
propounded by Hans Kelsen, accorded legitimacy to the
assumption of power by General Ayub Khan holding that
coup d’état was a legitimate means to bring about change
in the government and particularly so when the new order
brought about by the change had been accepted by the
people. It was held that where a Constitution and the
national legal order under it was disrupted by an abrupt
political change not within the contemplation of the
Constitution, then such a change would be a revolution
and its legal effect would not only be the destruction of the
Constitution but also the validity of the national legal
order, irrespective of how or by whom such a change was
brought about. In the result, in accordance with the
judgments of the majority, the proceedings for writs in
each of these cases were held to have abated. The result
was that the directions made and the writs issued by the
High Court were set aside.”
The case of Asma Jilani v. Government of the Punjab (PLD 1972 SC
139) was discussed as under: -
“32. It was held that Kelsen’s theory was, by no means, a
universally accepted theory nor was it a theory which could
claim to have become a basic doctrine of the science of
modern jurisprudence, nor did Kelsen ever attempt to
formulate any theory which favoured totalitarianism.
33. The seizing of power by Yahya Khan having been
declared by the Supreme Court to be entirely illegal,
question arose whether everything (legislative measures
and other acts) done during his illegal regime, whether
good or bad, could be treated in the same manner and
branded as illegal and of no effect. … …”
Regarding the next constitutional deviation, which occurred in 1977,
this Court, in the case of Begum Nusrat Bhutto v. Chief of Army Staff
(PLD 1977 SC 657) held that the Armed Forces of Pakistan, headed by
the Chief of Army Staff, General Mohammad Zia-ul-Haq intervened to
save the country from further chaos and bloodshed, to safeguard its
integrity and sovereignty, and to separate the warring factions which
had brought the country to the brink of disaster. It was held that this
HRC 19/1996 [Detailed Judgment] 74
undoubtedly was an extra-constitutional step, but was dictated by
considerations of State necessity and welfare of the people. Then the
validity of constitutional deviation of 1999 was considered by this
Court in the case of Syed Zafar Ali v. Federation of Pakistan (PLD 2000
SC 869) and by the Short Order dated 12.05.2000, the action of
12.10.1999 was validated on the basis of the doctrine of State
necessity and the principle of salus populi est suprema lex as
embodied in Begum Nusrat Bhutto’s case. It was also held that
General Pervez Musharraf was entitled to perform all acts or legislative
measures, which were in accordance with, or could have been made
under the Constitution, including the power to amend it and to perform
all such measures as would establish or lead to the establishment of
his declared objectives. As to the power to amend the Constitution, it
was held that constitutional amendments could be resorted to only if
the Constitution failed to provide a solution for attainment of his
declared objectives, but no amendment shall be made in the salient
features of the Constitution, i.e. independence of judiciary, federalism,
parliamentary form of government blended with Islamic provisions;
and last but not the least, three years’ period from the date of Army
takeover, viz., 12th October, 1999 was allowed to him for achieving his
declared objectives. … … The review petition against the above
judgment was filed by Mr. Wasim Sajjad, but the same was dismissed
vide judgment reported as Wasim Sajjad v. Federation of Pakistan
(PLD 2001 SC 233). It is important to note that General (R) Pervez
Musharraf promulgated the President’s Succession Order 2001 (Chief
Executive’s Order No. III of 2001) on 20.06.2001 in pursuance
whereof Mr. Muhammad Rafiq Tarar, President of Pakistan was ousted
from office and he himself assumed that office on 21.06.2001.
HRC 19/1996 [Detailed Judgment] 75
47. The last major event in the successive constitutional
deviations was the imposition of emergency and promulgation of PCO
on 03.11.2007, which was dealt with by this Court in Sindh High Court
Bar Association’s case. For the first time in our Constitutional history, a
7-Member Bench of this Court passed a restraint order against the
imposition of emergency and enforcement of PCO on the very day and
the Judges of the Superior Courts refused to make oath under the new
dispensation. This sparked an enthusiastic lawyers’ movement, which
was joined in and supported by members of civil society and media,
which continued demanding restoration of judiciary unconstitutionally
deposed on 03.11.2007. Consequently, on 16.03.2009 Government of
Pakistan restored the judiciary. Thereafter, a number of petitions were
filed before this Court challenging action of President/Chief of Army
Staff, General (R) Pervez Musharraf. This Court on 31.07.2009
accepted the petitions vide its judgment in Sindh High Court Bar
Association’s case wherein it was held, inter alia, as under: -
“22. As a consequence thereof: -
i) the Chief Justice of Pakistan; the Judges of the
Supreme Court of Pakistan; any Chief Justice of any of the
High Courts and the Judges of the High Courts who were
declared to have ceased to hold their respective offices in
pursuance of the afore-mentioned alleged judgments or
any other such judgment and on account of the
instruments mentioned in Para 21 above, shall be deemed
never to have ceased to be such Judges, irrespective of
any notification issued regarding their reappointment or
restoration;
ii) it is declared that the office of the Chief Justice of
Pakistan never fell vacant on November 3, 2007 and as a
consequence thereof it is further declared that the
appointment of Mr. Justice Abdul Hameed Dogar as the
Chief Justice of Pakistan was un-constitutional; void ab
initio and of no legal effect;
Provided that subject to whatever is contained
hereinafter, the said un-constitutional appointment of Mr.
HRC 19/1996 [Detailed Judgment] 76
Justice Abdul Hameed Dogar as the Chief Justice of
Pakistan shall not affect the validity of any administrative
or financial acts performed by him or of any oath made
before him in the ordinary course of the affairs of the said
office;
iii) since Mr. Justice Abdul Hameed Dogar was never a
constitutional Chief Justice of Pakistan, therefore, all
appointments of Judges of the Supreme Court of Pakistan,
of the Chief Justices of the High Courts and of the Judges
of the High Courts made, in consultation with him, during
the period that he, un-constitutionally, held the said office
from 3.11.2007 to 22.3.2009 (both days inclusive) are
hereby declared to be un-constitutional, void ab initio and
of no legal effect and such appointees shall cease to hold
office forthwith;
Provided that the Judges so un-constitutionally
appointed to the Supreme Court while holding the offices
as Judges of any of the High Courts shall revert back as
Judges of the respective High Courts subject to their age of
superannuation and like-wise, the Judges of the High
Courts, who were District and Sessions Judges before their
said un-constitutional elevation to the High Courts shall
revert back as District and Sessions Judge subject to
limitation of superannuation;
iv) the Judges of the Supreme Court of Pakistan, if any,
the Chief Justices of the High Court, if any, and the Judges
of any of the High Courts, if any, who stood appointed to
the said offices prior to 3.11.2007 but who made oath or
took oath of their respective offices in disobedience to the
order passed by a Seven Member Bench of the Supreme
Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007
in Constitution Petition No.73 of 2007, shall be proceeded
against under Article 209 of the Constitution. The
Secretary of the Law Division of the Government of
Pakistan shall take steps in the matter accordingly;
Provided that nothing hereinabove shall affect those
Judges who though had been appointed as Judges/Chief
Justices of any of the High Courts between 3.11.2007 to
22.3.2009 but had subsequently been appointed afresh to
other offices in consultation with or with the approval of or
with the consent of the Constitutional Chief Justice of
Pakistan;
v) any judgments delivered or orders made or any
decrees passed by any Bench of the Supreme Court or of
any of the High Courts which comprised of or which
included the afore-described Judges whose appointments
had been declared void ab initio, are protected on the
principle laid down in MALIK ASAD ALI’S CASE (PLD 1998
SC 161);
HRC 19/1996 [Detailed Judgment] 77
vi) since the Constitution (Amendment) Order, 2007
being the President’s Order No.5 of 2007 and the
Islamabad High Court (Establishment) Order being
President’s Order No.7 of 2007 establishing Islamabad
High Court for the Federal Capital Territory, have been
declared to be un-constitutional and of no legal effect,
therefore, the said Islamabad High Court shall cease to
exist forthwith. All judicial matters pending before the said
High Court before the passing of this order shall
revert/stand transferred to the courts which had
jurisdiction in the said matters before the promulgation of
afore-mentioned President’s Order No.5 of 2007 and
President’s Order No.7 of 2007 promulgated on 14th
December, 2007. The Judges of the said Court shall, as a
consequence thereof, cease to be Judges except such
Judges or the Chief Justice of the said court, who prior to
their appointments in the said Islamabad High Court, were
Judges of some other High Court who shall revert to the
court of which they were originally the Judges, subject to
their age of superannuation. The officers and employees of
the said Court shall also cease to hold their respective
appointments and shall become part of the Federal
Government Surplus Pool for their further appointments.
However, if any such officer or employee was an officer or
an employee of some other court or department or office,
such officers or employees shall revert to their respective
courts, departments or offices to which they belonged
before joining the service in the Islamabad High court,
subject again to their age of superannuation;
We would like to mention here that establishment of
a High Court or a Federal Court for the Federal Capital
Territory might be a desirable act but it is unfortunate that
such a step was taken in an un-constitutional and a highly
objectionable manner. We may, therefore, add that
notwithstanding what has been declared and ordered
above, the relevant and competent authorities may take
steps to establish such a court in accordance with the
Constitution/the law;
vii) the Ordinances promulgated by the President or a
Governor of a Province before 3.11.2007 which were given
permanence by the Provisional Constitution Order No.1 of
2007 as also the Ordinances issued by the President or a
Governor between 3.11.2007 and 15.12.2007 (both days
inclusive) which were also, like-wise given permanence
through the same instrument and which legislative
measures along with the said Provisional Constitution
Order had been validated by the afore-mentioned
judgment delivered in TIKKA IQBAL MUHAMAD KHAN’S
CASE, stand shorn of their purported permanence on
account of our afore-mentioned declarations. Since on
account of the said judgment in TIKKA IQBAL MUHAMMAD
KHAN’S CASE purporting to be a judgment of this Court,
the presumption that the said Ordinances were valid laws
HRC 19/1996 [Detailed Judgment] 78
not requiring approval of the Parliament or the respective
Provincial Assemblies in terms of Article 89 or 128 of the
Constitution and since it is today that this Court has
attributed invalidity to the said legislative instruments,
therefore, the period of 120 days and 90 days mentioned
respectively in the said Article 89 and the said Article 128
of the Constitution, would be deemed to commence to run
from today and steps may be taken to place the said
Ordinances before the Parliament or the respective
Provincial Assemblies in accordance with law;
viii) since the Constitution, through its Article 176,
authorises only the Parliament to determine the number of
Judges of the Supreme Court of Pakistan and since the
Parliament had so done through the Supreme Court
(Number of Judges) Act XXXIII of 1997, therefore, the
increase in the strength of the Judges through the Finance
Act of 2008 which Act was not passed by the Parliament
but was passed only by the National Assembly would be
deemed to be valid only for financial purposes and not for
the purposes of Article 176 of the Constitution. It is
resultantly declared that the number of Judges of the
Supreme Court for purposes of the said Article 176 shall
continue to remain sixteen;
ix) in the Code of Conduct prescribed for the Judges of
the Superior Courts in terms of Article 209(8) of the
Constitution, a new clause shall be added commanding
that no such Judge shall, hereinafter, offer any support in
whatever manner to any un-constitutional functionary who
acquires power otherwise than through the modes
envisaged by the Constitution and that any violation of the
said clause would be deemed to be misconduct in terms of
the said Article 209 of the Constitution;
x) in view of our findings above regarding Mr. Justice
Abdul Hameed Dogar not being a constitutional and a valid
consultee, the notification dated 26.8.2008 and the
notification dated 15.9.2008 extending the term of office of
Mr. Justice Abdur Rasheed Kalwar and of Mr. Justice Zafar
Ahmed Khan Sherwani as Additional Judges of the High
Court of Sindh are declared to be un-constitutional and of
no legal effect;
xi) that the court acknowledges and respects the
mandate given by the sovereign authority i.e. electorate to
the democratically elected Government on 18th February,
2008 and would continue to jealously guard the principle of
trichotomy of powers enshrined in the Constitution, which
is the essence of the rule of law. Any declaration made in
this judgment shall not in any manner affect the General
Elections held and the Government formed as a result
thereof i.e. the President, the Prime Minister, the
Parliament, the Provincial Governments, anything done by
these institutions in the discharge of their functions. These
HRC 19/1996 [Detailed Judgment] 79
acts are fully protected in terms of the age old of principle
of Salus populi est suprema lex reflected in PLD 1972 SC
139;
xii) Before parting with the judgment, we would like to
reiterate that to defend, protect and uphold the
Constitution is the sacred function of the Supreme Court.
The Constitution in its preamble, inter alia, mandates that
there shall be democratic governance in the country,
“wherein the principles of democracy, freedom, equality,
tolerance and social justice as enunciated by Islam shall be
fully observed; ................. wherein the independence of
judiciary shall be fully secured.” While rendering this
judgment, these abiding values have weighed with us. We
are sanguine that the current democratic dispensation
comprising of the President, Prime Minister and the
Parliament shall equally uphold these values and the
mandate of their oaths.”
48. It is significant to note that in pursuance of above
judgment, the Hon’ble Judges of the superior Courts subjected
themselves to constitutional command for not supporting any
unconstitutional order to govern this country. Prior to it, the military
adventurers had been ruling this country off and on in the name of socalled
doctrine of necessity or State necessity.
49. It is to be observed that during the time when the country
was being governed unconstitutionally, Judiciary and Parliament both
had been facilitating the adventurers as noted hereinabove, but in the
Sindh High Court Bar Association’s case all the previous judgments
were revisited and it was finally held that any unconstitutional act of
the Martial Law Authorities could not be validated by the Judiciary and
in future, the Hon’ble Judges of the Superior Courts shall not take oath
under any unconstitutional dispensation. It was also held that in the
Code of Conduct prescribed for the Judges of the Superior Courts in
terms of Article 209(8) of the Constitution, a new clause would be
added commanding that no such Judge shall, hereinafter, offer any
support in whatever manner to any un-constitutional functionary who
HRC 19/1996 [Detailed Judgment] 80
acquires power otherwise than through the modes envisaged by the
Constitution and that any violation of the said clause would be deemed
to be misconduct in terms of Article 209 of the Constitution. In
pursuance of above dictum, the Supreme Judicial Council constituted
under Article 209 of the Constitution amended the Code of Conduct of
the Judges and incorporated Article IX therein, as under: -
“No Judge of the superior judiciary shall render support in
any manner whatsoever, including taking or administering
oath in violation of the oath of office prescribed in the
Third Schedule to the Constitution, to any authority that
acquires power otherwise than through the modes
envisaged by the Constitution of Pakistan.”
