SC Order of March 17 hearing in a 3G related case released at 6:40 A.M. on March 18

IN THE SUPREME COURT OF PAKISTAN

               (Original Jurisdiction)

PRESENT:

MR. JUSTICE JAWWAD S. KHAWAJA

MR. JUSTICE IQBAL HAMEEDUR RAHMAN

MR. JUSTICE MUSHIR ALAM

Constitution Petition No.26 of 2013

Khurram Shahzad Chughtai                                    …        Petitioner(s)

                                                            Versus

Federation of Pakistan and others                …        Respondent(s)

For the petitioner(s):              Mr. Ali Raza, ASC

                                                Mr. Tariq Aziz, AOR

For the applicant(s):               Mr. Athar Minallah, ASC (in CMA-7108/13)

On Court’s Notice:                 Mr. Salman Aslam Butt, Attorney General for Pakistan.

For respondent No.1:             Mr. Imran ul Haq Khan, DAG

(M/o IT)                                 Mr. Muhammad Ayub, Dy. Manager (Legal)

For respondent No.2:             Dr. Ismail Shah, Chairman

(PTA)                                      Mr. Tariq Salman, Member (Finance)

                                                Mr. Khurram Siddiqui, Director (Law)

                                                Mr. Munawwar Iqbal, Consultant (Legal)

                                                Mr. Faraz Khan Jadoon, L.O.

For respondent No.3:             Nemo.

(FAB)                                     

For respondent No.4:             Syed Sibt-e-Hassan Gardezi, Acting G.M. (Law)

                                                Mr. Kamran Masood, Manager (F)

On Court’s Notice:                

For Cabinet Division:             Mr. Jamil Ahmed, Sh. S.O.

For M/o Finance:                   Nemo.

Date of hearing                      17.03.2014

ORDER

             We have heard this matter partly. As noted in our previoius order we are anxious that this matter is decided at the earliest and if possible, before the auction of 3G and 4G licences. We are told that previously the date of this auction was fixed as 7^th April, but now it has been postponed to 23^rd April, 2014.

2.         Today, while hearing this petition, we asked the learned Attorney General to show the method of book keeping of the USF and the treatment of the Fund, after the monies of the USF were transferred to the Federal Consolidated Fund (FCF). He stated that the Ministry of Finance would be aware of the book-keeping but today no representative of the said Ministry, conversant with this aspect of the case is present. He shall, therefore, ensure presence of a fully conversant functionary of the Ministry of Finance to be present in Court tomorrow i.e. 18^th March, 2014.

3.         Additionally, it will be the office of the Auditor General and the Accountant General of Pakistan Revenue (AGPR), who will be fully aware of the rules applicable to the FCF.  Mr. Athar Minallah, learned ASC states that the Auditor General has already determined and prepared the Manual of Accounting Principles in exercise of powers under Article 170 of the Constitution in respect of the FCF. This will help in determining the status/constitutionality of the transfer of USF funds from the National Bank and eight other scheduled Banks to the FCF. The office shall issue notice to the Auditor General and to the AGPR Islamabad who may depute officers of their relevant departments conversant with the Manual of Accounting Principles as well as the manner in which the USF and the FCF are maintained and audited according to such Manual.

4.         Today, we were also informed by Mr. Kamran, Manager (Finance), USF that prior to the amendment in the USF Rules made in 2013, the USF was earning interest/profit on the funds. In the financial year ending 30^th June, 2013 a sum of rupees 5.6 billion was earned by the USF as income on the monies of the fund deposited with the National Bank and other scheduled Banks. The Manager (Finance) stated that after the transfer of monies of USF to the FCF not a single rupee has been earned on the sums belonging to the USF.

5.         The learned Attorney General for Pakistan submitted that the fundamental issue in this case will revolve around whether or not the monies in the USF can be transferred to the Federal Consolidated Fund (FCF). He stated that even if it is held that the monies in the USF cannot be transferred to the FCF, the fact remains that the investments of USF could have yielded a much higher return than the sum of rupees 5.6 billion as noted above.

