Asghar Khan Case

ISLAMABAD: The Supreme Court of Pakistan (SC), while announcing the short order in the Asghar Khan case, has declared the petition maintainable while it ordered the government to take action against former Army chief Aslam Beg and former ISI chief Asad Durrani Friday.

 A three-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry resumed hearing the petition filed by Air Marshal (retd) Asghar Khan in 1996, accusing the Inter Services Intelligence (ISI) of distributing money among politicians to manipulate the general elections of 1990.
 According to the order, if there are political cells in the intelligence agencies or the presidency, they should be abolished. The court stated that Aslam Beg, Asad Durrani and others illegally favoured the election cell which was an individual act. The military cannot take part in politics but the army chief and DG ISI participated in the illegal activity.
 The election cell was set up in 1990 in the Presidency which was an attempt to influence the elections. If the president does not fulfill his oath, then it comes under the violation of the Constitution.
 It was also stated in the short order that the 1990 elections were fraudulent and the political process was contaminated. As per the Constitution, the state can exercise its authority through its elected representatives, the order stated.
 The Supreme Court has directed the FIA to investigate the case and stated that no order could be given regarding the involvement of politicians without a complete investigation.

Earlier during Friday’s proceedings, the Chief Justice remarked that according to the Constitution, the president holds the most significant office and he is the head of the state, and not the prime minister.
 He further contended that the court will continue to support the democratic process and will not allow anyone to derail the democracy.
 The Chief Justice said that the president cannot set up an election office and he should be a neutral person.
 While presenting his arguments, Attorney General Irfan Qadir said that a deceased president cannot be put on trial.
 The Chief Justice remarked that the Constitution regulated president’s office as it is the symbol of federation. It is not the duty of a president to influence elections. Only an unbiased president can be a symbol of federation.
 The counsel for former army chief Gen (retd) Mirza Aslam Beg in the Asghar Khan case on Thursday said that the SC should direct the Ministry of Defence to administer a fresh oath to the three services chiefs and the entire military top brass.

 Concluding his submissions, Akram Sheikh, the counsel for Gen (retd) Aslam Beg, submitted the background of adding Article 6 of the Constitution and the corresponding change in the oath of military officers.
 Sheikh told the court that on account of participation in politics by military officers, Pakistan had faced the unfortunate Dhaka debacle and as a consequence of the Hamood-ur-Rahman Commission’s report and recommendations, Article 6 & 244 were added to the 1973 Constitution which provided that no military officer shall participate in political activities. Article 6 deals with abrogation and subversion of the Constitution with penalties to be visited thereafter, he added.
 The counsel pointed out that Mirza Aslam Beg had not taken oath under the 1973 Constitution and instead took oath in August 1952 under the Indian Army Act of 1911 amended as Indian Army Act 1950 for Pakistan, which did not prohibit the participation in political activities.
 Sheikh also submitted that Gen Beg had not participated in any political activity. He handed over the power under the 1973 Constitution to Ghulam Ishaq Khan within three hours of the plane crash of Ziaul Haq and carried out the orders of civilian authorities (supreme commander) strictly in the spirit of military discipline. He refuted any allegation of misappropriation of public funds directly or indirectly or having any other hand in disbursement of funds as asserted by Air Marshal (R) Asghar Ali Khan in his “casual petition”.
 Chief Justice Iftikhar Muhammad Chaudhry said that it was also binding on armed forces to adhere to the Constitution like judges and elected government. He said that every citizen of the country should abide by the Constitution and bestowal of a medal upon anyone made no difference.
 The chief justice passed these remarks when Akram Sheikh Advocate said that his client, Gen (R) Mirza Aslam Beg, had controlled the situation in the country on August 17, 1988 and the PPP government had awarded him Tamgha-e-Jamhooriat.
 The Ministry of Defence and a former Military Intelligence (MI) official, in the meantime, submitted their written replies to the SC pertaining to the distribution of Rs80 million while Director Legal at the Ministry of Defence Commander Shahbaz submitted details of the ISI accounts.
 The chief justice, however, observed that the court did not require the details provided in the reply. Justice Jawwad S Khawaja noted that nothing was specifically revealed about the distribution of Rs80 million.
 Commander Shahbaz told the court that an amount of Rs30 million was to be given to Gen (R) Aslam Beg’s organisation, Friends, in 1990. He said that General Asif Nawaz Janjua had, however, objected to it, so the money was not disbursed. He said the investigations were carried out in the past but their outcome was not known.
 Appearing before the court, Attorney General Irfan Qadir submitted that the information about the distribution of Rs80 million should be kept classified. At this, the chief justice said other information in the case was also secret and could not be discussed publicly so such details should be produced in a sealed envelope.
 Appearing on notice, former MI officer Brig (R) Hamid Saeed, who was blamed by Asghar Khan for distributing the fund, submitted his written response along with his 21-year-old diary. He said the diary contains details pertaining to the funds distribution and transaction of many accounts.
During the course of hearing, Malik Asif Hayat, secretary to the president, submitted a new report about the presence of ISI cell in the Presidency. The report stated that no record about any political cell in 1990 could be recovered from the Presidency.
 Akram Sheikh, counsel for Gen (R) Aslam Beg, prayed the court to order the introduction of reforms in the armed forces. He said the ISI should be brought under the discipline of the army and notification for keeping it under the chief executive should be annulled.
 The chief justice, however, told the learned counsel that it was not the job of the court. He said that Aslam Beg had been army chief from 1988 to 1991 and he could have told President Ishaq Khan that he would not become a party to the distribution of money.
 The chief justice said that Beg should have resisted President Ishaq’s move. “It was only your client who could have brought any change,” he told Sheikh.