50. Thus, having covered a long distance, during which
country was faced with unconstitutional era and judiciary was also
being alleged to support military adventurers, ultimately, for all times
to come, the Judiciary as an institution decided not to support any
unconstitutional regime in future. The object is to strengthen the
institutions of Parliament/democratic system of government as
envisaged by the Constitution, wherein the State is to exercise its
powers and authority through the chosen representatives of the people
(Article 2A of the Constitution).
51. It may be seen that the military regimes besides derailing
the parliamentary system of government, from time to time, also
mutilated constitutional provisions, particularly, with reference to
instant case, by introducing Article 58(2)(b) by the Eighth
Constitutional Amendment, 1985 and Seventeenth Constitutional
Amendment, 2003. By means of these Constitutional Amendments,
the President was made stronger and the Parliamentary system of
HRC 19/1996 [Detailed Judgment] 81
government was converted into semi-Presidential type, as instead of
strengthening the Prime Minister of Pakistan, who is the chief
executive of the country and Leader of the House in terms of Article 91
of the Constitution, the powers were shifted to the President of
Pakistan who was empowered to dissolve the National Assembly under
the defunct Article 58(2)(b) of the Constitution.
52. Unfortunately, the National Assembly, comprising chosen
representatives of the people was subjected to dissolution in the years
of 1988, 1990, 1993 and 1996 in exercise of power under Article
58(2)(b) of the Constitution, as a consequence whereof along with the
Assemblies the Government of Pakistan at the center and Provincial
Assemblies in the Provinces were also dissolved. However, fortunately,
the present Parliament in 18th Constitutional Amendment has repealed
almost of those amendments in the Constitution, which were
introduced during unconstitutional eras, headed by Army Generals in
uniform. What could be more unfortunate for the nation that from
1977 to 1988 and October 1999 to December 2007, the President of
Pakistan had been, in uniform of Pak Army, purportedly functioning as
civilian President of Pakistan against constitutional precepts.
53. The result of conferring powers on the President of
Pakistan under Eighth Constitutional Amendment created an
atmosphere due to which the office of the President remained pitched
against the political parties with full impunity, without realizing
constitutional sanctity of the President’s office, which is the symbol of
unity of the Republic and as the head of the State as per Article 41 of
the Constitution. The dissolutions of Assemblies by the President as
ordered from time to time under Article 58(2)(b) of the Constitution
HRC 19/1996 [Detailed Judgment] 82
were dealt with by this Court in Federation of Pakistan v. Haji Saifullah
Khan (PLD 1989 SC 166), Kh. Ahmed Tariq Rahim v. Federation of
Pakistan (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif’s case
(supra), Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1998
SC 388) and Syed Zafar Ali Shah’s case (supra). A brief account of the
said cases is given in the case of Qazi Hussain Ahmed v. General
Pervez Musharraf (PLD 2002 SC 853) as under: -
“19. On 29th May 1988, General Muhammad Zia-ul-Haq
dissolved the National Assembly and dismissed the
government of Mr. Muhammad Khan Junejo under Article
58(2)(b) of the Constitution. The dissolution of the
National Assembly was challenged in the Lahore High
Court under its constitutional jurisdiction and through the
judgment reported as Kh. Muhammad Sharif v. Federation
of Pakistan (PLD 1988 Lahore 725), the dissolution of the
Assembly was declared illegal and the matter then came to
this Court in appeal. On 17th August 1988, General
Muhammad Zia-ul-Haq died in an air crash and Ghulam
Ishaq Khan, the then Chairman of the Senate assumed the
office of the President of Pakistan. This Court vide
judgment reported as Federation of Pakistan v. Haji
Saifullah Khan (PLD 1989 SC 166), which was delivered on
5th October, 1988, upheld the judgment of the Lahore
High Court but declined to grant the relief of restoration of
the Assembly on the ground that the whole nation had
been geared up for election scheduled for 16th and 19th
November, 1988.
20. As a result of the 1988 election, Pakistan Peoples Party
led by Mohtarma Benazir Bhutto formed government at the
centre while Islami Jamhuri Ittehad (IJI) with Pakistan
Muslim League being its major component, led by Mian
Muhammad Nawaz Sharif formed government in the
Province of Punjab. Since the two leaders did not see eye
to eye with each other, a state of constant confrontation
existed. The two of them were not even ready to meet
each other, what to talk of negotiating or settling issues
and having consensus on questions of national importance.
21. On 6th August, 1990, Mr. Ghulam Ishaq Khan, the
then President of Pakistan, levelled various charges
including corruption and mal-administration, violations of
the Constitution, etc., dissolved the National Assembly,
dismissed the government of Mohtarma Benazir Bhutto
under Article 58(2)(b) of the Constitution and ordered
fresh election. The order of dissolution was challenged
before all the four High Courts. However, the cases from
Balochistan and Sindh were consolidated and heard by the
HRC 19/1996 [Detailed Judgment] 83
High Court of Sindh. Likewise, the cases from NWFP and
Lahore were consolidated and heard by the Lahore High
Court. Both the High Courts in their separate judgments,
distinguished Haji Saifullah Khan’s case and upheld the
order of dissolution of assemblies and observed that the
President was justified in forming the opinion that the
government of the Federation was not being carried on in
accordance with the Constitution. The matter came to this
Court in appeal in the case reported as Kh. Ahmed Tariq
Rahim v. Federation of Pakistan (PLD 1992 SC 646) but
the Court refused to grant leave to appeal against the
judgments of the High Courts and consequently the
dissolution order was maintained.
22. The general election held in 1990 returned Mian
Muhammad Nawaz Sharif to power with Mohtarma Benazir
Bhutto sitting on the opposition benches. The two of them
continued indulging in confrontation. Differences arose
between Mian Muhammad Nawaz Sharif and Mr. Ghulam
Ishaq Khan, the then President of Pakistan. On 18th April,
1993 the then President dissolved the National Assembly
and dismissed the government of Mian Muhammad Nawaz
Sharif under Article 58(2)(b) of the Constitution. The
matter came before this Court in the case reported as Mian
Muhammad Nawaz Sharif v. President of Pakistan (PLD
1993 SC 473) and by majority of 10 to 1, this Court held
that the order of dissolution did not fall within the ambit of
the powers conferred on the President under Article
58(2)(b) of the Constitution and other enabling powers
available to him in that behalf and in consequence the
National Assembly, Prime Minister and the Cabinet were
restored. However, in the peculiar situation then obtaining,
Mian Muhammad Nawaz Sharif advised the then President
to dissolve the assemblies on 18th July, 1993.
23. In the election held in October 1993, Mohtarma
Benazir Bhutto with the help of allied parties again came to
power and Mr. Farooq Ahmed Khan Leghari was elected as
President of Pakistan while Mian Muhammad Nawaz Sharif
formed the opposition. The degree of tension between the
two old rivals rather increased. On 5th November, 1996,
President Farooq Ahmed Khan Leghari dissolved the
National Assembly and dismissed the government of
Mohtarma Benazir Bhutto under Article 58(2)(b) of the
Constitution. This dissolution was also challenged in this
Court in the case reported as Mohtarma Benazir Bhutto v.
President of Pakistan (PLD 1998 SC 388), but it was held
that the action of the President was legal and
constitutional.
24. In the election held in February 1997, Mian
Muhammad Nawaz Sharif returned to power with a
thumping majority in the Assemblies with Mohtarma
Benazir Bhutto as the opposition leader. Mian Muhammad
Nawaz Sharif continued his policies of confrontation not
HRC 19/1996 [Detailed Judgment] 84
only with the opposition but also with other institutions of
the State including judiciary and the armed forces. The
former Chief of Army Staff, General Jehangir Karamat
suggested the formation of National Security Council,
which was not taken in good taste by the Prime Minister
and resultantly the then Chief of Army Staff had to quit.
With the Constitution (Thirteenth Amendment) Act, 1997,
Article 58(2)(b) was repealed and the power to appoint
Services Chiefs vested with the Prime Minister and thus
Mian Muhammad Nawaz Sharif, after the resignation of
General Jehangir Karamat, appointed General Pervez
Musharraf as the Chief of Army Staff.
25. Differences between the Prime Minister and the Chief
of Army Staff General Pervez Musharraf arose on the Kargil
issue. At one point of time, it seemed that the tension has
come to an end when General Pervez Musharraf was
appointed as Chairman, Joint Chiefs of Staff Committee.
However, a few days later, the Prime Minister issued order
of removal of General Pervez Musharraf when the latter
was returning from an official tour to Sri Lanka and
appointed Lt. General Ziauddin Butt as the Chief of Army
Staff. This act of the Prime Minister was resented by the
Pakistan Army and was construed as interference in the
Army affairs and an attempt to politicize and destabilize it.
The then Prime Minister had directed that the plane
carrying General Pervez Musharraf to Pakistan be not
allowed to land at the Karachi Airport, but due to the
prompt action of the Pakistan Army, the Prime Minister
could not achieve his objective. Consequently, the Pakistan
Army took exception to the action of the Prime Minister
and Mian Muhammad Nawaz Sharif was removed and
General Pervez Musharraf, Chief of Army Staff took control
of the affairs of the country.
26. After takeover of the government by General Pervez
Musharraf, on 14th October 1999, a Proclamation of
Emergency was issued in pursuance of the deliberations
and decisions of the Chiefs of Staff of the Armed Forces
and the Corps Commanders of the Pakistan Army. … … The
takeover by the Army was challenged in this Court through
several Constitution Petitions and the same were disposed
of with certain guidelines through a unanimous judgment
authored by Irshad Hasan Khan, C.J. (as he then was) in
Syed Zafar Ali Shah and others v. General Pervez
Musharraf, Chief Executive of Pakistan and others (PLD
2000 SC 869).”
The facts noted therein along with the grounds of dissolution of
Assemblies have been noted separately in each case.
HRC 19/1996 [Detailed Judgment] 85
54. As noted in the preceding paragraphs, in the instant case,
in the year 1990 the office of President of Pakistan once again moved
“in the name of national interest” and established an Election Cell in
the Presidency to support a particular group of politicians, who had
formed an alliance to contest election against the political party then in
power, i.e. Pakistan Peoples Party as is evident from the record
available with us. Considering the overwhelming material brought on
record, which has been referred to hereinabove, one of the most
important questions with which we have been encountered is as to
what was the legal justification for the President of Pakistan, Chief of
Army Staff, Director General, ISI and various other officers of the
Army to become a party to an unconstitutional and unlawful activity?
Regardless of the nature and quantum of powers vested in the
President under the Constitution, whether before or after the Eighth
and the Seventeenth Constitutional Amendments, the President
remains the Head of the State and represents the unity of the
Republic, therefore, after having been sworn in as the President of
Pakistan, he owes a constitutional duty to represent the unity of the
Republic as Head of the State and is not supposed under the
Constitution to support any favoured candidate in the elections or a
group of political parties like IJI with reference to the instant case. At
this stage, it may be pertinent to refer to Article 41(1) of the
Constitution, which provides that there shall be a President of Pakistan
who shall be the Head of the State and shall represent the unity of the
Republic as well as to the wording of the oath prescribed for the
incumbent of the office of President, which is administered to him
before entering upon such office. It reads as under: -
HRC 19/1996 [Detailed Judgment] 86
“(In the name of Allah, the most Beneficent, the most
Merciful.)
I, ____________, do solemnly swear that I am a Muslim
and believe in the Unity and Oneness of Almighty Allah,
the Books of Allah, the Holy Quran being the last of them,
the Prophethood of Muhammad (peace be upon him) as
the last of the Prophets and that there can be no Prophet
after him, the Day of Judgment, and all the requirements
and teachings of the Holy Quran and Sunnah:
That I will bear true faith and allegiance to Pakistan:
That, as President of Pakistan, I will discharge my duties,
and perform my functions, honestly, to the best of my
ability, faithfully in accordance with the Constitution of the
Islamic Republic of Pakistan and the law, and always in the
interest of the sovereignty, integrity, solidarity, well- being
and prosperity of Pakistan:
That I will not allow my personal interest to influence my
official conduct or my official decisions:
That I will preserve, protect and defend the Constitution of
the Islamic Republic of Pakistan:
That, in all circumstances, I will do right to all manner of
people, according to law, without fear or favor, affection or
ill- will:
And that I will not directly or indirectly communicate or
reveal to any person any matter which shall be brought
under my consideration or shall become known to me as
President of Pakistan, except as may be required for the
due discharge of my duties as President.
May Allah Almighty help and guide me (A'meen).”
55. The learned Attorney General argued that by all means,
President’s office is a political office. In this behalf, he has referred to
the oaths of the Prime Minister and the Federal Ministers, which are
similarly worded and has argued that his oath is no different from that
of other holders of constitutional offices. In this respect, he has also
drawn our attention to the oath of members of the Armed Forces,
which specifically bars political activity, but the political activity is not
there in the oath of Judges, but when we see code of conduct, the
court will not go into a political question, therefore, judges should not
HRC 19/1996 [Detailed Judgment] 87
enter into political questions, or a question of law, which includes a
political question. He argued that such words are not there in
President’s oath. He argued that if a President has sympathies for the
party to which he belongs, that is natural. He further argued that the
President is not there to destabilize the democracy, government and
dissolve the Assemblies. However, if there is evidence against
President to rig the elections, it is not permissible. He also argued that
it is not the job of the Supreme Court to regulate the office of
President, which has no power to add to or subtract anything from
what is written in the Constitution. He submitted that the observations
of this Court in Muhammad Nawaz Sharif’s case relied upon by the
learned counsel for the petitioner were made in a different context. He
stated that he would adopt the arguments of Mr. S.M. Zafar, Sr. ASC
made by him in Pakistan Lawyers Forum v. Federation of Pakistan
(PLD 2011 Lahore 382).
56. It may be mentioned here that Parliamentary democracies
today exist in one of two forms. They are either Constitutional
Monarchies or Republics. Historically speaking, the Monarch
represented the State. Parliaments and democracy gained authority
through the right to exercise power in the name of the Monarch.