6.         Let this matter come up for hearing as a part-heard case on 18^th March, 2014.

JUDGE

JUDGE

JUDGE

Islamabad

17^th March, 2014

M. Azhar Malik

News Analysis

Ahmad Noorani

ISLAMABAD: The unending grisly terrorist attacks carried out and claimed by the Tehreek-e-Taliban Pakistan (TTP) that were intensified by many folds during the peace talks came to a grinding halt right after the airstrikes of late night February 19 on its hideouts, resulting in considerable peace over the past ten days.

Only one terrorist incident took place in Kohat while another attempt on Iran Consulate in Peshawar was foiled.

Interestingly, Taliban have not only stopped terrorist attacks after Pakistan’s armed forces started targeting terrorists’ safe heavens mostly through air strikes but even the banned outfit announced ceasefire simply one day after the interior minister announced on the floor of the house that operation against terrorists will be carried out but its launch will take another one to two weeks.

When nation was asking Taliban for dialogue and federal and provincial governments and all institutions almost bow on their knees and begged for finding out solutions through dialogue instead of fighting and by avoiding bloodshed, the militant organization intensified its terrorist activities across the country apparently to have ‘a position of strength’ on the negotiation table.

Horribly Taliban spokesman use to appear on cameras and accept responsibility of killing of dozens of innocent Pakistanis while so-called negotiation committees were busy in dialogue process. The claim of Taliban - that they were intensifying their killing spree even during the negotiation process as Pakistan’s security forces were killing their prisoners - was proved false as till this moment the organization has been failed to present even a single evidence to establish that any of its detained militants was killed. According to Taliban claim, 15 of their detained activists were killed and their dead bodies were thrown in Noshehra by security forces. However, not only all security institutions forcefully rejected the allegation but same was also proved untrue as no such incident was ever happened in this KPK city.

Federal government, majority of politicians, sincere security officials, journalists and country’s intelligentsia openly supported dialogue process so country may be saved from more bloodshed. Some of these circles continued pressing for the dialogue option even when Taliban started killing people ruthlessly during the dialogue process and argued that if all issues are resolved through talks, country may be saved from a long era of infighting and bloodshed. However, Taliban take this as their strength and weakness of the state of Pakistan and its institutions and intensified terrorist attack across the country which let down the forces who were continuously pressing for peaceful solution. There came a time when it was established that further pressing for the talks option will only mean to further strengthen the barbaric terrorists and encourage killing or beheading more innocent.

The events of last peaceful ten days have established at least one fact beyond any doubt that Tehreek-e-Taliban Pakistan (TTP) don’t take negotiations or talsk seriously and consider ‘use of force’ as something substantial. The militant organization is known for buying time in the name of negotiations and a tool for buying time to fulfil its final agenda of complete takeover.

Some religious factions of society who had a soft corner for the banned terrorist organization claiming that it demands for enforcement of Sharia also become aware of real facts after Taliban came on record declaring that ‘enforcement of Sharia’ was not their demand and their major demand is release of their prisoners and withdrawal of army from areas presently in their strong hold. The strategies adopted by the Taliban during peace talks and after launch of limited air strikes against its hideouts clearly apparently implies that latest moves are an attempt to avoid complete collapse of its organizational setup at a time when government and the armed forces are all set to eliminate terrorists from all parts of the country to create a peaceful environment and bring an end to the around two decades of bloodshed in mosques, imam barghas, roads, government offices, security institutions’ offices and  public places of the country.

A recent genuine video in which Taliban are playing football with slaughtered five heads of Pakistan’s security officials has created big distances between nation and advocates of negotiations. Keeping aside killing of 23 FC soldiers, whom dead bodies are not even handed over to their families till this moment, latest killing of 15 FC soldiers on the day of announcement of ceasefire has made strategy of militant organization more clear.

