IN THE SUPREME COURT OF PAKISTAN
(original jurisdiction)
GIFT
Sr. Juiz Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Senhor Juiz Khilji Arif Hussain
HUMAN RIGHTS PROCEDURE No. 19 OF 1996
[Request of Air Marshal (Ret.) Muhammad Asghar Khan]
Air Marshal (Ret.) Muhammad Asghar Khan … PLAINTIFFS
AGAINST
General (Retd) Mirza Aslam Baig, Ex-Chief of Army Staff and others… INTERVIEWS
By Petitioner: Mr. Salman Akram Raja, ASC
With the help of Malik Ghulam Sabir, Adv.
a / w Marshal (R) M. Asghar Khan
For the Federation/: Mr. Irfan Qadir Attorney General of Pakistan
Sr. Defense Dil Mohammad Khan Alizai, DAG
Raja Abdul Ghafoor, AOR Asistido por: Barrister Shehryar Riaz Sheikh, Adv.
Commander Hussain Shahbaz, Director (L)
Wing Comd. M. Irfan, Deputy Director
For Defendant No. 1: Mr. Muhammad Akram Sheikh, Mr. ASC
Assisted by Ch. Hassan Murtaza Mann, Adv.
a / w Gen. Ret. Mirza Aslam Baig
Requirement No. 2: Lieutenant General Anth. Asad Durrani, former director general, ISI
Personally
For or Required No. 3: Mr. Muhammad Munir Piracha, Mr. ASC
Paragraph(s) Attorney: Sh. Khizar Hayat, Sr. ASC
(KYA no. 918/2007)
Mr. Rodandad Khan in person
(KYA no. 3196/2012)
Raja Abdul Ghafoor, AOR
(not CMA 3410/12)
At the request of the Court:
For the Secretary to the President: Malik Asif Hayat, Secretary to the President
Sir. Arshad Ali Chaudhry, General Counsel
For SBP: Raja Abdul Ghafoor, AORHRC 19/1996 [Detailed Judgment]
Pela NAB: Sr. Mazhar Ali Chaudhry, DPG
Prison. (D) Hamid Saeed, personally
For HBL: Nemo
Date of hearing: 19.10.2012.
CRISIS
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – The present human rights case was registered under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter “the Constitution”] on the basis of a letter dated 16.06.1996 written by Air Martial (R) Muhammad Asghar Khan, Ex Chief of Air Staff [hereinafter 'the petitioner'] in the then Supreme Court of Pakistan.
2. For the purposes of this report, it is necessary to recapitulate the historical context in which the general elections of 1990 were held. On 17.08.1988, General Zia-ul-Haq (deceased), Chief of Army Staff who declared military law in the country on 05/07/1977 and later assumed office as the president of Pakistan, he died in a C-130 plane crash carrying the top military of the time and some other notable international personalities of the time, moments before arriving at the military airfield base Bahawalpur. General Mirza Aslam Beg, then Deputy Chief of Army Staff [hereinafter “Respondent No. 1”] was also flying to Bahawalpur but in a separate plane and survived. On the same day, Mr. Ghulam Ishaq Khan (deceased), the then President of the Senate of Pakistan, was sworn in as the Deputy President under the Constitution and defendant No. 1 was appointed as the Chief of the Army Staff. General elections were held in the country on 16 November 1988 and the Pakistan People's Party (PPP), which won the largest number of seats in the National Assembly compared to other parties, formed the Federal Government. Mr. Ghulam Ishaq Khan (deceased) was elected as the new president. Political differences arose between the president and the elected government of the late Mohtarma Benazir Bhutto. On 06/08/1990, the President of the Republic, while exercising the powers assigned to him by subsection b of subsection 2 of article 58 of the Constitution, introduced by the Eighth Constitutional Reform, dissolved the National Assembly and acquitted the government. alleging that the governance of the Federation was not in accordance with the provisions of the Constitution. The decree of dissolution was challenged before this Court in Ahmed Tariq Rahim v. Federation (PLD 1992 SC 646)], but the same was upheld.
3. Mr. Ghulam Mustafa Jatoi was appointed acting prime minister and new elections were scheduled for 24 October 1990. An electoral alliance of nine political parties known as the Islami Jamhoori Ittehad (IJI), also called the Islamic Democratic Alliance, won the largest parliamentary seats and formed the government with Prime Minister of Pakistan Mian Muhammad Nawaz Sharif. On April 19, 1993, Mr. Ghulam Ishaq Khan invoked Article 58(2)(b) of the Constitution and dissolved the National Assembly on grounds/charges of mismanagement, corruption, nepotism, etc. government led by interim prime minister Balakh Sher Mazari. The order of dissolution was challenged before the Supreme Court in the case of Mian Nawaz Sharif v. of Federation (PLD 1993 SC 473), in which the exercise of power by the President was declared unconstitutional under Article 58(2)(b) of the Constitution. As a result, the National Assembly and the Government were restored. However, as the political deadlock, which created a past, continued, the president dissolved the National Assembly on the advice of Prime Minister Mian Muhammad Nawaz Sharif and went on leave as part of the political settlement.
This time, Mr. Waseem Sajjad, the then President of the Senate, assumed the duties of president under the Constitution, while Mr. Moeen Qureshi, a New York banker, was appointed acting prime minister. Elections were held on 10 June 1993 and the PPP emerged as the leading winner of seats in the National Assembly and formed a government with Mohtarma Benazir Bhutto (deceased) as Prime Minister. Mr. Farooq Ahmed Khan Leghari, a political worker of PPP, was elected as the new president of Pakistan. On November 6, 1996, President Farooq Ahmad Khan Leghari also invoked Article 58(2)(b) of the Constitution and dissolved the National Assembly on various charges/categories.
4. On 06.11.1996, while the PPP government was operating, Maj. General (R) Nasirullah Khan Babar, then Interior Minister, delivered a speech before the Plenary of the National Assembly in which he presented an affidavit dated 24.07.1994, sworn by the former Director General of Inter-Services Intelligence (ISI), Lt. General (R) Asad Durrani [hereinafter “Respondent No. 2”] stating, inter alia, that different sums of money have been disbursed to various politicians/political parties that are part of the IJI in order to enable them to win the elections. It should be noted that at the time of the affidavit, Interviewee #2 was appointed Ambassador of Pakistan to Bonn, Germany. He stated in his deposition that in September 1990, while he was the head of DG ISI, he was instructed by accused #1, the then Chief of Army Staff (COAS) “to provide logistical support for the disbursement of a donation made by some businessmen of Karachi for the IJI election campaign'. I also told him that the operation had the blessing of the Government and he began to act according to the instructions received. The content of his affidavit is reproduced in full below:
"LEGAL CRISIS
I, Major General (R) M. Asad Durrani, Muslim, Adult, Former CEO. ISI, presently posted as Ambassador of Pakistan, Bonn, Germany, do hereby swear and solemnly declare the following:
(1) In September 1990, as DG, ISI, I was instructed by the then COAS, (now retired) General Mirza Aslam Beg to provide "logistical support" for the disbursement of donations made by some businessmen of Karachi for the election campaign of IJI. . I was told that the business had the blessing of the Government.
(2) Accordingly, I commissioned certain officers and took the following measures:
(a) Open some hedge accounts in Karachi, Quetta and Rawalpindi.
(b) The money - eventually 140 crores - was deposited in the Karachi accounts by one Mr. Yunus Habib.
(c) The required amounts have been transferred to the Quetta and Rawalpindi accounts.
(d) A total of Rs 6.0 million was distributed as directed by the COAS or, at that time, directly by the Presidency polling cell.
e) The remaining money was transferred to a special fund.
Attached is the distribution of 6.0 million:
-DAKOTA DEL SUR.-
Lieutenant General (Cont.)
July 24 [***] 94
(M. Asad Durrani)
The names of the recipients are marked on your affidavit and should be marked in an appropriate place.
5. The content of the speech of the then Minister of Home Affairs / testimony of Interviewee No. 2 was published by Jang newspaper in the edition of 12.06.1996 as follows:
6. Marshal (R) Muhammad Asghar Khan, former Chief of Air Staff who rendered meritorious service as a fighter pilot after his retirement and entered politics by forming a political party in the name and style of Tehrik-e-Istaqlal Pakistan, in her aforementioned letter states the following:
"FROM PERSONAL CONS
sixteenºJune 1996
Dear Mr. Justice Sayjad Ali Shah,
I would like to draw your attention to the disclosure by the Minister of Interior in the National Assembly on 11ºIn June 1996, General (R) Mirza Aslam Beg, former Chief of Army Staff, had withdrawn Rs. 15 crores from Mehran Bank and distributed this amount to various people before the 1990 elections. He disclosed that this was done through Lt. Gen. (R) Assad Durrani, Director General of the Directorate General of Internal Services Intelligence, at that time. General Duran's statement was read in the National Assembly. I have attached an extract from Daily 'JANG', Rawalpindi of 12ºJune 1996 with details (Appendix 1).
The action of General (R) Mirza Aslam Beg and Lt General (R) Assad Durrani amounts to gross misconduct and I am writing to request you to kindly initiate legal proceedings against these two individuals who brought the Armed Forces into disrepute. . and are guilty of undermining the discipline of the Armed Forces. I am also forwarding a copy of this letter to the Chief of Army Staff for his information. If you need warranty help, seeI didn't do that Bail Bonds Customer Reviews.
carefully
DAKOTA DEL ON/-
(M. Asghar Khan)"
7. Lt. Gen. (R) Nasirullah Khan Babar, then Interior Minister, raised the issue of cash distribution to a group of politicians in the plenary of the National Assembly, reading the affidavit of Interviewee #2, in which he admitted that the amounts were distributed to certain individuals for the purposes of the Islami Jamhuri Ittehad (IJI) election campaign. Prior to the affidavit, defendant #2 sent a handwritten note to the then Prime Minister of Pakistan stating the following:
“Embassy for Pakistani eyes only
5300 Bonn 2
Rinallee 24
Telephone 35 20 04
7 June 94
my dear prime minister
A few points I want to include in my "confessional statement" given to the FIA Director. These can be annoying or sensitive.
Recipients included Khar 2 million, Hafeez Pirzada 3, Sarwar Cheema 0.5 and Mairaj Khalid 0.2 million. The last two were not on the wrong side. It was only someone's "soft song" that benefited them.
B. The remaining 80 Ms were deposited in the ISI 'K' fund (60 M) or handed over to the Director of External Intelligence for special operations (perhaps the lifeline of this disgraceful exercise, but it is sensitive information).
w. The operation not only had the "blessing" of the President of the Republic and the unconditional participation of the interim prime minister, but it was also known to the High Command of the Army. The last mentioned will be the defense of many of us, including General Begg (who took his colleagues in "confidence"), but this is the name we must protect.
The point I "war" in my mind often is: what is the point of this exercise?
If he is going to target the opposition. "It may be their legal right to receive donations, especially if they come from 'sacred channels.' A little embarrassment is likely, but a few million is peanuts these days.
B. If the idea is to put Gen. I pray on the mat. "It only gave 'logistical support' to donations made by a community 'under instructions' from the government and with the 'consent' of the military high command." Anyway, I understand you are dealing with other businesses in the same case.
w. The GIK could feign ignorance, since in reality it is never directly involved.
Hey. Of course, the genuine purposes of the law must be served. In that case, let's watch out for sensitivities like special operations and possibly the Army.
For these reasons I desperately wanted to see him before I left. I also wanted to talk about my farewell meetings with the COAS. In the meantime, you must have met often enough and worked out what is best for the country.
I continue to pray that all these natural and man-made disasters are only to strengthen us in our resolve and in no way reflect our collective sins.
With appreciation and respect
With best regards
DAKOTA DEL ON/-
Assad"
8. General (R) Mirza Aslam Beg, former Chief of Army Staff, Lt. General (R) Asad Durrani, former DG, ISI and Mr. Yunus Habib, former head of Mehran Bank Limited, who are the leading figures in the alleged fraud Scheme to distribute funds to a group of politicians to influence the outcome of the 1990 general election, organized as accused Nos. Warnings were issued.
9. It should be noted that Brigadier General. (R) Kamal Alam Khan petitioned the then Supreme Court of Pakistan seeking to indict him in the proceedings. The said application was registered as CMA No. 109/1997. In the lawsuit, he named the following Armed Forces officers who, according to him, were involved in this operation:
(a) Brigadier (R) Hamid Saeed Akhtar
(β) Brigantine (R) Amanullah
(γ) Tenente-coronel (R) Eqbal Saeed Khan
(d) Lt. Col. (R) Ejaz
(e) Lt. Col. (R) Mir Akbar Ali Khan
(f) Lt. Col. Salman ButtHRC 19/1996 [Detailed Judgment] 11
According to the order of the Court dated 24.02.1997, though the aforesaid employee was allowed to attend the proceedings but according to Mr.Salman Akram Raja, the ASC found that he was not allowed to attend the proceedings and now he had died . In said request, as noted, the name of Tax. (R) Hamid Saeed Akhtar also mentioned. Accordingly, as ordered by the Court, Defendant #2 gave his address and a notice was sent to him. He therefore appeared and filed a written statement, which was marked "confidential," but at the hearing he stated that his written statement could not be considered confidential. For ease of reference, the dispatch dated 18.10.2012 is reproduced below:-
"Brigue. (Retd.) Hamid Saeed appeared and filed a written statement mentioning the word "Confidential" about the distribution/donation of funds to a group of politicians/IJI before the 1990 general elections and they are already in prima facie file, the contents of paragraphs 1 to 8 of his deposition are not relevant for the purposes of deciding this case, therefore, if he so desires, he may request confidentiality in this regard, that a document should be treated as "confidential" in his whole He explained that if paragraphs 1 to 8 were omitted from his statement the full object and purpose he wished to convey to the Court would not be conveyed, see paragraph 9 et seq. He expressed a wish not to treat his statement as "confidential ” and deleted the word “confidential” written at the top of the document. He also stated that he intends to explain the events and dates of disbursement of the funds to a group of politicians with the help of a diary he kept at the time. He handed us this document to read in court.
Prison. (R) Hamid Saeed dated 18.10.2012 and extracts from his handwritten diary, for which he took full responsibility, filed in Court, are also reproduced below:
(1) In 1990 I commanded an Artillery Brigade in D.I. Inn. In the same year, following a Kashmiri uprising in Indian Kashmir, both India and Pakistan deployed their forces in the border areas. My Brigade had just reached the border area when I received orders to join the district Military Intelligence office in Karachi. I spoke to the Corps Commander and told him I wanted to be with my troops during the fight. Additionally, I stated that I had no intelligence experience or formal training. The Corps Commander informed that my services were urgently required in Karachi to control the deteriorating internal security situation in Sindh. Accordingly, I reported to my new duty station and took charge w.e.f. 23thirdJuly 1990.
(2) At that time, MQM had recently split from the ruling political party (PPP). The PPP workers resorted to the use of violence to take revenge on the MQM for its political betrayal. The MQM reacted even more violently through its armed political workers. PPP, MQM, PPI, JI and JSM activists were mercilessly killing each other. The daily death toll was 100 to 110, in addition to countless wounded and disabled. PSF, APMSO, IJT and JSQM captured their opponents' activists and committed horrible and inhumane atrocities on them, for example, drilling their knee joints with drills and burning their sensitive parts with electric welding machines. I immediately had meetings with Mr. Tariq Azeem, Dr. , fires and looting, the army could be forced to intervene to restore peace.
(3) Initially, the belligerent forces completely denied their involvement in illegal activities. However, when incontrovertible evidence of their crimes was presented, they took the advice more seriously. The following are the visible results of intelligence intervention in the security situation in Karachi:
In 1 week the kill was drastically reduced from 100-110 to 20-30 per day.
B. The exchange of prisoners of war was organized by HRC 19/1996 [Detailed Decision] 13 and this exchange took place at the Army Corps Headquarters in Karachi.
(4) All of the above was achieved through negotiations and dialogue. Not a bullet was fired, no one was illegally detained and no torture was used to extract information. The importance of my primary task, intelligence and counterintelligence operations, far outweighed my involvement in national security matters, but now national security had become more important.
(5) Soon after, the provincial government launched a police operation against the Mohajir population residing in Pukka Qila Hyderabad on a day when the Chief Minister, the COAS and the Karachi corps commander were on an overseas tour and army units were in annual exercise. In this operation the police killed dozens of men, women and children. The matter was reported to higher levels. President Mr. Ghulam Ishaq Khan ordered the army to intervene and stop this massacre.
The station commander at Hyderabad collected about 300 soldiers from the staff who were left behind for guard duty and reached the spot. With his intervention, the police force withdrew. Prime Minister Benazir Bhutto, when she returned to Pakistan, gave a statement to the press that "the Army provided POF-made weapons to the Mohazirs". The police laid siege to Pukka Qila to recover these weapons. When the police were about to reach the hideout in Pukka Qila, the army intervened and took away the weapons in military vehicles." Everyone was shocked by this statement.
(6) After this mess MRC (Mohajir Rabita committee) gave a statement to the press that they (Mohajirs) were forced to seek protection of their rights in India. India was quick to respond to this call by stating that the Mohajirs were former citizens of India and that India was bound to ensure their safety and protection from state terrorism and genocide. Such statements were reminiscent of one of the Indian interventions in the former East Pakistan which ultimately resulted in the disintegration of our country.
(7) Earlier that year, the prime minister had also publicly criticized the military for crossing a red line by enriching uranium to a level unacceptable to the major powers. He also gave an interview to the BBC in which he mentioned his support to India to crush the Khalistan Movement. Sometime later, the prime minister criticized the Army for conducting the annual exercise in Sindh province without his consent. The ISPR had to clarify through a press release that under the law, the COAS was not required to take permission from anyone to conduct training exercises anywhere in the country. All these 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 and other sensitive departments, thus putting endanger national security. These AZO activists received proper training from India on sabotage, arson, bombings, mass killings and other acts of terrorism. The original file of these terrorists was available from all intelligence agencies. All these matters were reported to superiors through the normal channels of command.
(9) The general perception of the common man was that the ruling party had the votes but lacked the vision to run the country. Something seemed to be coming. at 16ºAugust 1990 President Ghulam Ishaq Khan dissolved the PPP government using the power under Article 58(2)(b). In Sindh, a caretaker government was formed under Jam Sadiq Ali as prime minister.
On 12 September 1990, DG Ml Maj. General Muhammad Asad Durrani visited Karachi and gave me the following instructions:
B. Open six accounts at different banks and send me the title and number of each account.
w. Please continue to monitor these accounts. Certain funds will be deposited into these accounts from time to time. I will update each account balance on a weekly basis.
(10) All transactions in these accounts must be treated as confidential. You will be personally responsible to me for your accounting and no information regarding this matter will be shared with any unauthorized person. The services of a Grade 1 Staff Officer may be used to open and manage these accounts.
(11) According to these instructions, six accounts were opened in different banks. Funds started arriving from 4 p.mºSeptember 1990 onwards. for 22North DakotaOctober 1990, R$140 million was collected on these accounts. Subsequently, the following amounts ordered by the DGMI were paid:-
40 million Rs. to the GHQ account.
B. INR 10.5 million for MI Quetta Regional Office.
C. Rs 5 million for caretaker Sr. Prime Minister. Ghulam Mustafa Jatoi
Hey. Rs.5. Millions for Acting Sindh CM Mr. Jam Sadiq Ali
m. INR 2.5 million for Sr. Muhammad Khan Junjo.
F. INR 3 million for Mr. Abdul Hafeez Pirzada
gram. Rs 2 million to Mr. Sibghat-Ullah Pir Sahib Pagara.
h INR 03 million for Mr. Muzaffar Hussain Shah.
I. INR 03 million for Mr. Muzaffar Hussain Shah
j.0.3 million INR for Mr. Ghulam Ali Nizamani Free Mp3 Download
Mr. 02 Million INR for Mr. Arbab Ghulam Rahim Free Mp3 Download
I. 03 million INR for Mr. Salah-ud-Din (Takbeer). HRC 19/1996 [Detailed decision] 15
meter. 05 million INR for Mr. Yousaf Haroun
North. 3.828 million INR to Sindh
Constitutional center, and also used to build barracks for men, interrogation cells
(12) The balance of Rs.67,628,511/- including interest was then sent to GHQ along with updated bank statements. I would like to inform you that during my time in Military Intelligence, I was of the view that the resources came from GHQ. (13) In 1991, I learned from the media that one Mr. Yunus Habib had been arrested for defrauding Habib Bank Ltd. On occasion, General Durrani called me to explore the possibility of rescuing him. He said the COAS wanted his rescue because he had helped do a project of national importance. I showed my inability to do so because this case was sub judice. In September 1991 I was posted from MI to Kharian. I finally retired in December 1994.
(14) In 1994, during the second term of the PPP government, when General Durrani testified in court and the matter became public, I first learned from the media that these funds had been contributed by Mr. Yunus Habib.
DAKOTA DEL ON/-
Brigadier (right) Hamid Saeed Akhtar
October 18, 2012"
10. Regarding the statement under Section 161 Cr.P.C., of Mr. Yunus Habib [hereinafter “accused no. 3”], it may be mentioned that such a statement is not per se admissible under the Qanoon-e-Shahadat Ordinance 1984 in evidence of the facts stated therein unless the contrary is proved in a court of law. But this is mentioned here as the Mehran bank scandal report containing such a statement became part of the file. It should also be noted that investigation would be necessary in relation to the distribution of sums of money paid before the 1990 general elections after he left HBL or subsequently Mehran Bank Ltd as the year 1990 was Habib Bank Ltd and not Mehran Bank, from which these amounts were withdrawn.
11. Respondent no. , an Election Cell was set up in the Presidency, which functioned directly under the leadership of the then President (Late Ghulam Ishaq Khan) and headed by M/s RoedadKhan and Ijalal Haider Zaidi. It was further argued that, until 1975, the ISI was responsible for combat intelligence and strategic operational intelligence and operated 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 of which it was responsible to the Chief Executive, i.e. the Prime Minister/President for all political and national intelligence matters.
After the establishment of the Supreme Defense Organization in 1976, IS remained accountable to the chief of the executive branch, while the General Staff of the Joint Chiefs of Staff retained only administrative control. He also said that the ISI was supporting candidates during elections under the direction of the Chief Executive Officer of the Govt. The receipt of the amount from IS1 by accused #3 in 1990 was also under the direction of the Executive Director. DG 1SI also informed him that the funds so received were being properly managed and accounts were maintained and the then President was briefed by him in this regard. He claimed that the aforesaid statement of General (R) Nasirullah Khan Babar was self-contradictory on April 20, whereas in his statement he claimed that the said amount was actually distributed among politicians and various other people. He stated that Lt. Gen. (R) Nasirullah Khan Babar knew that the said amount had not been given to the respondent for personal use and also knew that Mehran Bank did not exist in 1990. The relevant parts of this reply are reproduced below:
(1) The said Defendant never received the alleged amount from Mr. Yunus Habib, defendant #3 personally or by any other means and categorically denies the allegation of Major General (R) Nasirullah Babar, the then Minister of Interior in his plenary n National Assembly on the 20thºApril 1994. The Defendant immediately denied the allegations made through a press release (Exhibit A-I) published in various newspapers.
“The fact is that the said amount was neither paid to the accused nor deposited in the army account but deposited in the I.S.I account as a donation from Yunus Habib and his community. Yunus Habib deposited it directly into the accounts of a government agency, which kept all the details of all transactions in accordance with the policy and procedures laid down by the government." (Attached Exhibit A-2). The newspaper "As Notícias" from 10ºApril 1994 brought the following story:
“It was briefly reported last week that Yunus Habib had deposited Rs. 140 million in an account designated by the then COAS General Aslam Beg.
It was initially believed that the money would go to Beg's organization called Friends, but in a brief press release days ago, the former COAS revealed that the donation was actually going to an account run by a secret service. NIU investigations corroborated Beg's statement as it was revealed that the money was deposited in a secret account run by the Directorate of Military Intelligence (MI).
(2) That in early September, Mr. Yunus Habib, who was then working in Habib Bank Ltd., as a district manager, visited the accused and informed him that he had instructions from the president's election cell to allocate a sum of Rs. 140 million to support the 1990 Elections. He stated that he would be available to raise this amount through his own efforts from his community as donations and that he was under the direction of the Election Cell to release this amount to the Director General. of Internal Services Intelligence, who would manage this amount as directed by the Presidential Electoral College.
(3) This 1990, when the National Assembly was dissolved and Mrs. Benazir Bhutto was dismissed. The Caretaker Government was formed to hold elections within 90 days. The then President Mr. Ghulam Ishaq Khan formed an Election Cell directly under him and headed by Mr. RoedadKhan / Mr. Ijlal Haider Zaidi.
(4) This letter regarding the accused was informed by the Director General of Inter Services Intelligence that Inter Services Intelligence has opened several hedge accounts and that Mr. Yunus Habib. The Director General of Inter Intelligence Services distributed these amounts to politicians belonging to various political parties and individuals as directed by the Election Cell.
(5) That the fact that the sum of Rs. 140 million was stipulated by the instructions of the Election Cell, which was confirmed by Mr. Yunus Habib regarding the voluntary statement he made during the investigation regarding the Mehran bank fraud. In his statement he admitted that:
“This Rs. 140 Million Donation to 'Military Intelligence' Yunus revealed that the donation was approved by the Board of Directors of Habib Bank Ltd. And the bank completed all the documents. In a vague reply, he said that the request was initially made by President Ghulam Ishaq Khan, who had told him through General Beg that the Pakistani government needed money to hold elections in the country. Yunus said that Ijlal Hyde Zaidi and Rodedad Khan were also fully aware of the donation” (Annexure A-3).
(6) That the allegation that resources were deposited with the Military Intelligence Service was completely false. The offset account has been opened by the 202 investigation section under Inter Services Intelligence since August 1990.
Thus, the 202nd Investigation Branch, a general purpose political and technical unit of the Army, was under the command of Inter Services Intelligence and operated under the ISI organization, which was the "jurisdictional authority" to commission it.
