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Petitioner: Air Marshal (Retd) MUHAMMAD ASGHAR KHAN VS Respondent: General (Retd) MIRZA JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Iftikhar Muhammad Chaudhry Title:Air Marshal (Retd) MUHAMMAD ASGHAR KHAN vs General (Retd) MIRZA
JUDGMENT
Reported As: PLJ 2013 SC 361 Result: Order accordingly Judgment JUDGMENT Iftikhar Muhammad Chaudhry, CJ.--The instant Human Rights Case was registered under Article 184(3) of the. Constitution .of Islamic Republic of Pakistan, .1973 [hereinafter referred to as the Constitution] on the basis of letter dated 16-6-1996 written by Air Martial (R) Muhammad Asghar Khan, a former Chief of Air Staff [hereinafter referred to as the petitioner] to the then Chief Justice of Pakistan. 2. For the purposes of disposal of this petition, it is necessary to recapitulate the historical background in which the general elections of 1990 were held. On 17-8-1988, General Zia-ul-Haq (late), Chief of Army Staff who had imposed martial law in the country on 5-7-1977 and later assumed the office of President of Pakistan, died in C-130 airplane crash carrying top military brass of the time and some other. notable international figures of the time, few moments before its arrival at the 13ahawalpur Military Airbase. General Mirza Aslam Beg, the then Vice Chief of Army Staff [hereinafter referred to as 'Respondent No. 1'] was also flying to Bahawalpur but in a separate plane and survived. The same day, Mr. Ghulam Ishaq Khan (late), the then Chairman, Senate of Pakistan was sworn in as the Acting President under the Constitution and Respondent No. 1 was appointed as Chief of Army Staff. On 16.11.1988, general elections were held in the country and Pakistan People's Party (PPP), which captured the largest number of seats in the National Assembly in comparison to other parties, formed 'the Federal Government. Mr. Ghulam Ishaq Khan (late) was elected as the new President. Political differences arose between the President and the elected government of Late Moht,arma Benazir Bhutto. On 6-8-1990, the President, in exercise of powers conferred upon him under Article 58(2)(b) of the Constitution, which was insetted by the Eighth
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Constitutional Amendment, dissolved the National Assembly end dismissed the government on the ground that the Government of the Federation was not being carried -out in accordance with the provisions of the Constitution. The dissolution order was challenged before this Court in the case of Ahmed Tariq Rahim u. Federation (PLD 1992 SC 646)], but the same was upheld. 3. Mr. Ghulam Mustafa Jatoi was appointed as the Caretaker Prime Minister and fresh elections were scheduled to be held on' 24.10.1990. An electoral alliance of nine political parties, known as the Islami Jamhoori Ittehad (IJI), also called Islamic Democratic Alliance won the largest parliamentary seats and formed the Government with Mian Muhammad Nawaz Sharif as the Prime Minister of Pakistan. On 19-4-1993, Mr. Ghulam Ishaq Khan invoked Article 58(2)(b). of the Constitution and dissolved the National Assembly on grounds/ allegations of mal-administration,' corruption, nepotism etc. This led, once again to forming an 'interim Government headed by Caretaker Prime Minister Balakh Sher Mazari. The dissolution order was challenged before the Supreme Court in the case of Mian Nawaz Sharif u. Federation (PLD 1993 SC 473) wherein the exercise of power by the President under Article 58(2)(b) of the Constitution was held to be unconstitutional. In consequence, the National Assembly and the Government were restored.. However, as the political standoff continued, which created a passe the President dissolved the National Assembly on the advice of Prime Minister Mian Muhammad Nawaz, Sharif and proceeded on leave as part of the political arrangement. This time, Mr. Waseem Sajjad, the then Chairman Senate became the Acting President under the Constitution while Mr. Moeen Qureshi, a banker from New York was appointed as the Caretaker Prime Minister. Elections were held on 6-10-1993 and the PPP emerged as the biggest winner of seats in the National Assembly and formed Government with Mohtarma Benazir Bhutto (late) as the Prime Minister. Mr. Farooq Ahmed Khan Leghari, a political worker of the PPP was elected as the new President of Pakistan. On 6-11-1996, President Farooq Ahmad Khan Leghari too invoked Article 58(2)(b) of the Constitution and dissolved the National Assembly on various charges/allegations. 