Asghar Khan case short order: Full text

Published: October 19, 2012
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Supreme Court announces short order on 16-year-old petition filed by Air Marshal (Retd) Muhammad Asghar Khan. PHOTO: FILE

Supreme Court announces short order on 16-year-old petition filed by Air Marshal (Retd) Muhammad Asghar Khan. PHOTO: FILE

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 forPakistan

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 byCh.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

For NAB:                                Mr. Mazhar Ali Chaudhry, DPG

Brig. (R) Hamid Saeed, in person

For HBL:                            Nemo

Date of Hearing:                 19.10.2012.

 

                                     O R D E R

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.– 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 and progress and happiness of humanity. People ofPakistan 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 herein above, 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 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 Baig 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 herein above.

(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 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 Baig, 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. Younas 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 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 Baig 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. Younas Habib. Their acts have brought a bad name toPakistanand 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 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. Younas 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.

Chief Justice

Judge

Judge

Islamabad, the 

19th October, 2012

Nisar/*

Approved For Reporting

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Reader Comments (21)

  • closey
    Oct 19, 2012 - 3:10PM

    am i really reading this?

    I don’t know that the prosecution will have the balls or the will to present a good case to the court; but still, this is groundbreaking.

    still can’t believe I’m reading this.

    Recommend

  • IZ
    Oct 19, 2012 - 3:35PM

    (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.
    .
    Oh, please, yes, let it be so!

    Recommend

  • Abdullah Khan
    Oct 19, 2012 - 3:47PM

    One sided verdict. The CJ has extensively mentioned .the role of Armed Forces but avoided to name any politician who benifitted from the so called ‘eclection cell’. It ask Federal Government to take action against Durrani and Late G I Khan but clearly hesitates to name Nawaz Sharif the biggest benifitiery of the election cell. It seems that the CJ and his team has not forgotten 9th March 2007 when he was wrongly humaliated in GHQ. I think SC should have no bias towards Armed Forces which is often felt in its orders

    Recommend

  • Muneer
    Oct 19, 2012 - 4:49PM

    How the SC has established that the late President Ghulam Ishaq Khan has violated the constitution without hearing his side. It is the same pretext on whIch the conviction of Nawaz/ Shahbaz Shareef was set aside by the SC after more than 8 years. An extra constitunal decision which is likely to be harmful to Pakistan.

    Recommend

  • Majid Urrehman
    Oct 19, 2012 - 5:16PM

    @Abdullah Khan are you blind? Can’t you see no.14?
    Looks like it’s people like you who have caused destruction in this country by seeing only one side of the story.

    Recommend

  • call me sir!
    Oct 19, 2012 - 5:46PM

    this short order ( still can’t grasp the idea of short order), is far too late and will not do any good to the state and its (abject) objects. the high lord of the dwindling bench, which famously handed over the lord chief (thief) (cheap) justice’s son’s inquiry to a tax ombudsman ( a tax ombudsman????? really) ( I know he was a policeman), does not have the calibre or courage to name and shame the stalwarts of Pakistani politics.
    I bet chief justice and his son would demand PKR 50 million from Yunis Habib in return for his acquittal from the case, even if it means influencing the trial courts.
    the judges are as bad as politicians , the thief justice can’t even tame the lower judiciary and stop corruption in it but has taken on every other institution but his. Recommend

  • Hassan
    Oct 19, 2012 - 7:12PM

    @ Abdullah

    let me write here again for you where CJ said action should be take against anyone who was benefited from this elections cell.

    **

    *> Similarly, legal proceedings shall be

    initiated against the politicians, who
    allegedly have received donations to
    spend on election campaigns in the
    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. Younas Habib
    shall also be dealt with in the same
    manner.*

    **

    Recommend

  • Salim
    Oct 19, 2012 - 7:54PM

    Why these corrupt politicians not named in the order by SC ???

    Recommend

  • Dr Imran Ahmed
    Oct 19, 2012 - 8:01PM

    The CJ has completely redeemed himself in my eyes!

    Recommend

  • Khalq e Khuda
    Oct 19, 2012 - 8:15PM

    So Supreme Court practically convicted them but fell short of making it official? Politicians get arrested in Supreme Court on much smaller crimes by the same Lordships but Generals are convicted for High Treason but let off scot free.