Ultimately, Parliaments became the centres of power and authority
with the heads and ministers of government being elected from them.
The Monarch however, remained the symbol of the state, an icon of its
unity and identity, regardless of what faction governed in his name. All
functions of state, while exercised and decided by elected
governments, were carried out in his name. This included establishing
courts, recruiting civil servants, receiving and sending ambassadors,
HRC 19/1996 [Detailed Judgment] 88
waging war, etc. Over time, many countries deposed their Monarchs
and replaced them with Presidents. The nature and role of the office of
Head of State has remained the same, with the governments
maintaining the same treatment of dignity, respect and symbolic
reverence towards the President as was held for the King. And
similarly, the powers of the President have not been available for
exercise in his own discretion, but have rather continued to be
exercised in his name by elected representatives of the people. The
need of a central lynchpin in the political system that represents the
State as an entity over and above the partisan squabble of factions
and inspires the people as a symbol of sovereign independence has
preserved the separation of Head of State and Government in
parliamentary systems.
57. The Parliamentary systems of today are also divided into
two great legal traditions of the world. The first is the Common Law
tradition that emanated from the legal developments in England. And
the second is the Civilian Law (or Roman Law) tradition that is
prevalent in continental Europe and emanates from the Corpus Juris
Civilis of Roman Emperor Justinian I. Within these two great systems
of law, there are countries that are Parliamentary Constitutional
Monarchies while others are Parliamentary Republics, the only
difference between them being that the first States are headed by
Monarchs while the Heads of State in the latter are Presidents. The
relationship between a Head of State and a Government, however, is
identical within the traditions.
58. The Common Law is a tradition that was built by the
rulings and precedents of the Common Law courts. The common law
HRC 19/1996 [Detailed Judgment] 89
gives great preference to tradition, continuity and principles of
antiquity that are immortalised by adherence [Mohammad Sohail v.
Govt of NWFP (1996 PLC CS 364)]. The Civilian system, however, is
built on textual sources and reflects reliance on recourse to the written
law and its textual rather than historic interpretation. This difference is
also highlighted by the nature of statutes in the two systems. The
Common Law statutes set a basic premise and depend on precedent
for building upon the interpretation and implementation of the law
while the civilian system believes in exhaustive codification of
principles into writing. This distinction is starkly visible in the mere size
of corresponding statutes in either system.
59. The role and nature of the office of President or Monarch is
the same in every Parliamentary form of government. What differs is
the form in which that role is laid down. In Civil Law countries, the role
of the President and restrictions upon his office and person are
enumerated in great detail in the Constitutions. Almost all
constitutions of Parliamentary Republics in Civil Law Countries contain
an article expressly prohibiting the partisan involvement of Presidents
with political factions.
60. On the other hand, the relationship of the British Monarch
and the British Parliament developed and has sustained with the force
of practice and tradition. This is no surprise considering the fact that
the United Kingdom and even New Zealand do not have codified
constitutions today. The parliamentary system follows the same
configuration between Head of State and Parliament in the Common
Law world as it does in the Civil Law world. It however regulates that
relationship through constitutional conventions that underpin the
HRC 19/1996 [Detailed Judgment] 90
system rather than express provisions. Over time, most common law
countries adopted written constitutions, yet preserved the unwritten
conventions that bind together the codified articles of the
constitutions.
61. Out of this tradition, it is interesting to observe that none
of the constitutions in the Common Law world (and the former
Commonwealth Realm) that adhere to the Parliamentary system
contain express provisions barring the Head of State from partisan
affiliation. Nor do the oaths of office prescribed therein make reference
to the same. Yet, at the same time, the constitutional jurisprudence
and legal commentary by jurists in all these countries maintains the
same role and position for a Head of State as do constitutions in Civil
Law countries maintaining express provisions.
62. In Pakistan additionally we have Article 41 ibid which
envisages the same Constitutional position. Disregarding the
constitutional conventions and common law traditions about the role of
the Head of State would render the entire framework and written
provisions of the constitutions dysfunctional. It is this reason that
while the two systems go about it differently, they ultimately prescribe
the exact same role for Presidents and Monarchs in Parliamentary
systems of government. The need for a symbolic figurehead who is
representative of the State in its majesty is central to the structure of
the parliamentary system.
63. The constitutional system of government in Pakistan as
laid out in Part III of the Constitution is that of a Parliamentary
Republic [Muhammad Khan Achakzai v. Federation of Pakistan (PLD
1997 SC 420)]. This distinguishes it from Parliamentary forms that are
HRC 19/1996 [Detailed Judgment] 91
not republics e.g. Australia, Canada, New Zealand, UK etc which are
parliamentary constitutional monarchies. However, Pakistan, like them
also draws important features of its constitutional tradition from the
same historical traditions.
64. To seek comparison with other constitutional
arrangements, we must also look at other parliamentary republics
such as, Turkey, Greece, Italy, Germany, etc. Most of these are also
Federations which helps draw closer comparisons with the Role of the
Presidents in these countries. However, these countries have their
systems of law based in Civilian (Roman) Law and therefore different
from Pakistan in terms of their constitutional traditions.
65. The closest comparison can, however, be drawn with
countries that are both Parliamentary Republics and also have their
constitutional traditions rooted in the Commonwealth that they were
once a part of. These include India, Bangladesh, Ireland, Malta,
Botswana, Mauritius, etc.
66. The role of a President as Head of State is almost identical
in most Parliamentary systems of government. As most of these
countries were former Constitutional Monarchies (including Pakistan
until 1956 as part of the Commonwealth), or still are, the position
closely mimics the figurative position of a symbolic Monarch in
parliamentary constitutional monarchies. Some of the key features of a
President in a Parliamentary system are:
- Head of State (Article 41)
- Ceremonial/ Figurative head of the executive
- Actions in his name are actually taken by elected
governments (Article 48)
- Commander in Chief or Supreme Commander of
military forces (Article 243)
HRC 19/1996 [Detailed Judgment] 92
- Symbol of Union, Federation or State and thus
representative of all State as well as Central
Governments (Article 41)
- Indirectly elected (with very few exceptions) (Second
Schedule)
- Non-political/ non-partisan in nature of office
It is important to note that all Presidents in Parliamentary Republics
are expected to be apolitical/non-partisan and objectively disengaged
with any and all affiliations of a political, ethnic, linguistic, or
geographic nature. For a discussion on the non-partisan role of the
President, refer to Pakistan Lawyers’ Forum v. Federation of Pakistan
(PLD 2011 Lahore 382).
67. This is regardless of whether there are any express
provisions forbidding such engagement in the respective constitutions.
For example, the Constitutional provisions or the Presidential Oaths
prescribed in India, Bangladesh, Ireland, etc., do not have any express
provisions forbidding a President from engaging in a Political role or
holding a political party office. Yet, all constitutional commentaries,
jurisprudence and conventions demand and expect of the President in
these countries to refrain from any exhibition of political leanings,
preference, bias or association. It is understood that doing so would
harm the unity of the State that the President represents. These
countries do not have such express provisions because the former
commonwealth countries headed by the British Monarch in the past or
today have relied upon constitutional norms and conventions to dictate
the exclusion of the head of State from all political roles. The Supreme
Court of Pakistan has held in Asad Ali v. Federation of Pakistan (PLD
1998 SC 161) that a constitutional convention, once established has
the same binding effect as a Constitutional provision and that any
HRC 19/1996 [Detailed Judgment] 93
breach of such convention can be treated by the court as a breach of
the constitution to which the convention relates.
68. An important question that arises in this regard is: Why
should Parliamentary Republics like Pakistan which have codified their
constitutions as the basis of their system of government continue to
adhere to the constitutional conventions especially when their own
constitutions contain no express restrictions as found in other
countries? The answer is manifest from our own constutional history.
The framers of the Constitution in 1973 had a very clear idea as to the
constitutional role and function of the President. Thus we had the first
President under the Constitution namely, late Chaudhry Fazal Elahi
while the first Chief Executive was late Mr. Zulfiqar Ali Bhutto. The
President, in line with the wording and spirit of the Constitution was a
figurehead representing the unity of the republic as envisaged in
Article 41 of the Constitution. He did not perform any executive
functions other than to go by the advice of the Prime Minister who was
leader of the directly elected National Assembly. We may also add that
the historical role of the first President late Chaudhry Fazal Elahi and
the first Prime Minister late Mr. Zulfiqar Ali Bhutto can and must be
seen as a contemporaneous exposition of the role envisaged for the
President of the republic. This is particularly significant because the
exponents and the framers of the Constitution including late Mr.
Zulfiqar Ali Bhutto were themselves part of the government and were
thus responsible for ensuring that the form of the government was
exactly in accordance with the letter and spirit of the Constitution
which they had themselves framed. We, therefore, need not look at
HRC 19/1996 [Detailed Judgment] 94
foreign constitutions even though the same may be suggestive of the
role of President similar to that envisioned in our Constitution.
69. There can be no better or more concrete understanding of
the role of the President and the provisions inter alia, of Article 41 ibid,
to demonstrate practically what was envisaged as the role of the
President. Thus, as noted above, it is our own constitutional history
enacted by no less a group of elected representatives who both framed
the Constitution and then implemented it which must inform our
understanding of the Constitution and its interpretation. No one could
have had a better grasp and comprehension of the apolitical and
neutral role of the President than such framers of our Constitution. The
historical record also shows that although late Chaudhry Fazal Elahi
was originally a member of the Pakistan Peoples Party, after assuming
the office of President, he did not indulge in partisan activity of political
nature. In any event, consistent with the ethos of a Parliamentary
democracy the working relationship between an apolitical and nonpartisan
head of State and a Prime Minister as Chief Executive under
our Constitution would be that which was demonstrated by the first
President and the first Prime Minister under the 1973 Constitution. Any
deviation from such role would run counter to our constitutional
scheme. We have already held in the case titled Province of Sindh vs.
Rasheed A. Rizvi (PLD 2012 SC 649), that contemporaneous exposition
is a recognized and well understood mode of interpreting a legal text.
It “enjoys a great deal of sanctity and cannot lightly be set aside in
favour of a materially different expression”
70. The aforesaid constitutional norm as expounded by
contemporaneous exposition was disfigured and distorted through
HRC 19/1996 [Detailed Judgment] 95
unconstitutional intervention by military dictators. They assumed
presidential office and thereafter made all out efforts to pervert the
letter, spirit and scheme of the original Constitution. This was done
inter alia, by means of provisions such as Article 58(2)(b) which, as
noted above, was meant to subvert our parliamentary democracy by
shifting the centre of power from the directly elected House (National
Assembly) to a uniformed person holding the office of President. It is
as a result of the 18th Amendment that Article 58(2)(b) has been done
away with being a deviation from the concept of parliamentary
democracy. There has thus been a roll-back of some of the invidious
distortions made in the Constitution of 1973. The Constitution thus has
to be interpreted on the basis of our own constitutional history and
conventions and to ensure the strengthening of parliamentary
democracy as originally envisioned. The apolitical role of the President
under our Constitution cannot be over emphasized in the light of the
historical background narrated above.
71. Such established norms have been made use of by the
Superior Courts to interpret the Constitution in important judgments
such as Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84) and
Sajjad Ali Shah v. Asad Ali (1999 SCMR 640). It would be impossible
to imagine a parliamentary system continuing to be a democracy
where an indirectly elected President chose to ignore the advice of
government and acted in his own name [Benazir Bhutto v. President of
Pakistan (PLD 1998 SC 388)].
72. The oaths of office in most of the countries are the same
as those prescribed for Heads and Ministers of Government. NONE OF
THESE COUNTRIES have express provisions forbidding a political role
HRC 19/1996 [Detailed Judgment] 96
for the President, yet their constitutional jurisprudence demands just
that. These countries, include Pakistan, India, Bangladesh, Ireland,
Canada, Australia.
BANGLADESH:
Article 48.
(1) There shall be a President of Bangladesh who shall be
elected by members of Parliament in accordance with law.
(2) The President shall, as Head of State, take precedence
over all other persons in the State, and shall exercise the
powers and perform the duties conferred and imposed on
him by this Constitution and by any other law.
Oath:
THIRD SCHEDULE
[Article 148]
OATHS AND AFFIRMATIONS
“I,............,do solemnly swear (or affirm) that I will
faithfully discharge the duties of the office of President of
Bangladesh according to law :
That I will bear true faith and allegiance to Bangladesh :
That I will preserve, protect and defend the Constitution :
And that I will do right to all manner of people according to
law, without fear or favour, affection or ill-will.”
IRELAND:
Article 12.
1. There shall be a President of Ireland (Uachtarán na
hÉireann), hereinafter called the President, who shall take
precedence over all other persons in the State and who
shall exercise and perform the powers and functions
conferred on the President by this Constitution and by law.
…………………………………
…………………………………
8. The President shall enter upon his office by taking and
subscribing publicly, in the presence of members of both
Houses of the Oireachtas, of Judges of the Supreme Court
and of the High Court, and other public personages, the
following declaration:
"In the presence of Almighty God I, do solemnly and
sincerely promise and declare that I will maintain the
Constitution of Ireland and uphold its laws, that I will
fulfil my duties faithfully and conscientiously in
accordance with the Constitution and the law, and
that I will dedicate my abilities to the service and
welfare of the people of Ireland. May God direct and
sustain me."
HRC 19/1996 [Detailed Judgment] 97
Reference in this behalf may be made to Article 60 of the Constitution
of India, which reads as under: -
60. “Every President and every person acting as President
or discharging the functions of the President shall, before
entering upon his office, make and subscribe in the
presence of the Chief Justice of India or, in his absence, the
senior-most Judge of the Supreme Court available, an oath
or affirmation in the following form, that is to say—
"I, A.B., do swear in the name of God that I will faith
solemnly affirm fully execute the office of President (or
discharge the functions of the President) of India and will to
the best of my ability preserve, protect and defend the
Constitution and the law and that I will devote myself to
the service and well-being of the people of India”.