4. On 11-6-1996, while the PPP Government was in office, Maj. General (R) Nasirullah Khan Babar, the. then. Minister for Interior, made a speech on the Floor of the National Assembly wherein he presented an affidavit dated 24-7-1994. sworn by the former Director General, Inter-Services Intelligence (ISI), Lt. General (R) Asad Durrani hereinafter referred to as 'Respondent No. 21'] wherein it was asserted, inter alia, that different sums of money were disbursed to various politicians/political parties forming part of 1JI to enable them to win election. It may be noted that at the time of making affidavit, Respondent No. 2 was posted as Ambassador of Pakistan in Bonn, Germany He stated in the affidavit that in September 1990 while he was posted as DG ISI, he 'received instructions from Respondent No. 1, the then Chief of Army Staff (COAS) "to provide logistic support to the disbursement of donation made by some businessmen of Karachi to the election campaign of "IJI". He was also told that the operation had the blessings of the Government and proceeded to act in accordance with the instructions received by him. The contents of his affidavit are reproduced hereinbelow in extenso:-- "AFFIDAVIT I, Lt. Gen. (R) M. Asad Durrani, Muslim, adult, former DG. ISI presently posted as Ambassador of Pakistan. Bonn, Germany, do hereby my oath and state on solemn affirmation asunder:- (1) In September, 1990, as DG, ISI, I received instructions from the then COAS. (now retired) General Mirza Aslarn Beg to provide "logistic support" to the disbursement of donations made by some businessm en of Karachi to the election campaign of IJI. I was told that the operation had the blessings of the Government. (2)' Accordingly. I tasked some officers, and took the following , actions: (a) Opened a few cover accounts in Karachi, Quetta and Rawalpindi.
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(b) Money - eventually 140 million rupees - was deposited in Karachi accounts by one Mr. Yunus Habib. (c) As required amounts were transferred to Quetta and Rawalpindi accounts. (d) A total of 6.0 million rupees were distributed as directed by the COAS or at time directly by the election cell, in Presidency. (e) The remaining money was transferred to a special fund. Distribution of 6.0 million is attached: (Sd) Lt. Gen. (Retd.) 24 July, [***]94 (M. ASAD. DURRANI) The names of the recipients are detached from his affidavit and shall be noted at an appropriate place. 5. The contents of the speech of the then Minister or Interior/affidavit of Respondent No 2 were carried by the daily Jhang in its issue of 12.6.1996 as under:-- {{IMAGE TEXT}} 6. Air Marshal (R) Muhammad Asghar Khan, a former Chief of Air Staff who had rendered meritorious services as a fighter pilot after his retirement, and had joined politics by forming a political party with the name and style of Tehrik-e-Istaqlal Pakistan, in his above referred letter had averred as under:-- "BY TCSPERSONAL 16th June 1996 Dear Mr. Justice Sajjad Ali Shah, I should like to draw your attention to the disclosure by the Minister for Interior is. the National Assembly on 11th die, 1996 that General (R) Mirza Aslam Beg, a former Chief Army Staff, had drawn Rs. 15 Crores from the Mehran Bank and had distributed this amount to various people prior to the 1990 elections. He disclosed that this had been done through Lt. Gen, (R) Assad Durrani, the Director General, of the later Services Intelligence Directorate, at that time General Duya,' statement was read out in . the National Assembly. enclosing a cutting from the Daily ',TANG', Rawalpindi of June, 1996 which, gives the details (End. 1). The action of General (R) Mirza Aslam Beg and of Lt. Gen. (R) Assad Durrani amounts to gross misconduct and I am writing to ask that you may be pleased to initiate legal proceedings against both these persons who have brought the Armed Forces of Pakistan into disrepute and have been guilty of undermining the discipline of the Armed Forces. I am also sending a copy of this letter to the Chief of the Army Staff for his information. Sincerely (Sd.) (M. Asghar Khan)" 7. Major General (R) Nasirullah Khan Babar, the then Interior Minister had raised the issue of distribution of money to a group of politicians on the floor of the House of the National Assembly by reading out the affidavit of Respondent No. 2 wherein he had admitted that amounts were distributed to certain persons for the purpose of election, campaign of Islami Jamhuri Ittehad (IJI). Prior to the affidavit, Respondent No. 2 had sent a handwritten note to the then Prime Minister of Pakistan, wherein he had stated as hereunder:-- "Eyes Only Embassy of Pakistan 5300 Bonn 2 Rheinallee 24
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Telephone 35 20 04 7 June 94 My dear Prime Minister A few points I want to include in my "confessional statement" handed over to the Director FIA. These could be embarrassing or sensitive. a. The recipients included Khar 2 Millions, Hafeez Pirzada 3, Sarwar Cheema 0.5 and Mairaj Khalid 0.2 Millions. The last two were not on the wrong side. It was merely someone's "soft corner" that benefited them. b. The remaining 80 Ms were either deposited in the ISI's 'K' fund (60 M) or given to Director External Intelligence for special operations (perhaps the saving face of this disgraceful exercise but it is delicate information). c. The operation not only had the "blessings" of the President and the whole hearted participation of the caretaker PM, but was also in the knowledge