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PLD 2013 SC 1

Per, Iftikhar Muhammad Chaudhry, CJ and Jawwad S. Khawaja and Khilji Arif Hussain, JJ

(a) Constitution of Pakistan, 1973, Articles 17(2), 41(1), 51(6)(a), 224 and 184(3)

The then President of Pakistan Ghulam Ishaq Khan, having disputes/rivalry with PPP, supported IJI through the Election Cell established in the President House. For that purpose, funds were arranged and the same were distributed to various politicians/political parties through ISI/IB. In this way, the elections of 1990 were maneuvered and as stated by learned counsel for the petitioner, the PPP got half the number of seats in the National Assembly as compared to the seats won by it in the previous elections. Thus, allegedly people were deprived of their fundamental right under Article 17 of the Constitution to participate in a free, fair and just election, particularly in the constitution of national or provincial assemblies where interference was made by a person not below the status of a functionary who was head of the State and symbol of unity as per Article 41(1) of the Constitution, thus succeeded in forming government through a group of political parties of his choice.

There is a clear admission by all that sums were disbursed to a group of politicians by individuals, who were members of the Armed Forces, in particular ISI and MI with a view to maneuvering the election results in derogation of the Fundamental Right guaranteed under Article 17(2) of the Constitution as interpreted by this Court in the above referred judgments. This case is of great significance and the Court, in exercise of its jurisdiction under Article 184(3) of the Constitution is called upon to discharge its responsibility of enforcing Fundamental Rights of the people guaranteed under the Constitution.

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, 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. [pp. 63, 117] C, D, DD

(b) Constitution of Pakistan, 1973, Articles 17(2), 41(1), 42, 51(6)(a), 243(2), 224 and 184(3)

It is to be noted that as per contents of various documents/pleadings, it is, prima facie, evident that a cell was allegedly functioning in the Presidency in the year 1990 under the supervision of then President of Pakistan Ghulam Ishaq Khan (late) and M/s Roedad Khan and Ijlal Haider were in charge/looking after the affairs of such cell.

It may be observed that the President, under Article 41(1) of the Constitution, being the head of the State represents the unity of the Republic, whereas by virtue of Article 243(2) of the Constitution,he is the Supreme Commander of the Armed Forces of Pakistan. Therefore, the President was not supposed to be undertaking any activities in pursuance whereof a particular group of the political parties might be allegedly supported in the name of national interest.

A combined reading of the statements/affidavits of respondents No.1 to 3 clearly shows that a certain sum of money was raised by respondent No.3 for the purpose of supporting favoured candidates of a certain political group in the 1990 general elections; the money was raised under instructions received from the Election Cell established in the President’s House; the disbursement was carried out under the supervision of respondent No.2 by opening certain accounts. In this behalf, it is noteworthy that in the course of the proceedings, it was alleged that one of the recipients, namely, Syeda Abida Hussain, as per reports published in the newspapers, had acknowledged receipt of the money.

It is also clear from the statements of the above individuals that there was a cell in the Presidency, which was overseeing the aforesaid activity of disbursement of money and someofficers of the Presidency under the direct supervision of the President were involved in it. All these three individuals directly or indirectly take the trail to the Presidency/President. In this view of the matter, whether it was done under the verbal instruction of the President himself or someone acting on his behalf and under his direction/guidance discreetly is clear.

A duly elected representative being the Prime Minister or the Chief Executive under no circumstances has power to encourage any political or unconstitutional activities of ISI. In response thereto, its head of department, DG, with full knowledge and information of the then Chief of Army Staff, with illegal orders, blocked the flow of democratic order instead of allowing the citizens/voters/electors to elect their chosen representatives freely, fairly and justly. Such action by uniformed Generals of the Army not only violated discipline but also brought a bad name to the institution of the Armed Forces while their action negated the constitutional mandate on the subject.

Thus, no other conclusion can be drawn except that respondents No.1 and 2, being the Generals of Pakistan Army in uniform, with the connivance of the then President of Pakistan Ghulam Ishaq Khan (late), supported the latter in ensuring the success of favoured candidates or a political party or a group of political parties to achieve the desired result as they indulged into corruption and corrupt practices by furnishing and providing finances to some of the political personalities, alleged in the affidavit of respondents No. 2 & 3. And in this manner, the election process was corrupted and the people of Pakistan were deprived of being represented by their chosen representatives.

it is held that although the President of Pakistan being the Supreme Commander of the Armed Forces exercises jurisdiction, which has been conferred upon him under the Constitution, he obviously has no authority to create an election cell or to manage, in any manner, to support a favoured candidate/political party/group of political parties, either by issuing directions to the Armed Forces or to civilians to make efforts for achieving desired results. And if any such illegal order is transmitted, the same is not worthy to be obeyed.