Dr. Ambedkar, the Chairman of the Drafting Committee of the Indian
Constitution is quoted on page 32 of the ‘Constituent Assembly
Debates: Official Report’, New Delhi: Lok Sabha Secretariat 1999 as
follows:
“... the President occupies the same position as the King
under the English Constitution. He is the head of the state
but not of the Executive. He represents the nation but
does not rule the nation. His place in the administration is
that of a ceremonial device on a seal by which the nation’s
decisions are made”
The judgment of the Supreme Court of India by Krishna Iyer, J., in the
case of Samsher Singh v. Punjab (AIR 1974 SC 2192) expounds the
role of the President in India which is of great persuasive value for
describing the role of President in any Federal Parliamentary Republic
with a similar constitutional arrangement such as ours:
“We have, in the President and Governor, a replica of a
Constitutional monarch and a Cabinet answerable to
HRC 19/1996 [Detailed Judgment] 98
Parliament, substantially embodying the conventions of the
British Constitution--not a turn-key project imported from
Britain, but an edifice made in India with the know-how of
British Constitutionalism.
... What are the basic fabric, the animating spirit, and
juridical ideas of our Constitutional structure and
dynamics?
The law of our Constitution, any student of Indian political
history and of comparative Constitutional systems will
agree, is partly eclectic but primarily an Indo-Anglian
version of the Westminster model with quasi-federal
adaptations, historical modifications, geo-political
mutations and homespun traditions--basically a blended
brew of the British parliamentary system, and the
Government of India Act, 1935 and near-American,
nomenclature-wise and in some other respects.
Not the Potomac, but the Thames, fertilises the flow of the
Yamuna, if we may adopt a riverine imagery. In this thesis
we are fortified by precedents of this Court...
Shri K.M. Munshi expressed the historical reason for the
acceptance of the parliamentary system:
“... it is the rule of the majority in the legislature, for
it supports its leaders in the Cabinet, which advises
the Head of the State, namely, the King or the
President. The King or the President is thus placed
above party. He is made really the symbol of the
impartial dignity of the Constitution.
The power of the Cabinet in England today is no whit
less than the powers enjoyed by the President of the
United States of America. By reason of the fact that
the Prime Minister and the whole Cabinet are
members of the Legislature, the conflict between the
authority wielding the executive power and the
legislature is reduced to minimum; really there is
none at all; because, at every moment of time, the
Cabinet Subsists only provided it carries with it the
support of the majority in the Parliament.”
Participating in the same discussion, President Rajendra
Prasad said (‘Correspondence and Select Documents:
August to December 1948’, by Rajendra Prasad, page xxii,
Preface):
“We have had to reconcile the position of an elected
President with an elected legislature, and in doing
so, we have adopted more or less, the position of the
British monarch for the President.... His position is
that of a Constitutional President. Then we come to
the Ministers. They are, of course, responsible to the
Legislature and tender advice to the President who is
bound to act according to that advice. Although there
are no specific provisions, so far as I know, in the
Constitution itself making it binding on the President
HRC 19/1996 [Detailed Judgment] 99
to accept the advice of his Ministers, it is hoped that
the convention under which in England the King acts
always on the advice of his Ministers will be
established in this country also and the President,
not so much on account of the written word in the
Constitution, but as a result of this very healthy
convention, will become a Constitutional President in
all matters.”
These solemn words were uttered by the President of the
Constituent Assembly at the great moment when the
motion or final adoption of the Constitution was put to the
vote of the Chamber.
The Ambedkar approach, unequivocally accepted, was
(‘Constituent Assembly of India’ – Volume VII, Thursday
the 30th December 1948):
“It is the Prime Minister's business, with the support
of the Ministers, to rule the country and the
President may be permitted now and then to aid and
advise the Council of Ministers. Therefore, we should
look at the substance and not at the mere
phraseology which is the result of conventions.”
If the 'inner voice' of the founding fathers may be any
guide, it is proved beyond reasonable doubt that the
President and, a fortiori, the Governor, enjoy nothing more
and nothing less than the status of a Constitutional head in
a Cabinet-type government--a few exceptions and
marginal reservations apart.
If we hold that in a conflict between the Ministry and the
President, the President's voice should prevail in the last
resort, either generally or even in a particular class of
cases, this, would mean the elimination to that extent of
the authority of a Ministry which is continuously subject to
control or criticism by the House of the People, in favour of
the authority of a President who is not so subject. It would
thus result in a reduction of the sphere of 'responsible
government'. So important a subtraction must be justified
by some express provisions in our Constitution.
Does this reduce the President, under the Indian
Constitution, to a figurehead? Far from it, like the King in
England, he will still have the right 'to be consulted, to
encourage and to warn'. Acting on ministerial advice does
not necessarily mean immediate acceptance of the
Ministry's first thoughts. The President can state all his
objections to any proposed course of action and ask his
Ministers in Council, if necessary, to reconsider the matter.
It is only in the last resort that he must accept their final
advice. It has been observed that the influence of the
Crown--and of the House of Lords as well--in England has
grown with every curtailment of its legal powers by
HRC 19/1996 [Detailed Judgment] 100
convention or statute. A similar result is likely to follow in
India too; for, as has been well said, "the voice of reason
is more readily heard when. it can persuade but no longer
coerce", One can conceive of no better future for the
President of India than that he should be more and more
like the Monarch in England, "eschewing legal power,
standing outside the clash of parties and gaining in moral
authority." These words of Constitutional wisdom come,
from one who played a key role in shaping the framework
of the Republic and had no political affiliations.
If the President, in a particular case where his own views
differ from those of his Ministers, ultimately accepts their
advice in defence to a well-understood convention, then
even if the act should result in a breach of some
'fundamental right' or 'directive principle' enunciated in the
Constitution, the responsibility will be that of the ministers
and not of the President.
Sir Ivor Jennings has acknowledged that 'the President in
the Union, or the Governor in a State, is essentially a
Constitutional monarch. The machinery of government is
essentially British and the whole collection of British
Constitutional conventions has apparently been
incorporated as conventions.' The text, the author notes,
vests vast powers in the President but past history must
provide the modus vivendi.
The analysis which appeals to us, in the light of this
Court's rulings, accords with the view expressed by Mr.
[Arthur Berriedale] Keith in his Preface to 'The King and
the Imperial Crown': [the powers and duties of His
Majesty] (Longmans, Green and Co, London: 1936):
“It is a conviction of the public in the self-governing
Dominions of the Crown that the Governor-General
in matters official serves no more distinguished
purpose than that of a ‘rubber stamp’.”
As for the semantic gap between the verbal and the real,
even in England as William Paley has explained (‘The
Works of William Paley’, by William Paley, Thomas Nelson
and Peter Brown, Edinburgh: 1828, page 115):
“There exists a wide difference between the actual
state of the government and the theory. When we
contemplate the theory of the British government;
we see the king vested with ... a power of rejecting
laws. Yet when we turn our attention from the legal
extent to the actual exercise of royal authority in
England we see these formidable prerogatives
dwindled into more ceremonies; and in their stead a
sure and commanding influence of which the
Constitution, it seems, is totally ignorant.”
HRC 19/1996 [Detailed Judgment] 101
In Blackstone's commentaries on the Laws of England, said
Dicey, students might read that the Constitution
concentrated all executive power in the hands of the King.
'The language of this passage', he remarked, 'is
impressive... It has but one fault: the statements it
contains are the direct opposite of the truth".
The President in India is not at all a glorified cipher. He
represents the majesty of the State, is at the apex, though
only symbolically, and has rapport with the people and
parties, being above politics. His vigilant presence makes
for good government if only he uses, what Bagehot
described as, 'the right to be consulted, to warn and
encourage'. Indeed, Article 78 wisely used, keeps the
President in close touch with the Prime Minister on matters
of national importance and policy significance, and there is
no doubt that the imprint of his personality may chasten
and correct the political government, although the actual
exercise of the functions entrusted to him by law is in
effect and in law carried on by his duly appointed mentors,
i.e., the Prime Minister and his colleagues. In short, the
President, like the King, has not merely been
constitutionally romanticised but actually vested with a
pervasive and persuasive role. Political theorists are quite
conversant with the dynamic role of the Crown which
keeps away from politics and power and yet influences
both. While he plays such a role, he is not a rival center of
power in any sense and must abide by and act on the
advice tendered by his Ministers except in a narrow
territory which is sometimes slippery.
73. The above exposition reflects the position in our
Constitution and is also strictly in accord with the respective roles of
the first President and the first Prime Minister (discussed above)
elected under the 1973 Constitution. In our considered opinion, the
above judgment is capable of answering the arguments of learned
Attorney General that President, under our constitutional provisions,
noted hereinabove. Thus, it is held that, “he (President) represents the
majesty of the State, is at the apex, though only symbolically, and has
rapport with all manner of people and parties, being above politics”.
Therefore, action of President in the year 1990 supporting his favoured
candidates or a group of political parties was against fundamental
rights of citizens under Article 17 of the Constitution. Consequently,
HRC 19/1996 [Detailed Judgment] 102
opponent political party had to lose allegedly half of the seats in the
National Assembly.
74. Reverting to the case in hand, it may be observed that a
President of Pakistan before entering upon office, in the oath of his
office, solemnly swears that he is a Muslim and believes in the unity
and Oneness of Almighty Allah, the Books of Allah, the Holy Quran
being the last of them, the last of the Prophets and that there can be
no Prophet after him, the Day of Judgment, and all the requirements
and teachings of the Holy Quran and Sunnah, that he will not allow his
personal interest to influence his official conduct or his official
decisions, and that he will do right to all manner of people, according
to law, without fear or favour, affection or ill-will. Thus, as the
constitutional Head of the State, the incumbent of such a high office is
obliged to perform his functions and duties neutrally and impartially. It
is pertinent to refer to the observations of Saiduzzaman Siddiqui J in
Muhammad Nawaz Sharif’s case (supra) as under: -
“No doubt, the President as the symbol of the unity of the
Federation occupies a neutral position in the Constitution,
and in that capacity he is entitled to highest respect and
regard by all the functionaries of the State. But it is equally
important that in order to protect and preserve the dignity
of this high office and this neutral image under the
Constitution the President must keep aloof from all
political imbroglio. If the President is unable to ward off
the temptation to keep away from political game or he
starts siding with one or the other political element in the
Assembly he is likely to lose his image as the neutral
arbiter in national affairs and as a symbol of unity of
Federation under the Constitution. In the latter event, his
conduct may also come under criticism from those who
may feel betrayed.”
HRC 19/1996 [Detailed Judgment] 103
75. In the light of the above discussion, argument so raised by
learned Attorney General is repelled and we hold that the President
being the symbol of the unity of the Federation occupies a neutral
position under the Constitution and is not envisaged by the
Constitution to be supporting or backing any particular political party
or a group of political parties, or certain individual politicians or
candidates contesting election from a given platform to the
disadvantage of any other political party, politician, political worker,
individual, etc. We respectfully follow and reiterate the enunciation
made by this Court in Muhammad Nawaz Sharif’s case (supra).
Learned Attorney General also lost sight of another important aspect
of the case, namely, the President of Pakistan after entering into his
office obtained the status which falls under the definition of a person
who is in the “Service of Pakistan”. According to Article 260 of the
Constitution, service of Pakistan means any service, post or office in
connection with the affairs of the Federation or of a Province, and
includes an All-Pakistan Service, service in the Armed Forces and any
other service declared to be a service of Pakistan by or under Act of
Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not
include service as Speaker, Deputy Speaker, Chairman, Deputy
Chairman, Prime Minister, Federal Minister, Minister of State, Chief
Minister, Provincial Minister, Attorney-General, Advocate-General,
Parliamentary Secretary or Chairman or member of a Law
Commission, Chairman or member of the Council of Islamic Ideology,
Special Assistant to the Prime Minister, Adviser to the Prime Minister,
Special Assistant to a Chief Minister, Adviser to a Chief Minister or
member of a House or a Provincial Assembly. The said Article
HRC 19/1996 [Detailed Judgment] 104
specifically excludes certain offices from the Service of Pakistan that
are listed after the phrase “but does not include”. The office of
President and the Governors of the provinces are not listed among
these exceptions.
76. It is pertinent to mention here that the Constitution of
1956 included the President in the list of exclusions from the Service of
Pakistan, while the Constitutions of 1962 as well as the current
constitution of 1973 did not include the office of President in the list.
There is no provision to the contrary that excludes the office of the
President from being subject to the earlier part of the above stated
definition, that is, "Service of Pakistan" means any service, post or
office in connection with the affairs of the Federation or of a Province.
Furthermore, the definition elaborates that service of Pakistan includes
ANY post or office in addition to a service.
77. The Supreme Court in Salahuddin v Frontier Sugar Mills
and Distillery Ltd. (PLD 1975 SC 244) considered the extent of the
term “in connection with the affairs of the Federation or a Province” in
great detail. Relevant portion from the said judgment is reproduced
hereinbelow: -
“Now, what is meant by the phrase "performing functions
in connection with the affairs of the Federation or a
Province". It is clear that the reference is to governmental
or State functions, involving, in one form or another, an
element of exercise of public power. The functions may be
the traditional police functions of the State, involving the
maintenance of law and order and other regulatory
activities; or they may comprise functions pertaining to
economic development, social welfare, education, public
utility services and other State enterprises of an industrial
or commercial nature. Ordinarily, these functions would be
performed by persons or agencies directly appointed,
controlled and financed by the State, i.e., by the Federal
Government or a Provincial Government.”
HRC 19/1996 [Detailed Judgment] 105
The Court further discussed the position of a ‘public office’ in relation
to the phrase service of Pakistan in the following terms: -
“The term 'public office' is defined in Article 290 of the
Interim Constitution as including any office in the Service
of Pakistan and membership of an Assembly. The phrase
'Service of Pakistan' is defined, in the same Article, as
meaning any service, post or office in connection with the
affairs of the Federation or of a Province and includes an
All-Pakistan Service, any defence service and any other
service declared to be a Service of Pakistan by or under
Act of the Federal Legislature or of a Provincial Legislature
but does not include service as a Speaker, Deputy Speaker
or other member of an Assembly. Reading the two
definitions together, it becomes clear that the term 'public
office', as used in the Interim Constitution, is much wider
than the phrase 'Service of Pakistan', and although it
includes any office in the Service of Pakistan, it could not
really refer to the large number of the posts or
appointments held by State functionaries at various levels
in the hierarchy of Government.”