of the Army High Command. The last mentioned will be the defence of many of us including Gen. Beg (who took his colleagues in confidence") but that is the name that we have to protect. The point that I have "wargamcd" in my mind very often is: what is the object of this exercise? a. If it is to target the opposition; "it might be their legitimate right to take donations, especially if they came through "sacred channels". Some embarrassment is possible, but a few millions are peanuts now a days: b. If the idea is to put Gen. Beg on the mat; "he was merely providing "logistic support" to donations made by a community "under instructions" from the Government and with the "consent" of the military high command." In any case, I understand he is implicated in some other deals in the same case. c. GIK could pretend ignorance, as indeed he never involved himself directly. d. Of course one has to meet the genuine ends of law. In that case, let us take care of the sensitivities like special operations and possibly that of the Army. It was for these reasons that I desperately wanted to see you before leaving. I also wanted to talk about my farewell meetings with the COAS. In the meantime, you must have met often enough and worked and what is in the best interest of the country. I keep praying that all these natural, and man made calamities are only to strengthen us in our resolve and not in any way reflective of our collective sins. With best regards and respects Yours sincerely Sd/- Asad" 8. General (R) Mirza Aslam Beg, former Chief of Army Staff, Lt. Gen. (R) Asad Durrani, Ex-DG, ISI and. Mr. Yunus Habib, Ex-Chief Mehran Bank Limited, being the main figures in the alleged scam of distribution of funds to a group of politicians to influence the outcome of the 1990 general elections, were arrayed as Respondents Nos. 1 to 3, and notices were issued to them. 9. It is to be noted that one Brig. (R) Kamal Alam Khan sent a application to the then Chief Justice of Pakistan requesting therein the he may be impleaded as a party in the proceedings. The said application was registered as CM.A. No. 109/1997 In the application, he named the following officers of the Armed Forces who, according to him, were part of this operation-- (a) Brig (R) Hamid Saeed Akhtar (b) Brig (R) Amanullah (c) Lt. Col (R) Eqbal Saved Khan (d) Lt. Col (R) Ejaz- (e) It. Col (R) Mir Akbar Ali Khan (f) Lt. Col Salman Butt
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As per Court order dated 24-2-1997, though the above named officer was allowed to attend the proceedings of the Court but according to Mr. -Selman Akram Raja, learned ASC he was not allowed to join the proceedings and now he had passed away. In the said application, as noted, the name of Brig. (R) Hamid Saeed Akhtar was also mentioned. Therefore, on the Court's direction, - Respondent No. 2 furnished his address and notice was issued to him. Accordingly, he appeared and filed a written statement, which was marked as 'confidential', but during hearing he stated that his written statement may not be treated as confidential. For facility of reference, order dated 18- 10-2012 is reproduced hereinbelow:-- "Brig:.(Retd.) Hamid Saeed has appeared and filed a statement in writing on top of which, word "Confidential" is mentioned. We have pointed out to him that the Court is seized of the information contained in Paras -9 onwards of his statement because the facts mentioned therein pertaining to distribution/donation of funds to a group of politicians/IJI before the 1990's general elections and same are already on the record of the case. Prima facie, the contents of Paras 1 to 8 of his statement are not relevant for the purpose of decision of the present case, therefore, if he so wishes, he may claim confidentiality in respect thereof. However, he stated that either a document is to be treated 'confidential' as a whole or not at all. He explained that if Paras 1 to 8 are deleted from his statement, the whole object and purpose he wanted to convey to the Court vide Para 9 onwards would not be conveyed. Thus, he has expressed the desire not to treat his statement as confidential' and has scored off the word- confidential' written on the top of the document. He has also stated that he wants to explain the events and dates in respect of disbursement of funds to a group of politicians with the assistance of a diary, which he was maintaining at the relevant time. He has handed over this document for our perusal in Court ' The statement of Brig. (R) Hamid Saeed dated 18-10-2012 as well as extracts of his handwritten diary, of which he took full responsibility, filed in Court are also reproduced hereinbelow:-- (1) In 1990 I was commanding an Artillery Brigade D.I. Khan. In the same year following an indigenous uprising of Kashmiris in the Indian Held Kashmir, both India & Pakistan deployed their forces in the border areas. My Brigade had just reached the border area when I received the orders to join regional office of Military Intelligence in Karachi. I talked to