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Petitioner: The FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary Interior Division VS Respondent: General (R) PERVEZ MUSHARRAF
Court Name: Special Court Judge(s): Muhammad Yawar Ali, Faisal Arab, Syeda Tahira Safdar Title:The FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through
Secretary Interior Division vs General (R) PERVEZ MUSHARRAF Case No.: Complaint No,1 of 2013 Date of Judgment:2014-03-07 Reported As: 2014 P Cr. L J 684 Result: Application dismissed. Judgment ORDER ' Through this order we are disposing of Criminal Miscellaneous Application No,3 of 2013 whereby the applicant (accused) sought a declaration to the effect that the action taken against the accused was prompted by the Prime Minister Muhammad Nawaz Sharif and the former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, who were inimical to him and therefore, the action was illegal, void, ab initio. 2. To support the contentions taken in the application Mr. Anwar Mansoor Khan made the following submissions:-- (a) The Federal Government, as defined in Article 90(1) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) consists of the Prime Minister and the Federal Ministers, therefore there must be a collective decision on their part, but the decision to file the present complaint was solely taken by the Prime Minister, thus the statutory requirement of section 4(1) of the Criminal Law Amendment (Special Court) Act, 1976 was not fulfilled. (b) The complaint was not filed by a competent person within the meaning of section 3 of the High Treason (Punishment) Act, 1973. (c) There was no requirement of consultation with the Chief Justice of Pakistan in the process of formation of a Special Court and selection of judges under the law governing the matter, and the violation of the statutory provisions made the entire process of no legal effect. (d) The Notification dated 20-11-2013 has been issued by an incompetent person therefore, failed to fulfil the legal requirement.
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(e) The members of the Court are biased and due to existence of certain factors may under compulsion decide the case against the accused, therefore, the judges may recuse themselves from hearing the case. (f) The fundamental rights enshrined in Articles 4 and 10-A of the Constitution inure to the benefit of all the citizens, therefore, an act in violation thereof would be of no legal consequence. (g) The Prime Minister and the then Chief Justice of Pakistan were inimical towards the accused which resulted in initiating the instant proceedings, therefore, the act on their part was biased and tainted with malice. (h) The accused has been singled out to face the instant proceedings leaving the remaining persons, who were with the accused in the consultative process and the intent behind initiating the present proceedings is tainted with malice. (i) The amendment in the Constitution was later in time to include the act alleged against the accused, committed earlier, therefore, not applicable in the instant case as having no retrospective effect. (j) An act required by law to be done in a particular manner then it is to be done in that manner and no other. 3. In support of his contentions Mr. Anwar Mansoor Khan placed reliance on the unreported judgment of the Supreme Court of India titled State of Punjab v. Davinder Pal Singh Bhullar and cases reported in 1999 All ER 577, (2000) 1 All ER 65, AIR 1998 SC 2050, (2010) 10 SCC 539, AIR 1987 SC 2386, (2011) 8 SCC 380, 1994 (6) SCC 19, AIR 1952 SC 405, 2013 SCMR 1683, PLD 2009 SC 879, PLD 1989 Karachi 404, PLD 1993 SC 341, 2006 (1) All ER 967, 2007 SCMR 1086, 2007 SCMR 307, PLD 2013 SC 255, PLD 2005 SC 842, 2011 PLC (C.S.) 419, 2010 PLC (C.S.) 961, PLD 2013 SC 501, 1993 (2) All ER 724, 2002 (1) All ER 465, 2004 (1) All ER 187, 2003 SCMR 104, 2011 PLC (C.S.) 1130, 2004 PLC (C.S.) 378, PLD 1965 SC 90, PLD 2005 SC 719, 1999 PCr.LJ 166, 1990 MLD 389, 1998 SCMR 115, 2000 YLR 2655, PLD 2003 Lahore 493, 2010 CLD 935, PLD 1999 Lahore 372 and 2011 SCMR 408. 4. In the written reply the application was contested on merit and also its maintainability was questioned. Mr. Muhammad Akram Sheikh in addition to the written submissions contended that:-- (a) The Prime Minister under Article 92 of the Constitution can either act directly or through a Federal Minister to exercise the executive authority of the Federation. (b) The Rules of Business 1973 were framed as required by Article 99(3) of the Constitution. (c) Rule 16 of the Rules of Business, 1973 specified the cases required to be placed before the Cabinet and the case in hand is not covered under the said Rule, therefore, the approval of the Cabinet or the Prime Minister was not required to initiate the process. (d) The investigation and prosecution of the cases listed in the Schedule appended to the Federal Investigation Agency Act 1974, includes the offences punishable under the High Treason (Punishment) Act 1973, and the entry at Serial No,32 item No,18 of the Schedule-II of the Rules of Business 1973, the investigation and prosecution of the cases lies within the domain of the Interior Division hence no illegality was committed. (e) The Secretary, Interior Division was authorised to file the complaint on behalf of the Federal Government by virtue of S.R.0.1234(1)/94 dated 29-12-1994, therefore the complaint was competently filed. (f) The Notification dated 20-11-2013 was issued by the Law, Justice and Human Rights Division on basis of the powers available under the Rules of Business, 1973 i,e, entry at Serial No,7 of item No,21 of the Second Schedule of the Rules of Business. 