In this view of the matter, the factum of receipt of the money by the individuals named by the respondent No. 2 as per details attached with his affidavit dated 24.07.1994 and in the statement of respondent No. 3 under section 161 Cr.P.C. recorded by FIA in Mehran Bank’s case, the same have to be established in accordance with law in a transparent manner through an investigating agency.

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.

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/ 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.

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 Beg 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.

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 partiesor politicians individually, in any manner, which may lead in his or their success.

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.

Late Ghulam Ishaq Khan, the then President of Pakistan, General (R) Aslam Beg 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. Yunus 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.

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. Yunus Habib shall also be dealt with in the same manner.

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. [pp. 56, 57, 106, 107, 108, 110, 117, 118, 119] A, B, X, Y, Z, CC, FF, HH, II & KK

(d) Constitution of Pakistan, 1973, Articles 17(2), 41(1), 42, 51(6)(a), 243(2), 224 and 184(3)

It is thus well settled that in the case of superior Courts it is entirely a matter for the concerned Judges to decide as to whether they will or will not sit in any particular case. In the instant case, the objection raised by the learned Attorney General is based purely on conjectures and is unwarranted, particularly when the learned Attorney General himself has been appearing in the instant case and participating in the proceedings ever since its hearing was taken up by the present Bench in April this year. During this period, the case was heard on more than 30 dates. Be that as it may, the Members of the present Bench are fully conscious of their responsibilities and are capable of dispensing justice without fear or favour, ill-will or affection. The objection of the learned Attorney General is untenable and is overruled. [p. 65] F

(e) Constitution of Pakistan, 1973, Articles 41(1), 42, 48 & 243

Regardless of the nature and quantum of powers vested in the President under the Constitution, whether before or after the Eighth and the Seventeenth Constitutional Amendments, the President remains the Head of the State and represents the unity of the Republic, therefore, after having been sworn in as the President of Pakistan, he owes a constitutional duty to represent the unity of the Republic as Head of the State and is not supposed under the Constitution to support any favoured candidate in the elections or a group of political parties like IJI with reference to the instant case.

The need for a symbolic figurehead who is representative of the State in its majesty is central to the structure of the parliamentary system.

The constitutional system of government in Pakistan as laid out in Part III of the Constitution is that of a Parliamentary Republic [Muhammad Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 420)].

It is important to note that all Presidents in Parliamentary Republics are expected to be apolitical/non-partisan and objectively disengaged with any and all affiliations of a political, ethnic, linguistic, or geographic nature. For a discussion on the non-partisan role of the President, refer to Pakistan Lawyers’ Forum v. Federation of Pakistan(PLD 2011 Lahore 382).

Thus, it is held that, “he (President) represents the majesty of the State, is at the apex, though only symbolically, and has rapport with all manner of people and parties, being above politics”.

Thus, as the constitutional Head of the State, the incumbent of such a high office is obliged to perform his functions and duties neutrally and impartially.

In the light of the above discussion, argument so raised by learned Attorney General is repelled and we hold that the President being the symbol of the unity of the Federation occupies a neutral position under the Constitution and is not envisaged by the Constitution to be supporting or backing any particular political party or a group of political parties, or certain individual politicians or candidates contesting election from a given platform to the disadvantage of any other political party, politician, political worker, individual, etc.

Thus, the above discussion leads us to conclude that the President of Pakistan being in the service of Pakistan, is not supposed to indulge in politics as it has been established in instant case in respect of role of President Ghulam Ishaq Khan. [pp. 78, 82, 83, 91, 92, 99] G, I, J, K, L, M, & P

(k) Constitution of Pakistan, 1973, Articles 17(2), 243(2), 244, 245(1) & 184(3)

Thus, it is held that the President could not have issued any command to the Army Chief or the DG ISI as the President did not have any operational authority with respect to the Armed Forces even after the Eighth Constitutional Amendment. While as per Article 243 of the Constitution, the Supreme Command of the Armed Forces was said to vest in the President, no independent executive authority was given to the President. The said Constitutional Amendment had created two broad categories of functions as regards the President.

It is clear that the vesting of the Supreme Command in the President did not empower the President, even after the Eighth Amendment, to act in his discretion or upon his satisfaction. Consequently, no question of a command, let alone a lawful command having been made by the President to make disbursements of money among favoured politicians arises.

Thus, it is clear that respondents No. 1 & 2 were required to comply with only those orders/directions of their superiors which were legal and within their competence. Compliance with an illegal or an incompetent direction/order from the then President can neither be justified on the plea that it came from a superior authority nor could it be defended on the ground that its non-compliance would have exposed them to the risk of disciplinary/adverse action. [pp. 104, 109] T, U & BB

(m) Constitution of Pakistan, 1973, Article 17 & Preamble

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. [p. 117] EE

(n) Constitution of Pakistan, 1973, Articles 41(1) & 42

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. [p. 117] GG

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