The English judgment in Henry Farran Darley v. Reg. [(1846) 8 ER
520] is also referred which states that: -
“A public office is the right, authority and duty created and
conferred by law, by which an individual is vested with
some portion of the sovereign functions of the Government
to be exercised by him for the benefit of the public, for the
term and by the tenure prescribed by law. It implies a
delegation of a portion of the sovereign power. It is a trust
conferred by public authority for a public purpose,
embracing the ideas of tenure, duration, emolument and
duties. A public officer is thus to be distinguished from a
mere employment or agency resting on contract, to which
such powers and functions are not attached . . . The
determining factor, the test, is whether the office involves
a delegation of some of the sovereign functions of
government, either executive, legislative or judicial, to be
exercised by the holder for the public benefit Unless his
powers are of this nature, he is not a public officer.”
The above discussion is also strengthened by referring to the following
authorities: -
“This view seems to have held the ground throughout. As
summed up Ferris (Extraordinary Legal Remedies, 1925
Edition, p. 145), "a public office is the right, authority and
duty created and conferred by law, by which an individual
is vested with some portion of the sovereign functions of
the Government to be exercised by him for the benefit of
the public, for the term and by the tenure prescribed by
HRC 19/1996 [Detailed Judgment] 106
law. It implies a delegation of a portion of the sovereign
power. It is a trust conferred by public authority for a
public purpose, embracing the ideas of tenure, duration
emolument and duties. A public officer is thus to be
distinguished from a mere employment or agency resting
on contract, to which such powers and functions are not
attached . . . . . The determining factor, the test, is
whether the office involves a delegation of some of the
sovereign functions of Government, either executive,
legislative or judicial, to be exercised by the holder for the
public benefit. Unless his powers are of this nature, he is
not a public officer.
This definition of the term 'public office', as well as the almost
analogous definition given by Halsbury (in Volume 11) have been
referred to with approval in Lahore Central Co-operative Bank
Ltd. v. Saifullah Shah (P L D 1959 S C (Pak.)210), Pakistan v.
Nasim Ahmed (P L D 1951 SC 445), Faiz Ahmed v. Registrar,
Co-operative Societies (P L D 1962 S C 315), Managing
Committee of Co-operative Model Town Society Ltd. v. M. Iqbal
(P L D 1963 S C 179), Masudul Hassan v. Khadim Hussain (P L D
1963 S C 203), Zainul Abiain v. Multan Central Co-operative
Bank Ltd. (P L D 1966 S C 445), Abdul Hafeez v. Chairman,
Municipal Corporation (P L D 1967 Lah. 1251), R. T. H. Janjua v.
National Shipping Corporation (P L D 1974 S C 146), and M. U.
A. Khan v. Rana M. Sultan (P L D 1974 S C 228). In all these
cases the question had arisen directly or indirectly whether the
office in dispute was a public office to which restoration could be
ordered by way of mandamus.”
78. Besides the office of the President, the Judges and Chief
Justices of the superior courts are also included in the scope of service
of Pakistan by failing to make reference to them among the exclusions
from ‘Service of Pakistan’ in Article 260. The definition under Article
260 must be read together with Article 63 of the constitution, which
reads as under: -
(1) A person shall be disqualified from being elected or
chosen as, and from being, a member of the Majlise-
Shoora (Parliament), if:
(d) he holds an office of profit in the service of
Pakistan other than an office declared by law
not to disqualify its holder;
According to the above provision, a person is disqualified from being
elected or chosen as and from being a member of parliament.
HRC 19/1996 [Detailed Judgment] 107
Therefore, whosoever falls within the definition of a person in the
“service of Pakistan”, he would be disqualified to contest elections. At
the same time, in the wisdom of the constitutional scheme, Article
44(2) expressly declares the person holding the post of President to be
re-elected for a second term of office. However, beyond this express
provision for re-election, Article 63(1)(d) disqualifies an incumbent of
the office of President from being elected to Parliament. This is
stressed by the phrase “subject to the constitution” that qualifies the
express allowance for the President to contest re-election to the same
office. This excludes the re-election of the President from the
aforementioned disqualification but does not create an exception for
the application of disqualification on the President for being elected to
Parliament. This is further subject to the provision of Section
99(1A)(d) of the Representation of the People Act 1976:
“(1A) A person shall be disqualified from being
elected as, and from being, a member of an
Assembly, if—
(d) he holds an office of profit in the service of
Pakistan other than an office declared by law
not to disqualify its holder;”
79. The Supreme Court of Pakistan explained the
disqualification of a holder of such a public office in Syeda Abida
Hussain v. Tribunal for NA 69 (PLD 1994 SC 60) as under: -
“5. … … The authorities under the Representation of the
People Act have held, that the petitioner stood disqualified from
contesting the election under sub-clause (k), ibid. Learned
counsel for the petitioner has contested this finding. His case is
that sub-clause (k) is applicable only to those persons who are
regularly in the service of Pakistan and that the petitioner could
not be regarded as such as she was merely performing a
contract which she had entered into with the Government of
HRC 19/1996 [Detailed Judgment] 108
Pakistan. According to him the test for determining whether a
person is or is not in the service of Pakistan lies in discovering
whether his terms and conditions of service are regulated by
the statute envisaged by Article 240 of the Constitution.
Applying this test, he contends, that as the appointment of the
petitioner was founded on a contract for a fixed period and her
terms and conditions were not regulated by the Civil Servants
Act enacted in pursuance of the provision of Article 240, ibid,
she could not be treated as one in the service of Pakistan. He
also points out that she is not covered by the definition of the
expression `civil servant' as given in the Civil Servants Act. He
further argues that her case fell under clause (n) of Article
63(1) and as the contract of her employment was no longer in
force there was no bar to her being a candidate in the election
to the National Assembly.
6. It is difficult to subscribe to the contention of the learned
counsel. The expression `service of Pakistan' has been defined
in Article 260(1) of the Constitution. It reads as follows: -
“ ‘Service of Pakistan’ means any service, post or office in
connection with the affairs of the Federation or of a
Province, and includes an All-Pakistan Service, service in
the Armed Forces and any other service declared to be a
service of Pakistan by or under Act of Majlis-e-Shoora
(Parliament) or of a Provincial Assembly, but does not
include service as Speaker, Deputy Speaker, Chairman,
Deputy Chairman, Prime Minister, Federal Minister,
Minister of State, Chief Minister, Provincial Minister,
Attorney-General, Advocate-General, Parliamentary
Secretary or Chairman or member of a Law Commission,
Chairman or member of the Council of Islamic Ideology,
Special Assistant to the Prime Minister, Advisor to the
Prime Minister, Special Assistant to a Chief Minister,
Adviser to a Chief Minister or member of a House or a
Provincial Assembly;”
HRC 19/1996 [Detailed Judgment] 109
Learned counsel for the petitioner rightly concedes that the post
of an Ambassador is a post in connection with the affairs of the
Federation. It will be seen that the definition does not take
notice of the manner in which a post in connection with the
affairs of the Federation or a Province may be filled. Thus, so far
as the inclusion of a post in the service of Pakistan is concerned,
it is immaterial whether the holder thereof has come to occupy it
through a special contract or in accordance with the recruitment
rules framed under the Civil Servants Act; consequently, the
mere fact that a person is not a civil servant within the meaning
of the Civil Servants Act would not put him beyond the pale of
the said Constitutional definition. The contention that the case of
the petitioner was covered by sub-clause (n), ibid, is entirely
misconceived as ex facie it does not apply to situations where
the relationship of master and servant exists between the
parties. Here, the petitioner was a whole-time employee of the
Government and except for matters which were specifically
provided in the letter of appointment she was governed by the
ordinary rules of service applicable to the civil servants. It may
perhaps be of interest to mention here that these rules were
framed in pursuance of the provisions of Article 240, ibid. Thus,
the assertion on her behalf that while serving as an Ambassador
she could not be treated as one in the service of Pakistan merely
because her appointment to the post owed its origin to a special
contract cannot be accepted. Admittedly, a period of two years
has not passed since she relinquished charge of the said post.
Therefore, she has been rightly held to be suffering from the
disqualification laid down in clause (k), ibid. We find merit in this
petition.
The functions and roles designated for the President are limited to
those provided for by the constitution. These include the provisions of
Article 45, the Presidential grant of pardon; Articles 48, limiting the
exercise of Presidential functions to the advice of the cabinet; or
Article 56, providing for the President to address either or both Houses
HRC 19/1996 [Detailed Judgment] 110
of Parliament etc. It is also important to distinguish the constitutional
office of the President from other offices of civil service within the
service of Pakistan that are appointed under Article 240 of the
Constitution. This distinction is elaborated upon by the Supreme Court
in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006
SC 602), wherein it has been held as under: -
“Both these expressions [Civil Service and Service of Pakistan]
are not synonymous, as declared by this Court in the case of
Registrar, Supreme Court of Pakistan v. Wali Muhammad [1997
SCMR 141]. Relevant Para. therefrom is reproduced
hereinbelow: -
“We would like to mention here that from the trend of
arguments at the bar it appeared that two expressions
`service of Pakistan' and `Civil servants' were treated as
synonymous. This in our opinion is not so. Service of
Pakistan is defined in Article 260 of the Constitution as
meaning, any service, post or office in connection with the
affairs of Federation or a Province. This expression also
includes an All Pakistan Service and service in the Armed
Forces or any other service declared under an Act of the
Parliament or a Provincial Assembly as Service of Pakistan.
The terms `Civil Servant' is defined in the Civil Servants
Act 1973 as a person, who is a member of an All Pakistan
Service or of a civil service of the Federation or a person
holding a civil post in connection with the affairs of
Federation, including a civil post connected with the
defence.”
…………..
“On a careful examination of the definitions of `Service of
Pakistan' as given in Article 260 of the Constitution and the
`Civil Servant' as mentioned in Civil Servants Act, 1973, it would
'appear that the two expressions are not synonymous. The
expression `Service of Pakistan' used in Article 260 of the
Constitution has a much wider connotation than the term `Civil
Servant' employed in the Civil Servants Act. While a `Civil
HRC 19/1996 [Detailed Judgment] 111
Servant' is included in the expression `Service of Pakistan', the
vice versa is not true. `Civil Servant' as defined in the Civil
Servants Act, 1973 is just a category of service of Pakistan
mentioned in Article 260 of the Constitution. To illustrate the
point, we may mention here that members of Armed Forces
though fall in the category of `Service of Pakistan' but they are
not civil servants within the meaning of Civil Servants Act and
the Service Tribunals Act. The scope of expression `Service of
Pakistan' and `Civil Servants' came up for consideration before
this Court in the case of Syeda Abida Hussain v. Tribunal for N.A.
69 [PLD 1994 SC 60].”
…………………..
“At this juncture, reference to the case of Qazi Wali Muhammad
(ibid) would not be out of context, wherein this Court while
examining the status of employees of the Supreme Court has
held that " the expression `service of Pakistan' used in Article
260 of the Constitution has a much wider connotation than the
term `civil servant' employed in the Civil Servants Act; while the
`civil servant' is included in the expression service of Pakistan',
the vice versa is not true; `civil servant' as defined in the Civil
Servants Act, 1973 is just a category of service of Pakistan
mentioned in Article 260 of the Constitution.” It was further
observed that “to illustrate the point, it is stated that members
of Armed Forces though fall in the category of `service of
Pakistan' but they are not civil servants within the meaning of
Civil Servants Act and the Service Tribunals Act”.”
Thus, the above discussion leads us to conclude that the President of
Pakistan being in the service of Pakistan, is not supposed to indulge in
politics as it has been established in instant case in respect of role of
President Ghulam Ishaq Khan.
80. Learned Attorney General contended that there is no
difference in the oath of Prime Minister, Ministers, etc., and if they can
enter into politics, the President is not prohibited from doing so. We
HRC 19/1996 [Detailed Judgment] 112
are not in agreement with him for the reason that all these
functionaries do not fall within the definition of persons in the service
of Pakistan” in terms of Article 260 of the Constitution, as their cases
are covered by exceptions to this constitutional provision. In addition
to it, the President is elected indirectly whereas Prime Minister and
others are directly elected and they represent their electors.
81. Mr. Salman Akram Raja, ASC for the petitioner has stated
that it is established that various actions were taken by the senior
most officers of the armed forces without there being any firm
legislative basis in the name of supreme national interest, security,
etc. Is not stated from where these actions were derived especially, in
the circumstances where they were mandated not to engage in the
political activities. He argued that these individuals at the highest
levels in the Armed Forces were unclear about their mandate what
they were required to do, what they should or should not do. There
have been attempts in the past to make legislation in this regard.
Control and regulation is a legislative function.
82. On the other hand, the learned Attorney General stated
that where any of the members of any institution, such as Army, ISI or
any other institution observing discipline are involved in any
wrongdoing in a chain of command, the institution automatically gets
involved. According to him, if the head of an institution is doing
anything, to say that the institution is not involved, is not wholly true.
The decisions within an institution are given at the top, therefore, in
the instant case, responsibility cannot be transferred to the six lac
members of the Armed Forces. Here, allegation is on the respondent
No.1 who was COAS at the relevant time, respondent No. 2, who was
DG, ISI and respondent No. 3, who was EVP/Regional Chief in the HBL.
HRC 19/1996 [Detailed Judgment] 113
Therefore, according to the learned Attorney General, it is to be
determined as to who was the person at the top who ordered these
things to be done because the greatest responsibility shall be his.
When these things were being done, all the officers and institutions
including, Army, ISI and judiciary became silent spectators and when
the elected governments were overthrown, the judiciary became a
party to it. It may be observed that any violation of the oath of office
or any other illegal act committed by a State functionary is a personal
act for which the individual concerned would be liable in accordance
with law, and the institution to which such individual may belong
would not be involved in it in any way.
