IN THE SUPREME
COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr.
Justice Asif Saeed Khan Khosa
Mr.
Justice Ejaz Afzal Khan
Mr.
Justice Ijaz Ahmed Chaudhry
Mr.
Justice Gulzar Ahmed
Mr.
Justice Muhammad Ather Saeed
Criminal
Miscellaneous Application No. 486 of 2010 in Criminal Appeal No. 22 of 2002
Adnan
A. Khawaja … Appellant
versus
The State … Respondent
Suo Motu Case
No. 4 of 2010, Civil Miscellaneous Application No. 1080 of 2010, Civil
Miscellaneous Applications No. 1238 and 1239 of 2010 and Civil Miscellaneous
Application No. 129 of 2012
(Suo
Motu action regarding appointment of convicted person namely Ahmed Riaz Sheikh
(NRO Beneficiary), as Additional Director General, Federal Investigation Agency)
Civil Miscellaneous Application
No. 1253 of 2010 in Suo Motu Case No. 4 of 2010
(Report
submitted in Court by Attorney-General regarding Fact Finding Inquiry in the
case of Missing Letter No. PS/DG/FIA/ 2009/5047-49 dated 17.11.2009)
Civil Miscellaneous Application
No. 1254 of 2010 in Suo Motu Case No. 4 of 2010
(Additional
Documents comprising of Interim Report filed by Secretary Law dated 04.04.2010,
pointes formulated by Secretary for Hon’ble
Court, Advice of Former Attorney-General and
Authorization letter in favour of Mr. Hassan Wasim Afzal, Joint Secretary of
Ehtisab Bureau dated 20.05.1998)
Civil Miscellaneous Application
No. 1082 of 2010
(Report/Minutes
of Hon’ble Chief Justice of Lahore High Court, Lahore)
For
the Federation: Mr. Irfan
Qadir,
Attorney-General for
Pakistan
On
behalf of National Mr. Akbar Tarar, Addl. PG. NAB
Accountability
Bureau: Mr. Fauzi Zafar, Addl.
PG. NAB
For
Ahmad Riaz Sheikh: Dr.
A. Basit, Sr. ASC
On
behalf of Secretary Law: Nemo
Date
of hearing: 12.07.2012
ORDER
Asif
Saeed Khan Khosa, J.: Mr.
Shaiq Usmani, Sr. ASC, the learned counsel for the National Accountability
Bureau, is on general adjournment and, therefore, consideration of the matters
pertaining to Mr. Adnan A. Khawaja, Mr. Ahmad Riaz Sheikh and Malik Muhammad Qayyum
is postponed.
2. On the last date of hearing, i.e. 27.06.2012 this Court had
passed the following order:
“2. As regards the non-implementation of the
direction of this Court given in para-178 in the case of Dr. Mubashir Hasan,
the former Prime Minister was convicted and sentenced by this Court for
contempt of Court. Resultantly, he lost his membership of the National Assembly
and consequently the office of the Prime Minister. The newly elected Prime
Minister has assumed the charge of his office last week. We trust that he will
implement the aforesaid direction. The Attorney-General for Pakistan
present in Court shall in this regard obtain instructions from the Prime
Minister and inform the Court of his response on the next date of hearing.
Relist on 12th July, 2012.”
Today
the learned Attorney-General for Pakistan has submitted that upon
having been informed about the above mentioned order the Prime Minister of
Pakistan has instructed him to state before this Court on his behalf as under:
“The matter was taken up in yesterday’s Cabinet meeting and the Cabinet
has desired that the Ministry of Law should furnish its views as regards the
matter of implementation of the relevant paragraph of this Court’s judgment and
as and when the Ministry of Law renders its opinion in the matter the Cabinet
shall then take decision in accordance with the provisions of the
Constitution.”
3. We are constrained to observe that we
find it difficult to appreciate or accept the said response of the Prime
Minister. It may be pertinent to mention that during the present implementation
proceedings this Court had passed the following order on 08.03.2012:
“3. As regards the
implementation of the direction given in Para 178 of the judgment in Dr.