Though Taliban carried out many attacks during the negotiation process but the attack on the Sindh Police which killed 14 policemen in the third week of February and admitting responsibility of beheading 23 FC soldiers by Shahidullah Shahid, central spokesman of TTP disheartened all advocates of talks and after long time nation got rid of confusion and decided in principle to eliminate terrorists by use of force. Though there are forces which are spreading confusions but credible sources confirm now no new tactic of militant organization will be considered seriously and talks option will only move forward smoothly if Taliban will give up militancy. (ends)

SC suo moto notice against ARY for showing Ziarat Residency Attack Video

SUPREME COURT OF PAKISTAN

 

                                                                              

 

 

PRESS RELEASE

 

 

HCJP TAKES SUO MOTU NOTICE ON ARY NEWS CHANNEL PROGRAM “AB TAK” TELECAST ON 13.08.2013

 

 

 

            The Hon’ble Chief Justice of Pakistan has taken notice of the ARY News Channel program “Ab Tak” hosted by Ms Sadaf Abdul Jabbar telecast on 13.08.2013 on a note of the Registrar. In the said program video of attack on the Ziarat Residency was shown. The Hon’ble Chief Justice of Pakistan has directed for hearing of the above matter on 15.08.2013 at Branch Registry Quetta along with Constitution Petition No. 77/2010. The note of the Registrar is reproduced below:-

 

“As per HCJ direction, the Chairman, PEMRA was asked to provide us a CD/DVD, together with transcript, of the Programme/Talk Show titled ‘shown on the ARY News TV Channel on 13.8.2013. The Anchor Ms Sadaf Abdul Jabbar conducted the show with Zahid Hamid and Raza Roomi as discussants. The Programme starts with a visual disclaimer as under:

“Disclaimer

Its our responsibility not to present opinion as facts. As long as distinction between fact and opinion is clear. As part of ARY philosophy we bring diverse opinions to enrich and empower our viewers. This program may contains opinions of host and guest which do not necessarily reflect that of the organization. For more information and give feedback visit our website

www.arynews.tv”

 

 

The Anchor starts the Programme by saying that she is showing selected visuals of the video hosted on the Internet and that she has withheld some parts of the video, which are not fit to view by the general public. The video reveals that contrary to the claims made by the security agencies that the Ziarat Residency wherein Quaid-e-Azam spent his last days was attacked by the terrorists with rockets fired/bombs, etc, whereas an actual fact it was exploded from within as the terrorists/militants were carrying gas cylinders. She states that the militants entered the venue after killing the two guards on duty and carried out the operation. There were about 5 – 6 militants involved who were wearing masks on their faces, equipped with the latest weapons/bombs, having gas cylinders in their hands. They started breaking the frames of photographs and then collected the photographs and other articles in one place, sprayed petrol over it and put it on fire. The militants are also shown lowering the national flag and tearing the same and raising instead the flag of Balochistan Libration Army (BLA). Thereafter, a massive blast occurred and the Residency caught fire/collapsed. In the background of the video, it is shown that the same has been made by the BLA.

 

2.         After showing these visuals, she invited comments from Zahid Hamid who blames the increasing incidents of militancy/violence on the political leadership for being ineffective and the Judiciary for failing to convict the accused persons involved in heinous incidents of violence/militancy. Raza Roomi also gives his comments but these were limited to the current situation on boarder with India . He argues for handling the situation in a manner to resolve the Kashmir dispute and achieve other objectives through peaceful means.

 

3.         Obviously, as acknowledged by the Anchor, only selected parts of the video were shown giving gory details of the sacrilegious attack on the national monument known as Quaid-e-Azam Residency and the profane acts of burning the photographs/national flag etc. No doubt, for an ordinary viewer, the narrations of events/video clips are fairly disturbing. The Programme must have hurt the feelings/sentiments of the people who watched it. Showing such material seems to be infringement of the provisions of the Constitution/Law.  Article 5 of the Constitution states as under:

 

“(1)      Loyalty to the State is the basic duty of every citizen.