(7) That until 1975 the Interagency Intelligence Agency was responsible for the 3 military intelligence and strategic operational intelligence agencies and operated under the Joint Services Secretariat.
In 1975, Mr. Zulfiqar Ali Bhutto, the then Prime Minister, created a Political Cell within the ISI Organisation. As a result, the ISI became responsible to the Chief Executive i.e. the Prime Minister/President for all intelligence elements and national political matters. After the establishment of the Senior Defense Agency in 1976, the ISI continued to report to the chief of the executive branch, while the headquarters of the joint chiefs of staff retained only administrative control. This was the situation that existed in 1990 and continues today.
(8) That the ISI draws its manpower from three forces and the Army gets the lion's share. About 7% to 8% are civilians. It is headed by any uniformed army officer except during Benazir Bhutto's first term, when Lt. Gen. Shamsoor Rehman Kallu, a retired officer, was appointed DG ISI in 1989, who resigned when the Benazir government was overthrown. 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 crores (150 million) as mentioned in the petition. This is a dubious misrepresentation of the facts.
(9) Further, the name of Mehran Bank mentioned in the petition is again a misrepresentation of facts. This bank was not mentioned in 'The Jang' press report of 12th June, 1996, which formed the basis of the petition, nor did Mehran Bank exist in 1990. The petitioner made no effort to prove the facts before filing an application in the Federal High Court . His hasty action, without confirming the authenticity of the press release, expresses bad faith intent, especially when the petitioner is the leader of a political party, namely the Awami Qiadat Party and at the time of the petition (June 1996) became fully involved in the organization of his party.
(10) That the respondent is aware that it was the practice of the ISI to support candidates during elections under the direction of the Chief Executive Officer of the Government. Yunus Habib's receipt of this amount from ISI in 1990 was also under the instructions of the CEO. DG ISI also informed the respondent that the management of funds received and maintenance of account was being followed and Chairman Mr. Ghulam Ishaq Khan was informed by him in this regard.
(11) This DG ISI also informed the Complainant that the policy of financial support for candidates was established by the President's campaign team and that DG ISI acted on its behalf and made payments to various politicians and individuals as mentioned.
(12) That in late November 1990, DG ISI Lieutenant General Muhammad Asad Durrani informed the accused that Rs. 140 million deposited in ISI accounts, about Rps. 60 million was spent for election purposes and for obtaining election information, while the remaining amount of Rs. 80 million were deposited in ISI Special Funds accounts.
(13) That during this period, in his meeting with the President, Mr. Ghulam Ishaq Khan, the accused informed him about the donations made by Yunus Habib and their use by DG ISI following the instructions of the Political Cell of the President.
(14) That on April 20, 1994, the then Minister of Interior, Mr. Nasirullah Babar, made the disclosure in the National Assembly as reported in "The Daily Muslim" dated 21callApril 1994:
"Yunus Habib, the main operator of Mehran Bank Limited (MBL) embezzled INR 2.10 billion through various fake accounts."
"Home Minister told Parliament that Yunus Habib gave INR 140 million to Mirza Aslam Beg, the former COAS in 1991" INR 70 million to late Jam Sadiq Ali Khan, the then Sindh CM, INR 20 million to Altaf Hussain, the chief . of MQM, and many for other politicians'.
(Annexure-C attached).
(15) The mala fide intentions of General (R) Nasirullah Babar were further supported by the fact that, while disclosing this information, the Interior Minister claimed that he was in possession of a computer disk containing all the information regarding the disbursement of 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 jailed banker Yunus Habib and some vital documents seized by the Federal Investigation Agency (FIA) during the search at Habib's residence and in the possession of his most trusted associate Salim Sattar in the last week of March of this year. . They are now missing from the FIA Sources file at the Federal Higher Ministry of the Interior and the FIA confirmed this to the News Information Unit (NIU) on their computer diskette. Yunus Habib kept all the details of payments made from various shell accounts in Habib Bank Limited (HBL) and Mehran Bank Limited (MBL) to politicians, bureaucrats and twelve FIA officials. In a recent move, the FIA decided to deny the existence of the computer disk before the judicial commission. (Attached Exhibit-D).
(16) Two years later, Lt. Gen. Nasirullah Babar, then Interior Minister, made a self-contradictory statement in the Assembly on Monday, June 11, 1996:
“Interior Minister Nasirullah Babar told the National Assembly on June 11 that Mirza Aslam Beg had withdrawn Rs 15 crore from Mehran Bank and distributed this amount to various people before the 1990 elections.
(Appendix and Appendix)
(17) The above statement contradicts the above allegation because in his earlier statement in the plenary of the National Assembly on 20 April 1994, he stated that the amount of INR 140 million was handed over to the accused, who embezzled the amount, while in the additional memorandum made on 11 June 1996 in the plenary of the National Assembly, alleged that the amount of INR 140 million was actually distributed among politicians and other personalities. It is amazing how the facts were distorted, knowing very well that such amount was not given to the accused for personal use and also knowing well that Mehran Bank did not exist in 1990. This act of his amount for deliberate misrepresentation by malicious truth.intentionally to cause disbelief and defame the accused.
(18) That it is clear from the above fact that the then Interior Minister, General Nasirullah Babar, who was in possession of classified official information about the activities of the ISI, used it for his party's political purposes, thereby violating the 'Official Secrets Act ». In doing so, he discredited two important national institutions, namely the Pakistan Army and the ISI.
(19) Nasirullah Babar also deliberately withheld information from the Judicial Commission and did not produce the computer disk he claimed to have in the National Assembly. (Attached Exhibit-D).
(20) That the petitioner made the following allegations;
a) The actions of General Mirza Aslam Beg and Lieutenant General Muhammad Asad Durrani constituted a serious offence.
b) Both discredited Pakistan Armed Forces.
c) Both are guilty of violating the discipline of the Armed Forces.
FLOOR
(a) That the answering defendant had knowledge of the transaction of Rs. 140 million, but had no other participation in the disbursement of this amount nor did it directly or indirectly receive part of this amount.
(b) That the sum of Rs. The 140 million thus donated by Yunus Habib was deposited directly into the accounts maintained by the ISI, which duly maintained the accounts.
(c) DG ISI acted within the limits of the "lawful order" received from the President's Election Cell. The definition of "lawful command" as interpreted in the Pakistan Army Act, Section 33, Note b(3), is:
"A superior may issue an order to maintain order or suppress a disturbance, or to fulfill a military duty or regulation."
m
Pakistan Army Act Section 33 Notes b(11):
"A citizen may not give a `lawful command' under this subchapter to a soldier of his employ." but it may well be the soldier's duty to do the act indicated.'
d) To keep full accounts of all payments made by DG ISI and not to misuse or use unjustified amounts.
(e) That the actions of the accused and General Asad Durrani did not constitute serious misconduct; The orders were executed by lawful order.
(f) In so doing, the Accused and General Asad Durrani have not brought the Pakistan Armed Forces into disrepute nor are they guilty of undermining the discipline of the Armed Forces.
(g) That Air Marshal (R) Mohammad Asghar Khan acted out of personal malice and political gain in approaching the Supreme Court of Pakistan to take action against the Respondent at a time when the Respondent was fully involved in organizing the political party and participating in the 1997 general elections as a political mainstream.
(h) That Air Marshal (R) Asghar Khan acted irresponsibly by failing to investigate the matter properly and hastily made allegations against the accused based on unsubstantiated newspaper reports. This act of the petitioner amounts to defamation with intent to cause civil harm and discredit the name of the respondent.
(i) That the disclosure made by Major General Nasirullah Babar to the plenary of the National Assembly on 20 April 1994 and 11 June 1996 was a flagrant breach of the Official Secrets Act as well as a malicious act, with intent to defame the name of the accused and to provoke political damage to his reputation and that of other members of political parties, as long as he does not reveal the names of political figures belonging to his own party." [Emphasis supplied for emphasis] Some final paragraphs of the reply which is informal have not been reproduced above.
12. On 06/11/1997, in reply to the reply of respondent No. 1, the petitioner submitted his observations in the following terms:
"COMMENTS OF THE PLAINTIFF TO RESPONSE No. 1 OF THE DEFENDANT
Regards Sheweth:-
(1) Being the Chief of Army Staff at that time, the Accused, being directly involved in the disbursement of public money and its misuse for political purposes, violated the fundamental rights of the citizens of Pakistan. Furthermore, by involving the Armed Forces in politics, the Response adversely affected the morale and combat effectiveness of the Armed Forces, reduced its defense capability, adversely affected the security of the country and thus created conditions that violated their human rights and fundamental rights. .
(2) That the petitioner has brought this matter before this Hon'ble Court and with a view to seek a sentence which will serve as an example to others and improve the discipline and combat effectiveness of the Armed Forces. It would also benefit their morale.
(3) That paragraph 4 of the Respondent's Answer in relation to subsection 3 of section 199 of the 1973 Constitution refers to the terms and conditions of service of a person subject to military law and is not relevant to the present case.
(4) The petitioner sent a copy of his letter to the Chief HRC 19/1996 [Detailed Decision] 26 of the Army General Staff for information only. The Chief of Army Staff is not the only competent authority and the proper person to look into the complaint and take any action thereon as the Respondent contends. Since the Respondent is the Chief of the Army General Staff and the present holder of that post was his subordinate, it would be convenient for this case to be tried by the Honorable Court.
(5) This Defendant stated in paragraph 6 of her reply that the funds were deposited in I.S. Information denied by the secretary,
Ministry of Defense. The Respondent further stated that he was aware that Major General (R) Asad Durrani had received the money and distributed it (Para 12 of the Respondent's Reply) to various persons. Lt. Gen. (R) Asad Durrani, although the head of an organization which the Respondent claimed to be "Chief Executive", was still a serving Army officer, subject to service discipline and martial law. Therefore, their conduct should be of immediate concern to the Chief of the Army Staff. Knowing all this and not having acted is tantamount to complicity in the crime. However, the defendant, in point 17 of her reply, claims that the amount was not given to her "for his personal use". This is an acknowledgment that you have received the amount.
(6) In paragraphs 21(c) and 21(e) of her reply, the defendant alleged that the orders to collect and distribute the funds were executed pursuant to a "lawful order". The interpretation of Section 33 of the Pakistan Army Act, Note B(3) as set out in Para 21(c) of the Respondent's reply is incorrect. This refers to the suppression of a disorder and Article 33 Note b(11) referred to in the same Paragraph in the Respondent's reply, ie paragraph 21(c) is also irrelevant. It states that "a citizen cannot lawfully give an order under this subsection to a soldier employed under his command, but it may well be the duty of the soldier, therefore, to perform the act as directed."
(7) A person subject to military law is only required to obey "lawful orders" and, in fact, it is his duty not to obey an illegal order or command. The burden of deciding what is legal and what is illegal rests with the individual. Recent history is full of examples where soldiers have been punished for carrying out illegal orders. In the Nuremberg trials held after World War II for the killing of Jews by German soldiers, the claim made was similar to that made by the Defendant that what was done was in response to a "lawful" order. At the Nuremberg trials, German soldiers accused of murder claimed that they were simply following orders from their superior officers. The Court imposed death sentences on those who carried out these illegal orders.
(8) In my own case, when I had only two years' service and was in Hyderabad Sindh, during the 'Hur' riots and the Constable Act of 1942, I received personal orders from Major-General Richardson, the Administrator of the Judiciary Act curators. Sindh, to lead a squadron of airships and massacre Pir de Pagara's caravan moving for food from Sanghar. I took the flight of 4 planes as ordered, but seeing that the camel caravan consisted of unarmed men, women and children, I refused to carry out the orders and turned back without firing a shot. When asked to explain, I told the general waiting at the airport for our return that shooting unarmed civilians was not a legal order and that I would not obey it. What followed has nothing to do with this case.
(9) Throughout my political career, I have practiced the same philosophy and urged the police to obey only lawful orders. I have been illegally detained on numerous occasions and illegally detained or removed hundreds of miles away. On one occasion, in the company of late Mian Mahmud Ali Kasuri, Advocate, M. Anwar, Advocate and Miss Rabia Qari, I was illegally prohibited from walking on Fane Street near Lahore High Court, Lahore. . We resisted this illegal order, but not before telling the officers that their orders were illegal, and since we were not breaking the law, the police under their orders had a duty to disobey it.
(10) In the Nawab Ahmed Khan murder case, four police officers were sentenced to death for carrying out illegal orders. More recently, in the case of Tando Bahawal, a commander was sentenced to death for giving illegal orders, and some members of the military received long sentences for obeying illegal orders from their superior officers.
(11) In my opinion, the Chief of Army Staff should have led by example and followed only lawful orders. He should also have seen to it that others subject to martial law did the same.
(12) The Defendant also claimed that I acted out of personal grudge and bad faith intentions. I have no personal grudges against the defendants and I urge this august court to set an example for the Armed Forces to focus on their primary function in the future, not obey illegal orders and not engage in policies that violate human rights and National security.
-DAKOTA DEL SUR.-
(M. Asghar Khan)
06.11.1997 REQUEST"
Defendant No. 2 filed an affidavit in Court dated 31.10.1997 which reads as follows:-
"STATEMENT OF LT. GEN. (R) M. ASAD DURRÁNI
I, Lt. Gen. (R) M. Asad Durrani S/o Dost Mohammad Durrani (deceased), resident of 189-E, Gulraiz II, Chaklala, Rawalpindi, hereby solemnly affirm and declare the following;
(1) In April 1994, a press statement was issued by General (R) Mirza Aslam Beg that one Mr. Yunus Habib and his community had donated 140 crores and Mr. Habib deposited this amount in a government agency account. It was later reported in the press that General Beg further explained that the ISI had spent Rs. At that time I was the Director General of the ISI and General Beg confirmed to me that these statements had been given.
(2) In May 1994 I took up my appointment as Ambassador of Pakistan to Germany. In early June 1994, I was contacted by Major General (R) Nasirullah Khan Babar, the Interior Minister, who told me that a commission of inquiry had been set up to ascertain the facts relating to General Beg's statement. He also added that he had discussed with the then COAS General A. Waheed, who after consultation with the JAG secured the cooperation of the army. General Babar said that an FIA director was on his way to take my statement. He also added that he had discussed with the then COAS General A. Waheed, who after consultation with the JAG secured the cooperation of the army. General Babar said that an FIA director was on his way to take my statement.
(3) Em 6ºIn June 1994, Mr. Rehman Malik, the Director of the FIA, contacted me in Bonn and sent me a letter from the Director General of the FIA asking for the necessary details. I spoke to General Babar and pointed out that there were certain sensitivities in the case and he suggested that I make a confidential statement to the Prime Minister. Agree.
(4) I wrote an "eyes only" handwritten letter to the Prime Minister, providing the information. I also flagged innuendos that I thought were sensitive in nature and asked for tactful handling. Mr. Rehman Malik returned to Germany after a few weeks. My statement was typed on court paper and I was asked to sign it for the committee to read. I was told that I had the CEO's approval and the matter would be dealt with confidentially. I have signed the prepared statement given to me by Mr. Rehman Malik, Director of FIA.
(5) For the next two years I heard nothing more about the matter until the press reported that the Minister of Interior, Mr. Nasirullah Khan Babar, had made a statement in the National Assembly referring to an affidavit which I said I had given.
(6) The statement was signed for me by Mr. Rehman Malik under special circumstances and he was assured that the matter would be treated confidentially. I do not know under what circumstances the then interior minister made the statement to the National Assembly. He did not know about his intentions which are known to him.
(7) The statement was signed by me with the understanding that it will only be used for a specific purpose. Having advised the information to be kept confidential, I humbly submit to this Honorable Court that I cannot comment on the contents of the statement in open court because I am bound by the professional secrecy act. Of course, I am ready to answer your questions in your room or behind closed doors.
(8) I am going to Germany to attend a seminar in the first week of November 1997, which has been planned for a long time and therefore I cannot attend the proceedings in person. I will be back on the 16thºNovember 1997.
The contents of this statement are true and correct to the best of my knowledge and belief. Nothing has been misrepresented or concealed as required by law.
DAKOTA DEL ON/-
soldier of Islamabad
31.10.1997 Tenente General (R) M. Asad Durrani”
13. Defendant no. have not been made public. He prayed for proper direction to the Federation, the learned Attorney General and the Secretary to make taped in camera statements and reports from two Commissions of Inquiry available to them on the condition, guarantee and pledge of confidentiality of his own audience sector . and only to be used for the proper defense of the accused in the case. In view of the prayer made, the Attorney General was directed to produce copies of the reports.
14. It should be noted that the Federal Government, as soon as it took cognizance of the allegations vide SRO No. 617(1)1994, dated 17.06.1994, appointed a Commission of Inquiry under the Pakistan Commissions of Inquiry Act, 1956 to inquire into the matters relating to Mehran Bank. , set out in said notification as terms of reference, which include the following:
(1) Srta. Juiz Abdul Qadeer Chaudhry
Judge, Supreme Court of Pakistan
(2) Ms. Justice Zia Mahmood Mirza
Judge, Supreme Court of Pakistan
(3) Mr. Justice. (Retired) Z.A. Chana
Judge of Form, Sindh High Court
(4) Juez Sr. Nazir Ahmed Bati
Judge, Federal Shariat Court. Is
(5) Ms. Justice Qazi Muhammad Farooq
Judge of the Pehsawar High Court
15. The Committee completed its work and presented the report. Unfortunately, despite the instructions of the Congress, the report was not made available. However, in the meantime, Mr. Hamid Mir, well-known journalist/presenter of private TV channel (GEO Network), provided a copy of the said petition to Mr. Salman Akram Raja, counsel for the petitioner, as well as to the Court for perusal. We intended to request its authenticity from the Ministry of Justice, but the Ministry did not do so on the pretext that the original was not available with it. Regarding the Habib Bank Ltd. Fraud Investigation Report. After such fraud, accused no. . . It should be noted that the HBL Committee was headed by Mr. Justice Muhammad Ilyas, who presented an interim report on 22.04.1997. The interim report states that Justice Muhammad Munir Khan was initially the Chairman of the Commission appointed by the Federal Government, while Justice Raja Abdul Aziz Bhatti, Judge of the Lahore High Court and Justice Sardar Muhammad Raza Khan, Judge of the Peshawar Higher Court were members of His term, however, has been extended from time to time, resulting in a total term consumed by the original Commission of about one year. After the sad demise of Justice Muhammad Munir Khan, the Commission was reconstituted on 29 January 1997 with Justice Muhammad Ilyas (former Supreme Court) as Chairman and Justice Javed Nawaz Gandapur and Justice Faqir Muhammad Khokhar as members. The Commission asked the Secretary of the Department of Justice whether the new Commission should re-investigate or pick up the investigation from where the original Commission left off. As it turns out, the Commission has not completed its report as stated in the report dated 17.05.2012 filed on behalf of the Ministry of Justice and Justice, see CMA nº 2.096/12 where it is stated that the Commission's report on matters of Mehran Bank Ltd is not available. Regarding the Habib bank fraud report, it was submitted that Mr. Justice (R) Muhammad Ilyas, Chairman of the HBL Commission of Inquiry, vide letter dated 22nd April, 1997, sent only an interim report and did not send the final report to the Ministry. A copy of the interim report on the previous CMA is attached. Therefore, see order dated 17.05.2012, the Chairman HBL was directed to appear in person and produce the statement/reason proving the withdrawal of the amount under the instructions of the then Vice Chairman HBL, accused No. existence of other material proving that these sums were withdrawn without following the supposed fair process, with a view to distributing them to certain politicians and others before the general elections of 1990. Furthermore, the Governor of the State Bank of Pakistan was requested to investigate the matter and if any information about it was available to him, he would share it with the Court.
Thus, vide CMA No. 2,372/2012 and 2,373/2012, a copy of the reply filed by Habib Bank Ltd. was filed. to the Examination Committee of the Secretariat (in two parts). Similarly, the Governor of State Bank of Pakistan vide CMA No.2374/2012 also submitted a statement along with certain documents.
16. It is to be noted that HBL in its reply mentioned the withdrawal/deposit of INR 140 million from Habib Bank Ltd. under the instructions of accused no. 3. Also, the Governor, State Bank of Pakistan, in his statement dated 01.06.2012, confirmed that "HBL Reports, inter alia, deals with the issue of "withdrawal and deposit of Rs.140,000 (M) by HBL under her instructions Mr. .Yunus Habib.' It is alleged that the details provided in the HBL Reports appear to be correct." The fact of withdrawal and deposit as well as disbursement was also confirmed by Maj. (R) Hamid Saeed Akhtar in his non-confidential report referred to above. Apart from that confirmed the same, accused no.2 also confirmed it in his statement.
17. In this connection, it is worth mentioning that CMA 785/97 dated 22.10.1997 was presented by Mr. Akhtar Ali Chaudhry, AOR on behalf of the Ministry of Justice to keep the proceedings of the case "in camera", inter alia stating The following:
"3. In the petition, filed by Air Marshal (Retd.) Mohammad Ashgar Khan, it is alleged that the ISI disbursed some money to General (Retd.) Mirza Aslam Beg. Affidavit of Lt. Gen. (Retd.) Mr. Asad Durrani, Ex Director General of ISI, also recorded for distribution of funds to the former Chief of Army Staff (COAS) and others as donation for the September/October 1990 election campaign, which was denied in the letter from the Defense Minister of the Government of Pakistan to the Attorney General of Pakistan on 25.6.1997. However, whether the allegations are true or not, if the proceedings are conducted in an open court, it may not be in the national interest as well as a highly sensitive institution of the country. Accordingly, we request this Hon'ble Court to continue the proceedings of the case in the Department".
Defendant #1 strongly opposed the claim, filing the response to the aforementioned CMA through its attorney, inter alia alleging the following;
"two. Paragraph 2 is wrong. This learned court is not prosecuting the functioning of the Inter-Agency Intelligence Bureau. The Hon'ble Court has just examined the Political Cell of this institution which was opened under an executive order in 1975 by Mr. Zulfiqar Ali Bhutto, former Prime Minister of Pakistan This Political Cell, according to press reports, allegedly manipulated the people's right of association as provided for in Article 17 of the Constitution and also acted to frustrate the will of the citizens of the country in the interest of national security a questionable Political Cell be treated differently and separately from the rest of the institution and may also be treated separately to rid the political process of the country of foreign, unhealthy and undesirable influences. The work of ISI is not questioned or subject to inquiry or judgment by this honorable court. only question for the Hon'ble Supreme Court to determine is whether public funds belonging to 130 million Pakistanis and deposited in banks can be diverted to manipulate the will of the people during elections. This, by no stretch of the imagination or interpretation, could be extended to include the realm of national security affairs. Thus, the question posed in section 2 demonstrates an obvious confusion and misinterpretation of the substance of the issue which the court investigated.
3. The content of section 3 is completely wrong, therefore it is rejected. In the letter of Air Marshal (Ret.) M. Asghar Khan, which was treated as an application by this learned court, there was never any mention of disbursement of money to the accused. Even the purported affidavit of Lt. Gen. (retd) M. Asad Durrani is not part of the file. Regardless of the defense made by the Government of Pakistan, none of the above matters are related to national security. The process behind closed doors because it raises suspicions, speculations and mistrust. Disbursing money to individuals for policies does not make the issue that sensitive or relevant to national security. If at any stage of the process it is found that any matter related to the defense of the country or the work of the ISI in their national security activities is considered to be questionable, the particular situation may be dealt with differently, otherwise the application will remain the same. camera process in an arbitrary desire that cannot be tolerated'.
18. According to the above answer given by defendant no. Pakistan, which was directly responsible for all the three Services through the JCS until 1975. In 1975, the then Prime Minister of Pakistan by an executive order, created a political cell within the ISI Agency and under this The change in the functioning of the ISI passed directly under the control of the Chief of the Executive Command, i.e. in political matters and all security matters relating to the Armed Forces, the ISI informed the Joint Chiefs of Staff. According to him, this position was maintained till that date i.e. 16.06.1997. He explained that the ISI was practically divided into two parts namely; a political wing and another wing for Armed Forces counterintelligence and strategy. During General Zia-ul-Haq's regime, the ISI reported on all matters to the President, who by virtue of his role as head of martial law and president of Pakistan controlled his office. He further explained that after the 1988 general elections, the ISI was completely freed from the influence of the Army and since then it has been practically under the control of the Chief Executive, who reports to the JCSC. In 1990, when the money was donated by accused #3, the ISI was acting under the instructions of higher authorities. As Chief of the Army Staff, when he was briefed on the matter, his only concern was that the money received by the ISI be properly used and accounted for, and moreover, he was not interested in that money. Thereafter, to a question raised by the learned counsel for the petitioner, he stated as follows:
“Though the Director General, ISI is a uniformed officer, but the Chief of Army Staff has no authority to take action against him. The head of the ISI was an Army person whom I was in charge of during the relevant period."
19. On 24/02/1997, the Ministry of Defense produced an official letter dated 22/02/1997 in which it stated that, according to ISI information, it did not collect any amount during September/October 1990. period, therefore, no issue of its distribution to the politicians, as mentioned by respondent no.2.
Since said statement contradicts May's statement.
General (R) Nasirullah Khan Babar in the plenary session of the National Assembly, therefore, the Court sees the order dated 24.02.1997, sought registration of the proceedings of the National Assembly dated 11.06.1997 in which General (R) Nasirullah Khan Babar had made the said statement. On March 26, 1997, minutes were taken and it was found that there was no mention of the specific amount alleged to have been received by accused #2,000,000 rupees as per COAS/polling station instructions. Later, as directed by the court, Major General (R) Nasirullah Khan Babar and accused no.2 filed their statements in the form of affidavits. However, a careful reading of the records of the Court dated 23.10.1997, 27.10.1997 and 11.06.1997 reveals that the Court took legal cognizance of the facts stated by both in their statements. The order of 19/11/20/1997 also states that his interrogation took place behind closed doors. From perusal of the warrant sheet, it appears that the proceedings leading to the questioning of these persons have been completed. However, part of the record referred to in the interrogation was not declassified by the Court.