5. In support of his contentions Mr. Muhammad Akram Sheikh placed reliance on the cases reported in 2013 SCMR 1683, PLD 2000 SC 869, PLD 2009 SC 879, PLD 1996 Lahore 542, PLD 1998 SC 1445, PLD 1993 SC 341, PLD 1999 SC 504, PLD 1989 Karachi 404, 1997 (4) ALT 220, PLD 2013 SC 501, PLD
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1993 SC 473, PLD 1985 Lahore 258, PLD 1992 SC 492, 2010 SCMR 1301, PLD 2011 Lahore 382, PLD 2010 SC 61, PLD 2013 SC 1, PLD 1989 SC 689, PLD 2001 SC 568 and PLD 1976 SC 57. (I) Maintainability of the Complaint 6. Mr. Anwar Mansoor Khan first read section 3 of the High Treason (Punishment) Act, 1973 (hereinafter the Act 1973) which provides that no court shall take cognizance of any offence punishable under the said Act except upon a written complaint made by a person authorized by the Federal Government in this behalf. He then read section 5(1) of.The Criminal Law Amendment (Special Court) Act, 1976 which provides that the Federal Government shall forward the complaint to the Special Court for prosecution. Article 90(1) of the Constitution was referred and it was contented that it defines the Federal Government to be the Prime Minister and the Federal Ministers only. After reading these provisions' of the law and the Constitution it was submitted that the Federal Government as defined in Article 90(1) consists of the Prime Minister and the Federal Ministers hence there had to be a collective decision on their part, but in contravention thereof the decision to file the present complaint was taken solely by the Prime Minister without consulting the Federal Ministers, therefore, the statutory requirement was not fulfilled. 7. To appreciate the arguments of Mr. Anwar Mansoor Khan it would be necessary to ascertain in what context the phrase Federal Government is used in Article 90(1) and (2) of the Constitution. The term Federal Government is not defined in the Constitution nor in the statutes i,e, the High Treason (Punishment) Act 1973 and the Criminal Law Amendment (Special Court) Act 1976 and therefore to ascertain its meaning it would be necessary to interpret Article 90(1) and (2) of the Constitution which reads as follows:-- 90. The Federal Government.---(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federation Ministers.] 8. Article 90(1) of the Constitution provides that the executive authority of the Federation shall be exercised by the Federal Government consisting of the Prime Minister and the Federal Ministers through the Prime Minister, being the chief executive of the Federation. The Federal Ministers are not empowered to exercise the executive authority of the Federation on their own but only through the Prime Minister. It is for this reason that Article 90(2) gives the Prime Minister a discretion to either act directly or through the Federal Ministers. The Prime Minister is empowered to exercise the executive authority of the Federation all by himself or he may assign any of his functions to the Federal-Ministers. The power of the Prime Minister to delegate his authority to the Federal Ministers makes them also part of the executive authority of the Federation along with the Prime Minister. 9. Sub-Article (1) of Article 99 of the Constitution provides that the executive actions of the Federal Government shall be taken in the name of the President. Sub-Article (2) provides for the framing of rules with the purpose to specify the manner in which orders and instruments made and executed in the name of President shall be authenticated. Article 99(3) enables the Federal Government to frame rules for allocation and transaction of its business. In exercise of the powers contained in Article 99(3), the Federal Government framed the Rules of Business, 1973. The term business is defined in Rule 2(i)(iii) of the Rules as "all work done by the Federal Government." 10. No doubt Article 90(1) of the Constitution stipulates that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers through the Prime Minister but at the same time Article 99(3) empowers the Federal Government to make rules for the allocation and transaction of its business. This Article clarly provides that the executive authority of the Federation i,e, the Prime Minister and
