Officials not bound to obey unlawful orders of Presidency: SC

ISLAMABAD: The Supreme Court on Thursday, while announcing the detailed judgment in the Asghar Khan case, ruled that government officials are not bound to accept unlawful orders by any higher office, including the Presidency.

The 140-page detailed judgment, authored by Chief Justice Iftikhar Muhammad Chaudhry, carried the affidavits, submitted by former army chief General (retd) Mirza Aslam Beg, former DG ISI Lt Gen (retd) Asad Durrani, Younis Habib, former chief of the Mehran Bank and former DG MI, Brigadier (retd) Hamid Saeed.

The judgement ruled that: “Without prejudice to the foregoing, only lawful commands are required to be obeyed. All officers who obey unlawful commands are individually liable. All superior officers giving unlawful commands or who fail to prevent unlawful action on the part of their subordinates are liable and culpable. In the event of failure of the relevant state authorities to take action, the rights of the people of Pakistan are to be upheld by this court making all necessary directions to the functionaries and institutions of the state, including the Election Commission of Pakistan, including the direction to investigate and prosecute.”

The detailed verdict said that the result of conferring powers on the President of Pakistan under Eighth Constitutional Amendment created an atmosphere due to which the office of the president remained pitched against the political parties with full impunity, without realising constitutional sanctity of the president’s office, which is the symbol of the unity of the republic and as the head of the state as per Article 41 of the Constitution.

The detailed judgment also ruled that during the proceedings of the case, it was established that the then president directly involved himself in the matter of first arranging funds from an illegal source and then getting the same disbursed to a group of political parties and various other persons through the member of Armed forces in the name of great national interest with a view to influencing the election results in derogation of the people’s right to freely choose their representatives.

“Historically, there is no gainsaying that the office of president, both during military and civil governments, has been indulging in politics,” says the detailed verdict.

“Learned Attorney General stated that no state functionary, be he president who is the Supreme Commander of the Armed Forces of Pakistan, or the prime minister, who is the chief executive of the country, or the federal ministers, or anyone else is empowered to give illegal orders. No body can violate the Constitution, nobody can rig the elections. Such a duty is not upon anybody in Pakistan, therefore, the President of Pakistan cannot be isolated in this respect, inasmuch as oath of his office is no different to the other oaths prescribed in the Constitution,” it added. It further ruled that there have been constitutional deviations, from time to time, due to which parliamentary system was weakened and could not flourish in the country as envisaged by the Constitution.

The court further ruled that the political stalemate has been summarised by this court in the case of Sindh High Court Bar v. Federation of Pakistan (PLD 2009 SC 879).

The detailed verdict also recalled that the court while hearing the instant case on March 14, 2012, drew the attention towards a news item published on March 14, 2012 in an English Daily, captioned as “Govt withdrew millions from Intelligence Bureau account” complaining therein that an amount of Rs270 million were doled out of IB accounts for the purpose of toppling the government of Punjab in the year 2008-09.

The court held that notices were issued to the publishers, printers and reporters of the said newspapers, who produced certain documents to substantiate the allegation reported in the news item.

The court had ordered to register the said news item as CMA and after de-linking the same from instant case, be fixed in Court, with notice to the publishers, printers and reporters of the said newspapers as well as DG, IB and the Attorney General for a date after two weeks.

The detailed judgement also mentioned that bureaucrats, journalists and other persons received money. It contains Younas Habib statement that he recorded before Investigating Officer. According to him Rs140 million were paid to Gen (Retd) Mirza Aslam Beg, Rs70 million to the then Sindh Chief Minister Jam Sadiq Ali, MQM chief Altaf Hussain Rs20 million, Yousaf Memon (Advocate) (for disbursement to Javed Hashmi, MNA and others Rs50 million. Total:Rs280 million — Jam Sadiq Ali (1992) Rs150 million, Liaqat Jatoi (1993) Rs1 million, MQM’s Afaq (1993) Rs5 million, ex-Prime Minister Nawaz Sharif (1993) Rs3.5 million, Nawaz Sharif (27-9-90) Rs2.5 million. The affidavit submitted by Lt Gen (Retd) Asad Durrani is also made part of the verdict in which names of the recipient of money are given. According to the affidavit Rs10 million were given to Mir Afzal from NWFP province, Rs3.5 million to Nawaz Sharif, Rs5.6 million to Lt Gen (Retd) Rafaqat for disbursement in media, Rs5 million to Jamaat-e-Islami, Rs1 million to Syeda Abida Hussain, Rs5 million to Ghulam Mustafa Jatoi, Rs2.5 to Muhammad Khan Junejo, Rs2 million to Pir Pagara, Rs3 million to Maulana Salah Ud-Din etc.

The detailed judgement also include statement submitted by Brig (R) Hamid Saeed. According to the statement in compliance with the directions six accounts were opened in different banks. Funds started pouring in from 16th September 1990 onwards. By 22nd October 1990, Rs140 Million had been received in these accounts. Thereafter following amounts were remitted as ordered by DGMI: Rs40 million to GHQ account, Rs10.5 million to regional office of MI Quetta, Rs5 million interim PM Ghulam Mustafa Jatoi, Rs5 million to interim CM Sindh Jam Sadiq Ali, Rs2.5 million to Muhammad Khan Junejo, Rs3 million to Abdul Hafeez Pirzada, Rs2 million to Pir Pagara, Rs3 million to Salah-ud-Din (Takbeer),

The verdict also quoted 20 April, 1994, statement of the then Interior Minister Nasirullah Babar in the National Assembly that Younas Habib, the Chief Operator of Mehran Bank Limited, misappropriated Rs2.10 billion through a number of fake accounts and gave Rs140 million to Mirza Aslam Beg in 1991; Rs70 million to late Jam Sadiq Ali Khan, Rs20 million to MQM chief Altaf Hussain.

A three-member bench of the apex court comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawad S Khawaja and Justice Khilji Arif Hussain while announcing a short order in Asghar Khan’s case on October 19, 2012 had directed the government to take action against former army chief Mirza Aslam Beg and General (R) Asad Durrani, former chief of Inter-Services Intelligence (ISI) for violating the Constitution while manipulating the 1990 general elections. Air Marashal (R) Asghar Khan had filed a petition in 1996, accusing the Inter Services Intelligence (ISI) of distributing huge sum of Rs60 million among politicians to manipulate the general elections of 1990.

The court had ruled that both Asad Durrani and Aslam Beg have brought bad name to Pakistan and its armed forces as well as secret agencies in the eyes of the nation.

The court had ordered that any election cell/political cell in Presidency or ISI or MI or within their formations 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.

The court had also ruled that 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 Younas Habib, former chief executive of Mehran Bank.

The short order had further ruled that an amount of Rs80 million had been deposited in Account No. 313 titled Survey and Construction Group Karachi, maintained by MI, therefore, this amount with profit be transferred to Habib Bank Ltd with further direction that 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.

The court also ordered initiation of legal proceedings against those politicians who allegedly received donations to spend on election campaigns in the general elections of 1990 and directed Federal Investigation Agency (FIA) to conduct transparent investigation on the criminal side against all of them and if sufficient evidence is collected, they shall be sent up to face the trial, according to law.

The court had observed that 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. The short had ruled that ISI, MI or any other agency like IB have no role to play in the political affairs of the country such as formation or destabilisation 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”, the short order had ruled.

Posted in: Top Story