20. Regarding the lawyer's request to defendant no. that the said statement was not provided on the record by either party, therefore it cannot be produced. On the request of defendant no.1 filed in CMA no. had decided not to make her statements public and we are of the opinion that if the matter could be decided as requested by the petitioner Air Marshal Asghar Khan, there would be no reason to rely on the proceedings in the House.
21. It is noted that during the procedure of 25.04.2012 the following observations were made: –
"3. We had some discussions and during the course it became clear that General (R) Mirza Aslam Beg, in his brief statement, also took the position of having knowledge about the distribution of this amount and the maintenance of the ISI account. Among other things, in the summary statement, one of the factors is also mentioned to the effect that a full account was kept where all the payments made by the then Director General of ISI and no amount was diverted or misappropriated.”
Therefore, Mr. Muhammad Akram Sheikh, learned ASC appearing for defendant #1 had to provide details of the said accounts before the next court date. Therefore, CMA No. . Ishaq Khan and that he knew it only as the Commander of the Armed Forces.
22. Accused No. 3, whose name was repeated many times in the proceedings, was never called upon to respond, therefore he was given notice at this meeting, in response to which he appeared and gave an affidavit dated 03.08. .2012 for the following purpose:-
"Affidavit before the Supreme Court
I, Mohammad Yunus A. Habib S/o A. Habib, resident of IIA-I, Main Sunset Boulevard, DHA Phase II Ext Karachi, make the following affidavit:-
(1) That Air Marshal (R) Mohammad Asghar Khan filed an application (Human Rights Case No. 19/1996 in the Supreme Court of Pakistan and that the accused is accused along with General (R) Mirza Aslam Beg, former Chief of Army Staff and Lt. Gen. (R) Asad Durani, former DG I.S.I
(2) That the Hon'ble Supreme Court issued a notice to appear on the 8thºMarch 2012 at 9:00 am
(3) That in 1979/80, when I was serving as Vice-Chairman of Habib Bank Ltd. and I was in Karachi, he met Brigadier General (later) Mirza Aslam Beg at Brig. Qamar-ul-Islam. One (Brigadier General Mohammed Aslam was also present).
(4) The above meeting resulted in a personal friendship between myself and General Mirza Aslam Beg.
(5) General (R) Mirza Aslam Beg and I used to talk often. As I recall, General Beg called me in March 1990 and asked the late President Ghulam Ishaq Khan to request 350.00 crores (thirty five crores) well before the elections, which could be held anytime in the anal.
GREAT NATIONAL INTEREST.
(6) A few months later, I was invited as a guest at the inauguration ceremony of the Commander-in-Chief (General Bey).
(7) This President Ghulam Ishaq Khan was the chief guest but actually I was treated as the chief guest.
(8) That I enclose a photograph taken on that occasion when flanked by the late President on the left and General Beg on the right, which proves the above statement.
(9) That our bank (Habib Bank Ltd) was a Nationalized Bank and that I held the position of SEVP and Board Member and District Head of the said Bank.
(10) During this occasion, a meeting was held where General Beg introduced me to the late President Ghulam Ishaq Khan and told him that as per his wish, he had discussed with Mr. Yunus Habib to arrange the necessary resources. .
(11) After about 45 to 60 days later, General Beg called me on phone and asked late President Ghulam Ishaq Khan to wish to have a meeting with me in which the President would ensure the management of 35-40 funds.
(12) As I recall, the meeting probably took place at Balochistan's house in Islamabad.
(13) During the meeting where only (3) of us (Chairman, General Beg and I) were present, the Chairman asked me about the 35-40 crore Grand National Interest settlement in which I told the chairman that such a settlement was so large that it was not possible by legal means and for this purpose manipulation would be necessary. The President has decided that whatever is necessary for the National Cause must be done.
(14) This 29ºIn September 1990, a meeting was probably held in the Q block of the Islamabad Secretariat. In this meeting, late Attorney General Aziz Munshi and Mr. RoedadKhan (who was probably the head of the cell to initiate cases against President Asif Ali Zardari and Mohtarma, late Benazir Bhutto. According during the said meeting, Mr. Roedad Khan personally pressured me to file a complaint against President Asif Ali Zardari, which I rejected.
(15) When I returned to Karachi, I was arrested at the airport and in the FIA cell and informed that I was arrested on the order of Mr. Roedad Knan and I was again pressured for the same purpose (Ref. Faizi Ali Kazmi case) but again I refused.
(16) I was held in the FIA cell for (5) to (6) days and was informed that I had not yet given the necessary resources.
(17) That I met Mr. Ijlal Haider Zaidi several times in General Beg's office and he was also conscious.
(18) That during the days I was in the custody of the FIA, I came to the conclusion that I would have to settle the funds by hook or by crook (a term often used by the President and General Beg). I was kicked out thanks to Jam Sadiq Ali.
(19) That loans worth 148 crores have been sanctioned by the District Committee and Executive Committee of Habib Bank Ltd on behalf of my friends and business acquaintances (Yousuf Memon and Rafiq Moor etc. etc.)
(20) The detachment of General Beg and Colonel Akbar I.S.I provided certain accounts in various banks namely UBL, Allied Bank and MCB in which the funds will be deposited.
(21) Assigned to Karachi Detachment Brigadier Hamid Saeed I.S.I as Operations Coordinator/Supervisor.
(22) The amount deposited was reported by me to General Beg and Brigadier General Hamid Saeed and the vouchers of the deposit slips were given to Col. Akbar and photocopies of the vouchers to Mr. Yousuf Memon.
(23) A total of Rs.(34) crore out of 148 crore has been disbursed as follows:-
I. 140 million through General Beg, as described above.
ii. 70 million for Mr. Jam Sadiq Ali, the then Prime Minister of Sindh.
iii. 15 million to Pir Pagara Sahib through late Jam Sadiq Ali.
4. Mr. Yousuf Memon was paid 70 million at the behest of President/Gen Beg to politicians who did not want to receive money directly from ISI.
Some funds were given for exact details of the Army's welfare plan. I did not know that the remaining amount was used to purchase property etc. etc. and a part of these funds was also given to business acquaintances who gave/gave their names as directors/companies.
(24) A total of Rs 3,450.00 crore (3 pts 45,000 million) has been repaid to the bankers and an amount of Rs 1,150.00 crore is yet to be paid to Habib Bank Ltd against a contract for 32 acres of land with /industrial/ residential subdivisions whose case is pending before the Honorable Court.
(25) That this case was scandalized as Mehran Gate when the fact is that the money was taken from Habib Bank Ltd and Mehran Bank was not yet born.
(26) However, when the matter came to light in 1994, I was then the Operations Manager of Mehran Bank Ltd. However, I enjoyed all the powers of the Managing Director of Mehran Bank Ltd due to my large investment in the Bank. .
(27) When Mohtarma Benazir Bhutto Shaheed came to power on 2North Dakotaterm and found out that I was used against him in the elections by providing a large sum of money which he ordered to close Mehran Bank and also ordered to arrest me.
(28) WHERE I SPENT (4) YEARS IN PRISON FOR THE SERVICE OF THE SUPREME NATIONAL INTEREST. I NEVER KNEW THE EXACT PURPOSE OF HOW THE MONEY WOULD BE USED.
(29) That I was an employee of Banco Nacionalizado and, under the circumstances, I had no choice but to obey the President and the COAS in the name of the Supreme National Interest.
(30) I apologize for my involvement and am at the mercy of this Honorable Court.
The above is to the best of my knowledge and belief.
Muhammad Yunus Habib
DAKOTA DEL ON/-
Dt. 03/08/2012”
23. In view of the allegations contained in the testimony of the defendant no.
"REPRESENTATION OF GENERAL (R) MIRZA ASLAM BEG, ORIGIN/APPELLANT NO. 1, IN REPLY TO MR. YUNUS A. HABIB
I, General (R) Mirza Aslam Beg, do hereby solemnly declare and declare on oath:
(1) That the declarant sincerely, categorically and truthfully denies all contents of the affidavit given by Mr. Yunus A. Habib, on 8ºMarch 2012.
(2) That the statement filed by Mr. Yunus A. Habib, before this Honorable Court, on 8ºMarch 2012, is a "bolt out of nowhere" and brings just something to shock the cases that have been pending in this august Court since 1996.
(3) This is a totally bad faith attempt to dramatize and scandalize the sanctity of the proceedings pending before this Hon'ble Court which have been given a new direction by the sinister intelligence behind this whole affair.
(4) That Mr. Yunus Habib got tired of defaming former President of Pakistan Ghulam Ishaq Khan, posthumously me and several others in this vile game of mixing politics with justice, with the vile intention of obstructing the wheel of justice .
(5) That in response to the allegations of Yunus A. Habib, a self-confessed perjurer, I deem it appropriate to record, for the consideration of this Honorable Court, the disappearance of the statements of General Assad Durani and Lt. General ® N. K. Babar was recorded by this Honorable in camera but not found yet. This fact confirms the accused's perception that the "vested interests, bearing the legacy of the lady's revenge" - Prime Minister Benazir Bhutto - against the accused, for allegedly bringing about the downfall of her government in 1990, continue to persecute him and are trying to intervene in this August court file.
(6) That the counsel for the accused would also bring to the notice of the Hon'ble Court certain crucial facts to recall earlier proceedings for proper perspective.
The trial was reserved by a learned panel headed by the Presiding Judge, Mr. Justice Saiduzzaman Siddiqui on 19.05.1999 but the proceedings were subsequently reopened by the President on 08.10.1999 when the following order was passed:
"After reserving judgment in the case, the office pointed out that the statements of two witnesses (Lt. Gen. (R) Nasirullah Babar and Lt. Gen. (R) Asad Durani) recorded in the case during the in camera proceedings were not signed by the witnesses or by the learned Judges who conducted the in camera proceedings. Secondly, the two witnesses were summoned to the courtroom before one of us (Justice Saiduzzaman Siddiqui) on 06.02.1999 and the minutes of their respective statements were produced. The two witnesses after reviewing their statements confirmed the accuracy of their statements and signed them.
Subsequently, Lt. Gen. (R) Nasirullah Babar submitted an application to the office under section 1 (19) of Ordinance V of 1980, along with various documents, seeking to summon Sardar Farooq Ahmed Khan Leghari in the case to produce his record computer in respect of all the accounts maintained in Mehran Bank namely their own accounts and their particulars are also recorded.
As adjudication of the case was reserved, the office sent the request for clearance to the rooms. The earlier request made by Major General (R) Nasirullah Babr could not be heard and rejected due to summer vacation. As the application filed by Mr. Nasirullah Babar has to be closed before the final decision of the case, the office is directed to fix the application in the Court on 11.10.1999 at 1:00 PM. after notifying all parties and the informed attorney general.'
The case was last resolved according to the record on 10-12-1999, the day of the military seizure of power by General Musharraf, on which the following order was issued:
“The Douto Fiscal General confirms that he received the copy from the C.M.A. 1072/99 today and a request for response time. Defendant #1's attorney claims his client is out of the country.
It also takes time. Adjourned for a date at the office.
B. In 1997 I recorded my testimony in the "Public Court". I was cross-examined by counsel for the petitioner. But unfortunately the statements of Lt. Gen. Asad Durrani and N.K. The drooling was caught on camera. My defense counsel Mr. Akram Sheikh was present and I did not have access to these depositions until I received a summons notice from this high court to attend the hearing on 8ºMarch 2012.
w. My defense lawyer Mr. Akram Sheikh gave me the copy of the testimony of Lt. Gen. Asad Durrani but he could not find the testimony of Gen. Nasirullah Babar which was sealed and in court custody.
Hey. The respondent's file/application was subpoenaed on a petition alleging misconduct by the respondent's archivist/plaintiff and General Asad Durrani, but the respondent's archivist/plaintiff himself offered to argue that this allegation would not give rise to rights covered by the jurisdiction. of this Honorable Court and as early as 1997 in his brief as well as in his reply to CMA no. 785 of 1997, expressed:
“That this Honorable Court has been able to examine very well the functioning of the political cell of the ISI, which was opened by an executive order in 1975 by Mr. Zulfiqar Ali Bhutto, former Prime Minister of Pakistan. This political cell, according to press reports, allegedly manipulated the people's right to association under Article 17 of the Constitution and also acted to subvert the will of the country's citizens. Therefore, it is in the interest of national security that a contested Political Cell should be treated differently and distinctly from the rest of the institution and also be treated separately in order to rid the political process of the country of foreign, unwholesome and undesirable influences.”
(7) That the defendant/plaintiff's witness may also refer to paragraph 14 of his brief/reply on behalf of defendant #1 which is reproduced here at:-
"14. That on April 20, 1994, the then Interior Minister, Mr. Nasirullah Babar, made the revelation in the National Assembly as reported in "The Daily Muslim" dated April 21.callApril 1994:
“That Yunus Habib, the master operator of Mehran Bank Limited (MBL) embezzled Rs. 2.10 billion through various fake accounts.
“The Interior Minister told the House that Yunus Habib gave him Rs. 140 million for Mirza Aslam Beg, the former COAS in 1991”. 70 million to late Jam Sadiq Ali Khan, the then Sindh CM, Rs. 20 million for Altaf Hussain, head of the MQM, and a huge amount for other politicians.” All these allegations were countered and categorically denied by the defendant/plaintiff stating in his brief as fabricated allegations by the Home Secretary of the Pakistan People's Party government. It is also on record that Mr. Rehman Malik traveled to Germany twice to stir up the issue
request, which was initially rejected by Maj. Gen® N.K. Babar in the plenary session of the National Assembly.
(8) In the above statement mentioned by Mr. Yunus Habib, there was no mention of Rs. 1800 million and other charges he is now talking about and asserts that he was told to produce this amount "by hook or by crook".
(9) That he really tired of developing a new story, to cover his own misappropriation of Rs. 1.8 billion from Habib Bank/Mehran Bank for which he was sued, arrested and made to pay almost double the amount exceeding Rs. 3 billion Thus, "politics" and "crime" were mixed to create a space for the denial of justice.
(10) That I cannot adequately respond to the statement of Mr. Yunus Habib, without having before me the report of the Mehran bank scandal committee and the Habib bank scandal committee and I seek the leniency of this Honorable Court to order the Federal Government of Pakistan People's Party to provide me with a copy thereof so that I can file my detailed reply to the malicious, motivated and absolutely false allegation against the respondent witness/plaintiff.
(11) That the applicant/respondent takes this opportunity to present before the Honorable Court the consistent attitude of various PPP governments towards the judiciary and the armed forces and spares no opportunity to tarnish the image of these two institutions.
(12) That I have no doubt that the bundle of lies Mr. Yunus Habib has assembled in his deposition is inspired by the political expediency of vested interests and by Yunus Habib's attempt to sanctify his nefarious dealings by associating the matter with the "raising funds for the elections, for the national interest".
(13) That this statement is a cover-up of his own crime, he was found guilty and punished according to law. It was a separate matter, which was dealt with by the Commissions of Inquiry of Habib Bank and Mehran Bank.
(14) That by submitting this Affidavit, I sincerely thank this Hon'ble Court for making me complete my hat-trick of appearing three times before this supreme court: first before Justice M. Afzal Zullah, second before Justice Sajjad Ali Shah and now before this Hon'ble Court under the dynamic leadership of Chief Justice Iftikhar Muhammad Chaudhry. This is an honor bestowed upon me, an honor that no other COAS can claim.
And yet I wonder, "Jane kish jurm ki paye hai saza yad nahen." (For what reason I am being punished, I do not know) Respectfully submitted by Jury in Islamabad on 09/03/2012
DAKOTA DEL ON/-
accused witness
General (R) Mirza Aslam Beg'.
24. Defendant No. 2 also submitted a summary statement dated 08/03/2012 which reads as follows:-
BRIEF STATEMENT FOR DEFENDANT NO. two
LT. GENERAL (R) M. ASSAD DURRANI
Regards Sheweth,
1. That in 8ºIn March 2012, I was instructed by the Hon'ble Supreme Court of Pakistan to comment on the affidavit filed by Mr. Yunus Habib, in HRC Hearing No. 19/1996 (Air Marshal Asghar Khan v. Gen Aslam Beg. These are as follows:—
2. Mr. Yunus Habib deposited Rs. 140 million (Paragraph No. 23 (1) of the Affidavit) in various branches (Paragraph 20) in the accounts opened, by my order, Tax. Hamid Saeed (head of MI and non-ISI formation in Karachi)
3. This fact was also mentioned by me in the statement I signed and delivered to Mr. Rehman Malik, the then D.G. FIA on 06.07.1994 in Germany.
4. I have no information about other issues raised by Mr. Yunus Habib in the famous.
We therefore respectfully pray that a summary statement may be kindly recorded in the interest of justice.
Details: 08.03.2012 Lt. Gen. (R) M. Asad Durrani”
No. 3, in response to the previous counter-explanation from 09.03.2012 of defendant no.
“STATEMENT in reply to the affidavit of General (R) Mirza Aslam Beg dated 9ºMarch 2012 and Lt. Gen. (R) M. Asad Durrani dated 8ºMarch 2012 In the Supreme Court of Pakistan
I, Muhammad Yunus A. Habib s/o A. Habib, resident of Main Sunset Boulevard 11-A-1, DHA Phase II Extension Karachi, hereby submit the following affidavit:
general (D) Mirza Aslam Beg
(1) In reply to paragraph (2) of the affidavit, it is alleged that I have filed the affidavit dated 8.3.2012 in the Hon'ble High Court of Pakistan with all honesty, sincerity to record the truth and there is no doubt The matter shocks the highest court of the country (Supreme Court of Pakistan), presided over by the Chief Justice of Pakistan, Justice Iftikhar Chaudhry.
(2) I have no interest in dramatizing this case and just want to tell the truth before this Hon'ble Court (before death) to enable and enable this Hon'ble Court to reach the right conclusion. It is also stated that since the case was filed by Marshal Asghar Khan in the Supreme Court of Pakistan, I have never met any civilian or military intelligence officer and I have never met any political personality from any political party till I filed my statement in this Hon'ble Court of 8ºMarch 2012.
Only General (R) Mirza Aslam Beg has spoken to me in the last (2) years only (4) to (5) times. (This is in response to paragraph (3) of the affidavit)
(3) Again in reply to paragraph (4) of the affidavit, I have no interest in the politics of the country and can never think of defaming anyone and obstructing the Court. The photo I submitted in the affidavit dated 3/8/2012 is proof of the fact that the President and General (R) Beg coddled me to the extent that I did not refuse their request.
(4) In reply to paragraph (8) it is stated that in my previous statement I said that 1480 crore (one hundred and forty eight crore) was withdrawn from Habib Bank Ltd and not 1800 crore as stated by Gen (R) Aslam prays.
(5) In reply to paragraph (9), it is stated that General (R) Aslam Beg merged Habib Bank and Mehran Bank whereas, to the best of my knowledge, submission by parties of Air Marshall (R) Asghar Khan on the use of money in the 1990 show to prevent the PPP government from winning. and therefore I have confined the disclosure of limited facts to Habib Bank Ltd and have not touched the matter of Mehran Bank except Rs. 150 million was paid to Late Jam Sadiq Ali for the license (as a separate note in the statement).
(6) I am ready to file the statement in the case of Mehran Bank if a case is filed in the Supreme Court of Pakistan or if the Supreme Court itself orders the filing of the statement in this regard.
(7) It is correct to the extent that I have paid an amount of rupees more than (3) billion. Actually I have paid 345 crore so far and only 115 crore is to be paid to Habib Bank Ltd. This amount can easily be paid from the sale proceeds of a 32 acre plot located at Gulshan Block 9 -e-Iqbal . I am 100% sure that the case will be decided in my favor because the City District Govt. withdrew her claim that she paid any sums towards this conspiracy to the Evacuee Trust.
(8) In response to paragraphs 12 and 13, I repeat my view on the previous paragraphs.
Tenente General (R) M. Asad Durrani
(1) In response to paragraph (2) it appears that Maj. Hamid Saeed and Colonel Akbar were introduced to me as ISI officers. However, after the statement of Gen(R) Durrani, the word ISI in paragraphs 20 and 21 may be deleted from my earlier statement dated 8ºMarch 2012.
The above is to the best of my knowledge and belief.
Muhammad Yunus Habib
DAKOTA DEL ON/-
10.03.2012”
Meanwhile, defendant #3 also filed CMA #1034 of 2012 wherein he stated that in his affidavit dated 03.08.2012 reproduced above, he had disclosed that Rs. 70 million was distributed through Mr. Yousaf Memon, a lawyer among these politicians who did not want to receive money directly from the ISI. Mr. Yousaf Memon Advocate in two different TV shows on GEO News channel (one by Kamran Khan and the other by Nazir Laghari) admitted that he bought a house at F-6/2 Islamabad in the name of Mr. Javed Hashmi. He also admitted that 50% of the amount was invested to buy a house (Kasim 1 al-Multan). That after his release he contacted the officials of State Bank of Pakistan and Habib Bank Ltd. for settlement of debts, desiring to settle the debts with NAB facility to which he agreed. Thus, facing a loan of Rs.148 crore, an agreement was reached at Rs. Rs 300 crore (initial loan/advance amount Rs 148 crore and accrued/interest Rs 152 crore).
Out of the said liability, he has paid Rs. 185 crores, which means that the principal liability of Rs. 148 crore has already been paid while Rs. Rs 37 crore has been paid as additional and only the amount of Rs. 115 crores pending payment. in surcharge/interest. He sought the appointment of a judicial committee to recover the amount disbursed through ISI and Mr. Yousaf Memon Advocate, adjust the same to clear the liabilities of HBL. or, alternatively, the responsibility of recovering such money may be assigned to NAB, which is already involved in the process.
25. As per the notification of the Tribunal, the learned Deputy Attorney General, NAB appeared, submitting a report in which he stated that after the award of complaint process within the NAO, the settlement of accounts had already taken place with HBL. Be that as it may, the Court, while assessing the issue relating to the distribution of amounts through the polling station, will not widen the scope of the proceedings for regularization of the personal accounts of accused No. statements requested by counsel for the petitioner, which are as follows:
(a) All members, including the accused officers of the Defense Forces, who acted in a manner to interfere and manipulate the electoral process in any way, including expenditure of resources, subverted the Constitution.
(b) No member of the Armed Forces is bound to obey command in violation of oath and may not accept the defense of command by superiors.
(c) Taking secret funds and not disclosing them constitutes serious vote hunting with consequences under election laws.
(d) Directing the Federation to initiate appropriate proceedings under criminal and electoral laws against alleged donors and recipients of political funds, including the accused and various persons named in the letter from Ltd. Gen (R) Durrani to PM on 7.6. . 94 and sworn statement of 7/24/94."
26. Στις 26/06/1997, ο σοφός τότε Γενικός Εισαγγελέας της Δημοκρατίας παρουσίασε την αρχική αυτεπάγγελτη απόφαση της 25/06/1997, που του απηύθυνε ο Υπουργός Άμυνας, μαζί με το έγγραφο με το οποίο δημιουργήθηκε το ISI. Ωστόσο, κατά την προσκόμιση του εν λόγω εγγράφου ενώπιον του Δικαστηρίου, διεκδίκησε προνόμιο, το οποίο του παραχωρήθηκε προς το παρόν και το έγγραφο του επιστράφηκε την ίδια ημερομηνία. Το γεγονός αυτό αναφέρθηκε στη διαταγή της 26.06.1997, όπου σημειώνεται ότι το περιεχόμενο της επιστολής που απευθυνόταν στον Γενικό Εισαγγελέα της Δημοκρατίας είχε ως αποτέλεσμα τη δημιουργία πολιτικού πυρήνα που υπήρχε ακόμη στο ISI τον Μάιο του 1975. . Όταν το Δικαστήριο ρώτησε τον Γενικό Εισαγγελέα εάν η κυβέρνηση σκόπευε να συνεχίσει με το πολιτικό κύτταρο της ISI, ζήτησε χρόνο για να λάβει συγκεκριμένες οδηγίες. Στη συνέχεια, το θέμα εξετάστηκε στις 23.10.1997 και στις 26.07.1997, αλλά δεν υπήρξε απάντηση επί του θέματος. Έτσι, στις 27.10.1997, ο Γενικός Εισαγγελέας της Δημοκρατίας κλήθηκε εκ νέου να ενημερώσει το Δικαστήριο εάν η Ομοσπονδιακή Κυβέρνηση επιθυμούσε να διατηρήσει το πολιτικό κύτταρο στο ISI, σύμφωνα με τις οδηγίες στις 26.7.1997. Ωστόσο, παρά τις επανειλημμένες ενδείξεις, ο δικηγόρος Γενικός Εισαγγελέας δεν έδωσε καμία απάντηση από την Κυβέρνηση για τη διατήρηση του πολιτικού κυττάρου στο ISI. Ωστόσο, στις 09.03.2012, ο υπ’ αριθμ. 2 κατηγορούμενος, αλλάζοντας την προηγούμενη θέση του, δήλωσε στο δικαστήριο ότι δεν υπήρχε πολιτικός πυρήνας στο ISI, αλλά ότι πολιτική δουλειά θα μπορούσαν να είχαν γίνει από συγκεκριμένα πρόσωπα. Στις 17.05.2012 ο Γενικός Εισαγγελέας της Δημοκρατίας κλήθηκε να λάβει την ειδοποίηση του 1975 από τον τότε Διευθύνοντα Σύμβουλο, με την έννοια ότι δημιουργήθηκε πολιτικός πυρήνας στο ISI, όπως ισχυρίζονται οι κατηγορούμενοι. Με την έναρξη της διαδικασίας, στις 06.04.2012, ο Γενικός Εισαγγελέας της Δημοκρατίας ενημέρωσε ότι αντίγραφο της εν λόγω ειδοποίησης θα παρουσιαστεί την επόμενη ακρόαση. Ωστόσο, την επόμενη ημερομηνία, δηλαδή 22.06.2012, δήλωσε ότι παρά τις προσπάθειές του δεν μπόρεσε να εντοπίσει την εν λόγω ειδοποίηση, ενώ ο Διοικητής Shehbaz, Διευθυντής (Νόμος) του Υπουργείου Άμυνας δήλωσε ότι σύμφωνα με τις πληροφορίες του, η ειδοποίηση ήταν που εκδόθηκε από το Υπουργικό Συμβούλιο του Τμήματος και θα προσπαθούσε να λάβει αντίγραφο της ειδοποίησης από το Υπουργικό Συμβούλιο. Ούτε παρουσίασε το ίδιο την επόμενη ακροαματική ημερομηνία, δηλαδή 16.07.2012, όταν δήλωσε ότι η εν λόγω ειδοποίηση δεν ήταν διαθέσιμη στο Υπουργείο Άμυνας. Υπό τις συνθήκες αυτές, βλέπε αποστολή με ημερομηνία 13 Σεπτεμβρίου 2012, ο Γραμματέας του Υπουργείου Άμυνας της κυβέρνησης του Πακιστάν έλαβε εντολή να υποβάλει γραπτή δήλωση εκ μέρους τους και επίσης να εξηγήσει εάν κάποια από αυτά τα κύτταρα λειτουργούσαν επί του παρόντος στο ISI ή άλλη ελεγχόμενη υπηρεσία. από το Υπουργείο Άμυνας. Επιπλέον, δόθηκε εντολή στον Γραμματέα του Υπουργείου Εσωτερικών να προβεί σε ανάλογη δήλωση σε σχέση με το ΙΒ και όλους τους άλλους φορείς που ελέγχονται από το εν λόγω Υπουργείο. Την επόμενη ακρόαση, ήτοι 03.10.2012, ο μαθητευόμενος Γενικός Εισαγγελέας της Δημοκρατίας συνέταξε επίσημη επιστολή με ημερομηνία 28.09.2012 που του απέστειλε το Υπουργείο Άμυνας, εκφράζοντας σε αυτήν ότι δεν υπήρχε πολιτικός πυρήνας της Διεύθυνσης. σε λειτουργία - Γενικές, Υπηρεσίες Υπηρεσιών Πληροφοριών ή οποιαδήποτε άλλη Υπηρεσία που λειτουργεί υπό τον διοικητικό έλεγχο του Υπουργείου Άμυνας. Στις 04.10.2012, ο Υπουργός Εσωτερικών υπέβαλε γραπτή δήλωση στην οποία ανέφερε ότι το IB/ISI δεν λειτουργεί υπό τον διοικητικό έλεγχο του Υπουργείου Εσωτερικών. Περαιτέρω, κανένα άλλο όργανο υπό τον διοικητικό έλεγχο του Υπουργείου Εσωτερικών δεν διευθύνει κανένα πολιτικό κύτταρο.