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the Federal Ministers, apart from taking direct decisions collectively, shall make rules to allocate and transact the business of the Federal Government. Rule 3 of the Rules of Business pertains to the allocation of business to the Ministries and the Divisions, while Rule 5 pertains to transacting the business of the Federal Government. The scope of Rules 3 and 5 is further elaborated in the Schedule-I and H appended to the Rules of Business. The said Rules and the Schedules specify the extent and the manner of allocation and transaction of the Business of the Federal Government. This allocation and transaction of the business of the Federal Government is in fact delegation of executive authority of the Federation from the Prime Minister to the Federal Minister who is entrusted with a certain portfolio. The Federal Minister through the Secretary of his Division transacts business of the Federation within the sphere circumscribed by the Rules of Business without seeking recourse to the executive authority of the Federation as provided by Article 90(1) of the Constitution. Once the executive authority of the Federation delegates some of its authority to a Minister, the concerned Ministry exercises delegated authority as if it is being exercised by the executing authority of the Federation. In doing so it cannot be said that the delegatees are arrogating to themselves the functions of the Federation. If the Prime Minister does not assign any portfolio to any of his Federal Ministers it will remains under his direct control as envisaged under Article 90(2) of the Constitution. 11. The above discussion makes it clear that if an action is taken on the basis of the delegated authority within the sphere of the Schedule II of the Rules of Business which specify they business allocated to the Divisions, this leaves no room for seeking further sanction from the Prime Minister. The Rules of Business 1973 were competently framed under Article 99(3) of the Constitution, therefore any act done within its ambit would not be considered to be in conflict with Article 90(1) of the Constitution nor would amount to usurping the executive authority of the Federation. 12. If the argument of Mr. Anwar Mansoor Khan that for filing of the complaint authorization ought to have come from the collective decision of the Federal Ministers and the Prime Minister, is accepted, then the provisions of Article 99(3) of the Constitution would become redundant and any business of the Federation if not placed before the Prime Minister and the Federal Ministers for their approval would be regarded as invalid. Such an interpretation of Article 90(1) would hamper the entire functioning of the Federal Government, and certainly Article 90(1) was not incorporated with such an intent. 13. In the case of Asghar Ali vs. The State reported in PLD 1985 Lahore 258 on an appeal preferred by two employees of WAPDA, who were convicted by the trial Court on bribery charges under the provisions of the Pakistan Criminal Law (Amendment) Act, 1958, the Lahore High Court decided a preliminary objection pertaining to prior sanction as mandated by section 6(5) of the Pakistan Criminal Law (Amendment) Act, 1958. Rustam S. Sidwa, J., as he then was, held that as no rules were framed at the relevant time under section 12(2)(a) of the Act 1958, therefore, the order of the Ministry of Interior passed under section 5(1) of the Federal Investigation Agency Act, 1974 to authorise an officer of the Federal Investigation Agency to initiate prosecution on behalf of the Federal Government can be pressed into service to legalize the sanction. The applicability of the Rules of Business 1973 was discussed in detail in paragraph 8 of the judgment reproduction would be helpful:-- "8. The Rules of Business framed by the Federal Government under Articles 90 and 99 of the Pakistan Constitution provide for the working of the Federal Government in its various Divisions. Rule 2(vi) defines "Division" as a self-contained administrative unit responsible for the conduct of business of the Federal Government in a distinct and specified sphere and declared as such by the Federal Government. Rule (ix) defines "Government" as meaning the Federal Government. Rules 2(xiv) defines "Ministry" as meaning a Division or group of Divisions constituted as a Ministry. Rules 3(3) provides that the business of Government shall be distributed among the Divisions in