the Corps Commander and submitted that I wished to be with my troops during combat. I further pleaded that I had no intelligence back ground or formal training. Corps Commander advised that my, services were very urgently required at Karachi to control the deteriorating internal security situation in Sindh. Accordingly I reported to my new duty station and assumed command w.e.f. 23rd July 1990. (2) At, that time MQM had recently fallen apart from the ruling political party (PPP). PPP. workers had resorted to taking revenge from MQM for their political betrayal through the use of force. MQM reacted even more violently through their armed political workers. PPP, MQM, PPI, JI and JSM activists were relentlessly killing each other. The daily death toll was 100-110 besides countless left wounded and incapacitated. PSF, APMSO, IJT and JSQM had taken prisoners, the activists of their rivals and committed horrendous & inhuman atrocities on them e.g. drilling holes in knee joints with the drill machines and burning their delicate parts with electric soldering machines. I immediately held meetings with Mr. Tariq Azeem, Dr. lmran Farooq, and Mr. Saleem Shahzad of MQM, Prof. Ghafoor of JI, Dr. Hameeda Khoro & Mr. Mumtaz Bhotto JSF, Abdul Waheed Aresar of JSQM and Mukhtar Awan of PPI and gave them strong message that if they did not stop killing, arson and looting, army may be forced to step in to restore peace: (3) Initially the belligerent- forces totally denied their involvement in the unlawful activities. However when irrefutable evidence of their crimes was produced, the took the advice more seriously Following were the visible effects of intelligence intervention on the security situation in Karachi:-- a. Within 1 week killing reduced drastically from 100-110 to 20-30 per day.
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b. Exchange of prisoners of the belligerent sides was arranged and this exchange took place at Karachi Corps HQ. (4) All the above was achieved through negotiations and dialogue. Not a single bullet was fired, nobody was kept in illegal confinement and no torture was committed to extract information. The importance of my primary task i.e. intelligence & counter intelligence operations far outweighed my involvement in the internal security matters but at that time internal security had assumed greater importance. (5). Soon after, the provincial Govt. launched a police operation against Mohajif populace residing in Pukka Qila Hyderabad on a day when the PM, COAS and Karachi Corps Commander were on tour abroad and the army units were out annual exercise. In this operation police killed dozens of men, women & children. The matter was reported to higher echelons. The President Mr. Ghulam lshaq Khan ordered the Army to intervene and stop this carnage. Station Commander Hyderabad gathered about 300 soldiers from the personnel left behind for guard duties and reached the site. On his intervention police force withdrew. PM Benazir Bhutto on return to Pakistan gave a press statement that. "Army had supplied POF made weapons to Mohajirs". Police had besieged Pukka Qila to recover these weapons. When police force was about to reach the- cache in Pukka Qila, Army stepped in and took away the weapons in military vehicles". Everybody was shocked by this statement. (6) After this mayhem MRC (Mohajir Rabita Committee) gave, a press statement that they (Mohajirs) were being forced to look towards India for the protection of their rights. India readily responded to this call by stating that Mohajirs were India's ex-citizens and India was obliged to ensure their safety and protection against State terrorism and genocide. Such statements reminded One of the Indian interventions in former East Pakistan which finally resulted in the dismemberment of our country. (7) Earlier that year, the PM had also publicly criticized the Army for crossing the red line by enriching uranium to a level which was not acceptable to big powers. She also gave an interview to BBC in which she mentioned of her support to India in crushing Khalistan Movement. Sometime later PM criticized the Army for conducting the annual exercise in the Sindh province without her consent. ISPR had to clarify through a press release that under the law COAS was not obliged to seek anyone's permission for conducting training exercises in any part of the country. All such events were reported by the print media. (8) During the same year the government also gave attractive jobs to Al-Zulfiqar activists in Railways, PIA, Customs, KPT, Immigration, Excise & Taxation and other sensitive departments, thus endangering national security. These activists of AZO had been imparted proper training by India in sabotage, arson, bomb blasts, mass killing and other acts of terrorism. The authentic record of these terrorists was available with all the intelligence agencies. All these matters were reported to higher ups through normal command channels. (9) General perception of the common man was that the ruling' party had got the