Islamabad: A three member bench headed by the Honourable Mr. Justice Iftikhar Muhammad Chaudhary, Chief Justice of Pakistan and comprising other two members namely Honourable Mr. Justice Khilji Arif Hussain and Honourable Mr. Justice Tariq Parvez heard Asghar Khan’s Case. After hearing the counsel for the petitioners and respondents, the Bench passed the following order:-
“In response to the statement/affidavit filed by Mr. Younas Habib, Ex-Chief, Ex-Mehran Bank Limited, on 08.03.2012, a counter affidavit has been filed by Gen.(R) Mirza Aslam Baig; contents whereof shall, however, be considered in depth during the hearing of the case, but while going through the following paragraph along with concluding two lines, the same is considered contemptuous:-
“That in submitting this counter affidavit I sincerely thank this Honourable Court, for making me complete my ‘Hat-trick’, of appearing thrice before this apex court – first before Chief Justice M. Afzal Zullah, second time before Chief Justice Sajjad Ali Shah and now before this honourable court, under the dynamic leadership of Chief Justice Iftikhar Muhammad Chaudhary. This is an honour, bestowed on me – which no other COAS can possibly claim.
And yet, I wonder: “Jane kis jurm ki paye hay saza yad naheen.” (Why I am being punished, I know not).”
2. When attention of Mr. Muhammad Akram Sheikh, learned Sr.ASC, representing Gen.(R) Mirza Aslam Baig, has been drawn towards the above reproduced paragraph, he firstly stated that the same is to be read in the context of other paragraphs as according to him, his client is being maligned at the behest of Pakistan People’s Party Government; and secondly, he has not gone through the contents of the counter affidavit, as he has been informed about the same after getting it prepared and sworn today in the morning. He has added that if the Court desires, he may be allowed to disassociate himself from the present proceedings. We have clarified to the learned counsel that this is between him and his client.
However, we have taken serious exception against the above reproduced paragraph. On this, the learned counsel stated that permission may be accorded to withdraw the same and that his client wants to tender apology for incorporating said paragraph in his counter affidavit. Where after, the learned counsel filed a statement, duly signed and authored by his client Gen.(R) Mirza Aslam Baig; contents whereof are reproduced herein below:-
“TO THE SUPREME COURT OF PAKISTAN
With reference to my affidavit in response to affidavit of Younas Habib I sincerely apologize for the contents of para 14 of my affidavit, and submit that it may be deleted and not considered as part of my affidavit.
Mirza Aslam Beg
9 March 2012”
As in the above reproduced statement, an unconditional apology has been tendered along with the request to delete the said paragraph from his counter affidavit filed by Gen.(R) Mirza Aslam Baig, therefore, accepting his unconditional apology permission is accorded for deletion of para 14 from the counter affidavit and the same shall not be considered to be the part of record.
3. Lt. Gen.(R) Asad Durrani, Ex-DG, ISI has appeared and submitted that I, under oath, state as follows:-
“I received instruction from the COAS, Gen. Mirza Aslam Beg, that a certain business community in Karachi had raised some contribution to support the election campaign of the IJI and if I could arrange it to be distributed as per the formulas that would be conveyed to me by the election cell in the President’s office.”
He has added that he already stated that there is no political cell in ISI, however, political work could be done by some designated persons; that in 1994 he was not aware in respect of Mehran Bank Scandal, but as he was asked only to provide the details of the money amounting to Rs.140 million, which was spent in the election, therefore, he never tried to know that under whose instructions the said amount of Rs.140 millions was collected from the business community of Karachi; and that he do not recall as to whether he was cross-examined in camera or not.
4. Mr. Muhammad Akram Sheikh, learned Sr.ASC, appearing for Gen.(R) Mirza Aslam Baig, has argued that from the day one his point of view is that this case is absolutely based upon disputed facts. Under instructions, he has further stated that he is of the opinion that a political cell was created under an administrative instrument/executive order passed by Late Zulfiqar Ali Bhutto, Ex-Prime Minister of Pakistan, by means of an SRO issued in the year 1975; that existence of such political cell is unwarranted and is an interference in the fundamental rights of the people of Pakistan, guaranteed under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973; and that this Court could declare that no such political cell be allowed to continue in the security agencies. He has further argued that the petitioner Air Marshal (R) Muhammad Asghar Khan also confines himself to the extent of existence of the political cell in ISI, as is evident from his letters addressed to this Court, available at pages 268, dated 17.04.1998; 273 dated 30.01.1999; and 289, dated 09.11.1999, respectively.
5. In view of the above statements and letters written to this Court, Mr. Salman Akram Raja, learned ASC, states that the petitioner precisely requests for the following relief:-
“A DECLARATION AND DIRECTION:
a. All persons, including Defence/Army Officers, who are respondents, who acted so as to interfere with and manoeuvre the electoral process in any manner, including through disbursement of funds subverted the Constitution.
b. No member of the armed forces is obliged to obey a command in violation of his oath of his office and cannot take the defence of ‘command of the superior’.
c. Receiving secret funds and non-disclosure thereof constitutes serious electoral fraud with consequences under the election laws.
d. A direction to the Federation to initiate appropriate proceedings under criminal and election laws against the alleged givers and recipients of funds for political purposes including the respondents and the various persons named in Lt.Gen(R) Durrani’s letter to PM dated 7.6.94 and affidavit dated 24.7.94.
Salman A. Raja”
6. Mr. Younas Habib, Ex-Chief, Ex-Mehran Bank Limited, has stated that he does not want to add anything further except the statement, which he has already filed/given before this Court.
7. Learned Attorney General for Pakistan is required to inquire from the Federal Government as to whether Commission Reports regarding Mehran Bank and Habib Bank have been made public and if not so then reasons should be assigned and the said reports should be made available for our perusal in camera. He states that meanwhile he would submit an application for permission to go through the cross-examination on the affidavits of Lt. Gen.(R) Asad Durrani and Major Gen.(R) Nasir Ullah Khan Baba and thereafter will assist the Court as to whether in view of the developments which have now taken place in the case after the statements of M/s Younas Habib, Asad Durrani as well as counter affidavit filed by Gen.(R) Mirza Aslam Baig; such proceedings can be considered to be classified by the State or the Courts could declare them declassified.
The office is directed to handover photocopies of the affidavits filed by Mr. Asad Durrani and Mr. Younas Habib as well as counter affidavit submitted by Mirza Aslam Baig along with authentic copies of the orders sheet to the learned Attorney General for Pakistan during course of the day. Re-list on 14.03.2012.”
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