Asghar Khan case: Full text of Supreme Court verdict

IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain
HUMAN RIGHTS CASE NO.19 OF 1996
[Application by Air Marshal (Retd.) Muhammad Asghar Khan]
Air Marshal (Retd.) Muhammad Asghar Khan … PETITIONER
VERSUS
General (Retd.) Mirza Aslam Baig, former Chief of Army Staff & others
… RESPONDENTS
For the petitioner: Mr. Salman Akram Raja, ASC
Assisted by Malik Ghulam Sabir, Adv.
a/w Air Marshal (R) M. Asghar Khan

For the Federation/: Mr. Irfan Qadir Attorney General for Pakistan
M/o Defence Mr. Dil Mohammad Khan Alizai, DAG
Raja Abdul Ghafoor, AOR Assisted by: Barrister Shehryar Riaz Sheikh, Adv.
Commander Hussain Shahbaz, Director (L) Wing Comd. M. Irfan, Deputy Director
For Respondent No. 1: Mr. Muhammad Akram Sheikh, Sr. ASC
Assisted by Ch. Hassan Murtaza Mann, Adv.
a/w Gen. Retd. Mirza Aslam Baig
Respondent No. 2: Lt. Gen. Retd. Asad Durrani, Ex-DG, ISI In Person
For Respondent No. 3: Mr. Muhammad Munir Piracha, Sr. ASC
For the Applicant(s): Sh. Khizar Hayat, Sr. ASC (CMA No. 918/2007)
Mr. Roedad Khan in person (CMA No. 3196/2012)
Raja Abdul Ghafoor, AOR (in CMA 3410/12)
HRC 19/1996 2
On Court’s notice:
For President Secretariat: Malik Asif Hayat, Secretary to the President
Mr. Arshad Ali Chaudhry, Director Legal
For SBP: Raja Abdul Ghafoor, AOR

For NAB: Mr. Mazhar Ali Chaudhry, DPG Brig. (R) Hamid Saeed, in person
For HBL: Nemo
Date of Hearing: 19.10.2012.
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.–

The Constitution of the Islamic Republic of Pakistan commands that it is the will of the people of Pakistan to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people, wherein the principles of democracy, freedom, equality, etc., shall be fully observed, so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world, and make their full contribution towards international peace and progress and happiness of humanity.
People of Pakistan had been struggling to establish a parliamentary and democratic order since long within the framework of the Constitution and now they foresee a strong system which is established by the passage of time without any threat and which is subject to the constitution and rule of law.
2. The essence of this Human Rights case is based on the fundamental right of citizens enshrined in Article 17 of the Constitution. It raises an important question of public importance to enforce the fundamental rights, inter alia, noted hereinabove,

HRC 19/1996 3

Therefore, in accordance with the provisions of Article 184(3) of the Constitution, jurisdiction has been assumed and exercised to declare, for the reasons to be recorded later, as under:-
(1) That citizens of Pakistan as a matter of right are free to elect their representatives in an election process being conducted honestly, justly, fairly and in accordance with law.

(2) The general election held in the year 1990 was subjected to corruption and corrupt practices as in view of the overwhelming material produced by the parties during hearing it has been established that an “Election Cell” had been created in the Presidency, which was functioning to provide financial assistance to the favoured candidates, or a group of political parties to achieve desired result by polluting election process and to deprive the people of Pakistan from being represented by their chosen representatives.

(3) A President of Pakistan, in Parliamentary system of government, being head of the State represents the unity of the Republic under Article 41 of the Constitution. And as per the oath of his office in all circumstances, he will do right to all manner of people, according to law, without fear or favour, affection or ill will.
Thus, holder of office of President of Pakistan, violates the Constitution, if he fails to treat all manner of people equally and without favouring any set, according to law, and as such, creates/provides an occasion which may lead to an action against him under the Constitution and the Law.
(4) The President of Pakistan, Chief of Army Staff, DG ISI or their subordinates certainly are not supposed to create an Election Cell or to support a political party/
HRC 19/1996 4
Group of political parties, because if they do so, the citizens would fail to elect their representatives in an honest, fair and free process of election, and their actions would negate the constitutional mandate on the subject.
(5) However, in the instant case it has been established that in the general elections of 1990 an Election Cell was established in the Presidency to influence the elections and was aided by General (R) Mirza Aslam Baig who was the Chief of Army Staff and by General (R) Asad Durrani, the then Director General ISI and they participated in the unlawful activities of the Election Cell in violation of the responsibilities of the Army and ISI as institutions which is an act of individuals but not of institutions represented by them respectively, noted hereinabove.