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the manner indicated in Schedule-II. Serial No,12 under Schedule-II covers the "Interior Division". The subjects assigned to it are listed thereunder and subject No, 6 provides "Ante-corruption laws, and PODO." Since Anti-corruption laws fall within the business of the Division of Interior, the "appropriate Government" for the purpose of section 6(5) of Act XL of 1958 is the Federal Government in the Interior Ministry. " 14. In the above referred judgment the learned Judge held that the action taken by the Ministry of Interior was regarded as a decision of the Federal Government as the same was taken within the limits prescribed by law and the Rules of Business and the same is true for the case in hand. 15. We shall now examine the question whether the complaint was filed by a competent person. In the case in hand the'complaint was filed by the Secretary Ministry of Interior, on the strength of S.R.0.1234(1)/94 issued on 29-12-1994, -which is still in field and till date neither rescinded nor withdrawn, therefore, serves the requirement of section 3 of the High Treason (Punishment) Act 1973. Entry at Serial No,32, item No,18 of the Second Schedule of the Rules of Business clearly stipulates that the investigation and prosecution of the cases falling under the Schedule appended to the Federal Investigation Agency Act 1974, lie within the domain of the Interior Division. It is further to be noted that the Schedule appended to the Federal Investigation Agency Act 1974, also includes the offences punishable under the High Treason (Punishment) Act, 1973. In this view of the matter, the authority to prosecute a case filed under the High Treason (Punishment) Act, 1973 lies with the Interior Division and this authorization would be in addition to the authorization granted to the Secretary Ministry of Interior under the S.R.0.1234(1)/94 dated 29-12-1994. Furthermore, the entry at Serial No,7 of item No,21 of the Schedule-II of the Rules of Business provides that legal proceedings and litigation concerning the Federal Government is the function of the Ministry of Law, Justice and Human Rights. Division, which can set in motion a legal action on behalf of the Federal Government and can authorize a person to prosecute a case under the High Treason (Punishment) Act, 1973. We are clear in our minds that as long as S.R.0.1234(1)/94 dated 29-12-1994 is in the field it is not necessary at all that every time when a complaint is to be filed, fresh authorization is required to be issued. 16.Mr. Anwar Mansoor Khan also urged that a complaint within the meaning of section 3 of the High Treason (Punishments ) Act, 1973 has to be filed by a person authorized by the Federal Government and the word "person" appearing in the High Treason (Punishment) Act, 1973 in its application means a named individual only. This argument is misconceived. The word "person" can be both "individual specific" and "post specific". Thus an authority to file a complaint on behalf of the Federal Government can be given either to any person, irrespective of any particular post he holds, or to a person who for the time being holds a particular post. Where authorization is made "individual specific" as against "post specific" the authorized person as long he lives or till such time the authorization is withdrawn he would be regarded as an authorized person. And if the authorization is in favour of a person who for the time being is holding a particular post it shall also be a valid authorization. An individual who by virtue of holding a particular post is authorized to file a complaint when ceases to hold such post, his successor to the office would automatically become authorized person until S.R.O.1234(1)/94 dated 29-12-1994 is rescinded, withdrawn, modified or the post itself is abolished. 17. In the instant case by virtue of S.R.0.1234(1)/94 dated 29-12-1994 the Secretary, Interior Division was authorized to file complaints against an accused for an offence of "high treason" as defined under Article 6 of the Constitution of Pakistan. It was thus "post specific" authorization, and would remain effective until it is rescinded, withdrawn or modified. The person who for the time being holds the post of the Secretary Interior Division would be regarded as a person authorised to file a complaint under section 3 of the High Treason (Punishment) Act, 1973. It is worth-mentioning here
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that the S.R.0.1234(1)/94 was issued in compliancy of the order of the honourable Supreme Court in the case reported in PLD 1993 SC 473 wherein it was held as follows:-- "Our enquiries made from the Federal Government reveal that though the Constitution was framed in 1973 and the Parliament also discharged its duty on 29-9-1973 by framing the requisite law on the subject, in terms of section 3 of the High Treason (Punishment) Act, 1973, the Federal Government has not so far designated the authorised person on whose complaint such an offence can be taken cognizance of by the Courts. The failure here is not of the Constitution, not of Parliament but of the executive Government and that too since 1973 of not giving a salutary Constitutional provision a meaningful content and operational mechanism, thereby frustrating it altogether." 