    Recommend

  • Aijaz Haider
    Oct 19, 2012 - 10:06PM

    Reality is definitely more shocking than fiction. No fiction writer could have dreamt of what our top brass (military and establishment) was upto in 1990. The full court order is set to be an all-time best-seller if printed and sold in book form. PML-N is now out of the race for the upcoming elections. PPP must be thankful to both Air Marshal (Retd.) Muhammad Asghar Khan and the SC. My advise to the Sharif brothers: fly to Saudia asap! My advise to Zardari: step down and invite Air Marshal (Retd.) Muhammad Asghar Khan to take oath as the President of Pakistan! My advise to Gen.Kiyani and all future CoAS: stay away from politics! My advise to PML (minus NS & SS): elect a new part leader asap! My advise to PTI: make coalition with JI, JUI, etc. to compete with PPP because now PML-N is almost out of the race. My advise to PML-Q and MQM: decide asap between PPP and the oppostion; both of you together can turn the tables! My advise to all Pakistanis: make sure you cast your vote and do it in the interest of Islam and Pakistan, not any political or sectarian party.
    Regards.

    Recommend

  • TARIQ
    Oct 19, 2012 - 11:29PM

    Well done the Bench which dealt with this case and gave its judgement based upon facts presented before it without fear and favour. All these tainted politicians should either be disallowed to contest the elections or they themselves should retire from poltics.

    Recommend

  • hassan
    Oct 20, 2012 - 12:29AM

    I think the case hasn’t been dealt properly. Many lacunas are left unresolved. seems as if the court was in hurry to get rid of the case. Those who benefitted would manage to escape from the clutches of law and those who are not in this world or have become irrelevant would be brought to book-a process that would take another 16 years or more. Supreme court decision seems more political than a legal one and confirms one-sided and lopsided approach. Would not go any way to improve the tone and tenor of our social-political milleau or anything else. Hopeless order.

    Recommend

  • Abdullah Khan
    Oct 20, 2012 - 12:59AM

    I have read this.. It is called بر سبیل تذکرہ
    If he can name Younis Habib, Aslam Baig, Late G I Khan as well as disclosed
    the official secret that Military Intelligence is running Survey and Construction Group Karachi then what was wrong if he had mentioned Nawaz Sharif and all those who allegedly received the money. If you read the verdict you will realize that the CJ does not have any proof that anyone received money. If he does not have any proof then how can he declare that action be taken against G I Khan and Baig? I respect the CJ very much but this verdict is clearly biased against our Armed Forces. He should decide on merit, not on perceptions.Recommend

  • Hammad
    Oct 20, 2012 - 1:18AM

    Everybody knows it wasn’t the president who wanted to rig the elections. It wasn’t a few people who made the decision to rig the elections. Unless whole institutions are not held accountable, a few scapegoats will not resolve the recurring issue of agencies interfering in elections.

    Recommend

  • Sher Afzal
    Oct 20, 2012 - 7:52AM

    Shame on army, Nawaz and shameless parties who played dirty politics and harmed democracy. These people are black sheep of our politics and has given politics a very bad name.

    Recommend

  • zohaq
    Oct 20, 2012 - 8:26AM

    Logical consequence trials for treason with hangings to follow of all guilty. The most guilty being Ghulam Ishaq and General Baig.

    Recommend

  • Mhumzaawn
    Oct 20, 2012 - 11:25PM

    Desperate PTI freaks just want Nawaz Sharif’s name in verdict. What about Javed Hashmi?

    Recommend

  • ayub
    Oct 21, 2012 - 2:22AM

    pti is not desperate,only hope of country and pak nation,every body knows corruptions of cruels and narrowminded none leauge:everything will be clear in fair electionsblack sheep now evident strong and honest politicians with the help of poeples of pakistanwill wash out all dirt from the country

    Recommend

  • Dr Imran Ahmed
    Oct 21, 2012 - 6:02PM

    @ayub: After more than 24 years of membership I am no longer a member of PTI because of its increasing opportunism and deviation from Insaf ideals, in my eyes. I still believe it to be the least of the evils in politics and wish it success. The matter to bear in mind is that all the accused probably consider themselves true patriots and feel that although their actions were outside the constitution these actions were justified by desirable ends, to “save” Pakistan.
    This thinking is faulty. Ends never justify bey-insaf means. PTI as much as anyone else has to take this lesson on board. Due process must take place, no jirga shortcuts to rule of law, no convenient selection of electables with transient principles, no electoral alliances with criminals, etcetera.

    Recommend

  • raja abdullah janjua advocate
    Oct 24, 2012 - 12:40PM

    that is a great decision

    Recommend

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