(6) ISI or MI may perform their duties as per the laws to safeguard the borders of Pakistan or to provide civil aid to the Federal Government, but such organizations have no role to play in the political activities/politics, for formulation or destabilization of political Governments, nor can they facilitate or show favour to a political party or group of political parties or politicians individually, in any manner, which may lead in his or their success.

(7) It has also been established that late Ghulam Ishaq Khan, the then President of Pakistan with the support of General (R) Aslam Baig, General (R) Asad Durrani and others, who were serving in M.I and now either have passed away or have retired, were supporting the functioning of the ‘Election Cell’, established illegally.

(8) Mr. M. Younas A. Habib, the then Chief Executive of Habib Bank Ltd. at the direction and behest of above noted functionaries, arranged/provided Rs.140 million belonging to public exchequer, out of which an amount

HRC 19/1996 5

Of Rs.60 million was distributed to politicians, whose incomplete details have been furnished by General (R) Asad Durrani, however, without a thorough probe no adverse order can be passed against them in these proceedings.

(9) The Armed Forces of Pakistan, under the directions of Federal Government, defend Pakistan against external aggression or threat of war and, subject to law, are to act in aid of civil power when called upon to do so under Article 245 of the Constitution, thus, any extraconstitutional act, calls for action in accordance with the Constitution of Pakistan and the law against the officers/officials of Armed Forces without any discrimination.

(10) The Armed Forces have always sacrificed their lives for the country to defend any external or internal aggression for which it being an institution is deeply respected by the nation.

(11) The Armed Forces, in discharge of their functions, seek intelligence and support from ISI, MI, etc., and on account of security threats to the country on its frontiers or to control internal situations in aid of civil power when called upon to do so. However, ISI, MI or any other Agency like IB have no role to play in the political affairs of the country such as formation or destabilization of government, or interfere in the holding of honest, free and fair elections by Election Commission of Pakistan. Involvement of the officers/members of secret agencies i.e. ISI, MI, IB, etc. in unlawful activities, individually or collectively calls for strict action being, violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and the Law.

HRC 19/1996 6

(12) Any Election Cell/Political Cell in Presidency or ISI or MI or within their formations shall be abolished immediately and any letter/notification to the extent of creating any such Cell/Department (by any name whatsoever, explained herein, shall stand cancelled forthwith.

(13) Late Ghulam Ishaq Khan, the then President of Pakistan, General (R) Aslam Baig and General (R) Asad Durrani acted in violation of the Constitution by facilitating a group of politicians and political parties, etc., to ensure their success against the rival candidates in the general election of 1990, for which they secured funds from Mr. Younas Habib. Their acts have brought a bad name to Pakistan and its Armed Forces as well as secret agencies in the eyes of the nation, therefore, notwithstanding that they may have retired from service, the Federal Government shall take necessary steps under the Constitution and Law against them.

(14) Similarly, legal proceedings shall be initiated against the politicians, who allegedly have received donations to spend on election campaigns in the general election of 1990, therefore, transparent investigation on the criminal side shall be initiated by the FIA against all of them and if sufficient evidence is collected, they shall be sent up to face the trial, according to law. Mr. Younas Habib shall also be dealt with in the same manner.

(15) Proceedings shall also be launched against the persons specified hereinabove for affecting the recovery of sums received by them with profit thereon by initiating civil proceedings, according to law.

(16) An amount of Rs.80 million, statedly, has been deposited in Account No. 313 titled Survey and Construction Group Karachi, maintained by MI, HRC 19/1996 7 therefore, this amount with profit shall be transferred to Habib Bank Ltd. if the liability of HBL has not been adjusted so far, otherwise, the same may be deposited in the treasury account of Government of Pakistan.

Chief Justice

Judge

Judge

Islamabad, the

19^thOctober, 2012

Nisar/*

Approved For Reporting

MULTAN: Senior Vice Chairman PPP Syed Yousuf Raza Gilani said on Friday that the Supreme Court verdict in Asghar Khan case validated Shaheed Benazir Bhutto stance of 'stealing elections in 1990'.

 Talking to reporters at the Multan Airport before departing to Islamabad, he said politicians were bribed form IJI for defeating the Pakistan People's Party in 1990 elections.

 He said Shaheed Zulfikar Ali Bhutto and Shaheed Benazir Bhutto had rendered sacrifices for the rights of the masses.

 Gilani said the PPP with its coalition partners had restored the 1973 Constitution, judiciary and the media as per demands and wishes of the people.

 To a question, he said the PPP would resolve the energy crisis and added that the up-coming general elections would be free, fair and transparent.

 On a question, Gilani said the PPP always respected all institutions.

Criticising the Punjab government, he said the Punjab government was demanding early elections in the past but now it needed time because many of its development projects were still incomplete.

To a question, the senior vice chairman PPP said expressing the personnel point of view within the party was a beauty of democracy.

He said Mian Manzoor Wattoo was a seasoned parliamentarian and the PPP would get benefit from his experience in general elections.

 Gilani said his roots were in the masses and he would remain in the masses.