18. From the above, it is evident that the Federal Government was to designate an authorised person on whose complaint the cognizance of the offence defined in the High Treason (Punishment) Act, 1973 was to be taken by the Special Court and this deficiency was fulfilled when S.R.0.1234(1)/94 was issued on 29-12-1994 which still holds the field and therefore, valid for the purpose of the present case as well. 19. Mr. Anwar Mansoor Khan next argued that the Prime Minister ought not to have written a letter to the Chief Justice of Pakistan to name the members of the Special Court when it was not required at all under the law. According to him, the Special Court was to be set up after consultation with the Cabinet by the Prime Minister and not with the then Chief Justice of Pakistan. He submitted that even if the Prime Minister had requested the then Chief Justice of Pakistan to nominate the Judges of the High Courts for setting up of the Special Court, the then Chief Justice of Pakistan ought not to have taken personal interest in the matter as by doing so a negative public perception has been created as he is inimical to the accused. Further, the Prime Minister ought to have chosen the Judges for the Special Court from the list of the serving Judges of the High Courts without seeking nominations from the then Chief Justice of Pakistan or for that matter from the Chief Justices of the High Courts. 20. Section 4 of the Criminal Law Amendment (Special Court) Act 1976 requires that the Special Court shall comprise of three serving Judges each of whom. Is a Judge of a High Court, therefore their nomination was to inevitably come from the Chief Justices of the High Courts concerned. This is exactly what has been done in this case. In this regard the Public Prosecutor during course of hearing placed on record letter dated 18-11-2013 of Law, Justice and Human Rights Division, its reply dated 19-11-2013 made by the Supreme Court of Pakistan, and Notification No,F.3(32)/2013-Sol-II dated 20-11-2013. These documents are reproduced below for the sake of convenience:-- Most Immediate By. Spi. Messanger, Government of Pakistan Ministry of Law, Justice and Human Rights ' Subject:- CONSTITUTION OF SPECIAL COURT UNDER THE CRIMINAL LAW AMENDMENT (SPECIAL COURT) ACT, 1976. ' Federal Government has decided to invoke the power-vested in it under section 4 of the Criminal Law Amendment (Special Court) Act, 1976 (Act No,XVII of 1976) to establish a special court to try General (R) Pervez Musharraf for various offences falling under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973). (2) The law provides that the Special Court shall comprise of three serving Judges of High Courts. Since there are five High Courts and it would be difficult to nominate three Judges from these five High Courts for the Special Court, therefore, it would be appropriate that the apex court may nominate any three Judges from the High Courts for the said Special Court. (3) It is, therefore, requested that the instant matter may please be placed before the Hon'ble Chief Justice of Pakistan for the nomination of three Judges from the High Courts. It is Aso requested that
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out of three Judges, one may be nominated to be the President of the Special Court. The Special Court will function at Islamabad. (Zafarullah Khan) Secretary. The Registrar, Supreme Court of Pakistan, Supreme Court Building, Islamabad. Law, Justice and H.R. Division No,F.3(32)/2013-So1.11 (Vol.II), dt: 18-11-2013. Phone: 051-9213770 Confidential Fax:051-9213452 No,Reg.1/SC-2013/SCP SUPREME COURT OF PAKISTAN Islamabad, the 19th November, 2013 ' Subject: Constitution of Special Court under the Criminal Law Amendment (Special Court) Act, 1976. ' Dear Secretary, ' Reference your letter No,F.3(32)/2013-So1.11 (Vol.!!), dated 18-11-2013 on the above subject, I am directed to state that the request was placed before the Hon'ble Chief Justice of Pakistan, who directed to circulate the said letter to the Chief Justices of the five High Courts viz. High Court of Balochistan, High Court of Sindh, Lahore High Court, Peshawar High Court and Islamabad High Court, asking them to nominate a Judge of their respective Court. ' Accordingly, the Chief Justices of High Courts forwarded nomination for the Special Court. These names were placed before the Hon'ble Chief Justice of Pakistan who was pleased to direct as follows:- "The Government of Pakistan vide letter dated 18-11-2013 requested to nominate three Judges of High Court to constitute a Special Court under section 4 of the Criminal Law Amendment (Special Court) Act 1976. ' In view of the principle of Independence of Judiciary, the Government has to avoid interference in the affairs of the Judiciary and for appointment of a Judge as Member of the Court or Tribunal, consultation with the respective Chief Justice is necessary. Therefore, the High Courts vide letter dated 18-11-2013 were asked to nominate a…
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