http://www.supremecourt.gov.pk/web/user_files/File/H.R.C.No.19of1996DT19-10-2012.pdf
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 illwill. 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
th October, 2012
Nisar/*
Approved For Reporting
Human Rights Law 