83. The role and functions of Armed forces have been
discussed in detail in Sindh High Court Bar Association’s case (supra)
wherein it has been observed that on a plain reading of the provisions
of Article 245(1), the functions of the Armed Forces can be bifurcated
into two categories, namely; they shall defend Pakistan against
external aggression or threat of war; and subject to law, act in aid of
civil power when called upon to do so. Under clause (1) of Article 243,
the control and command of the Armed Forces is vested in the Federal
Government, therefore, in the performance of both the categories of
functions, the Armed Forces act under the directions of the Federal
Government. Thus, the provisions of clause (1A) of Article 243 under
which the supreme command of the Armed Forces vests in the
President, does not, in any manner, derogate from the power of the
Federal Government to require the Armed Forces to defend Pakistan
against external aggression or threat of war, or to act in aid of civil
power in accordance with law. The Constitution does not envisage any
situation where the Armed Forces may act without any direction by the
HRC 19/1996 [Detailed Judgment] 114
Federal Government. Clause (3) ibid, provides that the President shall,
in consultation with the Prime Minister appoint the Chairman, Joint
Chiefs of Staff Committee; the Chief of the Army Staff; the Chief of the
Naval Staff; and the Chief of the Air Staff. Under Article 244, every
member of the Armed Forces makes oath, inter alia, to the effect that
he will bear true faith and allegiance to Pakistan and uphold the
Constitution of Pakistan, and that he will not engage himself in any
political activities whatsoever. Any action of the Armed Forces
undertaken without a direction by the Federal Government shall be
unconstitutional, illegal, void ab initio and consequently of no legal
effect. Thus, it was held that any member of the Armed Forces,
including the Chairman, Joint Chiefs of Staff Committee and the three
Service Chiefs, namely, the Chief of Army Staff, the Chief of Naval
Staff and the Air Chief, or any person acting under their authority, or
on their behalf, who acts in the performance of either of his functions
of defending Pakistan against external aggression, or of acting, subject
to law, in aid of civil power without any direction by the Federal
Government acts in violation of the Constitution and the law and does
so at his own risk and cost.
84. In the said judgment, it was further observed that the
people of Pakistan are committed and dedicated to preserving
democracy achieved by their unremitting struggle against oppression
and tyranny, as duly voiced and recognized in the Preamble to the
Constitution of the Islamic Republic of Pakistan. The Founder of
Pakistan, the Quaid-e-Azam Muhammad Ali Jinnah declared that
Pakistan would be a democratic State based on Islamic provisions of
social justice. While addressing a gathering of civil officers of
Balochistan on 14th February, 1948, he said that our present
HRC 19/1996 [Detailed Judgment] 115
provisional Constitution based on the fundamental principles of
democracy, not bureaucracy or autocracy or dictatorship. Therefore,
the military rule, direct or indirect, is to be shunned once and for all. It
was wrongly justified in the past and it ought not to be justified in
future on any ground, principle, doctrine, or theory whatsoever.
Military Rule is against the dignity, honour and glory of the nation that
it achieved after sacrifices; and it is against the dignity and honour of
each and every soldier of the Armed Forces of Pakistan, who is oathbound
to bear true faith and allegiance to Pakistan and uphold the
Constitution. Within the prescribed parameters, a soldier must remain
committed to defending Pakistan until the last drop of his blood
against external aggression or threat of war, and subject to law, acting
in aid of civil power when called upon to do so under the directions of
the Federal Government. In the course of the discharge of his duties, a
soldier, therefore, is obligated to seeing that the Constitution is
upheld, it is not abrogated, it is not subverted, it is not mutilated. If a
member of the Armed Forces does any of the above acts, or any other
similar act, he violates his oath and renders himself liable to action
under and in accordance with the Constitution and the law.
85. Mr. Muhammad Akram Sheikh, Sr. ASC appearing on
behalf of the respondent No.1 submitted that his client was bound to
follow the orders of the then President of Pakistan in terms of section
33 of the Pakistan Army Act, 1952. For reference the said section is
reproduced herein below: -
33. (1) Any person subject to this Act who disobeys in
such a manner as to show a wilful defiance of authority a
lawful command given personally by his superior officer,
knowing or having reason to believe him to be such, shall,
HRC 19/1996 [Detailed Judgment] 116
on conviction by court Marshal, be punished with rigorous
imprisonment for a term which may extend to fourteen
years, or with such less punishment as is in this Act
mentioned.
(2) Any person subject to this Act who disobeys the lawful
command of his superior officer, knowing or having reason
to believe him to be such, shall, on conviction by court
Marshal, if he commits such offence on active service, be
punished with rigorous imprisonment for a term which may
extend to fourteen years, or with such less punishment as
is in this Act mentioned; and if he commits such offence
not on active service, be punished with rigorous
imprisonment for a term which may extend to five years,
or with such less punishment as is in this Act mentioned.
86. On the other hand, Mr. Salman Akram Raja, ASC has
argued that the President has never had the operational control over
the Armed Forces of Pakistan. That always happens on the advice of
the Prime Minister through the Defence Ministry. This was not an
exigency on the battlefield. In this regard, the head of the Army is no
different to a Federal Secretary. He further argued that the COAS
takes oath under the Constitution; therefore, it is his responsibility to
ascertain what the Constitution says. The duty is much greater as
compared to others. In terms of Article 244 of the Constitution, the
members of Armed Forces take oath which has been provided in the
Third Schedule to the Constitution and is reproduced hereinbelow: -
“Members of the Armed Forces
(In the name of Allah, the most Beneficent, the most
Merciful.)
I, ____________ do solemnly swear that I will bear true
faith and allegiance to Pakistan and uphold the
Constitution of the Islamic Republic of Pakistan which
HRC 19/1996 [Detailed Judgment] 117
embodies the will of the people, that I will not engage
myself in any political activities whatsoever and that I will
honestly and faithfully serve Pakistan in the Pakistan Army
(or Navy or Air Force) as required by and under the law.
May Allah Almighty help and guide me (A'meen).”
According to him, the members of the Armed Forces are oath bound to
uphold the Constitution, which embodies the will of the people. They
are under an obligation to ensure that because here they are not on
the battlefield.
87. Mr. Justice Ch. Ijaz Ahmed, in his concurring note recorded
in the Sindh High Court Bar Association’s case, observed that the
Constitution of 1973 for the first time has prescribed oath for the
members of the Armed Forces, earlier they only took oath prescribed
in the Army Act, 1952. While interpreting Article 243 of the
Constitution reference was made to the case of Sh. Liaquat Hussain v.
Federation of Pakistan [PLD 1999 SC 504] wherein it was held that the
personnel of the Armed Forces are under the final administrative
control of the Federal Government; and that every member of the
Armed Forces has to take oath in the form set out in the Third
Schedule in the terms of Article 244. Reference has also been made to
the case of Darwesh M. Arbey, Advocate v. Federation of Pakistan Thr.
The Law Secretary [PLD 1980 Lah. 206] wherein the Lahore High
Court laid down the following principles: -
(a) Armed Forces which owe allegiance to Pakistan
cannot be used for political motive by the party in
power.
(b) It not only is violative of the oath prescribed in the
third Schedule which prohibits engagement of the
Army in political activities and further tarnishes the
image of the Army.
HRC 19/1996 [Detailed Judgment] 118
The view has been quoted with approval by this court in the case of
Justice Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011 SC
680).
88. According to Mr. Salman Akram Raja, ASC, it is clear
without any doubt that public funds have been plundered and siphoned
away at the behest of senior functionaries of the State. These funds
have remained unaccounted for. The attempt to take refuge behind
the alleged existence of some political cell in the ISI can be no
defence, as senior Army officers Gen (R) Beg and Gen (R) Durrani
were not constrained by the unknown terms of reference of the socalled
Political Cell to act in a manner so as to subvert the
Constitution. The fact is that in his statement filed before this Court on
17.10.2012 through CMA 4417/2012, respondent No.2 has clearly
stated that he was not even aware of the existence of a political cell in
the ISI which he headed. He also stated that a cell might have existed
at various times. It is clear that the unlawful operation of
September/October 1990 was not an operation in accordance with the
terms of reference of some established political cell. This was an
unlawful attempt to undermine the electoral process in pursuit of a
subjectively held notion of the ‘national interest’. He further contended
that whatever instructions were there from the then President, these
must have been communicated through his associates in an informal
way. There exists no institutional record of such communications.
These communications, if at all, were in the nature of illegal
instigations to violate the constitution in a surreptitious manner and
did not even bear the colour of an official order.
HRC 19/1996 [Detailed Judgment] 119
89. Learned Attorney General stated that no State functionary,
be he President who is the Supreme Commander of the Armed Forces
of Pakistan, or the Prime Minister, who is the chief executive of the
country, or the Federal Ministers, or anyone else is empowered to give
illegal orders. No body can violate the Constitution, nobody can rig the
elections. Such a duty is not upon anybody in Pakistan, therefore, the
President of Pakistan cannot be isolated in this respect, inasmuch as
oath of his office is no different to the other oaths prescribed in the
Constitution.
90. Thus, it is held that the President could not have issued
any command to the Army Chief or the DG ISI as the President did not
have any operational authority with respect to the Armed Forces even
after the Eighth Constitutional Amendment. While as per Article 243
of the Constitution, the Supreme Command of the Armed Forces was
said to vest in the President, no independent executive authority was
given to the President. The said Constitutional Amendment had
created two broad categories of functions as regards the President.
The first category was that of actions to be performed by the President
in accordance with Article 48 on and in accordance with the advice of
the Prime Minister. The second category was that of actions to be
performed by the President in his discretion upon being satisfied with
respect to a particular state of affairs. Reference in this regard may be
made to the erstwhile provision of Article 58(2)(b) of the Constitution
where the President would act in his discretion. It is clear that the
vesting of the Supreme Command in the President did not empower
the President, even after the Eighth Amendment, to act in his
discretion or upon his satisfaction. Consequently, no question of a
command, let alone a lawful command having been made by the
HRC 19/1996 [Detailed Judgment] 120
President to make disbursements of money among favoured politicians
arises. Without prejudice to the foregoing, only lawful commands are
required to be obeyed. All officers who obey unlawful commands are
individually liable. All superior officers giving unlawful commands or
who fail to prevent unlawful action on the part of their subordinates
are liable and culpable. In the event of failure of the relevant State
authorities to take action, the rights of the people of Pakistan are to be
upheld by this Court making all necessary directions to the
functionaries and institutions of the state, including the Election
Commission of Pakistan, including the direction to investigate and
prosecute.
91. Mr. Muhammad Akram Sheikh, Sr. ASC argued that the
respondent No.1 had not taken oath under the Constitution of 1973,
therefore, he was not bound by the oath prescribed for the members
of Armed Forces in the Third Schedule to the Constitution. On the
other hand Mr. Salman Akram Raja, learned ASC for the petitioner
argued that the sanctity of the oath of office is inviolable, particularly
that of the oath of the members of the Armed Forces of Pakistan
prescribed under Article 244 of the Constitution and contained in the
Third Schedule thereto.
92. The argument of the learned counsel for the respondent
No.1 that the officers of the Armed Forces who had taken oath prior to
the coming into force of the Constitution of 1973 could not be held
liable for subverting the Constitution is untenable. It is to be noted
that Article 5 imposes upon every citizen of Pakistan an inviolable
obligation to obey the Constitution. Furthermore, any earlier oath that
required allegiance to Pakistan necessarily includes allegiance to the
present Constitution of Pakistan. Pakistan as a nation state is defined
HRC 19/1996 [Detailed Judgment] 121
by its Constitution. There can be no allegiance to Pakistan without
allegiance to the Constitution of Pakistan. Therefore, the respondent
No.1 cannot take the position that as Army Chief, he was not required
to obey the Constitution. On the sanctity of the oath of office and the
obligation not to obey unlawful command in violation of the
Constitution and that obedience to the Constitution is the basic duty of
all citizens, reference may be made to the following cases: -
(a) Sind High Court Bar Association v. The Federation (PLD
2009 SC 879) at 1032, Paras 54, 56, 57.
(b) Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011
SC 680) at page 731, Para 40.
(c) Watan Party v. Federation (Law and order situation in
Karachi) (PLD 2011 SC 997) at 1022.
(d) NRO Judgment Implementation: Adnan A. Khawaja v.
State [Criminal Miscellaneous Application No. 486 of 2010
in Criminal Appeal No. 22 of 2002 and Suo Moto Case No.
4 of 2010). Order dated 10-01-2012.
93. It may be observed that the distribution of funds to a
group of politicians stands admitted by all those who are arrayed as
respondents to the instant proceedings. The respondent No. 2, not
only in his letter dated 07.06.1994, but also in his affidavit dated
24.07.1994, his concise statement dated 08.03.2012 and the
statement made by him while appearing before the Court has
consistently taken the stand that he provided logistic support, under
instructions from respondent No.1, the then Chief of Army Staff, to the
disbursement of donations made by respondent No.3 for the election
campaign of IJI. Whereas, respondent No.1, in his reply dated
23.02.1997 to the petition stated that he was informed by respondent
No.3 that President’s Election Cell had instructed him to make
available a sum of Rs.140 million. Later on, he was informed by Lt.
HRC 19/1996 [Detailed Judgment] 122
Gen. (R) Durrani that various cover accounts were opened by ISI and
Rs.140 million were deposited by respondent No.3 in those accounts.
He stated that the DG, ISI had made arrangements for disbursement
of the said amount amongst various politicians on the instruction of
Election Cell. The respondent No.2 has already owned it. He also
stated that in a meeting with the then President, Mr. Ghulam Ishaq
Khan, he had informed him about the donations made by respondent
No.3 and its utilization by DG, ISI. Respondent No.3, in turn, in his
affidavit dated 08.03.2012 has stated that he was asked by
respondent No.1 that the then President Ghulam Ishaq Khan had
asked him to arrange Rs.350 million (thirty five crores) before the
election in GREAT NATIONAL INTEREST. He further stated that
respondent No.1 had introduced him to President Ghulam Ishaq Khan
and told him (President) that as per his desire, the matter had been
discussed with him (respondent No.3) for the arrangement of required
funds and ultimately he arranged Rs. 1480 million (148 crores) after
loans were sanctioned by Provincial Committee and Executive
Committee of the Habib Bank Ltd. in the names of his friends and
business acquaintances, namely, Yousuf Memon, Rafiq Moor, etc. etc.
94. A combined reading of the statements/affidavits of
respondents No.1 to 3 clearly shows that a certain sum of money was
raised by respondent No.3 for the purpose of supporting favoured
candidates of a certain political group in the 1990 general elections;
the money was raised under instructions received from the Election
Cell established in the President’s House; the disbursement was
carried out under the supervision of respondent No.2 by opening
certain accounts. In this behalf, it is noteworthy that in the course of
the proceedings, it was alleged that one of the recipients, namely,
HRC 19/1996 [Detailed Judgment] 123
Syeda Abida Hussain, as per reports published in the newspapers, had
acknowledged receipt of the money.