27. On 16/6/1997, the statement of respondent #1 was recorded and cross-examined by the petitioner's attorney, Mr. Habib-ul-Wahab Al-Khari, ASC. The distinguished Attorney General of Pakistan, who is mentioned in the Court's announcement, filed a motion seeking to hear the case in camera. Both Mr. Tanto Nasirullah Khan Babar and accused No. 2 filed their detailed statements and indicated therein all the evidence they wished to present as it was to be conducted in cross-examination only. The Court, see order of 06.11.1997, decided to record the subsequent testimony of these people in camera. Therefore, the proceedings were conducted behind closed doors in which the interrogation of the persons in question was recorded. On 05/19/1999 arguments were concluded and sentencing was reserved. However, the office later noted that the in camera statements of Major (R) Nasirullah Khan Babar and Accused No. 2 were not signed by the witnesses or the learned judges who conducted the in camera trial. . Thus, on 06/02/1999 both the witnesses were summoned to Court before Mr. Justice Saiduzzaman Siddiqui, J., as he then was (later CJ). The witnesses, after hearing their statements, verified the veracity of their statements and signed them. Similarly, pursuant to the order dated 27.05.1998, a report in a sealed envelope on the functioning of the ISI (parts IV and V) was also submitted to the Court. It was then pointed out that the statements of the said witnesses, which were recorded in camera, as well as the report on the functioning of the ISI were not on file. Thus, see order dated 29.02.2012, the registry was directed to write the same and produce it at trial in a sealed envelope. During the next session, namely 03/08/2012, the necessary documents were submitted to the Court by the litigator in sealed files. They were opened, viewed, and returned to him with instructions to file them with the Clerk of this Court. The relevant part of the order from 03/08/2012 is as follows:
"According to the order dated 29.02.2012, the office prepared a sealed envelope with the cover "TOP SECRET" "REPORT OF THE COMMITTEE FOR ANALYSIS OF THE FUNCTIONING OF SECURITY AND INTELLIGENCE AGENCIES". The file was opened in Court, which contains four files Part-II (Report of the Committee on the Review of the Operation of Security and Intelligence Agencies (MAR-1989), Part-III (Correspondence) and again Part-II (photocopy of the same report of Commission (March 1989) and again Part III (Correspondence).
2. A careful reading of it shows that the Report of the Committee on the Review of the Business of Security and Intelligence Organizations has not been filed. However, Comdr. Muhammad Hussain Shahbaz, Director (Legal), on behalf of the Ministry of Defence, is authorized to examine these documents in the office of the Registrar of this Court, who will facilitate the case. It is mandated to present the necessary reports corresponding to the year 1990, as well as updated reports on the operation of the security and intelligence services. In the interest of the nation, these documents must be kept CONFIDENTIAL.
3. The file presented to us was handed over to Mr. Rafaqat Hussain, CA/Civil Section Chief-II, who will hand it over to the Registrar of this Court, who will seal it.
4. Another folder was created which contained the following objects:-
"Article no
1. 2 related audio tapes containing details below:-
Cassette No. 1: Closes 20.11.1997 time from 10:30 am. to 11:00 a.m.
Tape No.2: Dated 25/11/1997, 10:00 AM. to 11:00 a.m. and 11:30 a.m. to 1:00 p.m. (side A) dated 26/11/1997 from 11:45 am. to 1:15 p.m. (side B)
Article no
File No. 1: Consists of 3 pages in the original
(Note 28.5.1999 of the then Additional
Registrar in regard to obtaining orders from HJ (1) whether Major General ® Nasirullah Babar and Major General ® Asad Durrani may be asked to read their statements and sign them in the presence of an officer of this Court).
Memo dated 1.6.1999 regarding submission of unsigned statements/interrogation by Major (R) Nasirullah Babar and Lt. Gen. Asad Durrani to the then HJ(1)
Order of 2.6.1999 by Judge Saiduzzaman Siddiqui
File #2 in original:
| numbers srl | Detail (All in the original) | pages |
| 1. | Interrogation Major. general (D) Nasirullah Babar pelo Gen. (R) Nasirullah Babar Mirza Aslam Please | 1-3 |
| 2. | Explanation of General Babar with regarding your inquiry | 4 |
| 3 | Interrogation Major (R) Nasirullah Babar by Habib-ul-Wahab-ul-Khairi (Picturesque) | 5-9 |
| 4 | Interrogation Major (Δ) Nasirullah Babar pelo Sr. Muhammad Akram Sheikh. | 10-21 |
| 5. | Interrogation of Lieutenant General (R) Asad Durrani | 22-25 |
| 6. | Interrogation of Lieutenant General (R) Asad Durrani likes Habib-ul-Wahabul-Khairi | 26-33 |
| 7. | Interrogation of Lieutenant General (R) Asad Durrani hair senior. General (R) Nasirullah Babar | 34-35 |
Article 3:
Copy No. 08 of 11 copies:-
File referring to the report of the committee on the review of the operation of the Security and Intelligence Corps (March 1989) submitted by (i). Air Chief Marshal Zulfiqar Ali Khan, Chairman, (ii). S.K. Mahmud, Home Minister, Member, (iii). Mr. MAK Chaudhry, Member and (iv) Airman Muhammad Yamin, Secretary. (Pages 1-57).
Article 4:
ADO letter no. (Pages 1-8)'.
5. The office also sought to find out whether the main interrogation of General (R) Nasirullah Khan Babar and Lt General (R) Asad Durrani was recorded. According to the report, no such document is available in the registry. However, Mr Salman Akram Raja, an academic at the ASC, representing the petitioner, states that they were questioned about the statements, which have since been archived. Since these proceedings were prepared in camera, therefore, they will be sealed and handed over to Mr. Rafaqat Hussain for filing in the Registry. As for the procedures initiated by the Registry to locate these documents, they are also part of the file and their deposit in the Registry is ordered."
28. Mr. Muhammad Akram Sheikh, counsel for defendant no. The cell in question, which was returned after examination Thus, it is concluded that a political cell has been operating in the ISI since May 1975 and, in the first instance, documents were produced which are now withheld.
29. It is to be noted that based on the contents of various documents/arguments, it is prima facie evident that a cell was allegedly operating in the Presidency in 1990 under the supervision of the then President of Pakistan Ghulam Ishaq Khan (deceased) and M. Roedad Khan and Ijlal Haider were in charge of the affairs of the said cell. As it is also known that once Mr. Farooq Ahmad Khan Leghari (deceased) was the President of Pakistan, some consultations took place between him, late Mohtarma Benazir Bhutto, the then Prime Minister and the late Major. General (R) Nasirullah Khan Babar, where the affairs of the cell formed to support the alliance of political parties were discussed.
30. It should be noted that the President, according to article 41, number 1, of the Constitution, as the head of the State represents the unity of the Republic, while, according to the terms of article 243.2 of the Constitution, he is the Supreme Commander of the Armed Forces of Pakistan. Therefore, the President should not engage in any activity in which a particular group of political parties could be purportedly supported in the national interest. office of the President as party through the Secretary of the President see order of 10.04.2012. On the date of next hearing i.e. 15 October 2012, Malik Asif Hayat, Secretary to the President of Pakistan, in response to the notice, appeared and sought adjournment. On 17.10.2012 he appeared again and stated that according to the records there is no specific information about the creation of an electorate in the Bureau. However, efforts were being made to get hold of such a file. He also said that since the Military Secretary to the President also had some records of the Presidency, the relevant information, if any, would be submitted to the Court after consultation with his office. On 10/18/2012, Mr. Arshad Ali Chaudhry, General Counsel to the House of the President, attended and submitted a statement on behalf of the Secretary of the Armed Forces to the President, stating that the file available in the Office of the President (Personnel), but not found document/file belonging to cell. supposedly housed in the Presidency in 1990 or later.
31. Defendant No. 3 clarified in his statement that it was not Mehran Bank but Habib Bank from which the alleged amount was withdrawn for distribution among a group of politicians, who intended to contest the election on the IJI platform. He said that Interviewee No. 1 spoke to him often. In March 1990, General (R) Mirza Aslam Beg called him and told him that late President Ghulam Ishaq Khan had asked for 350 crores (thirty-five crores) well before the elections, which were to be held soon. for the great national interest. A few months later, he was invited as a guest at Interviewee #1's Colonel-in-Chief inauguration ceremony. In this capacity, President Ghulam Ishaq Khan was the chief guest, but in reality he (Interviewee #3) was treated as the chief guest. During his tenure as SEVP and Board Member as well as Regional Head of HBL, a meeting was held where Interviewee #1 introduced him to Chairman Ghulam Ishaq Khan (deceased) and (Chairman) said that according to his desire, discussed with him (Interviewee #3) the matter related to the disposition of the necessary funds. He further said that after about 45 to 60 days, he was told over phone by interviewee #1 that President Ghulam Ishaq Khan (deceased) wanted to meet him, in which the President should ensure that funds between 35 and 35 rupees and 40 crores to be settled. A meeting was probably held at Balochistan House, Islamabad, where only three persons were present, namely the President, accused No. 1, and himself (Accused No. 3). The President ordered the management of the necessary funds by any means in the national interest.
32. Mr. RoedadKhan, through CMA no. way. According to him, he had never been a member of such a cell, as he had met accused No. 2 only once in the office of the Military Secretary to the President, but he had never met accused No. 1 during the said period.
33. From reading the answers/statements submitted by defendants no. 1, 2 and 3, which have been reproduced above, it appears that the then president Mr. Ghulam Ishaq Khan formed a polling cell directly under his supervision. According to Envoy No. 3, Respondent No. 1 informed him that he was instructed by the President's Election Center to release an amount of INR 140 million in support of the 1990 elections and to release this amount to Respondent No. 2; which will deal with it according to the instructions of the Presidential Election Cell. The amount was not deposited in the MI account, but the 202 investigation wing (Brigadier Hamid Saeed) under ISI command opened several hedge accounts and accused No. 3 deposited an amount of Rs.140 crore directly in these accounts. . Accused No. 2, on the instructions of Accused No.
Accused #1, in a meeting with President Ghulam Ishaq Khan, drew his attention to the fact of donation made by Accused #3 and its use by Accused #2 as per the instructions of the President Election Cell. Respondent No. 1 fully agreed with the entire exercise. The policy of financial support to the candidates was established by the Election Cell of the Bureau and the accused #2 acted under its orders and made the payments as determined from time to time. Of the INR 140 million deposited in the hedge accounts, about INR 60 million was spent for election purposes and for obtaining election information, while the remaining amount of INR 80 million was deposited in the ISI special fund accounts.
34. There was a document, though not yet proved, which said that about INR 30 million was deposited under the instructions of accused No. 1 in the account of an organization with the name and style of "Friends" and General Asif Nawaz Janjua. , the then KOS opposed the deposit of the said amount into the said account. Thus, on 17.10.2012, Commander Hussain Shahbaz, representative of the Ministry of Defence, was asked to inquire the relevant authorities and state whether the remaining amount was available in the said account or whether it had already been spent and if so, what were the details thereof ; But despite the fact that he seized the opportunity, what was necessary was not done.
35. Now, in the presence of the above material, it would be appropriate to first decide the issue of maintainability of the petition raised by Mr. Muhammad Akram Sheikh, Mr. ASC, learned counsel for respondent #1, who submitted that the present petition was filed alleging for misconduct on the part of defendants #1 and #2, which will not attract the jurisdiction of this Court under Article 184, #3 of the Constitution, which is available in a case involving a matter of public importance with reference to the application of any of the Fundamental Rights. It stated that it had raised this objection in 1997 in its brief as well as in its reply to CMA No. 785 of 1997.
36. In response to the above, Mr. Salman Akram Raja, Academician at ASC submitted that the present proceedings raise an issue of great public importance regarding the implementation of various Fundamental Rights of citizens enshrined in the Constitution of Pakistan, 1973, for example, the right to information (Article 19A). the right of association (Article 17) etc., which were violated in this case. Show confidence in the following judgments:
a) Benazir Bhutto v. The Federation (PLD 1988 SC 416) at 518-533.
b) Mian Nawaz Sharif c. The President (PLD 1993 SC 473) at 558, 559.
c) Nawabzada Iftikhar Ahmad Khan Bar c. Election Commissioner Islamabad (PLD 2010 SC 817) at 826 .
d) Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828) em 838.
e) Pakistan Labor Party v. Federation of Pakistan (PLD 2012 SC 681) at paras 38, 46, 49.
37. Learned counsel also submitted that it is proved in this case that the democratic process was interfered with at the relevant time by some State officials to the detriment of the fundamental rights of the citizens guaranteed under Article 17 read with Article 2A of the Constitution which amounts to subverting the Constitution. These included, inter alia, accused #1 and #2 and several of their subordinate officers like Brig(R) Hamid Saeed, then MI Chief Sindh and others, who were responsible for the distribution of funds and whose names would be available in The accused No. 2 and Brigadier General (R) Hamid Saeed.
38. Learned counsel submitted that in the light of the law laid down in Mian Nawaz Sharif's case (supra), due to the admission made by the accused, there was a concerted effort to subvert Article 17 and therefore to subvert the Constitution. He also submitted that in compliance with the fundamental rights of individuals, this Court not only made necessary pronouncements but also issued necessary directions to the concerned bodies to initiate action against all those responsible according to the citizens, electors and citizens. applicable criminal charges. In this sense, he relied on the following cases:-
a) Alleged corruption in rental factories (2012 SCMR 773). The National Accountability Office asked to prosecute.
b) NRO Implementation Proceedings (2012 SCMR 1434), (PLD 2012 SC 866).
c) Watan v. The Federation (Matter of Note) (PLD 2012 SC 292). The High Power Committee is formed.
Likewise, he submitted that this Court, in the exercise of the jurisdiction conferred upon it by Article 184.3 of the Constitution, is competent to shape the hold to be granted in the matter brought before it according to the facts and circumstances arising in the proceedings. . In support of the previous proposition, he referred to the following cases:
a) Watan Party v. USA. The Federation (memorandum), PLD 2012 SC 292 at pp. 359, 360.
(b) Watan Party v. State. The Federation, (Karachi Suo Motu), PLD 2011 SC 997 at 1055, 1112.
γ) Shahid Orakzai γ. The Federation, PLD 2011 SC 365, Number 28.
d) Mrs. Amatul Begum v. Muhammad Ibrahim Sheikh, 2004 SCMR 1934, para 8.
Learned counsel further stated that the present suit is not an adversarial one as it is being used to present to the people of Pakistan things that happened in the past with a view to prevent the same or similar constitutional violations in the future. Article 19A of the Constitution guarantees the right to information. The petitioner in this case is merely an informant and as the information develops it is for the Court to award damages. Regarding the relief that can be granted under section 184(3), the learned counsel referred to Shahid Orakzai v. Pakistan through the Registrars Act (PLD 2011 SC 365) by which this Court held as follows:
"28. ……as a cancellation of the previous appointment of the accused and his new appointment as President, the National Accountability Bureau was conducted during the processing and hearing of the present petitions and when the said fact was brought to the notice of the Court by the Federation of Pakistan Therefore, we have decided to deal with this development as part of the pending case and decided to determine its impact thereon without requiring the petitioners to amend their submissions in relation to the said development. It cannot be disputed that the law is now settled in the sense that a court trying a case may not only take cognizance of any relevant fact occurring during the course of the proceedings of the law but may also formulate the compensation to be to grant a view of said event. and none of the learned counsel representing the various parties in these petitions disputed that legal position or objected to the course adopted by us in this regard.'
39. Ακούσαμε τον πληρεξούσιο δικηγόρο του αναφέροντος, κατηγορούμενο #1, και τον εισαγγελέα του Γενικού Εισαγγελέα. Στο πλαίσιο της παρούσας υπόθεσης, η παρατήρηση του δικαστή Muhammad Afzal Zullah, J, όπως ήταν τότε (μετέπειτα επικεφαλής δικαστής) στην υπόθεση Benazir Bhutto (PLD 1988 SC 416) που προβλέπει το άρθρο 17 παράγραφος 2 του Συντάγματος Μια βασική εγγύηση προς τον πολίτη έναντι της εισβολής της προθυμίας του να συμμετέχει ελεύθερα στις υποθέσεις και τη διακυβέρνηση του Πακιστάν μέσω συναφών πολιτικών δραστηριοτήτων είναι εξαιρετικά σημαντική. Στην υπόθεση Benazir Bhutto v. Ομοσπονδία του Πακιστάν (PLD 1989 SC 66), ο δικαστής Nasim Hasan Shah, στο συνεκτικό σημείωμά του, έκρινε ότι «το δικαίωμα σύστασης ή μέλους πολιτικού κόμματος» που κατοχυρώνεται από το άρθρο 17 παράγραφος 2 του Συντάγματος περιλαμβάνει το δικαίωμα διεκδικήσει και συμμετάσχει στις εκλογές. Στην περίπτωση του Mian Muhammad Nawaz Sharif (ανωτέρω), το Δικαστήριο αυτό, με βάση την περίπτωση της Benazir Bhutto (ανώτερα), έκρινε ότι, στο πλαίσιο του Συντάγματος, η εγγύηση «σύστασης πολιτικού κόμματος» πρέπει επίσης να ληφθεί υπόψη περιλαμβάνουν το δικαίωμα αυτού του πολιτικού κόμματος να σχηματίσει κυβέρνηση, υπό την προϋπόθεση ότι το εν λόγω πολιτικό κόμμα έχει την απαραίτητη πλειοψηφία στη Βουλή. Θεωρήθηκε επίσης ότι εάν η ομαλή λειτουργία μιας κυβέρνησης ή πολιτικού κόμματος ματαιώνεται από παράνομη εντολή, η εν λόγω εντολή αποτελεί εμπόδιο για την εύρυθμη λειτουργία του πολιτικού κόμματος και ως εκ τούτου θα συνιστούσε παραβίαση του θεμελιώδους δικαιώματος που παρέχεται από το άρθρο 17. . 2). Η ίδια γνώμη επαναλήφθηκε από το Δικαστήριο στην υπόθεση Muhammad Nasir Mahmood v. Ομοσπονδία Πακιστάν (PLD 2009 SC 107). Πρόσφατα, αυτό το Δικαστήριο, στην υπόθεση του Εργατικού Κόμματος του Πακιστάν (ανωτέρω), έκρινε, μεταξύ άλλων, ότι το άρθρο 2Α προβλέπει ρητά ότι «…οι αρχές της δημοκρατίας, της ελευθερίας, της ισότητας, της ανεκτικότητας και της κοινωνικής δικαιοσύνης, όπως διακηρύσσονται από το Ισλάμ πρέπει να είναι πλήρως παρατηρείται» στην Πολιτεία του Πακιστάν και ότι η προστασία και η προώθηση αυτών των αρχών αποτελεί αναπόσπαστο στόχο και ουσιαστικό χαρακτηριστικό της Συνταγματικής Τάξης του Πακιστάν. Αυτή η Συνταγματική Διάταξη θεωρήθηκε επίσης ότι δηλώνει ότι «η εξουσία [θα] ασκείται από τον λαό του Πακιστάν». Διασφαλίζοντας την τήρηση των «αρχών της δημοκρατίας» στο Πακιστάν και προβλέποντας ότι «το κράτος θα ασκεί τις εξουσίες και την εξουσία του μέσω αντιπροσώπων που εκλέγονται από τον λαό», το Σύνταγμα προβλέπει ότι αυτή η εξουσία θα ασκείται από και μέσω μιας αντιπροσωπευτικής κυβέρνησης και δημοκρατικής . . Επιπλέον, καθιερώνοντας και απαριθμώντας τις εξουσίες και τον τρόπο με τον οποίο πρέπει να λειτουργεί το νομοθετικό σώμα, τα Μέρη ΙΙ και ΙΙΙ του Συντάγματος καθιερώνουν τη «δημοκρατία» ως το σύστημα που επιλέγει ο λαός και ως θεμελιώδη συνταγματική επιταγή. Αυτή η συμβιωτική σχέση μεταξύ της «δημοκρατίας» ως συστήματος διακυβέρνησης και του στόχου της «προώθησης και προστασίας των θεμελιωδών δικαιωμάτων που διακηρύσσονται από το Ισλάμ» διατηρεί και ενισχύει και τις δύο συνταγματικές επιταγές ως βασικά χαρακτηριστικά του Συντάγματος. Υπό αυτή την προοπτική, επαναλήφθηκε ότι η ελευθερία του συνεταιρίζεσθαι, που προβλέπεται στο άρθρο 17 του Συντάγματος, παρέχει σε κάθε άτομο το θεμελιώδες δικαίωμα συμμετοχής στην πολιτική διεύθυνση του κράτους, ενώ ενισχύει τη συνταγματική εντολή για προστασία και προώθηση αυτού του δικαιώματος. ένα δημοκρατικό κράτος. Το άρθρο 51 παράγραφος 6 στοιχείο α) του Συντάγματος ορίζει ότι οι αντιπρόσωποι του λαού «εκλέγονται με άμεση και ελεύθερη ψηφοφορία σύμφωνα με το νόμο», επομένως οι δίκαιες, ελεύθερες, έντιμες και αμερόληπτες εκλογές αποτελούν εκ των ων ουκ άνευ προϋπόθεση. για την ενίσχυση της δημοκρατίας. Σημειώθηκε επίσης ότι το δικαίωμα σύστασης πολιτικού κόμματος σύμφωνα με το άρθρο 17 του Συντάγματος περιλαμβάνει το δικαίωμα συμμετοχής σε ελεύθερες και δίκαιες εκλογές και σχηματισμού κυβέρνησης εάν ένα τέτοιο κόμμα είναι επιτυχές διότι η «συμμετοχή» στην εκλογική διαδικασία συνεπάγεται απαραίτητα ότι Κάθε άτομο και κάθε ομάδα της κοινωνίας μπορεί να συμμετέχει αληθινά στην εκλογική διαδικασία, ως ψηφοφόρος και υποψήφιος, χωρίς περιορισμούς, εξαναγκασμούς, παράνομες παρακινήσεις ή υποταγές. Κατά συνέπεια, κάθε αντισυνταγματικός περιορισμός του δικαιώματος συμμετοχής στις εκλογές και σχηματισμού κυβέρνησης ισοδυναμεί με μείωση του δικαιώματος που προβλέπεται στο άρθρο 17 παράγραφος 2 του Συντάγματος. Ως εκ τούτου, τονίστηκε ότι η συνδυασμένη ανάγνωση του άρθρου 17 παράγραφος 2 και του άρθρου 25 του Συντάγματος παρέχει «ίσους όρους ανταγωνισμού» για τις εκλογικές διαδικασίες. Η αρχή των ελεύθερων και δίκαιων εκλογών τονίστηκε επίσης στην ινδική δικαιοδοσία στην περίπτωση του Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1972 SC 1302) = [(1975) Comp. 1 SCC 1] στην οποία το Δικαστήριο ανακάλεσε ακόμη και συνταγματική μεταρρύθμιση για παραβίαση της προαναφερθείσας αρχής. Αργότερα, στη Λαϊκή Ένωση για τις Πολιτικές Ελευθερίες v. Ένωση της Ινδίας (2009), υποστηρίχθηκε ότι η δημοκρατία προβλέπει ότι οι εκλογές πρέπει να είναι ελεύθερες και δίκαιες και οι ψηφοφόροι πρέπει να μπορούν να ψηφίζουν για τους υποψηφίους της επιλογής τους.