Mobashir Hassan’s case, despite specific orders and warnings given from time to
time since March, 2010, the implementation of the directions have still not
been implemented. We need not repeat the previous orders, however, it may be
mentioned that ultimately this Court was compelled to issue notice for contempt
of court to the Prime Minister of Pakistan, Syed Yousaf Raza Gillani, for
disobeying the orders of this Court in his capacity as the Chief Executive of
the Federation of Pakistan. In response to the show cause notice, the Prime Minister
appeared before the Bench on 02.02.2012 and personally addressed the Court.
While making particular reference to the immunity of the President of Pakistan,
he maintained that his decision that the letter to the Swiss Authorities in
terms of Paragraphs 177 and 178 of the said judgment shall not be written was
based on the advice tendered to him in the ordinary course of business.
However, courteous in his demeanor, he made no commitment to implement the
Court’s direction. We will not comment upon the defence of the Prime Minister
as the same will be examined in the contempt proceedings still pending
adjudication. The said proceedings relate to disobedience of the earlier orders
of the Court and their pendency does not affect the process already undertaken
for implementation of the said directions. Thus, regardless of any advice
tendered earlier or in future, the Prime Minister, being Chief Executive of the
Federation, who admittedly has the final say in the executive domain, shall
implement the directions given in Paras 177 and 178 of the judgment in Dr.
Mobashir Hassan’s case.
4. The Attorney General for Pakistan,
present in Court, shall communicate this order to the Prime Minister. By the
next date of hearing, the Prime Minister shall report to this Court compliance
of the above direction and similar orders made from time to time in this
respect.
5. Adjourned to 21.3.2012.”
Unfortunately
the said direction issued by this Court to the then Prime Minister in respect
of implementation of the relevant order of this Court “regardless of any
advice tendered earlier or in future” was also not obeyed and in the final
judgment handed down by this Court in the contempt proceedings against the
former Prime Minister (PLD 2012 SC 553) this Court had held as follows:
“It was a straightforward case for implementation of the judgment of this
Court on which there could have been no two views. ------- It was not a matter
where the respondent was left with any discretion. He was supposed to give a
formal approval or direction to implement the decision of the Court. ------- He
cannot shift the blame or the responsibility to his advisors for not giving him
proper advice. ------- The respondent had no option but to order the
implementation of this Court’s direction, particularly after the review of the
Federal Government was dismissed.”
It
goes without saying that all the above mentioned directions issued by this
Court during the implementation proceedings apply with equal force to the
present incumbent of the office of the Prime Minister / Chief Executive of the
Federation as he has merely stepped into the shoes of his predecessor in office
and, thus, he too is bound to implement the relevant directions of this Court “regardless
of any advice tendered earlier or in future”. We, therefore, reiterate the
said directions to the Prime Minister requiring him to act in the matter
forthwith.
4. We take judicial notice of the fact that
after attending a meeting of the Federal Cabinet yesterday the Federal Minister
for Information held a press conference wherein he categorically declared that
the Constitution of Pakistan does not permit writing of the relevant letter to
the Swiss authorities and, therefore, the direction of this Court issued in
that regard cannot be implemented. We further note that different political
functionaries of the Federal Government and others have also been harping on
the same theme in the print and electronic media and even in public meetings
for some time and a reference in this respect is being made to the provisions
of Article 248 of the Constitution of the Islamic Republic of Pakistan, 1973. The
record shows that on 10.01.2012 in these very implementation proceedings this
Court had enlisted different options available with it and one of such options was
as follows:
“Option No. 4: Although
in the present proceedings nobody has so far raised the issue pertaining to the
protections contemplated by Article 248 of the Constitution yet if anybody
likely to be affected by exercise of these options by this Court wishes to be
heard on that question then an opportunity may be afforded to him in that
respect before exercise of any of these options.”