votes but lacked the vision to run the country. Something appeared to be in the offing. On 16th August 1990 President Ghulam Ishaq Khan dissolved the PPP Govt. using power under Article 58(2)(b). In Sindh an interim Government was formed under Jam Sadiq Ali as the Chief Minister. a. On 12 September 1990 DG MI Maj. Gen Muhammad Asad Durrani visited Karachi and gave following directions to me:-- b. Open six accounts in different banks and send me the title and number of each account. c. Keep on monitoring these accounts. Some funds shall be deposited in -these accounts from time to time. You will keep me updated regarding the balance in each account on weekly basis.' (10) All transactions in these accounts shall be treated as secret. You will be personally responsible to me for their accounting and no information in this regard shall be shared with any unauthorized
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person. Services of a grade-1 staff officer may be used for opening and handling of these accounts. (11) In compliance with these directions six accounts were opened in different banks. Funds started pouring in from 13.h September 1990 onwards. By 22nd October 1990. Rs. 140 Million had been received in these accounts. Thereafter following amounts were remitted as ordered by DGMI:-- Rs. 40 Million to GHQ account. Rs. 10.5 Million to regional office, of MI Quetta." Rs. 5 Million to interim PM Mr. Ghulam Mustafa Jatoi Rs. 5. Million to interim CM Sindh Mr Jam Sadiq Ali Rs. 2.5 Million to Mr; Muhammad Khan Junejo. Rs. 3 Million to Mr.' Abdul Hafeez Pirzada Rs. 2 Million to Mr. Sibghat-Ullah Pir Sahib . Pagara. Rs. 03 Million to Mr. Muzaffar Hussain Shah. Rs. 03 Million to Mr. Muzaffar Hussain Shah Rs. 0.3 Million to Mr. Ghulam Ali Nizamani. Rs. 02 Million to Mr. Arbab Ghulam Rahim Rs. 03 Million to Mr. Salah-ud-Din (Takbeer). Rs. 05 Million to Mr. Yousaf Haroon Rs. 3,828 Million to Sindh Regimental Centre, and also used for construction of men's living barracks, interrogation cells (12) The remaining balance of Rs. 67,628,511/- including interest was later on sent to GHQ along with up to date bank statements. I would like to state that during my service with the Military Intelligence, I was of the opinion that the funds were coming from GHQ. (13) In 1991 I learnt through news media that one Mr. Yunus Habib had been arrested for fraud in Habib Bank Ltd. At that occasion Gen. Durrani rang me up to explore the possibility of having him bailed out. He said that the COAS had desired to have him bailed out because he had been helpful in doing a work of national importance. I showed my inability to do so because this case was sub judice. In September 1991 I was posted out from MI to Kharian. Finally I retired from service in December 1994. (14) In 1994, during the second tenure of PPP government, when Gen. Durrani gave an affidavit to the Court and the matter became public, I for the first time learnt through the news media that these funds were stated . to have been provided by Mr. Yunus Habib. Sd/- Brig (R) Hamid Saeed Akhtar 18 Oct 2012" {{IMAGE TEXT}} 10. As regards the statement under Section 161, Cr.P.C., of Mr.Yunus Habib [hereinafter referred 'to as 'Respondent No 3'], it may be mentioned that such statement is not .per se, admissible under the Qanun-e-Shahadat Order, 1984 as proof of the facts stated therein unless the same are otherwise proved in a Court of law in accordance with law. But here reference is being made to it as the Mehran Bank Scandal report containing the said statement has been made part of the record. It is also to be noted that investigation would be required to be made in respect of distribution of the sums of money paid before the 1990 general elections after withdrawal thereof from HBL or subsequent* thereto from the Mehran Bank Ltd, as in the year 1990, it was Habib Ltd. and not
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Mehran Bank, from where these amounts were drawn. 11. Respondent No 1, filed his reply on 23-2-1997 through Mr. Muhammad Akram Sheikh, Sr. ASC, stating therein, inter alia, that in the year 1990 when the National Assembly was dissolved and a Caretaker Government was formed to hold elections within 90 days, an Election Cell was set up in the Presidency, which functioned directly under the then President (late Ghulam Ishaq Khan) and was managed by M/s. Roedad Khan and Ijalal Haider Zaidi. It was further stated that uptill 1975, the ISI was responsible for countering intelligence and strategic operational 'intelligence and functioned 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 whereof it was made responsible to the Chief Executive, i.e. the Prime Minister/Presideint for all matters of national and political intelligence. After establishment of the Higher Defence Organization in 1976, the ISI continued to be responsible to the Chief Executive while the Joint Staff Headquarters maintained administrative control only. He further stated that the ISI used…
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