40. As stated above, President Ghulam Ishaq Khan dismissed the PPP Government on 06/08/1990 in exercise of the powers conferred on him by Article 58(2)(b) of the Constitution. New elections were set for 24.10.1990 and Mr. Ghulam Mustafa Jatoi (deceased) was appointed Acting Prime Minister. To contest the elections against the PPP, a political alliance called the IJI was formed. The then President of Pakistan Ghulam Ishaq Khan, having differences/rivalries with the PPP, supported the IJI through the Election Cell established in the Presidential House. Funds were collected for this purpose and distributed to various politicians/political parties through ISI/IB. In this way, the 1990 elections were rigged and, as the petitioner's counsel alleges, the PPP won half the seats in the National Assembly as compared to the seats they had won in previous elections. Thus, the people were allegedly deprived of their fundamental right under Article 17 of the Constitution to participate in free, fair and just elections, particularly in the formation of national or provincial assemblies when the intervention was carried out by a person not inferior to an official who was the head of state and a symbol of unity in terms of Article 41(1) of the Constitution, he thus managed to form a government through a group of political parties of his choice.
41. It is to be noted that the present proceedings were initiated by a letter addressed to the then Supreme Court by a political functionary, former officer and chief of the Pakistan Air Force, which drew the attention of the Court to certain actions of senior officials including the then Head of State, Chief of Army Staff and Director General of ISI. The allegation mainly related to the fact that, in bad faith and with a view to benefit a particular group of politicians, they had interfered in the electoral process, violating the fundamental right of the people at large to elect their representatives fairly, freely and fairly. .fair choice, it has been hacked. To ascertain the accuracy of the complaint, the case was registered as a Human Rights case and those allegedly involved in the distribution of resources were summoned. It is clear to all that the amounts were disbursed to a group of politicians by individuals, members of the Armed Forces, i.e. ISI and MI, in order to manipulate the election results in derogation of the Fundamental Right guaranteed under Article 17 (2) of the Constitution as interpreted by this Court in the aforementioned decisions. This case is of great importance and the Court, in exercising its jurisdiction under Article 184(3) of the Constitution, is called upon to live up to its responsibility to give effect to the fundamental rights of the people guaranteed by the Constitution. Thus, the plea regarding maintainability of the petition is dismissed and held to be maintainable. It is further observed that these proceedings, being controversial in public interest, are inquisitorial and not adversarial, so it is not for the Court to mention all the alleged parties involved in the matter. It is well settled that this Court has wide powers and jurisdiction to try a case falling within the ambit of inquest proceedings. Reference may be made to Watan Party v. Federation of Pakistan (PLD 2011 SC 997), All Pakistan Newspapers Society v. Federation of Pakistan (LDP 2012 SC 1) and the case of the Pakistan Labor Party (above).
42. The learned Attorney General submitted that there was a strong appearance of partiality on the part of the Magistrates constituting the present Court, therefore, according to him, if justice is to be done, then the three Exmos. Honorable members may consider resigning from the Court and the Honorable President of the Court may constitute a larger bench excluding the current three Honorable members of the Court.
43. The issues involved in this case have to be considered in the light of the aforesaid material placed before the Court, therefore, before proceeding with the exercise, we consider it appropriate to consider the arguments of the Attorney General on bias. by the Judges and their request for a larger panel.
44. A somewhat similar objection was raised in Pakistan v. Abdul Wali Khan (1975 PSCR 1) in relation to the sitting of the two Judges in the Bench who heard that case in which, at page 214 of the report, it was commented as follows:
“On the challenge presented to the statute of the Court, learned counsel have been informed from day one that neither party to a dispute can claim the right to be tried by a particular judge or judges of their choice. In the case of higher courts, it is solely up to the judge(s) concerned to decide whether or not to participate in the particular case. Mr. Wali Khan was informed that both the Judges, against whom the appeal was filed, recorded written minutes which were placed on the record of these proceedings to declare that they were not ashamed to sit and hear these proceedings. Therefore, in our view, the plea based purely on conjecture is untenable. The judges involved are fully aware of their responsibilities. There is nothing to show that they are in any way excluded from hearing this report.
The appeal is therefore dismissed." In Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), ruled as follows:
“… … The mere perception in the mind of a litigant that justice cannot be done on the basis of inferences drawn from circumstantial evidence will not justify the formulation of the exception. No feebler motive can be afforded to anyone to attack the impartiality of a superior court, and accordingly, if the evidence does not meet the required standard, it may be held in contempt” (emphasis added) S.A. Rehman, J., who was also one of the panel members who heard from M.H. The Khondker case (supra) concluded as follows, on an allegation of bias by one of the parties against a judge of the High Court:
Reference may also be made to the Pakistan Bar Council Canons of Professional Conduct and Etiquette, Chapter III (Duties in Court), which reads as follows:
(1) It is the duty of the Advocate to maintain a respectful attitude towards the Court, not for the sake of the temporary beneficiary of the judicial office, but for the preservation of its supreme importance. Judges, who are not entirely free to defend themselves, have a peculiar right to receive the support of the Bar against unfair criticism and clamor. At the same time, whenever there are sufficient grounds for filing a complaint against a judicial officer, it is the right and duty of a lawyer to raise such complaints and seek legal redress and protect the complainant and the aggrieved person.
Therefore, it is well established that, in the case of superior courts, it is solely for the judges concerned to decide whether or not to join in a particular case. In the present case, the challenge raised by the Attorney General is purely speculative and baseless, especially since the Attorney General himself attended the case and participated in the proceedings since it began to be heard by this Chamber in April this year. period, the case was heard on more than 30 dates. Be that as it may, the members of this Chamber are fully aware of their responsibilities and are capable of administering justice without fear or favor, ill will or affection. The objection of the Attorney General is without merit and is rejected.
45. It is also shown in the present proceedings that the then President was directly involved in the matter of obtaining funds from an illegal source and then disbursing the same to a group of political parties and various other persons through members of the Armed Forces on behalf of great national interest with a view to influencing the election results in derogation of the right of the people to freely elect their representatives. The Court is then invited to discuss the role of the President of the Republic within the framework of the Constitution.
46. Historically, it goes without saying that the office of the president, both under military and civilian governments, has been handed over to politics. There were constitutional derogations, from time to time, due to which the parliamentary system weakened and could not flourish in the country as envisaged by the Constitution. The political impasse was summarized by this court in Sindh High Court Bar v . Federation of Pakistan (PLD 2009 SC 879) as follows:-
"17. … … The first important event in this regard 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, Speaker of the Constituent Assembly, in the High Court of Sindh. The Sindh High Court accepted the plea and declared the dissolution of the Assembly illegal. Acts of the Constituent Assembly, when not acting as a federal legislature, were held not to require the assent of the Governor-General. The Federation of Pakistan challenged the decision of the Sindh High Court in the Federal Court. The Federal Court reversed the judgment of the Sindh High Court on the ground that the assent of the Governor General is required for the operation of all laws and amendments made in the Government of India Act, 1935. Section 223-A of the Act the Government of India under which the Sindh High Court assumed the jurisdiction to issue the writs did not receive the consent of the Governor General, it was not yet a law and therefore the High Court had no jurisdiction to issue the writs. …….
23. The next major case was His Excellency the Governor General's, reported as PLD 1955 FC 435. The Federal Court held in Maulvi Tamizuddin Khan's case that the Governor General's assent was necessary for all laws passed. by the Constituent Assembly, the Governor-General sought to ratify the said Acts by expressing his assent, retrospectively, through the Emergency Powers Ordinance, 1955 (Ordinance No. IX of 1955) made under section 42 of the Government of of India, 1935 The Federal Court in Usif Patel's case, however, held that the Acts mentioned in the Schedule to this Ordinance could not be applied under section 42 of the Government of India Act, 1935, nor could they have retrospective effect . It was noteworthy that the Constituent Assembly ceased to function, having already been dissolved by the Governor-General by Proclamation of the 24ºOctober 1954 and there was no competent legislature to enact these laws.
24. The Governor-General referred to the Federal Court under section 213 of the Government of India Act, 1935, seeking the opinion of the Court as to whether there was any provision in the Constitution or any rule of law applicable to the situation. by which the Governor-General may, by Ordinance or otherwise, declare that all orders given, resolutions passed, and other acts done under these laws shall be valid and executory, and that these laws, that they shall not can be removed from the State without endangering the existing legal system of the State, they must be treated as part of the law of the land until the question of their validity is determined by the new Constitutional Convention.
25. The answer of the Federal Court (by a majority) was that, in the situation presented by the reference, the Governor-General had, in the interim period, the common law power of civil or state necessity to ex post validate laws which enumerated in the appendix to the Emergency Powers Ordinance of 1955, and all such laws, until the question of their validity was decided by the Constituent Assembly, were, during the said period, valid and enforceable in the same manner as they would have been in force from the date at which they intended to enter into force.
The State v. Dosso (PLD 1958 SC 533) has been commented as follows:
"28. The Supreme Court, based on the theory proposed by Hans Kelsen, gave legitimacy to the seizure of power by General Ayub Khan, considering that the coup was a legitimate means of bringing about governmental changes and especially when the new order brought with it for the change were accepted by the world. It was held that when a Constitution and the national legal order under it were interrupted by an abrupt political change outside the contemplation of the Constitution, then such change would be a revolution and its legal effect would be not only the destruction of the Constitution but also its validity Constitution.of the legal system at the national level, regardless of how or by whom said change is made. Consequently, according to the majority decisions, the appeal proceedings in each of these cases were considered extinguished. The result was to quash the directions issued and the orders of the High Court."
The case of Asma Jilani v. Government of Punjab (PLD 1972 SC 139) has been discussed as follows:
"32. It has been argued that Kelsen's theory was by no means a universally accepted theory, nor one that could claim to have become a basic tenet of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory that favored totalitarianism.
33. The usurpation of power by Yahya Khan having been declared totally illegal by the Supreme Court, it was questioned whether all (legislative measures and other acts) done during his illegal rule, whether good or bad, could be treated with the same way. is characterized as illegal and void. …” On the following constitutional exception, which occurred in 1977, this Court, in Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) held that the Pakistan Armed Forces, led by Chief of Army Staff General Mohammad Zia-ul-Haq, had intervened to save the country from further chaos and bloodshed, for to preserve its integrity and sovereignty and to separate the warring factions that brought the country to the brink of destruction. This was actually considered an extra-constitutional step, but it was dictated by reasons of state necessity and the welfare of the people. Subsequently, the validity of the 1999 constitutional derogation was considered by this Court in Syed Zafar Ali v. Federation of Pakistan (PLD 2000 SC 869) and by the Short Order dated 12.05.2000, the suit dated 12.10.1999 was upheld on the basis of the doctrine of State necessity and the principle of salus populi est suprema lex as embodied in the case of Begum Nusrat Bhutto. It was also stated that General Pervez Musharraf had the right to execute all acts or legislative measures which were in accordance with the Constitution or which could have been passed under it, including the power to amend it and to execute all measures enacting or directing in determining their stated objectives. Regarding the power to amend the Constitution, it was held that constitutional amendments could be used only if the Constitution did not provide a solution to achieve the stated objectives, but no amendment should be made to the most important features of the Constitution, i.e. independence of power. judiciary, federalism, parliamentary form of government combined with Islamic provisions. and last but not least, a period of three years from the date of acquisition of the Army i.e. 12ºOctober 1999 was granted to achieve the set targets. … … The appeal for review against the aforesaid sentence was filed by Mr. Wasim Sajjad but was dismissed vide the sentence notified as Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233). It is important to note that General (R) Pervez Musharraf issued the Presidential Succession Order 2001 (Chief Executive Order No. III 2001) on 20.06.2001 whereby Mr. Muhammad Rafiq Tarar, President of Pakistan, was dismissed and he himself took office on June 21, 2001.
47. The last significant event in the successive constitutional derogations was the imposition of the state of calamity and the promulgation of the CPO on 11 March 2007, which was considered by this Court in the Sindh High Court Bar Association case. For the first time in our constitutional history, a 7-member panel of this Court granted an injunction against the imposition of emergency and the execution of the CPO on the same day, and Justices of the Peace of the Superior Courts refused to be sworn in under the new dispensation. . This sparked an enthusiastic movement of lawyers, joined and supported by members of civil society and the media, who continued to demand the restoration of the unconstitutionally deposed judiciary on 11.03.2007. Accordingly, on 16 March 2009, the Government of Pakistan restored the judiciary. Subsequently, several petitions were filed before the Court questioning the actions of the President/Chief of Army Staff, General (R) Pervez Musharraf. On July 31, 2009, this Court accepted the arguments in its judgment in the Sindh High Court Bar Association case, which found, inter alia:
"22. As a result:-
(i) the Supreme Court of Pakistan; the Judges of the Supreme Court of Pakistan; the President of any of the High Courts and the Magistrates of the High Courts who have been declared separated from their respective posts in accordance with the said alleged sentences or any other similar penalty and by virtue of the acts referred to in paragraph 21 above, they shall be deemed never to have ceased to be such Judges, whether their re-election or reinstatement has been notified;
ii) it is stated that the office of the Supreme Court of Pakistan was never vacant on November 3, 2007 and therefore, it is further stated that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was not constitutional. void and without legal effect;
Provided that, subject to the foregoing, the said unconstitutional appointment of Mr. Justice Abdul Hameed Dogar, as the Supreme Court of Pakistan, shall not affect the validity of any administrative or financial acts performed by him or any oath taken before him against the normal course of business of the position in question;
iii) since Mr. Justice Abdul Hameed Dogar was never the Chief Minister of the Constitutional Supreme Court of Pakistan, therefore all the appointments of Supreme Court Justices, Supreme Court Justices and Supreme Court Justices of Pakistan were made, in consultation together of, during the period when he unconstitutionally held the aforementioned position. from 11.03.2007 to 22.03.2009 (both inclusive) are declared unconstitutional, void and without legal effect and cease to exercise their functions immediately.
Provided that judges unconstitutionally appointed to the Supreme Court, while sitting as judges of any of the superior courts, shall revert to the capacity of judges of the respective superior courts, subject to the age of retirement, and likewise, of the judges of the Courts. The superiors, who were District and Sessions Judges before their unconstitutional elevation to the High Courts, will revert to District and Sessions Judges, subject to the retirement limit.
iv) Judges of the Supreme Court of Pakistan, if any, Chief Justices of the Supreme Court, if any, and Judges of any of the High Courts, if any, who were appointed to such posts before 3.11.2007 but took oath or oath in their respective their offices in violation of the order passed by a seven-judge bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869, 2007 in Constitution Petition No. Article 209 of the Constitution. The Secretary, Law Department, Government of Pakistan will take appropriate action in the matter.
Provided that none of the foregoing shall affect Judges who, although appointed as Judges/Presidents of any of the High Courts between 3.11.2007 and 22.3.2009, have subsequently been re-appointed to other posts in consultation with or with the approval or consent of the Chief Constituent Justice of Pakistan?
v) the judgments passed or the orders passed or the decrees passed by any Division of the High Court or any of the High Courts constituting or including the Judges described above, whose appointments have been declared void ab initio, are protected by the principle laid down in MALIK ASAD ALI'S CASE (PLD 1998 SC 161);
vi) whereas the Constitution (Amendment) Ordinance, 2007 is the President's Ordinance no. Territory, have been declared unconstitutional and without legal force, therefore the said High Court of Islamabad shall immediately cease to exist. All court cases pending before the said Supreme Court prior to the adoption of this decision shall be reversed/transferred to the courts that had jurisdiction over said matters prior to the promulgation of Presidential Decree No. 5 of 2007 and presidential decree no. which was published on 14ºDecember 2007. Accordingly, the Judges of the said Court shall cease to be Judges, except the Judges or the Chief Justice of the said Court, who before their appointment to the said High Court of Islamabad were Judges of any other High Court , which will revert to the court from which the judges come, subject to retirement age. The directors and officers of the aforesaid Court shall also cease to exercise their respective mandates and join the excess collection of the Union for their future appointments. However, if such officer or employee was an officer or employee of any other court, department or office, such officer or employee must revert to the respective court, department or office to which he belonged before joining the service in the Islamabad High Court. . , again subject to retirement age. We would like to mention here that the establishment of a High Court or Federal Court for the Federal Capital Territory may be a desirable act but it is unfortunate that such a step has been taken in an unconstitutional and highly unacceptable manner. We may, therefore, add that, subject to what is provided and ordered, the competent and competent authorities may order the establishment of the said court in accordance with the Constitution/law.
vii) Decrees issued by the President or the Governor of a Province prior to 11.03.2007 which have remained in Interim Constitutional Decree no. 2007 (both days inclusive) which were also given permanency by the same act and whose enactments together with the aforesaid Interim Provision of the Constitution were upheld by the aforesaid penalty imposed in the TIKKA IQBAL MUHAMAD KHAN CASE, are deprived of their purported permanence on account of our previous statements. In view of the fact that the said decision in TIKKA IQBAL MUHAMMAD KHAN CASE is a decision of this Court, the presumption that the said Ordinances were valid laws which did not require the approval of Parliament or the respective Provincial Assemblies under Article 89 or 128 of of the Constitution and since today the Court declared the annulment of the above-mentioned legislative diplomas, for this reason the period of 120 days and 90 days mentioned in the above-mentioned article 89 and in the above-mentioned article 128 of the Constitution, respectively, will be considered fulfilled.. started from today, and such ordinances may be laid before the Assembly of the Republic or the respective Provincial Assemblies in terms of law, viii) by the Constitution, through Article 176. Supreme Court of Pakistan and, by Parliament, through the Supreme The law of the Tribunal XXXIII (Number of Judges) of 1997, therefore the increase in the strength of the Judges through the Finance Act 2008, the Act of which was not passed, would be considered valid by Parliament but only by the National Assembly. only for financial purposes and not for the purposes of Article 176 of the Constitution. Thus, it is declared that the number of judges of the Supreme Court for the purposes of the aforementioned Article 176 will continue to be sixteen.
ix) in the Code of Ethics established for Justices of the Peace of the Supreme Courts under the terms of art. 209, no. unconstitutional official who acquires power in a manner different from that provided for by the Constitution and that the violation of this paragraph is considered unacceptable under the terms of the aforementioned Article 209 of the Constitution.
x) in view of our earlier findings that Mr. Justice Abdul Hameed Dogar is not a constitutional and competent counsel, the notification dated 26.08.2008 and the notification dated 15.09.2008 extend Mr. Justice Abdur Rasheed Kalwar and Mr. .Justice Zafar Ahmed Khan Sherwani as Additional Judges of the Sindh High Court were declared unconstitutional and without legal force.
xi) that the court recognizes and respects the mandate given by the sovereign authority, i.e. the electorate, to the government democratically elected on 18ºFebruary 2008 and would continue to zealously guard the principle of separation of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this motion shall not in any way 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, all that these institutions do. in the performance of their duties. These acts are fully protected in terms of the old principle of Salus populi est suprema lex reflected in PLD 1972 SC 139.
xii) Before concluding the sentence, we wish to reiterate that the defense, protection and enforcement of the Constitution is a sacred function of the Federal High Court. The Constitution in its preamble, among other things, states that there must be democratic governance in the country, “where the principles of democracy, freedom, equality, tolerance and social justice proclaimed by Islam must be fully respected. …………..where the independence of the judiciary must be fully guaranteed". In making this judgment, these enduring values weighed heavily on us. We are confident that the current democratic legislation, which includes the president, prime minister and parliament, will also support these values and the mandate of their oaths."
48. It is important to point out that under the previous sentence, the judges of the High Courts were subjected to the constitutional administration because they did not uphold any unconstitutional order for the governance of this country. Before this, military adventurers had run into this country from time to time in the name of the so-called doctrine of state necessity or necessity.
49. It must be noted that during the period when the country was declared unconstitutional, the Judiciary and Parliament had facilitated the adventurers as mentioned above, but in the case of the Sindh High Court Bar, all the previous decisions were reviewed and Finally, it was held that any unconstitutional act of the Martial Law Authorities could not be upheld by the Judiciary, and, in future, Justices of the Peace of the Supreme Courts will not be sworn in with any unconstitutional resignation. It is also provided that in the Code of Ethics provided for Justices of the Peace of the Supreme Courts in article 209, no. 8 of the Constitution, a new clause is added stating that the said Judge shall not in any way provide support to any official. unconstitutional. which acquires power in a manner other than those provided for in the Constitution and that any violation of the said clause would be considered abusive under the terms of Article 209 of the Constitution. In accordance with the above, the Supreme Judicial Council, established by Article 209 of the Constitution, reformed the Code of Conduct for Judges and incorporated Article IX as follows:
"No judge of the superior judiciary shall lend support in any manner, including taking or swearing contrary to the oath prescribed in Schedule III of the Constitution, to any authority which acquires power by any means other than as provided in the article. Constitution of Pakistan”.
50. Thus, having come a long way, during which the country faced an unconstitutional era and the judiciary was also accused of supporting military adventurers, finally, forever, the judiciary as an institution decided not to support any regime, unconstitutional in future. . The aim is to strengthen the institutions of the Parliament/democratic system of governance provided for in the Constitution, according to which the state must exercise its powers and authority through representatives elected by the people (Article 2A of the Constitution).
51. It appears that the military regimes, apart from derailing the parliamentary system of government, have from time to time also crippled constitutional provisions, particularly in the present case by inserting Article 58(2)(b) of the Eighth Constitutional Amendment, 1985 and Seventeenth constitutional amendment, 2003. Through these Constitutional Amendments, the President was strengthened and the parliamentary system of government became a semi-presidential type, as instead of strengthening the Prime Minister of Pakistan, who is the chief executive of the country and the head of the House according to Article 91 of the Constitution, the powers were transferred to the President of Pakistan who was empowered to dissolve the National Assembly under Article 58(2)(b) of the defunct Constitution.
52. Unfortunately, the National Assembly, consisting of elected representatives of the people, was dissolved in 1988, 1990, 1993 and 1996 in the exercise of the powers provided for in Article 58(2)(b) of the Constitution, for which reason together with the Assemblies the Government of Pakistan at the center and the Provincial Assemblies in the Provinces were also dissolved. Fortunately, however, today's Parliament at 18ºConstitutional Reform repealed most of these reforms to the Constitution, introduced in unconstitutional times, led by uniformed generals. What could be more unfortunate for the nation is that from 1977 to 1988 and from October 1999 to December 2007, the President of Pakistan, in the uniform of the Pakistan Army, allegedly acted as its political chairman. Pakistan contrary to constitutional imperatives.
53. The result of the empowerment of the President of Pakistan under the eighth amendment of the Constitution created an atmosphere in which the office of the President remained against the political parties with complete impunity, without realizing the constitutional sanctity of the office of the President, which is the symbol of unity of the Republic and as head of state under the terms of article 41 of the Constitution. Dissolutions of assemblies by the president ordered from time to time under Article 58(2)(b) of the Constitution 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), Case of Mian Muhammad Nawaz Sharif (supra), Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388) and the case of Syed Zafar Ali Shah (supra). A brief overview of such cases is given in Qazi Hussain Ahmed v. General Pervez Musharraf (PLD 2002 SC 853) as follows:-
"19. On 29 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 before the Lahore High Court under its constitutional jurisdiction and in the judgment referred to as Kh. Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lahore 725), the dissolution of the Assembly was declared illegal and the matter came to this Court on appeal. On 17 August 1988, General Muhammad Zia-ul-Haq was killed in a plane crash and Ghulam Ishaq Khan, the then Speaker of the Senate, became the President of Pakistan. This decision of the Court vide referred to as Federation of Pakistan v. Haji Saifullah Khan (PLD 1989 SC 166), ruling on 5 October 1988, upheld the judgment of the Lahore High Court but refused to grant relief from the restoration of the Assembly on the ground that the entire nation was preparing for the scheduled elections. for 16 and 19ºNovember 1988.
20. As a result of the 1988 elections, the Pakistan People's Party, led by Mohtarma Benazir Bhutto, formed the government at the center, while the Islami Jamhuri Ittehad (IJI), with the main component Pakistan Muslim League, led by Mian Muhammad . Nawaz Sharif formed the government in Punjab province. Since the two leaders disagreed with each other, there was a constant state of confrontation. The two were not even willing to meet, let alone negotiate or solve problems and reach consensus on matters of national importance.
21. On August 6, 1990, Mr. Ghulam Ishaq Khan, the then President of Pakistan, made various charges such as corruption and mismanagement, violations of the Constitution, etc., dissolved the National Assembly, dismissed the Mohtarma Benazir Bhutto government as per Article 58 (2)(b) of the Constitution and ordered new elections. The dissolution decision was challenged before the four Supreme Courts. However, the Balochistan and Sindh cases were brought together and heard by the Sindh High Court. Similarly, the NWFP and Lahore cases were consolidated and heard by the Lahore High Court. Both the High Courts, in their separate judgments, distinguished the case of Haji Saifullah Khan and upheld the order to dissolve the assemblies and observed that the President was justified in expressing the opinion that the Government of the Federation was not being carried on in a proper manner. according to the Constitution. . The matter reached this Court on appeal in the case reported as Kh. Ahmed Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646) but the Court refused leave to appeal against the decisions of the High Courts and hence the order of dissolution was upheld.
22. General elections in 1990 returned Mian Muhammad Nawaz Sharif to power, with Mohtarma Benazir Bhutto sitting on the opposition benches. The two continued to enjoy the confrontation. Differences arose between Mian Muhammad Nawaz Sharif and Mr. Ghulam Ishaq Khan, the then President of Pakistan. On 18 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 issue came before this Court in the case reported as Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) and by a majority of 10 to 1, this Court held that the order of dissolution was not within the powers vested in the President under Article 58(2)(b) of the Constitution and others allowing the powers he had at his disposal on his behalf and consequently the National Assembly, the Prime Minister and the Council of Ministers were restored. However, in the peculiar situation that arose then, Mian Muhammad Nawaz Sharif advised the then president to dissolve the assemblies on 18 July 1993.