It
was further ordered on that date as under:
“The learned Attorney-General for Pakistan is hereby put on notice to
address arguments before this Court on the next date of hearing, after
obtaining instructions from those concerned, as to why any of the above
mentioned options may not be exercised by us in these matters. It goes without
saying that any person likely to be affected by exercise of the above mentioned
options may appear before this Court on the next date of hearing and address
this Court in the relevant regard so that he may not be able to complain in
future that he had been condemned by this Court unheard. The learned
Attorney-General for Pakistan
is directed to inform all such persons mentioned above about the passage of
this order and also about the next date of hearing.”
5. On
16.01.2012 the then learned Attorney-General for Pakistan appeared and informed the
Court that the order dated 10.01.2012 had been communicated by him to all the
relevant persons and authorities mentioned therein, including the President of
Pakistan and the Prime Minister, but he had not received any instruction from
any of them to be communicated to the Court. It was in that backdrop that
contempt of court proceedings were initiated, conducted and concluded by this
Court against Syed Yousaf Raza Gillani, the then Prime Minister of Pakistan / Chief
Executive of the Federation, culminating in his conviction and sentence,
disqualification from membership of the Majlis-e-Shoora
(Parliament) and removal from the office of the Prime Minister. During the said
proceedings at the time of the preliminary hearing afforded to the then Prime
Minister on 19.01.2012 he and his learned counsel Ch. Aitzaz Ahsan, Sr. ASC had
briefly addressed the Court and the Prime Minister had maintained inter alia that his inaction in the
matter was due to the immunity enjoyed by the President of Pakistan under
Article 248 of the Constitution. The order passed by this Court on that date
specifically referred to the said stance but soon after recording of that order
Ch. Aitzaz Ahsan, Sr. ASC representing the then Prime Minister filed Criminal
Miscellaneous Application No. 49 of 2012 in Criminal Original Petition No. 06
of 2012 before the Court clarifying and submitting as follows:
“4. In view of the recorded proceeding, it is
submitted with respect that the aforesaid is not the correct record of
proceedings and submissions made on that day i.e. January 19, 2012. In
particular:
a. The learned counsel representing the
Prime Minister (Mr. Aitzaz Ahsan, Senior ASC) had expressly submitted at the
Bar that there was no need to focus on Article 248 as to whether it did or did
not provide immunity to the President of Pakistan;
b. -------
c. It was insistently, and with respect,
argued that the court must not
focus, in the contempt proceedings against the Prime Minister, on whether the
President had complete immunity or not under Article 248. That was precisely
the point.
5. -------
6. That the Prime Minister and his learned
counsel continue to assert, with humility and respect, that the Hon’ble Bench
should not concern itself with whether the President indeed has such immunity
but should only seek to reassure itself that the Prime Minister believed, or
had reason to believe, especially as per advice tendered to him that the
President was immune and thus there was a constitutional impediment, for the
time being, to writing the letter to the Swiss Authorities for compliance with
Para 178 of the judgment in Dr. Mubashir Hassan Case.
7. That the Respondent/Prime Minister
briefly seeks that the Show Cause notice be decided on the basis of the
arguments submitted by the counsel, while reserving for some other appropriate
case the examination and consideration of the scope of Article 248(2) of the
Constitution.”
The main judgment passed by
this Court on 26.04.2012 in that matter shows that even during his final
arguments Ch. Aitzaz Ahsan, Sr. ASC had categorically maintained that the
immunity being referred to in defence of the then Prime Minister was that
enjoyed by a Head of the State under the customary international law and not
the one contemplated by Article 248 of the Constitution. This Court had
observed in that judgment that an immunity under the customary international
law was relevant to, and could be invoked by the person concerned before, a
foreign court and was, thus, irrelevant to the contempt of court proceedings
against the then Prime Minister. That judgment of this Court has already
attained finality as it was never challenged through any appeal or review.
6. Adjourned to 25.07.2012 on which date the Prime Minister of
Pakistan / Chief Executive of the Federation shall cause a report to be
submitted before this Court regarding compliance of the directions contained in
paragraphs No. 177 and 178 of the judgment passed by this Court in case of Dr.
Mobashir Hassan failing which this Court may initiate any appropriate action
under the Constitution and the law.
Judge
Judge Judge
Judge Judge
Islamabad
12.07.2012
M. Yasin