95. It is also clear from the statements of the above
individuals that there was a cell in the Presidency, which was
overseeing the aforesaid activity of disbursement of money and some
officers of the Presidency under the direct supervision of the President
were involved in it. All these three individuals directly or indirectly take
the trail to the Presidency/President. In this view of the matter,
whether it was done under the verbal instruction of the President
himself or someone acting on his behalf and under his
direction/guidance discreetly is clear. Respondent No.2 while
appearing before the Court made an admission that he had done so,
though under direction from respondent No.1. Since he stated that
under his supervision, the operation was supervised by Brig. (R)
Hamid Saeed of MI, therefore, a notice was issued to him to appear
before the Court. Accordingly, he appeared and filed written
submissions before the Court, which have already been reproduced
hereinabove.
96. Learned counsel for the petitioner further contended that it
is not a result of a 1975 memo, that ISI would be having a Political
Cell. Reliance on it may be appropriate up to a certain time. According
to learned ASC, ISI have been doing things in their own perception of
what they thought was in the national interest. The gravity of actions
could not have been mandated by a notification of 1975, which are to
be seen on their own. The declaration is regarding indiscipline. It is
important to know as to how the affairs of the State are carried out.
There has to be some semblance of authorization and a legal basis for
the action. One of the alleged persons, namely, Mr. Roedad Khan
HRC 19/1996 [Detailed Judgment] 124
vehemently denied the existence of such Cell. The court may presume
there was no cell as such, otherwise there is nothing to corroborate
the existence of the cell. At no point of time in the year 1990, the
President was free of the advice of the Prime Minister in such matters
as are before us.
97. It has been established on record that in the year 1975,
the then Prime Minister/Chief Executive created a Political Cell in the
ISI under an executive order, issued in the month of May, 1975. One
of its wings was assigned to perform political duties. Presumably, it
could have been anything with respect to this aspect, except to assist
the Federal Government in its political affairs. We have already noted
hereinabove that despite our repeated directions, said notification was
not produced and it has been withheld. As far as the performance of
functions of intelligence sharing on strategic matters by this
organization is concerned, the Armed Forces are discharging their
functions to defend the country against internal and external
aggression, according to Article 243 of the Constitution. This Court,
while exercising its jurisdiction to ascertain as to whether the
fundamental rights of voters/electors under Article 17(2) of the
Constitution are violated or not, is not supposed to delve into this
aspect. However, we have strongly noticed, while looking back towards
the historical aspect, in pursuance whereof at various times, Martial
Law was imposed by the Armed Forces, thereby derailing the
democratic system. A duly elected representative being the Prime
Minister or the Chief Executive under no circumstances has power to
encourage any political or unconstitutional activities of ISI. In response
thereto, its head of department, DG, with full knowledge and
information of the then Chief of Army Staff, with illegal orders, blocked
HRC 19/1996 [Detailed Judgment] 125
the flow of democratic order instead of allowing the
citizens/voters/electors to elect their chosen representatives freely,
fairly and justly. Such action by uniformed Generals of the Army not
only violated discipline but also brought a bad name to the institution
of the Armed Forces while their action negated the constitutional
mandate on the subject.
98. Thus, no other conclusion can be drawn except that
respondents No.1 and 2, being the Generals of Pakistan Army in
uniform, with the connivance of the then President of Pakistan Ghulam
Ishaq Khan (late), supported the latter in ensuring the success of
favoured candidates or a political party or a group of political parties to
achieve the desired result as they indulged into corruption and corrupt
practices by furnishing and providing finances to some of the political
personalities, alleged in the affidavit of respondents No. 2 & 3. And in
this manner, the election process was corrupted and the people of
Pakistan were deprived of being represented by their chosen
representatives. There is no gain saying, as we have already discussed
hereinabove while considering the role of Armed Forces, that a
member of the Armed Forces must remain committed to defending
Pakistan until the last drop of his blood against external and internal
threats and, subject to law, acting in aid of civil power when called
upon to do so under the direction of the Federal Government. In the
course of discharge of his duties, a soldier, therefore, is obligated to
seeing that the Constitution is upheld; it is not abrogated; it is not
subverted; it is not mutilated. Thus, in view of such observations, it is
held that although the President of Pakistan being the Supreme
Commander of the Armed Forces exercises jurisdiction, which has
been conferred upon him under the Constitution, he obviously has no
HRC 19/1996 [Detailed Judgment] 126
authority to create an election cell or to manage, in any manner, to
support a favoured candidate/political party/group of political parties,
either by issuing directions to the Armed Forces or to civilians to make
efforts for achieving desired results. And if any such illegal order is
transmitted, the same is not worthy to be obeyed.
99. It is to be noted that this Court has held time and again
that Government functionaries are expected to comply with only those
orders/directions of their superiors which are legal and within their
competence. Compliance of an illegal or incompetent direction/order
can neither be justified on the plea that it came from a superior
authority nor could it be defended on the ground that its noncompliance
would have exposed the concerned Government servant to
the risk of disciplinary action. In this regard reference may be made to
the case of Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530),
wherein it has been held as under: -
“We need no stress here that a tamed subservient
bureaucracy can neither be helpful to Government nor it is
expected to inspire public confidence in the administration.
Good governance is largely dependent on an upright
honest and strong bureaucracy. Therefore, mere
submission to the will of superior is not a commendable
trait in a bureaucrat. Elected representatives placed as
incharge of administrative department of Government are
not expected to carry with them a deep insight in the
complexities of administration. The duty of a bureaucrat,
therefore, is to apprise these elected representatives the
nicety of administration and provide them correct'
guidance in discharge of their function in accordance with
the law. Succumbing to each and every order of direction
of such elected functionaries without bringing to their
notice the legal infirmities in such orders/directions may
sometimes amount to an act of indiscretion on the part of
HRC 19/1996 [Detailed Judgment] 127
bureaucrats which may not be justifiable on the plane of
hierarchical discipline. It hardly needs to be mentioned
that a Government servant is expected to comply only
those orders/directions of his superior which are legal and
within his competence. Compliance of an illegal or an
incompetent direction/order can neither be justified on the
plea that it came from a superior authority nor it could be
defended on the ground that its non-compliance would
have exposed the concerned Government servant to the
risk of disciplinary action.”
In the case of Muhammad Akhtar Shirani v. Punjab Tex Book Board
(2004 SCMR 1077), the same view was reiterated by this Court as
under: -
“We have noted with pain that departmental authorities
responsible to run its affairs do submit to whims and
wishes of their superiors and never feel hesitation in
implementing even an illegal order, knowing well that it
has no legal sanction and if such order is implemented it is
bound to give rise to a number of complications in the
future. This Court time and again has emphasized that the
departmental functionaries are only obliged to carry out
lawful orders of their superiors and if they are being
pressurized to implement an illegal order they should have
put on record their dissenting note and if such practice is
followed chances of issuing/passing illegal orders shall be
minimized.”
Reference in this behalf may also be made the cases of Province of
Punjab v. Ibrar Younas Butt (2004 SCMR 67), Iqbal Hussain v.
Province of Sindh (2008 SCMR 105), Government of Pakistan v.
Farheen Rashid [2009 PLC (C.S.) 966], Human Rights Cases No.4668
OF 2006, etc. (PLD 2010 SC 759) and Muhammad Afsar v. Malik
Muhammad Farooq (2012 SCMR 274).
HRC 19/1996 [Detailed Judgment] 128
100. Thus, it is clear that respondents No. 1 & 2 were required
to comply with only those orders/directions of their superiors which
were legal and within their competence. Compliance with an illegal or
an incompetent direction/order from the then President can neither be
justified on the plea that it came from a superior authority nor could it
be defended on the ground that its non-compliance would have
exposed them to the risk of disciplinary/adverse action.
101. From the material, which has come on record during
course of the proceedings referred to hereinabove, there is no
controversy or dispute that an amount of Rs. 140 million was arranged
from HBL through the respondent No. 3 for the purpose of distributing
it among certain politicians/individuals before the 1990’s general
election in the name of ‘greater national interest’. It is also proved on
record that without logistic support of the respondents No.1 and 2,
distribution of the said amount would not have been possible. As
regards disbursing the amount to different persons, no convincing and
legally acceptable evidence was brought on record by the respondent
No. 2. Therefore, in pursuance of order 22.06.2012, he filed concise
statement on 30.07.2012 vide CMA No. 3307/2012, contents whereof
are reproduced as under: -
“Concise statement on behalf of respondent No. 2
That the honourable court vide order 22.6.2012 was
pleased to observe as under: -
That in the meanwhile, learned counsel appearing for
General Retd. Asad Durrani may place on record concise
statement, supporting evidence or affidavits explaining the
details of the persons to whom allegedly certain amounts
were distributed under the directions of the then Army
Chief General Aslam Beg and as far as the names of the
persons to whom the amount was to be distributed used to
HRC 19/1996 [Detailed Judgment] 129
receive from Mr. Ijlal Haider Zaidi, who was heading the
team constituted in the presidency by the then President of
Pakistan late Ghulam Ishaq Khan.
That the total amount distributed through
undersigned was approximately 70 million out of 140
million and the remaining was deposited in the special fund
of ISI.
That the answering Respondent assigned this job to
officers of the MI, who were cognizant that the money
disbursed was for election purpose and they, in turn,
distributed the money and apprised the Answering
respondent about the distribution.
That names of these offices and some of the
classified documents available with the undersigned tender
herewith sealed cover will be submitted in Court. The
Answering Respondent reckons that thee are of classified
nature.” [sic.]
As regards the classified nature of the document produced by him, it
may be mentioned that it was a mere statement containing names of
the persons to whom the amounts were distributed, but without any
supporting documents to substantiate the allegation against them.
Therefore, after having seen the same, it was returned to him for
keeping the same in safe custody to be produced it whenever required.
In this view of the matter, the factum of receipt of the money by the
individuals named by the respondent No. 2 as per details attached with
his affidavit dated 24.07.1994 and in the statement of respondent No.
3 under section 161 Cr.P.C. recorded by FIA in Mehran Bank’s case,
the same have to be established in accordance with law in a
transparent manner through an investigating agency. The alleged
names/details of disbursement of money as alleged by respondent No.
HRC 19/1996 [Detailed Judgment] 130
2 in annexure to his affidavit, and respondent No. 3 in his above
referred statement are given hereinbelow: -
Details/names of the recipients of money given by
Lt. Gen. (R) M. Asad Durrani in his affidavit dated
24.07.1994: -
N.W.F.P - Mir Afzal - 10 million
PUNJAB - Nawaz Sharif -3.5 million
- Lt. Gen. (R) -5.6 “ (for media)
Rafaqat
- J.I, -5.0 “
- Abida Hussain -1.0 “
- Altaf Hussain
Qureshi & -0.5 “
Mustafa Sadiq
- Misc. & smaller -3.339 “
group
SINDH - Jatoi -5.0 “
- Jam Sadiq -5.0 “
- Junejo -2.5 “
- Pir Pagara -2.0 “
- Maulana Salah -0.3 “
Ud-Din
- Misc. & smaller -5.4 “
group
BALOCHISTAN - Humayun Mari -1.5
(Bugti’s son-in-law)
- Jamali -4.0 “
- Kakar -1.0 “
- K Baluch -0.5 “
- Jam Yousaf -0.75 “
- Bazinjo -0.50 “
- Nadeem Mengal -1.00 “
Through [May be] Golf course: 0.5 m
Misc. (bank charges: 1.1117 m
expenses etc.)
Details/names of the recipients of money given by
Lt. Gen. (R) M. Asad Durrani in his letter dated
07.06.1994: -
HRC 19/1996 [Detailed Judgment] 131
(a) Khar 2 Millions, Hafeez Pirzada 3, Sarwar
Cheema 0.5 and Mairaj Khalid 0.2 Millions. The
last two were not on the wrong side. It was
merely someone’s “soft corner” that benefited
them.
(b) The remaining 80 Ms were either deposited in
the ISI’s ‘K’ fund (60 M) or given to Director
External Intelligence for special operations.
Details regarding distribution of money given by Lt.
Gen. (R) M. Asad Durrani in his concise statement
vide CMA No. 3307/2012 dated 30.07.2012: -
The total amount distributed through undersigned
was approximately 70 million out of 140 million and
the remaining was deposited in the special fund of
ISI.
Respondent No. 2 assigned this job to officers of the
MI, who were cognizant that the money disbursed
was for election purpose and they, in turn,
distributed the money and apprised the Answering
respondent about the distribution.
Names of the officers and some of the classified
documents available with respondent No2. were
produced in Court in sealed cover claiming
confidentiality, but the same were returned to him
for keeping the same in safe custody to be
produced it whenever required.
Details/names of the recipients of money given by
Brig. (R) Hamid Saeed Akhtar in his statement dated
18.10.2012 made before the Court: -
In compliance with the directions six accounts were opened
in different banks. Funds started pouring in from 16th
September 1990 onwards. By 22nd October 1990, Rs. 140
Million had been received in these accounts. Thereafter
HRC 19/1996 [Detailed Judgment] 132
following amounts were remitted as ordered by DGMI: -
a. Rs.40 Million to GHQ account.
b. Rs.10.5 Million to regional office of MI Quetta.
c. Rs.5 Million to interim PM Mr. Ghulam
Mustafa Jatoi
d. Rs.5. Million to interim CM Sindh Mr. Jam
Sadiq Ali
e. Rs.2.5 Million to Mr. Muhammad Khan
Junejo.
f. Rs.3 Million to Mr. Abdul Hafeez Pirzada
g. Rs.2 Million to Mr. Sibghat-Ullah Pir sahib
Pagara.
h. Rs.03 Million to Mr. Muzaffar Hussain Shah.
i. Rs.03 Million to Mr. Muzaffar Hussain Shah
j. Rs.0.3 Million to Mr. Ghulam Ali Nizamani.
k. Rs.02 Million to Mr. Arbab Ghulam Rahim
l. Rs.03 Million to Mr. Salah-ud-Din (Takbeer).
m. Rs.05 Million to Mr. Yousaf Haroon
n. Rs.3,828 Million to Sindh Regimental Centre,
and also used for construction
of men’s living barracks,
interrogation cells
The remaining balance of Rs.67, 628,511/- including
interest was later on sent to GHQ along with up-to-date
bank statements. [I would like to state that during my
service with the Military Intelligence, I was of the opinion
that the funds were coming from GHQ].