23. In the elections held in October 1993, Mohtarma Benazir Bhutto, with the help of allied parties, returned to power and Mr. Farooq Ahmed Khan Leghari was elected President of Pakistan, while Mian Muhammad Nawaz Sharif formed the opposition. The degree of tension between the two former rivals has increased significantly. On 5 November 1996, President Farooq Ahmed Khan Leghari dissolved the National Assembly and dismissed Mohtarma Benazir Bhutto's government under Article 58(2)(b) of the Constitution. This dissolution was also challenged before the Court in the case reported as Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), but the action of the President was held to be legal and constitutional.
24. In the elections held in February 1997, Mian Muhammad Nawaz Sharif was returned to power with an overwhelming majority in the Assemblies, with Mohtarma Benazir Bhutto as the leader of the opposition. Mian Muhammad Nawaz Sharif continued his confrontations not only with the opposition, but also with other state institutions, including the judiciary and the armed forces. Former Chief of Army Staff General Jehangir Karamat proposed the formation of the National Security Council, which was not well received by the prime minister and consequently the then Chief of Army Staff had to resign. By the Constitution (Thirteenth Amendment) Act, 1997, Article 58(2)(b) was repealed and the power to appoint Chiefs of Services was vested in the Prime Minister and therefore Mian Muhammad Nawaz Sharif after the resignation of General Jehangir Karamat, who was appointed General Pervez Musharraf as Chief of Army Staff.
25. Differences arose between the Prime Minister and the Chief of Army Staff, General Pervez Musharraf, over the Kargil issue. At one point it appeared that the tension had reached an end when General Pervez Musharraf was appointed chairman of the Joint Chiefs of Staff Committee. However, a few days later, the Prime Minister ordered the dismissal of General Pervez Musharraf as he was returning from an official trip to Sri Lanka and appointed Lt. Gen. Ziauddin Butt as the Chief of Army Staff. This act of the Prime Minister was condemned by the Pakistan Army and was interpreted as interference in the affairs of the Army and an attempt to politicize and destabilize it. The then Prime Minister ordered that the plane carrying General Pervez Musharraf to Pakistan should not be allowed to land at the Karachi airport, but due to the swift action of the Pakistan Army, the Prime Minister failed to achieve his goal. Consequently, the Pakistan Army opposed the Prime Minister's action and Mian Muhammad Nawaz Sharif was dismissed and General Pervez Musharraf, the Chief of Army Staff, took control of the country's affairs.
26. Following the inauguration of the government by General Pervez Musharraf on 14 October 1999, a Proclamation of Emergency was issued in compliance with the deliberations and decisions of the Chiefs of Staff and Commanders of the Pakistan Army. … … The usurpation of power by the Army was challenged in this Court through several constitutional petitions and these were resolved with certain guidelines through a unanimous opinion 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)'.
54. As noted in the preceding paragraphs, in the present case, in the year 1990, the position of the President of Pakistan was once again changed "in the name of national interest" and established an electoral core in the Presidency to support a particular group of politicians, who they formed an alliance to contest the elections against the then ruling political party i.e. Pakistan Peoples Party as is evident from the records available to us. Considering the overwhelming material on record, mentioned above, one of the biggest questions we face is what was the legal justification for the President of Pakistan, the Chief of Army Staff, the Director General, the ISI and various other officers of Army. be part of an unconstitutional and illegal activity? Regardless of the nature and extent of the powers conferred on the President by the Constitution, either before or after the Eighth and Seventeenth Constitutional Amendments, the President of the Republic remains the Head of State and represents the unity of the Republic, therefore, after assuming the his duties as the President of Pakistan, he has a constitutional duty to represent the unity of the Republic as the Head of State and he should not, according to the Constitution, support any favored candidate in the elections or group of political parties as IJI with reference to this case. At this stage, it may be appropriate 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 state and shall represent the unity of the Republic, and wording of the oath prescribed for the holder of the position of the President, which is granted to him before taking up said position. As follows: -
(In the name of Allah, the Merciful, the Merciful.)
I, ____________, solemnly swear that I am a Muslim and believe in the Oneness and Oneness of Almighty Allah, in the Books of Allah, the Holy Qur'an being the last of them, the prophethood of Muhammad (peace be upon him) as the last of the Prophets and that he cannot that there be another Prophet after him, on the Day of Judgment and all the requirements and teachings of the Holy Qur'an and the Sunnah:
That I will have true faith and allegiance to Pakistan: That as the President of Pakistan, I will perform my duties and perform my duties honestly, to the best of my ability, faithfully according to the Constitution of the Islamic Republic of Pakistan and the law and always in the interest of the sovereignty, integrity, solidarity, prosperity and welfare of Pakistan;
That I will not allow my personal interest to influence my official conduct or official decisions;
That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
That in all circumstances I will do good to all kinds of men, according to law, without fear or favour, affection or ill will;
And that I shall not directly or indirectly communicate or disclose to any person any matter that comes before me or comes to my notice as President of Pakistan, except as may be necessary for the proper performance of my duties as President. May Almighty Allah help me and guide me (A'meen)'.
55. The learned Attorney General submitted that, no doubt, the office of the President is a political office. In this regard, he referred to the oaths of the Prime Minister and Federal Ministers, which have similar wording, and argued that their oath is no different from that of other constitutional office holders. In this sense, he also drew attention to the oath of the members of the Armed Forces, which specifically prohibits political activity, but political activity does not exist in the oath of judges, but when we look at the code of conduct, the court will not enter into a political question, therefore judges should not enter into political questions, nor into a legal question involving a political question. He argued that such words do not appear in the president's oath of office. He argued that if a president sympathizes with the party he belongs to, that is natural. He also maintained that the President is not here to destabilize democracy, government and dissolve the Assemblies. However, if there is evidence against the president of election fraud, this is not allowed. He also argued that it is not for the STF to regulate the office of the president, who has no power to add or subtract anything from what is written in the Constitution. Held 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 said that he would adopt Mr. SM Zafar, Mr. ASC executed by him in Pakistan Lawyers Forum v. Federation of Pakistan (LDP 2011 Lahore 382).
56. It may be mentioned here that parliamentary democracies exist today in one of two forms. They are monarchies or constitutional democracies. Historically speaking, the Monarch represented the State. Parliaments and democracy gained power through the right to exercise power in the name of the monarch. Eventually, parliaments became the centers of power and authority, and heads of government and ministers were chosen from among them. The monarch, however, remained the symbol of the state, an image of its unity and identity, regardless of which faction ruled in its name. All the functions of the State, although exercised and decided by elected governments, were performed in their name. This included setting up courts, recruiting civil servants, receiving and sending ambassadors, waging wars, etc. Over time, many countries deposed their monarchs and replaced them with presidents. The nature and function of the Head of State remain unchanged, maintaining the same treatment of dignity, respect and symbolic reverence to the President of the Republic that was given to the King. Moreover, the President's powers were not available to be exercised at his discretion, but continued to be exercised on his behalf by elected representatives of the people. The need for a central axis in the political system that represents the state as an entity above partisanship and inspires the people as a symbol of sovereign independence has maintained the separation of head of state and government in parliamentary systems.
57. Current parliamentary systems are also divided into the world's two great legal traditions. The first is the Common Law tradition which stems from legal developments in England. And the second is the Civil Law (or Roman Law) tradition that prevails in continental Europe and stems from the Corpus Juris Civilis of the Roman Emperor Justinian I. Within these two major legal systems, there are countries that are Parliamentary Constitutional Monarchies, while These Others are Parliamentary Democracies, the only difference between them being that the former states are ruled by Monarchs while the heads of state in the latter are Presidents. However, the relationship between head of state and government is identical across traditions.
58. The common law is a tradition built up from the decisions and precedents of the common law courts. Customary law gives great preference to tradition, continuity and principles of antiquity which are immortalized by incorporation [Mohammad Sohail v. NWFP Government (1996 PLC CS 364)]. The civil system, however, is based on textual sources and reflects a reliance on recourse to written law and its textual rather than historical interpretation. This difference is also highlighted by the nature of the statutes in the two systems. Common law statutes establish a basic premise and rely on precedent to build the interpretation and application of the law, while the civil system believes in the overall codification of principles in writing. This distinction is fully visible in the sheer size of the respective statutes in both systems.
59. The role and nature of the office of President or Monarch are the same in all parliamentary forms of government. What differs is how this role is established. In civil law countries, the role of the president and the limitations on his office and person are detailed in the Constitutions. Almost all the constitutions of the parliamentary democracies of civil law countries contain an article that expressly prohibits the partisanship of presidents in political factions.
60. On the other hand, the relationship between the British monarch and the British Parliament was developed and maintained based on practice and tradition. This is not surprising considering the fact that the UK and even New Zealand do not currently have codified constitutions. The parliamentary system follows the same configuration between head of state and parliament in the common law world and in the civil law world. However, it regulates this relationship through constitutional conventions that support the system, rather than through express provisions. Over time, most common law countries adopted written constitutions, but retained the unwritten conventions binding the codified articles of the constitutions.
61. From this tradition, it is interesting to note that none of the constitutions of the Common Law world (and the former Commonwealth Kingdom) that adhere to the parliamentary system contain express provisions prohibiting the party affiliation of the head of state. Nor do the oaths prescribed therein refer to it. However, at the same time, the constitutional jurisprudence and legal commentaries of jurists in all these countries maintain the same role and position for a head of state, as do the constitutions of civil law countries that retain express provisions.
62. In Pakistan, moreover, we have Article 41 op. which establishes the same constitutional position. Ignoring constitutional conventions and common law traditions regarding the role of the head of state would render the entire structure and written provisions of constitutions dysfunctional. Therefore, although the two systems do it differently, they define exactly the same role for presidents and monarchs in parliamentary systems of government. The need for a symbolic figure to represent the state at its best is fundamental to the structure of the parliamentary system.
63. The constitutional system of government of Pakistan, as set 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 not democracies, for example. Australia, Canada, New Zealand, United Kingdom, etc., which are parliamentary constitutional monarchies. However, Pakistan, like them, also derives important features of its constitutional tradition from the same historical traditions.
64. For comparison with other constitutional arrangements, we have to look at other parliamentary democracies, such as Turkey, Greece, Italy, Germany, etc. Most of them are also Federations, which helps draw closer comparisons to the role of Presidents in those countries. However, these countries have their legal systems based on (Roman) civil law and therefore differ from Pakistan in their constitutional traditions.
65. However, the closest comparison can be made with countries that are parliamentary democracies and also have their constitutional traditions rooted in the Commonwealth of which they were once a part. These include India, Bangladesh, Ireland, Malta, Botswana, Mauritius etc.
66. The role of the 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 virtual position of a token monarch in parliamentary constitutional monarchies. Some of the key features of a president in a parliamentary system are: – Head of state (Article 41) – Ceremonial/ceremonial head of the executive branch – Actions on his behalf are effectively undertaken by elected governments (Article 48) – Commander-in-Chief Commander-in-Chief of the Armed Forces (Article 243) – Symbol of the Union, Federation or State and therefore representative of all States and Central Governments (Article 41) – Indirectly elected (with very rare exceptions) (Second Schedule) – Apolitical/non partisan position It is important to note that all Presidents of Parliamentary Democracies must be apolitical/non-partisan and objectively detached from any and all ties of a political, ethnic, linguistic or geographical nature. For a discussion of the non-partisan role of the president, see Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2011 Lahore 382).67. This is independent of the fact that there are express provisions prohibiting such a commitment in the respective constitutions.
For example, the constitutional provisions or prescribed presidential oaths in India, Bangladesh, Ireland, etc., have no express provisions to prohibit a president from holding political office or holding office in a political party. However, all constitutional commentaries, jurisprudence and conventions require and expect that the president of these countries does not display partiality, preference, prejudice or political association. It goes without saying that this would undermine the unity of the State that the President represents. These countries do not have such express provisions because former Commonwealth countries headed by a British monarch in the past or today rely on constitutional rules and conventions to dictate the exclusion of the head of state from all political office. The Supreme Court of Pakistan ruled in Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) that a constitutional convention, once enacted, has the same binding effect as a constitutional provision and that any violation of such a convention may be treated by the court as a violation of the constitution to which it applies referred to in the convention.
68. An important question that arises in this regard is why parliamentary democracies such as Pakistan, which have codified their constitutions as the basis of their system of government, continue to adhere to constitutional conventions, especially when their own constitutions do not contain express restrictions such as .x. are they in other countries? The answer is captured in our own constitutional history. The framers of the 1973 Constitution had a very clear idea of 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, according to the wording and spirit of the Constitution, was a representative figure of the unity of the republic, as provided for in Article 41 of the Constitution. He played no executive role except following the advice of the Prime Minister, who headed the directly elected National Assembly. We may also add that the historical role of the first President, the late Chaudhry Fazal Elahi, and the first Prime Minister, the late Mr. Zulfiqar Ali Bhutto, can and should be seen as a contemporary exposition of the expected role of the President of the Republic. This is particularly important because the framers and framers of the Constitution, including the late Mr. Zulfiqar Ali Bhutto, were part of the government and therefore responsible for ensuring that the form of government was exactly in accordance with the letter and spirit of the Constitution. . which they themselves had framed. Therefore, we should not look to foreign constitutions, even though they may suggest a presidential role similar to that provided for in our Constitution.
69. There cannot be a better or more specific understanding of the role of the President and the provisions of, inter alia, Article 41 above to show in practice what was intended to be the role of the President. Therefore, as noted above, it is our own constitutional history enacted by a group of elected representatives who wrote the Constitution and implemented it that should inform our understanding of the Constitution and its interpretation. No one could better understand the apolitical and neutral role of the president than the framers of our Constitution. The historical record also shows that although the late Chaudhry Fazal Elahi was originally a member of the Pakistan People's Party, after assuming office as President he did not indulge in party activities of a political nature. In any event, in the spirit of a parliamentary democracy, the working relationship between a non-partisan, apolitical Head of State and a Prime Minister as Chief Executive under our Constitution will be that displayed by the first President and the first Prime Minister under the Constitution 1973. Any deviation from this role would be contrary to our constitutional scheme. We have already argued in Sindh Province v. Rasheed A. Rizvi (PLD 2012 SC 649), that modern exposition is a recognized and well understood way of interpreting a legal text. It enjoys great sanctity and cannot be lightly set aside in favor of a materially different expression.
70. The aforesaid constitutional rule expounded by the modern exposition was distorted and distorted by the unconstitutional intervention of military dictators. They took office as president and then did everything they could to distort the letter, spirit, and outline of the original Constitution. This was done, inter alia, through provisions such as Article 58(2)(b), which, as noted above, was intended to subvert our parliamentary democracy by shifting the center of power from the directly elected Parliament (National Assembly) to a unitary assembly. person who holds the office of President. It is as a result 18ºAmendment deleting Article 58(2)(b) as a departure from the concept of parliamentary democracy. Thus, there has been a reversal of some gross distortions made in the 1973 Constitution. The Constitution, therefore, must be interpreted in the light of our own history and constitutional conventions and ensure the strengthening of parliamentary democracy as originally envisaged. The apolitical role of the President in our Constitution cannot be overstated in light of the historical context narrated above.
71. High courts have used these established rules to interpret the Constitution in landmark decisions such as Al-Jehad Trust v. Federation of Pakistan (LDP 1997 SC 84) and Sajjad Ali Shah v. Asad Ali (1999 SCMR 640). It would be impossible to imagine a parliamentary system that remained a democracy in which an indirectly elected president chose to ignore government advice and act on his own behalf [Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388)].
72. The oaths in most countries are the same as those prescribed for heads of government and ministers. NONE OF THESE COUNTRIES have express provisions prohibiting the political role of the president, but their constitutional jurisprudence requires just that. These countries include Pakistan, India, Bangladesh, Ireland, Canada, Australia. BANGLADESH:
Article 48.
(1) There shall be a president of Bangladesh elected by the members of parliament in accordance with law.
(2) The President, as Head of State, shall take precedence over all other persons of the State and shall exercise such powers and duties as are conferred and imposed upon him by this Constitution and any other law.
Oath:
THIRD APPENDIX
[Article 148]
PADDLES AND CONFIRMATIONS
“I…………, do solemnly swear (or affirm) that I will faithfully discharge the duties of the President of Bangladesh in accordance with law;
That I will have true faith and belief in Bangladesh;
That I will preserve, protect and defend the Constitution:
and that I will do good to all classes of men according to the law, without fear or favour, affection or ill will.
IRELAND:
Article 12.
1. There is a President of Ireland (Uachtarán na hÉireann), hereinafter the President, who shall prevail over all other persons in the State and shall exercise and perform the powers and duties conferred on the President by this Constitution. and by law.
…………………………………………
…………………………………………
8. The President takes office and signs in public, in the presence of members of both Houses of the Oireachtas, the judges of the Supreme Court and the Supreme Court and other public persons, the following declaration:
"In the presence of Almighty God, I solemnly and solemnly promise and declare that I will uphold the Constitution of Ireland and observe the laws thereof, faithfully and conscientiously perform my duties under the Constitution and the law, and devote my abilities to service and welfare of the people of Ireland. May God guide and support me."
In this regard, reference 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 exercising the duties of President shall, before assuming office, place and sign in the presence of the Supreme Court of India or, in his absence, the Chief Justice of the High Court at the disposal of , oath or affirmation in the following form, namely:
“I, A.B., do swear in the name of God that I solemnly declare in good faith that I will fully exercise the office of President (or discharge the duties of President) of India and to the best of my ability to preserve, protect and defend the Constitution and the law and that I will devote myself to the service and welfare of the people of India.'
Ambedkar Physician, Chairman of the Constitution Commission of India, is quoted on page 32 of 'Constituent Assembly Debates: Official Report', New Delhi: Lok Sabha Secretariat 1999 as follows:
“…the President holds the same position as the King
under the English constitution. He is the head of state, but not the executive. He represents the nation but does not rule it. His position in administration is that of a ceremonial device in a seal by which the decisions of the nation 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) states the role of the president in India which is of great persuasive value in describing the role of the president in any Federal Parliamentary Republic with a constitutional arrangement similar to ours:
“We have, in the president and the governor, a copy of a constitutional monarch and a cabinet accountable to Parliament, effectively embodying the conventions of the British Constitution, not a prefabricated project imported from Britain, but a building made in India. with the expertise of British constitutionalism.
… What is the basic fabric, the animating spirit, and the legal ideas of our Constitutional structure and dynamics?
Any scholar of Indian political history and comparative constitutional systems will agree that our constitutional law is partly eclectic but mostly an Indo-English version of the Westminster model with quasi-federal adaptations, historical modifications, geopolitical mutations and indigenous traditions. essentially a mixture of the British parliamentary system and the Government of India Act 1935 and almost American in nomenclature and in some other respects. It is not the Potomac but the Thames that fertilizes the flow of the Yamuna, if we may adopt a riparian picture. In this thesis we are strengthened by the precedents of this Court... Shri K.M. Munshi gave the historic reason for accepting the parliamentary system:
“…it is the majority rule in the legislature, since it supports its leaders in the Council of Ministers, which advises the Head of State, i.e. the King or the President. The King or President is thus placed above the party. It truly becomes the symbol of the unbiased dignity of the Constitution. The power of the Cabinet in England today is nothing less than the powers enjoyed by the President of the United States of America. Because the Prime Minister and the entire Cabinet are members of the Legislature, the conflict between the power exercised by the executive and the legislature is minimized. they really don't exist. because, at any time, the Council of Ministers exists only if it has the support of the majority in the Parliament".
While participating in the same discussion, President Rajendra Prasad said (“Correspondence and Selected Papers:
August to December 1948', by Rajendra Prasad, page xxii, foreword):
“We had to reconcile the position of an elected president with an elected legislature, and in doing so we more or less adopted the position of the British monarch as president…. His position is that of Constitutional President. So let's go to the ministers. They are, of course, accountable to the legislature and offer advice to the President, who is bound to act on that advice. Although there are no specific provisions, so far as I know, in the Constitution itself requiring the President to take the advice of his ministers, it is to be hoped that the Convention under which in England the king always acts on the advice of of his ministers will also be settled in this country and the President, not so much by the written word in the Constitution, but as a result of this very good assembly, will become the Constitutional President in all matters."
These solemn words were spoken by the President of the Constituent Assembly at the great moment when the proposal or final approval of the Constitution was submitted to the House for a vote.
Ambedkar's approach, no doubt accepted, was ("Constituent Assembly of India" - Vol VII, Thursday, 30ºDecember 1948):
“It is the responsibility of the Prime Minister, with the support of Ministers, to govern the country and the President may be authorized from time to time to assist and advise the Cabinet. Therefore, we need to look at the substance and not the mere phraseology that is the result of conventions.
If the "inner voice" of the founding fathers can be any guide, it proves beyond doubt that the President and, to a greater extent, the Governor, enjoy nothing more and nothing less than the status of constitutional head in a cabinet-style government. , with certain exceptions and marginal caveats.
If we hold that in a conflict between a Ministry and a President, the voice of the President must ultimately prevail, either generally or even in a particular class of affairs, this would mean the elimination to some extent of the power of a Ministry constantly subject to its scrutiny or criticism Parliament of the People, in favor of the authority of a President who is not. This would have the effect of reducing the scope of "responsible government". Such an important removal must be justified by certain express provisions of our Constitution.
Does this reduce the president, according to the Indian constitution, to a person? Far from it, as King of England he will continue to have the right to be "advised, encouraged, and admonished." Acting on Cabinet advice does not necessarily mean immediate acceptance of the Ministry's first ideas. The President may express all his objections to any proposed course of action and ask his Ministers in Council, if necessary, to reconsider the matter. Only as a last resort should you accept final advice. It has been observed that the influence of the Crown - and also of the House of Lords - in England increased with every limitation of its legal powers by convention or statute. A similar outcome is likely to occur in India. for as it has been said “the voice of reason is most easily heard when. he can persuade, but no longer coerce.' Principle". These words of constitutional wisdom come from someone who played a key role in shaping the structure of the Republic and had no political commitments. "guiding principle" enshrined in the Constitution, the responsibility will lie with the ministers and not the President.
Sir Ivor Jennings recognized that "the President of the Union or the Governor of 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 points out, gives the president broad powers, but past history must provide the modus vivendi. The analysis with which we are concerned, in the light of the decisions of this Court, is in accordance with the opinion expressed by Mr. [Arthur Berriedale] Keith in the Preface to "The King and the Imperial Crown": [The Powers and Duties of His Majesty] (Longmans, Green and Co, London: 1936):
"It is a public belief in the self-governing domains of the Crown that the Governor-General on official business has no more distinguished purpose than that of the 'seal.'
As for the semantic gap between the verbal and the real, even in England, as William Paley explains (The Works of William Paley by William Paley, Thomas Nelson and Peter Brown, Edinburgh: 1828, page 115):
“There is a big difference between the actual state of the government and the theory. When we consider the theory of the British Government. we see the king invested with... power to repeal laws. Yet when we turn our attention from the legal extension to the actual exercise of royal power in England, we see these formidable privileges reduced to more ceremonial. and in its place a certain and commanding influence of which the Constitution appears to be wholly ignorant.'
In Blackstone's Commentaries on the Laws of England, Dicey said, students can read that the Constitution concentrates all executive power in the hands of the king. "The language of this passage," he observed, "is striking. . . . It has but one defect: the statements it contains are directly opposed to the truth."
The President of India is not a glorified figure. It represents the greatness of the State, it is at the top, even if only symbolically, and it is related to the people and the parties, being above politics. Your watchful presence contributes to good government if you exercise what Bagehot described as "the right to be consulted, to warn, and to encourage." Indeed, Article 78, judiciously used, keeps the President in close touch with the Prime Minister on matters of national and political importance and there is no doubt that the imprint of his personality can chastise and correct the civilian government, even if the U actual exercise of the duties assigned to him by law is exercised by his duly appointed mentors, namely the Prime Minister and his colleagues. In short, the president, like the king, was not only constitutionally idealized, but effectively invested with a pervasive and persuasive role. Political theorists are very familiar with the dynamic role of the Crown, standing apart from politics and power but influencing both. Although it plays this role, it is not a rival power center in any sense and must obey and act on the advice offered by its ministers, except on narrow and sometimes slippery ground.
73. The above statement reflects the position in our Constitution and is also strictly in accordance with the respective roles of the first President and the first Prime Minister (discussed above) elected under the 1973 Constitution. In our opinion, the above decision can for to respond to the arguments of the Attorney General of the said President, within the framework of our constitutional provisions aforesaid. Thus, it is stated that "he (the president) represents the greatness of the State, he is at the top, even if symbolically, and he is related to all kinds of people and parties, being above politics".
Therefore, the president's actions in 1990 in supporting his favorite candidates or a group of political parties were contrary to the fundamental rights of citizens enshrined in Article 17 of the Constitution. As a result, the opposition political party reportedly lost half of its seats in the National Assembly.
74. Returning to the case under consideration, it may be noted that a President of Pakistan before taking office, during his swearing-in, solemnly swears that he is a Muslim and believes in the oneness and oneness of Almighty Allah, in the books of Allah. , the Holy Qur'an 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 Qur'an and the Sunnah, which will not allow a person who interested in influencing his official conduct or official decisions, and that he will do good to all classes of people, according to law, without fear or favour, affection or ill will. Thus, as a constitutional head of state, the holder of such a high position is bound to discharge his duties and responsibilities in a neutral and impartial manner. It is pertinent to refer to the observations of Saiduzzaman Siddiqui J in the case of Muhammad Nawaz Sharif (supra) as follows:
“Undoubtedly, the President, as a symbol of the unity of the Federation, occupies a neutral position in the Constitution and as such, deserves the highest respect and esteem from all state officials. But it is equally important, in order to protect and preserve the dignity of this high office and this neutral image under the Constitution, that the President stays away from any political confusion. If the President cannot resist withdrawing from the political game or supporting one political element or another in the Assembly, he is likely to lose his image as a neutral arbiter of national affairs and a symbol of the unity of the Federation. in the Constitution. In the latter case, their behavior can also be criticized by those who feel betrayed.
