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Asghar Khan case
 
 
Sohail Khan
Saturday, October 20, 2012
From Print Edition
 
 

 

ISLAMABAD: Ruling that the 1990 polls were rigged, the Supreme Court on Friday directed the government to take action against former army chief Gen (retd) Mirza Aslam Beg and former chief of the Inter-Services Intelligence (ISI) Lt Gen (retd) Asad Durrani for violating the Constitution by manipulating the 1990 general elections.

 

A three-member bench of the apex court, comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S Khawaja and Justice Khilji Arif Hussain, announced a short order on Air Marshal (retd) Asghar Khan’s petition filed in 1996 accusing the ISI of distributing Rs60 million among the politicians to manipulate the general elections of 1990.

 

In another historic judgment, the court ruled that both Durrani and Beg brought a bad name to Pakistan and its armed forces as well as secret agencies in the eyes of the nation. “Notwithstanding that they may have retired from service, the federal government shall take necessary steps under the Constitution and law against them,” says the short order.

 

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

 

The court ordered that any election cell/political cell in the 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, would stand cancelled forthwith).

 

The court ruled that the late Ghulam Ishaq Khan, the then president, Gen (retd) Beg and Lt Gen (retd) Durrani acted in violation of the Constitution by facilitating a group of politicians and political parties, etc, to ensure their success against thecandidates in the general elections of 1990 for which they secured funds from Younas Habib, former chief executive of now defunct Mehran Bank.

 

The court ordered that Younas Habib should also be dealt with in the same manner and civil proceedings should also be launched, according to law, against the said persons for the recovery of sums received by them with profit.

 

The court ruled that an amount of Rs80 million was stated to have been deposited in Account No 313, titled ‘Survey and Construction Group Karachi’ and maintained by MI, therefore, be transferred with profit to the Habib Bank Limited (HBL) with further direction that if the liability of the HBL had not been adjusted so far, otherwise the same might be deposited in the treasury account of the Pakistan government.

 

The court ruled that general elections held in 1990 was subjected to corruption and corrupt practices as in view of the overwhelming material produced by the parties during hearing in the case, “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 short order observed that a president, in parliamentary system of government, being head of the state represented the unity of the republic under Article 41 of the Constitution and as per the oath of his office in all circumstances he would 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,” the court ruled.

 

The court maintained that the president, chief of army staff, ISI director general or their subordinates were certainly not supposed to create an election cell or support a political party/group of political parties because if they did 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.

 

The court ruled that it had been established an election cell was established in the Presidency to influence the elections in 1990 and was aided by General (R) Beg and Lt Gen (R) Durrani and they participated in the unlawful activities of the election cell in violation of the responsibilities of the army and ISI as institutions, which was an act of individuals but not of institutions represented by them, respectively.

 

The court ruled that the ISI or MI might perform their duties as per the laws to safeguard the borders of Pakistan or to provide civil aid to the federal government but such organisations had no role to play in the political activities/politics, for formulation or destabilisation of political governments, nor could they facilitated or favoured a political party or group of political parties or politicians individually, in any manner, which might lead in his or their success.

 

“It has also been established that late Ghulam Ishaq Khan, the then president of Pakistan with the support of General (R) Aslam Beg, General (R) Asad Durrani and others, who were serving in MI and now either have passed away or have retired, were supporting the functioning of the ‘election cell’, established illegally,” the short order said.

 

“Younas A Habib, the then chief executive of Habib Bank Ltd at the direction and behest of above-noted functionaries, arranged/provided Rs140 million belonging to public exchequer, out of which an amount of Rs60 million was distributed to politicians, whose incomplete details have been furnished by General (R) Asad Durrani, however, without a thorough probe no adverse order can be passed against them in these proceedings,” it added.

 

The court observed that the armed forces, under the directions of the federal government, defended Pakistan against external aggression or threat of war and, subject to law, were to act in aid of civil power when called upon to do so under Article 245 of the Constitution, thus, any extra-constitutional act called for action in accordance with the Constitution and the law against the officers/officials of armed forces without any discrimination.

 

The court ruled that the armed forces had always sacrificed their lives for the country to defend any external or internal aggression for which it being an institution was deeply respected by the nation. The armed forces, in discharge of their functions, sought 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, it ruled. But ISI, MI or any other agency like IB had 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, it added.

 

“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 court ruled.

 

Earlier, the chief justice remarked during the proceedings that according to the Constitution, the president held the most significant office and he was the head of the state, and not the prime minister. He said that the court would continue supporting the democratic process and would not allow anyone derail the democracy. He said the president could not set up an election office and should be a neutral person.

 

Attorney General Irfan Qadir, while arguing before the court in response to Justice Jawwad S Khawaja’s observation of other day that the incumbent PPP government failed to initiate any investigations or a trial against the 1990 election campaign perpetrators, contended that the matter remained sub-judice in the apex court for the last more than 15 years.

 

In the meantime, he said, the judges allowed the military interventions and took oath under the PCO while allowing a general to amend the Constitution.

 

“The responsibility of not initiating action in this matter is to a great extent on the judges, chief justices of the apex court and not the present government,” the attorney general contended.

 

“Even the recipients are not being called or issued notices to explain their conduct, especially when there is prima facie evidence that the money was distributed to them. Instead of adopting this course, the judges are throwing the brunt on the present government and the Presidency,” Irfan Qadir said.