Furthermore, certain other material, though unauthentic and would be
required to be proved in accordance with law, has also been placed on
record, which gives details concerning drawl and transfer of the money
in question as under: -
Details/information concerning drawl and transfer of
the amounts in question in the shape of some
important points as per document at page 163 of the
paper book: -
HRC 19/1996 [Detailed Judgment] 133
SOME IMPORTANT POINTS
(1) Rs. 6.72 were subsequently transferred to GHQ
Welfare Fund. Reportedly Rs. 3 Crores
approximately were drawn and given to “FRIENDS”
under the instruction of Gen. Beg during his last
days as Army Chief. The remaining amount is
available in the GHQ Welfare Fund.
(2) Out of 4 crores, 2 crores were given to Punjab and
2 crores to NWFP. The details of expenditures / pay
off are available with the commendations of
respective MI / Units.
(3) All the payments in Sindh were made by Lt. Col.
Mir Akbar Ali Khan who is under cover appointment
in Saudi Arabia.
(4) 6 to 8 pseudonymous accounts were opened under
the instructions of Gen. Beg who accorded verbal
approval Survey & construction Group Karachi,
whereas the accounts in the name of 202 Survey &
Construction Group were not brought to the notice
of Gen. Beg.
(5) The number of said accounts were communicated
to Mr. Yunus Habib who deposited Rs. 14 crores
through one of his representatives on various
dates.
(6) The details of the amounts spent in Quetta are
known to Brig. Amanullah presently heading M.I.
Karachi.
(7) The details of amount distributed among the
politician in Punjab are known to Gen. Beg, Gen.
Asad Durrani and the then Commandants of the
M.I. Units posted in Punjab and NWFP.
(8) Late Gen. Asif Nawaz also agitated and showed his
displeasure on the shifting of the amounts to
‘Friends’ by Gen. Aslam Beg.
Account of distribution of funds as per documents at
pages 220 & 221 of the paper book: -
“POLITICAL AND OTHER PAY OFFS
Yunus Habib, as per his statement recorded under section 161 Cr. P.
C. before Investigating Officer at Karachi disclosed Political and other
Pay Offs as: -
HRC 19/1996 [Detailed Judgment] 134
- Gen (Retd.) Mirza Aslam Beg Rs. 140 m
- Jam Sadiq Ali (the then Chief Minister
Sindh)
Rs. 70 m
- Altaf Hussain (MQM) Rs. 20 m
- Yousaf Memon (Advocate) (for
disbursement to Javed Hashmi, MNA and
others
Rs. 50 m
- Total: Rs. 280 m
- Jam Sadiq Ali (1992) Rs. 150 m
- Liaqat Jatoi (1993) Rs. 01 m
- Chief Minister Sind Through Imtiaz Sheikh.
(1993)
Rs. 12 m
- Mr. Afaq (MQM) (1993) Rs. 05 m
- Chief Minister Sind through Imtiaz Sheikh
(1993)
Rs. 01 m
- Ajmal Khan, Ex Federal Minister (1993) Rs. 1.4 m
- Mr. Nawaz Sharif, Ex Prime Minister (1993) Rs. 3.5 m
- Mr. Nawaz Sharif, Ex Prime Minister (27-9-
90)
Rs. 2.5 m
- Mr. Jam Mashooq (26-9-93) Rs. 0.5 m
- Mr. Dost Mohammad Faizi (26-9-93) Rs. 1.0 m
- Mr. Jam Haider (26-9-93) Rs. 2.0 m
- Mr. Jam Mashooq (26-9-93) Rs. 3.0 m”
POLITICAL PAY OFFS TO MR. JAVED HASHMI M. N. A.
- Mr. Javed Hashmi was the partner of M/s ADAGE Advertising
(Pvt) Ltd., from 30-10-1986 and resigned on 6-1-1990.
- The following payments were made to Mr. Javed Hashmi
through Telegraphic Transfer and the Bank Drafts by Mr. Yousaf
Memon (a man in between Yunus Habib and Javed Hashmi)
through various bank transfers:
- T.T. from UBL Adamjee Nagar Karachi, on
Date Drawn at Drawn by Amount
11-11-1990 UBL Multan Javed Hashmi Rs. 2.5 M
15-12-1990 UBL Multan Javed Hashmi Rs. 1.0 M
20-12-1990 UBL Multan Rahat Malik Rs. 0.1 M
27-03-1991 UBL Islamabad Rahat Malik Rs. 1.0 M
09-4-1991 UBL Islamabad Rahat Malik Rs. 2.0 M
12-5-1991 UBL Islamabad Javaid Hashmi Rs. 0.3 M
HRC 19/1996 [Detailed Judgment] 135
- T. T. from HBL Ichara, Lahore, on
10-02-1991 MCB Multan Khurshid S.
Shah.
Rs. 2.5 M
- Bank Draft from UBL Adamjee Nagar, Karachi, on
23-02-1991 UBL Multan Mukhtar
Hashmi
Rs. 2.0 M
- Bank Draft from Faisal Islamic Bank, Karachi, on
27-04-1991 HBL Multan Javaid
Hashmi
Rs. 1.4 M
Total: Rs. 12.8 M
- According to the statement of Mr. Rahat Malik, the
amount drawn by him was handed over to Mr. Javed
Hashmi.
- Rs. 14.9 million was paid by Mr. M. Yamin in presence
of Mr. Yousaf Memon in Oct 1990 in cash to Mr.
Javaid Hashmi in Room No.1 of MNA Hostel,
Islamabad.
G. Total: Rs. 27.7 M
Details/names of the beneficiaries of money given
by Muhammad Yunus A. Habib in CMA
No.1034/2012: -
That Mr. Yousaf Memon Advocate in two different TV
Programmes of GEO News channel (one by Kamran Khan
and the other by Nazir Laghari) admitted that a house was
purchased in F-6/2 Islamabad in the name of Mr. Javed
Hashmi. He also admitted that 50% of the amount was
invested in the purchase of house (Kasim 1 al-Multan).
Admission of one of the recipients: -
In the course of the proceedings, it was alleged that one of
the recipients, namely, Syeda Abida Hussain, as per
reports published in the newspapers, had acknowledged
receipt of the money.
102. Above are the reasons for our short order of even
date whereby the instant petition was disposed of as under: -
“The Constitution of the Islamic Republic of Pakistan
commands that it is the will of the people of Pakistan to
establish an order wherein the State shall exercise its
powers and authority through the chosen representatives
of the people, wherein the principles of democracy,
freedom, equality, etc., shall be fully observed, so that the
people of Pakistan may prosper and attain their rightful
and honoured place amongst the nations of the world, and
make their full contribution towards international peace
HRC 19/1996 [Detailed Judgment] 136
and progress and happiness of humanity. People of
Pakistan had been struggling to establish a parliamentary
and democratic order since long within the framework of
the Constitution and now they foresee a strong system
which is established by the passage of time without any
threat and which is subject to the constitution and rule of
law.
2. The essence of this Human Rights case is based on
the fundamental right of citizens enshrined in Article 17 of
the Constitution. It raises an important question of public
importance to enforce the fundamental rights, inter alia,
noted hereinabove, therefore, in accordance with the
provisions of Article 184(3) of the Constitution, jurisdiction
has been assumed and exercised to declare, for the
reasons to be recorded later, as under:-
(1) That citizens of Pakistan as a matter of right are free
to elect their representatives in an election process
being conducted honestly, justly, fairly and in
accordance with law.
(2) The general election held in the year 1990 was
subjected to corruption and corrupt practices as in
view of the overwhelming material produced by the
parties during hearing it has been established that
an “Election Cell” had been created in the
Presidency, which was functioning to provide
financial assistance to the favoured candidates, or a
group of political parties to achieve desired result by
polluting election process and to deprive the people
of Pakistan from being represented by their chosen
representatives.
(3) A President of Pakistan, in Parliamentary system of
government, being head of the State represents the
unity of the Republic under Article 41 of the
Constitution. And as per the oath of his office in all
HRC 19/1996 [Detailed Judgment] 137
circumstances, he will do right to all manner of
people, according to law, without fear or favour,
affection or ill-will. Thus, holder of office of President
of Pakistan, violates the Constitution, if he fails to
treat all manner of people equally and without
favouring any set, according to law, and as such,
creates/provides an occasion which may lead to an
action against him under the Constitution and the
Law.
(4) The President of Pakistan, Chief of Army Staff, DG
ISI or their subordinates certainly are not supposed
to create an Election Cell or to support a political
party/ group of political parties, because if they do
so, the citizens would fail to elect their
representatives in an honest, fair and free process of
election, and their actions would negate the
constitutional mandate on the subject.
(5) However, in the instant case it has been established
that in the general elections of 1990 an Election Cell
was established in the Presidency to influence the
elections and was aided by General (R) Mirza Aslam
Beg who was the Chief of Army Staff and by General
(R) Asad Durrani, the then Director General ISI and
they participated in the unlawful activities of the
Election Cell in violation of the responsibilities of the
Army and ISI as institutions which is an act of
individuals but not of institutions represented by
them respectively, noted hereinabove.
(6) ISI or MI may perform their duties as per the laws to
safeguard the borders of Pakistan or to provide civil
aid to the Federal Government, but such
organizations have no role to play in the political
activities/politics, for formulation or destabilization of
political Governments, nor can they facilitate or show
favour to a political party or group of political parties
HRC 19/1996 [Detailed Judgment] 138
or politicians individually, in any manner, which may
lead in his or their success.
(7) It has also been established that late Ghulam Ishaq
Khan, the then President of Pakistan with the
support of General (R) Aslam Beg, General (R) Asad
Durrani and others, who were serving in M.I and now
either have passed away or have retired, were
supporting the functioning of the ‘Election Cell’,
established illegally.
(8) Mr. M. Yunus A. Habib, the then Chief Executive of
Habib Bank Ltd. at the direction and behest of above
noted functionaries, arranged/provided Rs.140
million belonging to public exchequer, out of which
an amount of Rs.60 million was distributed to
politicians, whose incomplete details have been
furnished by General (R) Asad Durrani, however,
without a thorough probe no adverse order can be
passed against them in these proceedings.
(9) The Armed Forces of Pakistan, under the directions
of Federal Government, defend Pakistan against
external aggression or threat of war and, subject to
law, are to act in aid of civil power when called upon
to do so under Article 245 of the Constitution, thus,
any extra-constitutional act, calls for action in
accordance with the Constitution of Pakistan and the
law against the officers/officials of Armed Forces
without any discrimination.
(10) The Armed Forces have always sacrificed their lives
for the country to defend any external or internal
aggression for which it being an institution is deeply
respected by the nation.
(11) The Armed Forces, in discharge of their functions,
seek intelligence and support from ISI, MI, etc., and
on account of security threats to the country on its
HRC 19/1996 [Detailed Judgment] 139
frontiers or to control internal situations in aid of civil
power when called upon to do so. However, ISI, MI
or any other Agency like IB have no role to play in
the political affairs of the country such as formation
or destabilization of government, or interfere in the
holding of honest, free and fair elections by Election
Commission of Pakistan. Involvement of the
officers/members of secret agencies i.e. ISI, MI, IB,
etc. in unlawful activities, individually or collectively
calls for strict action being, violative of oath of their
offices, and if involved, they are liable to be dealt
with under the Constitution and the Law.
(12) Any Election Cell/Political Cell in Presidency or ISI or
MI or within their formations shall be abolished
immediately and any letter/notification to the extent
of creating any such Cell/Department (by any name
whatsoever, explained herein, shall stand cancelled
forthwith.
(13) Late Ghulam Ishaq Khan, the then President of
Pakistan, General (R) Aslam Beg and General (R)
Asad Durrani acted in violation of the Constitution by
facilitating a group of politicians and political parties,
etc., to ensure their success against the rival
candidates in the general election of 1990, for which
they secured funds from Mr. Yunus Habib. Their acts
have brought a bad name to Pakistan and its Armed
Forces as well as secret agencies in the eyes of the
nation, therefore, notwithstanding that they may
have retired from service, the Federal Government
shall take necessary steps under the Constitution
and Law against them.
(14) Similarly, legal proceedings shall be initiated against
the politicians, who allegedly have received
donations to spend on election campaigns in the
HRC 19/1996 [Detailed Judgment] 140
general election of 1990, therefore, transparent
investigation on the criminal side shall be initiated by
the FIA against all of them and if sufficient evidence
is collected, they shall be sent up to face the trial,
according to law.
Mr. Yunus Habib shall also be dealt with in the same
manner.
(15) Proceedings shall also be launched against the
persons specified hereinabove for affecting the
recovery of sums received by them with profit
thereon by initiating civil proceedings, according to
law.
(16) An amount of Rs.80 million, statedly, has been
deposited in Account No.313 titled Survey and
Construction Group Karachi, maintained by MI,
therefore, this amount with profit shall be
transferred to Habib Bank Ltd. if the liability of HBL
has not been adjusted so far, otherwise, the same
may be deposited in the treasury account of
Government of Pakistan.”
103. Before parting with the detailed reasons noted
hereinabove, we place on record our thanks to the learned counsel
appearing on behalf of the petitioner, learned counsel representing the
respondents No.1 & 3 and learned Attorney General for providing
assistance in the decision of the instant case, which was pending since
long for one or the other reason.
104. While hearing this case vide order dated 14.03.2012 the
attention of the learned Attorney General was drawn towards a news
item published on 14.03.2012 in Daily Express Tribune, captioned as
“GOVT WITHDREW MILLIONS FROM INTELLIGENCE BUREAU
HRC 19/1996 [Detailed Judgment] 141
ACCOUNT” complaining therein that an amount of Rs.270 Million were
doled out of IB accounts for the purpose of toppling the Government of
Punjab in the year 2008-09. Notices were issued to the Publishers,
Printers and Reporters of the said newspapers, who produced certain
documents to substantiate the allegation reported in the news item.
The news item may be registered as CMA and after de-linking the
same from instant case, be fixed in Court, with notice to the
Publishers, Printers and Reporters of the said newspapers as well as
DG, IB and the Attorney General for a date after two weeks.
105. The instant Human Rights case stands disposed of in the
above terms.
Iftikhar Muhammad Chaudhry, CJ
Jawwad S. Khawaja, J
Khilji Arif Hussain, J
Islamabad, 19th October, 2012
APPROVED FOR REPORTING

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