75. In the light of the above discussion, the contention raised by the learned Attorney General is rejected and we hold that the President, as the symbol of the unity of the Federation, occupies a neutral position in the Constitution and no provision is made in the Constitution.. like the support of any particular political party or group of political parties or certain individual politicians or candidates running for election on a particular platform against any other political party, politician, political officer, individual, etc. We respectfully follow and reiterate what was stated by this Court in Muhammad Nawaz Sharif's case (supra). The learned Attorney General also lost sight of another important aspect of the case, namely that the President of Pakistan, on entering his office, acquired the status which falls within the definition of a person who is in the "Service of Pakistan". According to Article 260 of the Constitution, Pakistan service means any service, post or office connected with the affairs of the Federation or a Province and includes All Pakistan service, service in the Armed Forces and any other service declared to be Pakistan service by or under the Majlis-e-Shoora (Parliament) Act or a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Speaker, Deputy Speaker, Prime Minister, Federal Minister, Minister of State, Prime Minister, Provincial Minister, Attorney General, Attorney General, Parliamentary Secretary or Chairman or member of the Legal Committee, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Prime Minister, Advisor to the Prime Minister or member of Chamber or Provincial Assembly. The said article specifically excludes certain offices of the Pakistan Service mentioned after the phrase "but not including". The position of the President and Governors of the provinces are not included in these exceptions.
76. It is pertinent to mention here that the 1956 Constitution included the President in the list of exemptions from the Pakistan Service, whereas the 1962 Constitutions as well as the present 1973 constitution did not include the position of the President in the list. There is nothing to the contrary to exclude the office of the President from being subject to the former part of the above definition, namely "Pakistan Service" means any service, post or office connected with the affairs of the Federation or a Province. Also, the definition explains that Pakistan service includes ANY courier or office service other than a service.
77. The Supreme Court in Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244) considered in great detail the extension of the term "in relation to the affairs of the Federation or a Province". A relevant excerpt from said decision is reproduced below:
“Now then, what does the phrase 'perform functions relating to the affairs of the Federation or a Province' mean? It is clear that the petition relates to governmental or state functions, which involve, in one way or another, an element of the exercise of public authority. The functions may be the traditional police functions of the state, which include the maintenance of law and order and other regulatory activities. or they may cover functions related to economic development, social welfare, education, public services and other government enterprises of an industrial or commercial nature. Normally, these functions would be performed by persons or organizations designated, controlled and directly funded by the state, that is, by the federal government or a provincial government.'
The Court further discussed the position of "public charge" 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 to include any office in the Pakistan service and membership in an assembly. The expression "Pakistan Service" is defined in the same article as any service, post or office engaged in the affairs of the Federation or a Province and includes an all-Pakistan service, any defense service and any other service declared to be a service. of Pakistan by or under Act of the Federal Legislature or a Provincial Legislature, but does not include service as Speaker, Deputy Speaker or other member of an Assembly. Reading the two definitions together, it is clear that the term "public charge" as used in the Interim Constitution is much wider than the expression "Service of Pakistan" and though it includes any post in the service of Pakistan, it could not adequately refer to the large number of positions or appointments held by government officials at the various hierarchical levels of Government'.
The English case of Henry Farran Darley v. The record [(1846) 8 ER 520] is also quoted as stating that:
"Public office is the right, power, and duty created and conferred by law, by which a person is invested with some part of the sovereign functions of government to exercise them for the benefit of the public, for the term and duration which is defined. by law. It entails the delegation of part of the sovereign power. It is a trust granted by a public authority for a public purpose, which includes the ideas of mandate, duration, remuneration and duties. A civil servant must therefore be distinguished from a mere contract of employment or service, to which no such powers and functions are attached. . . The determining factor, the test, is whether the position involves the delegation of some of the dominant functions of government, whether executive, legislative or judicial, to be exercised by the incumbent for the public benefit. He is not an official."
The above discussion is also reinforced by reference to the following authorities:
“This vision seems to have remained constant throughout. As summarized by Ferris (Extraordinary Legal Remedies, 1925 Edition, p. 145), “a public office is the right, power, and duty created and conferred by law, by which a person has a share in the functions of sovereign powers to be exercised by the Government for the benefit of the public, for the time and duration prescribed by law. It entails the delegation of part of the sovereign power. It is a trust granted by a public authority for a public purpose, which includes the ideas of mandate, duration, remuneration and duties. A civil servant must therefore be distinguished from a mere contract of employment or service, to which no such powers and functions are attached. . . . . The determining factor, the test, is whether the position entails the delegation of some of the dominant functions of government, whether executive, legislative or judicial, to be exercised by the incumbent for the public benefit. If your powers are not of this kind, you are not a public servant. This definition of the term 'public charge' and the nearly analogous definition given by Halsbury (in vol. 11) have been quoted with approval in Lahore Central Co-operative Bank Ltd. v. Saifullah Shah (PL D 1959 S C (Pak.) 210), Pakistan v. Nasim Ahmed (PL D 1951 SC 445), Faiz Ahmed v. Registrar, Cooperative Societies (PL D 1962 S C 315), Model Town Society Ltd. Cooperative Management Committee v. M. Iqbal (PL D 1963 SC 179), Masudul Hassan v. Khadim Hussain (PL D 1963 SC 203), Zainul Abiain v. Multan Central Co-operative Bank Ltd. (PL D 1966 SC 445), Abdul Hafeez v. H. 1251), R.T.H. Janjua v. National Shipping Corporation (PL D 1974 S C 146) and M.U.A. Khan v. Rana M. Sultan (PL D 1974 SC 228). In all these cases the question was raised, directly or indirectly, whether the position in question was a public position the reinstatement of which could be ordered by mandamus.'
78. Apart from the office of the president, judges and judges of high courts are also included in the scope of the services of Pakistan, not being referred to among the exceptions of "Service of Pakistan" in Article 260. The definition of Article 260 is to read in conjunction with Article 63 of the Constitution, which reads as follows:
(1) A person shall be disqualified from being elected or elected and from being a member of the Majlise-Shoora (Parliament) if:
(d) holds an office of profit in the service of Pakistan, other than a statutory office which does not invalidate the incumbent;
According to the above provision, no member of parliament can be elected or elected.
Therefore, anyone who meets the definition of a person in the service of Pakistan will be disqualified from voting. Similarly, according to the wisdom of the constitutional regime, paragraph 2 of article 44 expressly states that the holder of the office of the President of the Republic shall be re-elected for a second term. However, apart from this express provision for re-election, Article 63(1)(d) disqualifies the holder of the office of President from being elected to Parliament. This is emphasized by the phrase "subject to the constitution" which characterizes the President's express authority to challenge re-election to the same office. This excludes the re-election of the President from said impeachment, but does not create an exception to the application of the impeachment of the President to be elected in the Cortes Generales. This is further subject to the provision of Section 99(1A)(d) of the Representation of the People Act 1976:
"(1A) A person is excluded from the right to be elected and a member of the Assembly if:
(d) holds an office of profit in the service of Pakistan, other than an office declared by law not to exclude the incumbent;
79. The Supreme Court of Pakistan explained the disqualification of such a public office holder in Syeda Abida Hussain v. Court in NA 69 (PLD 1994 SC 60) as follows:-
"5. … … The authorities under the Representation of the People Act held that the petitioner was disqualified from contesting the election under sub-clause (k), ibid. Counsel for the petitioner contested this conclusion. Their argument is that sub-clause (k) applies only to persons who are regularly in the service of Pakistan and that the petitioner cannot be considered as such since she was merely performing a contract entered into with the Government of Pakistan.According to him, the test to to ascertain whether or not a person is in the service of Pakistan is to ascertain whether his terms and conditions of service are regulated by the law provided for in Article 240 of the Constitution.Applying this criterion, he submits that since the appointment of the petitioner was based on fixed-term contract and its terms and conditions were not regulated by the Law on Public Servants issued pursuant to the provisions of article 240, ibid., could not be addressed. as someone in the service of Pakistan. It also points out that it is not included in the definition of the term "public servant" given in the Public Servants Act. She also argues that her case falls within subsection (n) of Article 63(1) and that since her employment contract was no longer valid, there was no bar to her standing as a candidate in the National Assembly elections.
6. It is difficult to agree with the wise counsellor's statement. The term "service of Pakistan" was defined in Article 260(1) of the Constitution. It is worded as follows:-
"'Pakistan Service' means any service, post or office in connection with the affairs of the Federation or a Province and includes service throughout Pakistan, service in the Armed Forces and any other service declared to be Pakistan service by or under the Majlis Act -e-Shoora (Parliament) or a provincial assembly, but does not include service as Speaker, Deputy Speaker, Speaker, Deputy Speaker, Prime Minister, Federal Minister, Minister of State, Prime Minister, Provincial Minister, Attorney General, Attorney General, Parliamentary Secretary or Speaker or member Legal Committee, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Prime Minister, Advisor to the Prime Minister or member of Chamber or Provincial Assembly;''
Counsel for the petitioner rightly acknowledges that the position of Ambassador is related to the affairs of the Federation. It will be seen that the definition does not take into account the manner in which a post relating to Federation or Provincial affairs may be paid. Therefore, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the incumbent held it through a special contract or under the recruitment rules under the Civil Servants Act. Accordingly, the mere fact that a person is not a public servant within the meaning of the Public Servants Act would not place him outside the scope of the said constitutional definition. The contention that the petitioner's case was covered by sub-clause (n), supra, is completely wrong, as in retrospect it does not apply to situations where there is a master-servant relationship between the parties. In the present case, the petitioner was a full-time Government servant and, except as expressly provided in the letter of appointment, was governed by the regular service regime applicable to Government servants. It may be of interest to mention here that these rules were framed under the provisions of Article 240, op. Therefore, her contention that while she was serving as Ambassador, she could not be considered to be in the service of Pakistan merely because her appointment to the post was based on a special contract, cannot be accepted. It is true that not two years have passed since he resigned his position. It was therefore rightly held that he suffered the disqualification provided for in subsection (k), ibid. We find merit in this request. The duties and roles assigned to the President are limited to those provided for in the constitution. These include the provisions of article 45, the presidential pardon. articles 48, which limit the exercise of presidential duties to the cabinet; or article 56, which requires the President to address one or both Houses, etc. It is also important to distinguish the constitutional office of the President from other posts of civil servants of Pakistan appointed under Article 240 of the Constitution. This distinction is made by the Supreme Court in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) where it was held as follows:
“Both the terms [Public Service and Pakistan Service] are not synonymous, as this Court stated in the case of Secretary, Supreme Court of Pakistan v. Wali Muhammad [1997 SCMR 141]. Corresponding paragraph. therefore, it is reproduced as follows:
“We would like to mention here that from the trend of arguments at the bar, it appears that two expressions 'service of Pakistan' and 'public servant' have been treated as synonymous. In our opinion this is not so. Service of Pakistan is defined in Article 260 of the Constitution as any office, office or position in relation to the affairs of the Federation or a Province. This term also includes service throughout Pakistan and service in the Armed Forces or any other service declared by an Act of Parliament or a provincial assembly to be Pakistan service. "Public Servant" is defined in the Civil Servants Act, 1973 as a person who is a member of a service of Pakistan or a civil service of the Federation or a person holding a public office in relation to the affairs of the Federation. , including a civil defense position."
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"After careful consideration of the definitions of 'Service of Pakistan' as provided in Article 260 of the Constitution and 'Public Servant' as contained in the Civil Servants Act, 1973, "it appears that the two expressions are not synonymous. The term "Service of Pakistan" used in Article 260 of the Constitution has a much wider meaning than the term "Public Servant" used in the Civil Servants Act. While a "public servant" is included in the expression "Service of Pakistan", the reverse is not the case. "Civil servant" as defined in the Civil Servants Act, 1973 is only one category of Pakistani services mentioned in Article 260 of the Constitution. To clarify the point, we may mention here that members of the Armed Forces, though falling under the category of "Service of Pakistan", are not civil servants within the meaning of the Civil Servants Act and the Service Tribunals Act. The scope of the expression "Service of Pakistan" and "Public Officers" was considered before this Court in Syeda Abida Hussain v. Court of N.A. 69 [PLD 1994 SC 60]”.
…………………..
“At this point, a reference to the case of Qazi Wali Muhammad (ibid) would not be out of context, where the Court, while considering the status of officers of the Supreme Court, held that 'the expression 'service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term "public servant" used in the Civil Servants Act. While the term "civil servant" is included in the term Pakistan service, the reverse is not true. "Civil servant" as defined in the Civil Servants Act 1973 is only one category of Pakistani services mentioned in Article 260 of the Constitution. It was further noted that “for clarification of the matter, it is stated that the members of the Armed Forces, though falling under the category of 'service of Pakistan', are not public servants within the meaning of the Public Servants and Courts Act. ". "Therefore, the above discussion leads us to the conclusion that the President of Pakistan, being in the service of Pakistan, should not be involved in politics as referred to in the present case regarding the role of President Ghulam Ishaq Khan. 80. The learned Attorney General has held that there is no difference in the oath taken by the Prime Minister, Ministers etc. and if they can enter politics the President is not barred from doing so.We do not agree with him because all these officials do not meet the definition of persons in the service of Pakistan" under Article 260 of the Constitution as their cases are covered by exceptions to this constitutional provision. Furthermore, the president is indirectly elected, while the prime minister and others are directly elected and represent their constituents.
81. Mr.Salman Akram Raja, ASC of the petitioner stated that it is proven that the top brass of the armed forces have taken various actions without any solid statutory basis in the name of supreme national interest, security etc. It does not say where these actions came from, especially the circumstances under which they had been instructed not to engage in political activities. He argued that these individuals at the highest levels of the military were not clear about their mandate, what they were supposed to do, what they should or should not do. There have been attempts in the past to legislate on this. Control and regulation are legislative functions.
82. On the other hand, the learned Attorney General stated that when any of the members of any institution like the Army, the ISI or any other disciplinary body is involved in any irregularity in the chain of command, the body automatically sees itself involved. . According to him, if the head of an institution does something, saying that the institution is not involved is not entirely true. Decisions within an institution are made at the top, so in this case the responsibility cannot be transferred to the six members of the Armed Forces. Here the charge sheet is against accused #1 who was COAS at the relevant time, accused #2 who was DG, ISI and accused #3 who was EVP/Regional Head at HBL.
Thus, according to the Attorney General of the Republic, it remains to be seen who was the supreme commander who ordered these things to be done because the greater responsibility will be his. When these things happened, all officials and institutions, including the Army, the ISI and the judiciary, became silent bystanders, and when elected governments were overthrown, the judiciary became part of them. It may be observed that any violation of the oath of office or any other illegal act committed by a government official is a personal act for which the said person would answer according to the law and body to which that person may belong. will not be involved in it in some way.
83. The role and functions of the Armed Forces were discussed in detail in the Sindh High Court Bar Association case (supra) wherein it was stated that simply reading the provisions of Article 245(1) the functions of the Armed Forces can be divided in two categories, namely They have to defend Pakistan against external attack or threat of war. and subject to law, act in aid of the civil authority when called upon to do so. In terms of number 1 of Article 243, the control and command of the Armed Forces is the responsibility of the Federal Government, therefore, in the performance of both categories of functions, the Armed Forces act under the direction of the Federal Government. Therefore, the provisions of clause (1A) of Article 243, according to which the supreme command of the Armed Forces vests in the President, does not in any way derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external attacks. aggression or threat of war or to act in aid of civil authority according to law. The Constitution does not provide for any situation in which the Armed Forces can act without the direction of the Federal Government. Clause (3) ibid. provides that the President, in consultation with the Prime Minister, shall appoint the Chairman of the Joint Chiefs of Staff; the Chief of the Army Staff; the Chief of the Naval Staff; and the Chief of the Air Force. Under Article 244, every member of the Armed Forces takes an oath, inter alia, to maintain true faith and allegiance to Pakistan and to uphold the Constitution of Pakistan and not to engage in any political activity. Any action by the Armed Forces without the guidance of the Federal Government will be unconstitutional, illegal, void ab initio and therefore without legal effect. Thus, it was held that any member of the Armed Forces, including the President, the Joint Chiefs of Staff and the three Chiefs of Staff, namely the Chief of the Army Staff, the Chief of the Naval Staff and the Air Staff, or any person acting under his authority or for on his account, acting in the performance of any of his duties to defend Pakistan against external attack, or acting, subject to law, in furtherance of political power without any direction from the Federal Government, is acting in contravention of the Constitution and the law and does so at his own risk.
84. In the said judgment, it was also observed that the people of Pakistan are dedicated and devoted to the preservation of the democracy won by their ceaseless struggle against oppression and tyranny, as duly expressed and recognized in the Preamble of the Constitution of the Islamic Republic of Pakistan . The founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah, declared that Pakistan would be a democratic state based on Islamic principles of social justice. Address to a meeting of civil servants of Balochistan on 14ºIn February 1948 he said that our present transitional constitution is based on the fundamental principles of democracy, not bureaucracy, autocracy or dictatorship. Therefore, military rule, direct or indirect, must be avoided once and for all. It has been wrongly justified in the past and must not be justified in the future on any foundation, principle, doctrine or theory. The Military Regime is against the dignity, honor and glory of the nation achieved after sacrifices. and goes against the dignity and honor of every soldier in the Pakistan Armed Forces who swear true allegiance and loyalty to Pakistan and abide by the Constitution. Within the prescribed parameters, a soldier must remain committed to the defense of Pakistan to the last drop of his blood against external attack or threat of war and obey the law, acting in aid of the civil authority when called upon to do so. under the direction of the federal government. In the exercise of his duties, therefore, the soldier is obliged to ensure that the Constitution is respected, that it is not abolished, not overthrown, not mutilated. If a member of the Armed Forces commits any of the above acts or similar acts, he violates his oath and is subject to action in accordance with the terms and conditions of the Constitution and the law.
85. Mr. Muhammad Akram Sheikh, Mr. ASC, on behalf of Respondent #1, submitted that his client was bound to follow the orders of the then President of Pakistan under Section 33 of the Pakistan Army Act, 1952. For reference, this section is reproduced below:
33. (1) Any person subject to this Act who disobeys in such a manner as to show a willful challenge to the authority of a lawful order given personally by his superior, knowing or having reason to believe that he is, to the satisfaction of the bailiffs' court , will be punished with a prison sentence longer than that which can be extended to fourteen years or with a sentence less than those provided for in this law.
(2) Any person subject to this Act who disobeys the lawful order of his superior, knowing or having reason to believe that he is doing so, shall be convicted by the bailiff, if he commits such offense while in office, to be imprisoned for a term which may may be extended up to fourteen years or with a lesser penalty than those provided for in this Law. and if he commits such offense while out of active service, he shall be punished with imprisonment for a term which may extend to five years, or with such lesser punishment as is mentioned in this Act.
86. On the other hand, Mr. Salman Akram Raja, ASC submitted that the President never had operational control over the Pakistan Armed Forces. This is always done on the advice of the Prime Minister through the Ministry of Defence. This was not a battlefield requirement. In this sense, the army chief is no different from a federal secretary. He further argued that the COAS takes oath as per the Constitution. Therefore, it is your responsibility to review what the Constitution says. The duty is much higher compared to others. In accordance with the terms of Article 244 of the Constitution, members of the Armed Forces take the oath provided for in Schedule III of the Constitution, which is reproduced below:
"Members of the Armed Forces (In the name of Allah, the Merciful, the Merciful.)
I, ____________ do solemnly swear that I will have true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage in any political activity and that I will sincerely and loyally serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by law. May Almighty Allah help me and guide me (A'meen)'.
According to him, members of the Armed Forces are bound to uphold the Constitution, which translates the will of the people. They have an obligation to guarantee it because they are not here on the battlefield.
87. Mr. Chief Justice Ijaz Ahmed, in his note filed in the Sindh High Court Bar Association case, noted that the 1973 Constitution for the first time provided for the oath of office for the members of the Armed Forces, previously only the which was provided for by the Army Act 1952. Article 243 of the Constitution was referred to in the case of S. Liaquat Hussain v. Federation of Pakistan [PLD 1999 SC 504] which lays down that the personnel of the Armed Forces are under the ultimate administrative control of the Federal Government. and that every member of the Armed Forces must take the oath in the manner prescribed in the Third Schedule under section 244. Reference was also made to the case of Darwesh M. Arbey, Counsel v. Federation of Pakistan Thr. The Legal Secretary [PLD 1980 Lah. 206] in which the Lahore High Court laid down the following principles:
(a) The Armed Forces owing allegiance to Pakistan cannot be used for political purposes by the ruling party.
(b) It not only violates the oath prescribed in the third Schedule prohibiting the participation of the Army in political activities, but further tarnishes the image of the Army.
The opinion was reported with the approval of this Court in Justice Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011 SC 680).
88. According to Mr. Salman Akram Raja, ASC, it is clear beyond any doubt that public funds were looted and embezzled at the behest of senior government officials. These funds were not accounted for. Trying to take refuge behind the alleged existence of some political cell in the ISI cannot be a defence, as senior army officers Gen(R) Beg and Gen(R) Durrani were not shy of the unknown terms of reference of the so-called Cell Politics acts for to subvert the Constitution. The fact is that in his statement presented before the Court on 17/10/2012 through KYA 4417/2012, accused #2 clarified that he was not even aware of the existence of a political cell in the ISI of which he was the head. He also argued that a cell could have existed many times. It is clear that the illegal operation of September/October 1990 was not an operation under the terms of mandate of any established political nucleus. This was an illegal attempt to undermine the electoral process by pursuing a subjective concept of "national interest". He further stated that any instructions given to them by the then president should have been communicated through his associates informally. There is no institutional record of such communications. Such communications, when they were, were in the nature of illegal incitements to covert violation of the constitution, and did not even have the color of an official order.
89. The Hon'ble Attorney General stated that no State Officer, be it the President, who is the Commander-in-Chief of the Armed Forces of Pakistan, or the Prime Minister, the Chief Executive of the country, or the Federal Ministers or any other person has the power to give illegal orders. No body can violate the Constitution, no one can rig the elections. Such a duty does not lie on anyone in Pakistan, so the President of Pakistan cannot be isolated in this respect as the oath is no different from other oaths provided in the Constitution.
90. Therefore, it is understandable that the President could not have given any order to the Army Chief or the DG ISI since the President had no operational powers in relation to the Armed Forces even after the Eighth Constitutional Amendment. Although, under Article 243 of the Constitution, the Supreme Command of the Armed Forces vested in the President, no independent executive power was granted to the President. This constitutional amendment had created two broad categories of functions in relation to the President. The first category was that of actions to be taken by the President in accordance with Article 48 and in accordance with the advice of the Prime Minister. The second category was that of actions to be taken by the President at his discretion when satisfied with a given state of affairs. In this regard, reference can be made to the above provision of Article 58 paragraph 2 point b) of the Constitution, where the President would act at his discretion. It is clear that vesting the Supreme Command in the President did not authorize him, even after the Eighth Amendment, to act at his discretion or at his pleasure. Consequently, it is not a mandate, let alone a legal order of the President to make cash disbursements between favored politicians. Notwithstanding the above, only lawful orders should be obeyed. All officers who obey illegal orders are individually liable. All superior officers who give illegal orders or fail to stop the illegal actions of their subordinates are held accountable. If the relevant state authorities fail to act, the rights of the people of Pakistan will be upheld by this Court by giving all necessary directions to state officials and institutions, including the Election Commission of Pakistan, including directions for investigation and prosecution.
91. Mr. Muhammad Akram Sheikh, Mr. ASC submitted that respondent #1 had not taken oath under the 1973 Constitution, therefore he was not bound by the oath prescribed for members of the Armed Forces in the Third Schedule to the Constitution. On the other hand, Mr. Salman Akram Raja, ASC academic for the petitioner, argued that the sanctity of oath is inviolable, particularly the oath taken by members of the Pakistan Armed Forces as provided for in Article 244 of the Constitution and contained in the Third Schedule .
92. The scholarly contention of counsel for defendant #1 that the officers of the Armed Forces who took oath before the 1973 Constitution came into force could not be held responsible for subverting the Constitution is untenable. It should be noted that Article 5 imposes an inviolable obligation on all citizens of Pakistan to obey the Constitution. Further, any previous oath requiring allegiance to Pakistan necessarily includes allegiance to the existing Constitution of Pakistan. Pakistan as a nation-state is defined by its Constitution. There can be no faith in Pakistan without faith in the Constitution of Pakistan. Therefore, defendant #1 cannot argue that, as Army Chief, he was not bound by the Constitution. Regarding the inviolability of the oath and the obligation not to obey illegal orders in violation of the Constitution and that obedience to the Constitution is a basic duty of all citizens, the following cases can be cited:
(a) Sind High Court Bar Association c. La Federación (PLD 2009 SC 879) at 1032, Paragraphs 54, 56, 57.
(b) Hasnat Ahmed Khan v. Federation of Pakistan (PLD 2011 SC 680) at page 731, Para 40.
(c) Watan v. Federation (Situation of Law and Order in Karachi) (PLD 2011 SC 997) at 1022.
(d) Application of NRO Decision: Adnan A. Khawaja v. State [Miscellaneous Criminal Petition No. 486 of 2010 in Criminal Appeal No. 22 of 2002 and Suo Moto Case No. 4 of 2010). Order of 10-01-2012.
93. It should be noted that the distribution of funds to a group of politicians is admitted by all the defendants in this case. Defendant No. 2, not only in his letter dated 06.07.1994, but also in his affidavit dated 24.07.1994, his summary statement dated 08.03.2012 and his statement when he appeared before the Court, consistently assumed the position . that he provided logistical support, under the instructions of Arguido No. 1, then Chief of Army Staff, for the disbursement of the donations made by Arguido No. Considering that Accused No. 1, in his reply dated 23.02.1997 to the petition, stated that Accused No. He was later informed by Lt. Gen. (R) Durrani that ISI had opened several hedge accounts and accused No. 3 had deposited Rs.140 crore in these accounts. He confirmed that the DG, ISI had made arrangements for disbursement of the said amount among various politicians on the instructions of the Election Cell. Respondent #2 already has. He also stated that in a meeting with the then President, Mr. Ghulam Ishaq Khan, he informed him about the donations of Respondent No. 3 and their use by DG, ISI. 3, in turn, in his statement dated 03/08/2012 stated that Respondent No. 1 asked him that he was asked by the then President Ghulam Ishaq Khan to provide 350 crores (Rupees thirty five million) before the elections. OF GREAT NATIONAL INTEREST. He further stated that Respondent #1 introduced him to Chairman Ghulam Ishaq Khan and told him (Chairman) that as per his wish, the matter was discussed with him (Respondent #3) for arranging the necessary funds and finally he arranged Rs. 1480 crore (Rs 148 crore) after approval of the loans by the District Committee and the Executive Committee of Habib Bank Ltd. on behalf of his friends and business acquaintances, e.g.
94. A combined reading of the statements/depositions of accused #1 to #3 clearly shows that accused #3 raised a certain amount of money to support favored candidates of a particular political group in the 1990 General Elections. the money was raised on instructions received from the Electoral Cell installed in the Presidential Palace. the disbursement was made under the supervision of informant #2, opening certain accounts. In this regard, it should be noted that, during the proceedings, it was alleged that one of the recipients, Syeda Abida Hussain, according to newspaper reports, acknowledged receiving the money.
95. It is also clear from the statements of the aforesaid persons that there was a cell in the Presidency which supervised the aforesaid cash disbursement activity and some officers of the Presidency under the immediate supervision of the President were involved in it. These three people directly or indirectly lead the way to the Presidency/President. In this view of the matter, it is clear whether it was done at the verbal direction of the President himself or someone acting discreetly on his behalf and under his/her direction. Accused # 2, appearing in court, admitted that he had done so, albeit under the instruction of Accused # 1. While he stated that under his supervision, the operation was overseen by Brig. (R) Hamid Saeed of MI, whereupon notice was issued to appear in Court. Accordingly, he appeared and presented cases before the Court, which have already been reproduced above.
96. Counsel for the petitioner further submitted that it is not as a result of 1975 memorandum that the ISI would have a political cell. Trusting him may be appropriate to some extent. According to ASC academics, the ISI has done things according to its own perception of what it believes to be in the national interest. The seriousness of the actions could not have been determined by a 1975 announcement, which should be self-evident. The statement is about indiscipline. It is important to know how the business of the state is conducted. There must be some semblance of authorization and legal basis for the action. One of the defendants, Mr. Rodedad Khan, categorically denied the existence of such a cell. The court can assume that there was no real cell, otherwise there is nothing to confirm the existence of the cell. At no time in 1990 did the President have the advice of the Prime Minister on the matters under consideration.
97. Apparently, in 1975, the then Prime Minister/CEO created a Political Cell in the ISI by virtue of an executive order issued in May 1975. One of its wings was designated to exercise political functions. Obviously it could have been anything along those lines, except helping the Federal Government in its political affairs. We have already pointed out above that despite our repeated instructions, such notification did not take place and was withheld. With regard to the performance of information exchange functions on strategic matters by this body, the Armed Forces fulfill their duties to defend the country from internal and external attacks, in accordance with the terms of Article 243 of the Constitution. This Court, in the exercise of its jurisdiction to determine whether or not the fundamental rights of voters enshrined in sub-section 2 of Article 17 of the Constitution have been violated, should not delve into this matter. However, we strongly observe, looking at the historical aspect, why at various times martial law was imposed by the Armed Forces, derailing the democratic system. A duly elected representative who is the Prime Minister or the Chief Executive in no way has the power to encourage any political or unconstitutional activity of the ISI. In response to this, the head of your department, DG, with the full knowledge and information of the then Chief of Army Staff, by illegal orders, obstructed the flow of democratic order instead of allowing the citizens/voters/voters to freely elect their elected representatives . , fair enough. and rightly so. Such actions by the uniformed generals not only breached discipline but also brought the institution of the Armed Forces into disrepute while denying the constitutional mandate in the matter.
98. Therefore, no other conclusion can be drawn except that accused #1 and #2, who were generals of the Pakistan Army in uniform, with the connivance of the then President of Pakistan Ghulam Ishaq Khan (deceased), supported the last to ensure the success of favored candidates or political party or group of political parties to achieve the desired result as they engaged in corrupt and corrupt practices by providing and providing funding to some of the political personalities, alleged in the affidavit of defendants #2 and 3. And in this way, the electoral process was corrupted and the people of Pakistan were denied representation by their elected representatives. It goes without saying, as we have already discussed above while considering the role of the Armed Forces, that a member of the Armed Forces must remain committed to the defense of Pakistan to the last drop of his blood against external and internal threats and, subject to law. , acting in aid of it, of the civil authority when called upon for it under the direction of the Federal Government. In the performance of his duties, a soldier is therefore obliged to ensure that the Constitution is respected. not revoked; not overturned; it is not mutilated. Therefore, in the face of such comments, it is submitted that although the President of Pakistan, as Commander-in-Chief of the Armed Forces, exercises jurisdiction under the Constitution, he obviously has no power to establish a polling station or to obtain, in any case, the support favored candidate/party/group of political parties, either by directing the Armed Forces or the civilian population to make efforts to achieve the desired results. And if such an illegal command is transmitted, it is not worth obeying.
99. It is to be noted that the Court has time and again held that public servants must comply only with orders/orders of their superiors which are lawful and within their jurisdiction. Compliance with an illegal or unauthorized order/order cannot be justified on the ground that it came from a higher authority, nor can it be defended on the ground that non-compliance would have exposed the Government official concerned 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) in which it was held as low:-
It need not be emphasized here that a tame subordinate bureaucracy cannot be useful to the government nor should it inspire public confidence in the administration. Good governance depends largely on an honest and strong bureaucracy. Therefore, mere submission to the will of the superior is not a commendable trait in a bureaucrat. Elected representatives who are responsible for the administrative part of government are not expected to carry with them a thorough understanding of the intricacies of administration. Therefore, the duty of a bureaucrat is to inform these elected representatives about the good of the administration and provide them with proper guidance to perform their role according to the law. Obeying all directives from such elected officials without their knowledge of the legal inadequacies of such orders/directives may, at times, create an act of indiscretion on the part of bureaucrats which may not be justified in terms of line discipline. It goes without saying that a public servant is expected to comply only with orders/orders of his superior which are lawful and within his jurisdiction. Compliance with an illegal or unauthorized directive/order cannot be justified on the ground that it came from a higher authority, nor can it be argued on the ground that non-compliance would have exposed the Government official concerned to the risk of disciplinary action. "
In Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004 SCMR 1077), this Court reiterated the same view as follows:
“We regret to note that the competent authorities in the conduct of their business are subject to the whims and wishes of their superiors and never hesitate to implement even an illegal order knowing full well that it has no legal sanction and if such an order is implemented , it is undoubtedly , this will lead to a number of complications in the future. This Court has repeatedly emphasized that departmental officers are required to comply only with lawful orders of their superiors and if they are pressed to implement an illegal order, they must record their dissent and, if such a practice is followed, the possibilities The issue/conciliation of illegal orders should be minimised'.
Reference may also be made to the cases of Punjab Province v. Government of Ibrahim Younas Butt (2004 SCMR 67), Iqbal Hussain Vs. Province of Sindh (2008 SCMR 105), Government of Pakistan v. Farheen Rashid Government [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).
100. Therefore, it is clear that defendants #1 and #2 were required to comply only with orders/orders of their superiors which were lawful and within their jurisdiction. Compliance with an illegal or unauthorized order/order of the then President cannot be justified as emanating from higher authority, nor can it be supported by the fact that their non-compliance would expose them to the risk of disciplinary sanctions/adverse action.
101. From the material, which came on record during the proceedings referred to above, there is no dispute or dispute that a sum of Rs. 140 million HBL was made available through defendant #3 for distribution to certain politicians/individuals before the 1990 General Elections in the name of "larger national interest". It also appears from the case file that without the logistical support of defendants number 1 and 2, the distribution of the amount in question would not have been possible. Regarding the disbursement of the amount to different persons, no reliable and legally admissible evidence was produced in the case file by accused no., the content of which is reproduced below:
"Summary statement on behalf of defendant no.
Meanwhile, the learned counsel appearing before General Rtd. Asad Durrani can record brief statements, evidence or affidavits explaining the details of the persons to whom certain sums were allegedly distributed under the instructions of the then Army Chief Aslam Beg and even the names of the persons to whom the sum was intended. which will be distributed to receive from Mr. Ijlal Haider Zaidi, who headed the team created in the chairmanship by the late President of Pakistan Ghulam Ishaq Khan. That the total amount distributed by the undersigned was approximately 70 million to 140 million and the balance was deposited in the ISI special fund.
This Respondent assigned this work to MI officials who knew that the money disbursed was for election purposes and they, in turn, distributed the money and informed the Respondent about the distribution. That the names of these offices and some of the classified documents be submitted to the Court with the motion signed in a sealed envelope. Respondent Defendant considers it confidential. [so.]
As regards the confidential nature of the document he presented, it should be noted that it was a simple statement with the names of the persons to whom the amounts were distributed, but without any document proving the charge against him. So after they saw it, they returned it to him for safe keeping to present when he asked for it. In the present discussion of the case, the fact of receipt of the money from the persons named by accused #2 as per the evidence annexed in his affidavit dated 24.07.1994 and in the affidavit of accused #3 u/s 161 Cr .P.C. registered by FIA in the case of Mehran Bank, the same has to be ascertained as per law in a transparent manner through an investigative agency. The alleged names/cash disbursement details as alleged by Defendant #2 in his affidavit report and defendant #3 in his aforesaid affidavit are given below:-
Particulars/names of the recipients of the money given by Lt. Gen. (R) M. Asad Durrani in his affidavit dated 24.07.1994:-
NWFP – Mir Afzal – RS
PUNJAB – Nawaz Sharif – 3.5 million
– Lieutenant General (R) – 5.6” (for media)
Kindness
– J.I, – 5,0”
-Abid Hussain-1,0"
Altaf Hussain
Qureshi & – 0,5”
Mustafa Sadiq
– Miscellaneous and minor – 3.339”
club
SIND – Jatoi – 5.0”
- Mermelada Sadiq - 5.0
– Junjo – 2.5″
– Pir Pagara – 2.0”
– Maulana Salah – 0.3”
Foros-Din
– Various and smaller – 5.4"
club
BALOCISTAN – Humayun Mari – 1,5
(error type)
– Financial – 4.0”
– Season – 1.0”
– K Baluch – 0.5"
- Yusuf Jam - 0.75"
– Bazinjo – 0.50”
- Nadeem Mengal - 1.00"
Across the golf course [Could be]: 0.5 m
Miscellaneous (bank charges: 1.1117 million
grocery stores etc.)
Particulars/names of the recipients of the money given by Lt. Gen. (R) M. Asad Durrani in his letter dated 06.07.1994:-
(a) Khar 2 million, Hafeez Pirzada 3, Sarwar Cheema 0.5 and Mairaj Khalid 0.2 million. The last two were not on the wrong side. It was only someone's "soft song" that benefited them.
(b) The remaining 80Ms were deposited in the ISI 'K' fund (60M) or turned over to the Director of Foreign Intelligence for special operations. his brief statement see CMA No. 3.307/2012 of 30.07.2012: –
The total amount distributed by the undersigned was approximately 70 million out of 140 million and the balance was deposited into the ISI special fund.
Respondent #2 delegated this function to officers of MI, who knew that the money being disbursed was for election purposes and they, in turn, distributed the money and informed the Defendant Defendant about the distribution.
Names of officers and some of the classified documents available from respondent No2. they were filed with the court in a sealed cover claiming confidentiality but returned to you so you can keep them safe for filing on request.
Details/names of money recipients provided by Brig. (R) Hamid Saeed Akhtar in his statement dated 18.10.2012 before the Court:-
As per the instructions, six accounts were opened in different banks. Funds started arriving from 4 p.mºSeptember 1990 onwards. for 22North DakotaOctober 1990, R$140 million was collected on these accounts. Subsequently, the following amounts ordered by the DGMI were paid:-
40 million Rs. to the GHQ account.
B. INR 10.5 million for MI Quetta Regional Office.
C. Rs 5 million for caretaker Sr. Prime Minister. Ghulam Mustafa Jatoi
Hey. Rs.5. Millions for Acting Sindh CM Mr. Jam Sadiq Ali
m. INR 2.5 million for Sr. Muhammad Khan Junjo.
F. INR 3 million for Mr. Abdul Hafeez Pirzada
gram. Rs 2 million to Mr. Sibghat-Ullah Pir Sahib Pagara.
h INR 03 million for Mr. Muzaffar Hussain Shah.
I. INR 03 million for Mr. Muzaffar Hussain Shah
j.0.3 million INR for Mr. Ghulam Ali Nizamani Free Mp3 Download
Mr. 02 Million INR for Mr. Arbab Ghulam Rahim Free Mp3 Download
I. 03 million INR for Mr. Salah-ud-Din (Takbeer).
meter. 05 million INR for Mr. Yousaf Haroun
North. 3.828 million INR for the Sindh Constitution Centre, and is also used for construction
men's barracks, interrogation cells
The balance of Rs 67,628,511 including interest was then sent to GHQ along with updated bank statements. [I would like to point out that during my time in Military Intelligence I was of the view that the resources came from General Headquarters]. In addition, some other materials have also been recorded, although they are not authentic and must be proved in accordance with the law, which provide details of the withdrawal and transfer of the said money, as follows:
Details/information for withdrawal and transfer of the said amounts in the form of some important points as a document on page 163 of the paper book:-
SOME IMPORTANT POINTS
(1) R$6.72 was then transferred to the GHQ Welfare Fund. Reportedly, Rs. About 3 crores were drawn and given to "FRIENDS" under the instructions of the General. Becketti during his last days as Army Chief. The remaining amount is available in the GHQ Provident Fund.
(2) Out of 4 crore, 2 crore was given to Punjab and 2 crore to NWFP. Details of expenses/payments are available with recommendations from respective IMs/Units.
(3) All payments in Sindh were made by Lt. Col. Mir Akbar Ali Khan, who is on secret assignment in Saudi Arabia.
(4) 6-8 fictitious accounts were opened on instructions of General Beg, who gave verbal approval to Survey & Construction Group Karachi, while accounts in the name of 202 Survey & Construction Group were not brought to the notice of General Beg.
(5) The number of these accounts was communicated to Mr. Yunus Habib, who deposited Rs. 14 crores through a representative of them on various dates.
(6) The details of the sums spent in Quetta are known to Brig. Amanullah currently runs the M.I. Karachi.
(7) General Begg, General Asad Durrani and the then Commanders of the M.I. The units were posted in Punjab and NWFP.
(8) Late General Asif Nawaz also got agitated and expressed his displeasure over the transfer of titles to 'Friends' by General Aslam Beg.
Fund allocation account as per documents on pages 220 and 221 of paper book:-
“POLICY AND OTHER PAYMENTS
Yunus Habib, according to his statement registered in section 161 Chr. PRAÇA. before the Investigating Officer in Karachi expose Political Payments and others as:
– Gen (retirado) Mirza Aslam Beg Rs. 140 m-
Jam Sadiq Ali (The then Chief Minister of Sindh) Rs. 70 m
– Altaf Hussain (MQM) Rs. 20μ
– Yousaf Memon (Lawyer) (for
design for Javed Hashmi, MNA and
Rs. 50 meters
– Total: Rs. 280 m
Jam Sadiq Ali (1992) Rs. 150µ
– Liaqat Jatoi (1993) Rs. 01μ
– Sindh Chief Minister through Imtiaz Sheikh.
(1993) R$12 million
- Sr. Afaq (MQM) (1993) Rs. 05µ
- Chief Minister Sindh through Imtiaz Sheikh
(1993) R$01 million
– Ajmal Khan, former Federal Minister (1993) Rs. 1.4 μετρό
- Mr. Nawaz Sharif, former Prime Minister (1993) Rs. 3.5m
- Mr. Nawaz Sharif, former Prime Minister (27-9-
90) R$2.5 million
- Sr. Jam Mashooq (26-9-93) Rs. 0.5 meters
- Mr. Dost Mohammad Faizi (9-26-93) Rs. 1.0m
- Sr. Jam Haider (26-9-93) Rs. 2.0 meters
- Sr. Jam Mashooq (26-9-93) Rs. 3,0 m”
CIVIL FEES AO SR. JAVED HASHMI M.N.A.
- Mr. Javed Hashmi was a partner of M/s ADAGE Advertising (Pvt) Ltd. from 30-10-1986 and resigned on 01-06-1990. – The following payments were made to Mr. Javed Hashmi through bank transfer and bank withdrawals by Mr. Yousaf Memon (a man between Yunus Habib and Javed Hashmi) through various bank transfers:
– Τ.Τ. του UBL Adamjee Nagar Karachi, em
Withdrawal Date in Withdrawal by Amount
11-11-1990 UBL Multán Javed Hashmi Rs. 2,5 εκ
15-12-1990 UBL Multán Javed Hashmi Rs. 1,0 εκ
20-12-1990 UBL Multan Rahat Malik Rs. 0,1 cm
27-03-1991 UBL Islamabad Rahat Malik Rs. 1,0 ec
09-04-1991 UBL Islamabad Rahat Malik Rs. 2,0 ec
12-5-1991 UBL Islamabad Javaid Hashmi Rs. 0,3 ec
– T.T. by HBL Ichara, Lahore, em
02-10-1991 MCB Multán Khurshid S. Shah. Rs. 2,5 εκ
– Banker's Check from UBL Adamjee Nagar, Karachi, in
23-02-1991 UBL Multan Mukhtar Hashmi Rs. 2.0 εκ
– Faisal Islamic Bank, Karachi bank file
27-04-1991 HBL Multan Javaid Hashmi Rs. 1,4 ec
Total: Rs. 12.8 cm
– According to Mr. Rahat Malik, the amount withdrawn by him was given to Mr. Javed Hashmi. - HAHAHA. 14.9 million was paid by Mr. M. Yamin in the presence of Mr. Yousaf Memon in October 1990 in cash to Mr. Javaid Hashmi in room no. 1 of MNA Hostel, Islamabad.
G. Total: Rs. 27.7 cm
Details/names of payees provided by Muhammad Yunus A. Habib in CMA No.1034/2012:-
Mr. Yousaf Memon Advocate in two different TV shows on GEO News channel (one by Kamran Khan and the other by Nazir Laghari) admitted that he bought a house at F-6/2 Islamabad in the name of Mr. Javed Hashmi. He also admitted that 50% of the amount was invested to buy a house (Kasim 1 al-Multan).
Login of one of the recipients:-
During the proceedings, he claimed that one of the recipients, Syeda Abida Hussain, according to newspaper reports, had acknowledged receipt of the money.
102. Below are the reasons for our short order of the same date on which the present application was ordered as follows:
"The Constitution of the Islamic Republic of Pakistan states that it is the will of the people of Pakistan to establish an order in which the State exercises its powers and authority through representatives chosen by the people, in which the principles of democracy, freedom, of equality , etc., must be fully respected if the people of Pakistan are to prosper and attain their rightful and honorable place among the nations of the world and contribute fully to international peace, progress and happiness of mankind. The people of Pakistan have long been struggling to establish a parliamentary and democratic order under the Constitution and now imagine a strong system established over time without any threat and 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. An important issue of public importance arises for the effectiveness of the fundamental rights, among others, mentioned above, for which, in accordance with the provisions of Article 184.3 of the Constitution, the authority to declare was assumed and exercised, for the reasons that will be recorded later, as follows :
(1) That the citizens of Pakistan, as a matter of law, are free to choose their representatives in an electoral process conducted fairly, fairly, impartially and in accordance with law.
(2) The general elections held in 1990 were subject to corrupt and corrupt practices, as overwhelming material produced by the parties during the hearing revealed the creation of an "Electoral Cell" in the Presidency, which worked to provide financial assistance to favored candidates or a group of political parties to achieve the desired result by polluting the electoral process and depriving the people of Pakistan of representation by their elected representatives.
(3) A President of Pakistan, in the parliamentary system of government, as the head of state represents the unity of the Republic under Article 41 of the Constitution. And according to his oath of office he shall in all circumstances do good to all classes of men, according to law, without fear or favour, affection or ill will. Therefore, the incumbent president of Pakistan is violating the Constitution if he does not treat all types of people equally and without favoring any group, according to the law, and thereby creates/provides an opportunity that he can be sued under with the Constitution and the Law.
(4) The President of Pakistan, Chief of Army Staff, DG ISI or their subordinates should definitely not set up an Election Cell or support a political party/group of political parties because if they do, the citizens will not be able to to choose their representatives. in an honest, fair and free electoral process, and their action would deny the constitutional mandate in the matter.
(5) However, in the present case, it was found that in the general elections of 1990 a polling station was set up in the Presidency to influence the elections and was assisted by General (R) Mirza Aslam Beg who was the Chief of Army Staff and by General (R) Asad Durrani, then Director General of ISI and was involved in the illegal activities of the Election Cell in violation of the responsibilities of the Army and ISI as institutions, which is the act of individuals but not represented by the respective institutions mentioned above.
(6) ISI or MI may exercise their functions under the laws to protect the borders of Pakistan or provide political assistance to the federal government, but these agencies have no role to play in political activities/politics, to form or destabilize political governments, nor may they facilitate or show favor to an individual political party or group of political parties or politicians in any way that may lead to its success.
(7) It is also found 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 served in MI and are now dead or retired, he supported the functioning of the "Electoral Cell", which had been established illegally.
(8) Mr. M. Yunus A. Habib, then Managing Director of Habib Bank Ltd. under the direction and order of the above officers, arranged/provided Rs. 140 million belonging to public exchequer, out of which Rs.0.60 million was distributed to politicians, shady details of which were given by General (R) Asad Durrani, however, without thorough investigation, no adverse order can be passed against them in this the procedure.
(9) The Pakistan Armed Forces, under the direction of the Federal Government, shall defend Pakistan against external attack or threat of war and shall, subject to law, act to assist the civil authority when called upon under Article 245. Therefore, the Constitution of any unconstitutional act requires action as per the Constitution of Pakistan and law against the officers/officers of the Armed Forces without any discrimination.
(10) The Armed Forces have always sacrificed their lives for the country to defend against any external or internal aggression, for which, as an institution, it is deeply respected by the nation.
(11) Armed Forces, not performing their duties, seek information and support from ISI, MI, etc., and because of threats to the security of the country on its borders or to control internal situations in aid of political power when called upon to do so. However, ISI, MI or any other agency like IB has no role to play in the political affairs of the country such as forming or destabilizing the government or interfering in the conduct of fair, free and fair elections by the Election Commission. Pakistan. Involvement of Secret Service officers/members i.e. ISI, MI, IB etc. in illegal activities, individually or collectively, requires strict action, violation of the oath of their positions and if they interfere, they can be punished according to the Constitution and the Law.
(12) Any Election Cell/Political Cell in the Presidency or ISI or MI or within their formations shall be abolished forthwith and any letter/notice for setting up the said Cell/Department (whatever the name may be, explained in this document, will be canceled immediately.
(13) Late Ghulam Ishaq Khan, then President of Pakistan, General (R) Aslam Beg and General (R) Asad Durrani violated the Constitution by facilitating a group of politicians and political parties etc. to ensure their success. against rival candidates in the 1990 general elections, for which they received funds from Mr. Yunus Habib. Their actions have brought bad name to Pakistan and its Armed Forces as well as the intelligence services in the eyes of the nation, therefore, even though they have retired from the service, the federal government will take necessary action as per the Constitution and the Law .against them. . .
(14) Similarly, legal proceedings will be initiated against the politicians, who allegedly received donations to spend on election campaigns in the 1990 general elections, for this reason a transparent criminal investigation by the FIA will be initiated against all of them and sufficient evidence collected, will be prosecuted according to the terms of the law.
Mr. The same will happen to Yunus Habib.
(15) Proceedings will also be initiated against the above mentioned persons to affect the recovery of the amounts received for their own benefit, by initiating a civil action in accordance with the terms of the law.
(16) An amount of 80 crore was allegedly deposited in account no. 313 titled Survey and Construction Group Karachi owned by MI, therefore this amount with proceeds will be transferred to Habib Bank Ltd. if the liability of O HBL has not been adjusted so far, otherwise the same may be deposited in the treasury of the Government of Pakistan.'
103. Before parting with the above detailed reasons, we record our thanks to the learned counsel appearing on behalf of the petitioner, the learned counsel representing respondents #1 and #3 and the Attorney General for their assistance in deciding this case. , which was pending for a long time for one reason or the other.
104. Once informed of this case, see order dated 14.03.2012, the attention of the learned Attorney General was drawn to a news item published on 14.03.2012 in the Daily Express Tribune, titled "GOVERNMENT WITHDRAWS MILLIONS FROM INFORMATION BUREAU" which alleges that a sum of 270 million INR was distributed from IB accounts with the aim of overthrowing the Punjab government in the year 2008-09. Summonses were sent to the Editors, Printers, and Journalists of the aforesaid papers, who produced some documents to support the complaint made in the news. The notice can be registered as a CMA and, after being separated from the present proceedings, brought before a court, with notification to the Editors, Printers and Journalists of the mentioned newspapers as well as to the DG, IB and Attorney General for a later date two weeks later.
105. This Human Rights case is resolved on the above terms.
Iftikhar Muhammad Chaudhry, CJ
Jawwad S. Khawaja, J.
Khilji Arif Hussain, J.
Islamabad, 19ºOctober 2012
APPROVED FOR REFERENCE