            (2)       Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan .”

 

 

4.         On the other hand Article 19A of the Constitution provides that:

            “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.“

 

 

5.         Similarly, Article 19 of the Constitution provides that:

 

 

            “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.”

 

6.         Undoubtedly, the right to freedom of expression and freedom of the press are qualified subject to law and other requirements. Various laws qualify the freedom of expression. However, the PEMRA Rules 2009 made under Section 39 of the PEMRA Ordinance 2002 and the Code of Conduct for Media Broadcasters or Cable TV Operators Programmes made under said rules states that no programme shall be aired which:

 

                        “1(e)    is likely to encourage and incite violence or contains anything against maintenance of law and order or which promotes anti-national or anti-state attitudes;

 

                        1(j)       brings into contempt Pakistan or its people or tends to undermine its integrity or solidarity as an independent and sovereign country;

 

1(n)     anything which tends to glorify crime or criminals;“

 

 

7.         Furthermore, Section 11-W of the Anti-Terrorism Act, 1997 also puts restrictions on dissemination of objectionable material and the same is made punishable offence.

 

 

8.         It may be noted that the Supreme Court passed an order in Constitution Petition No. 77/2010 (President Balochistan High Court Bar Association v. Federation of Pakistan and others) reported as 2012 SCMR 1958, wherein reliance is also placed on Section 11-W of the Anti-Terrorism Act, 1997 and relevant portion thereof is reproduced as under:

            “…49(12).      Mr. S.M.Zafar, learned counsel appearing for the FC had placed on record sufficient material, perusal whereof suggests that whenever there is any incident of killing innocent persons both uniformed and civilian, the newspapers come forward to issue publication regarding the responsibility be different organizations which increases a sense of insecurity among the people of Balochistan. Such publication is contrary to the provisions of section 11-W of the Anti-Terrorism Act, 1997 which reads as under:

           

            “Printing, publishing, or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any proscribed organization or an organization placed under observation or anyone concerned in terrorism.— (1) A person commits an offence if he prints, publishes or disseminates any material, whether by audio or video-cassettes or by written, photographic, electronic, digital, wall-chalking or any other method which incites religious, sectarian or ethnic hatred or gives projection to any person convicted for a terrorist act, or any person or organization concerned in terrorism or proscribed organization or an organization placed under observation:

                        Provided that a factual news report, made in good faith, shall not be construed to mean “projection” for the purposes of this section.”

 

            49(13).            We are told that in this behalf restraint order has also been passed by the High Court of Balochistan, therefore, we confirm the order which has been passed by the High Court of Balochistan that in future the above provision of law shall be followed strictly both by the electronic and print media….”

 

9.         From the above, it is obvious that the ARY News Channel has telecast a video, which gives gory details depicting acts of sacrilege /profanity and unnecessary attempting to sensationalize the incident taken place two months before. The HCJ may therefore consider taking up this issue on 15.08.2013 in the Constitution Petition No.77/2010.” 

 

On perusal of the above note of the Registrar the Hon’ble Chief Justice has passed the following order:-

 

“Instant note may be treated as CMA. Notice to Attorney General and Advocate General Balochistan be issued. Similarly, notice be issued to C.E.O of ARY through expeditious mode of service for 15.08.2013 to appear and explain as to why proceedings in accordance with the Constitution and law may not be ordered against ARY in the national and public interest.

  

Notice be also issued to Chairman PEMRA to appear in person and explain as to what action is called for in view of the above facts and circumstances, under the law.”

  

     Zubair Sabir

Deputy Registrar / PRO

SC order in Imran Khan Contempt Case

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:

Mr. Justice Iftikhar Muhammad Chaudhry, HCJ.

Mr. Justice Jawwad S. Khawaja

Mr. Justice Sh. Azmat Saeed

Criminal Original Petition No.92 of 2013

(Contempt proceeding against Imran Khan, Chairman PTI)

On Court’s Notice:               Mr. Muneer A. Malik,

                                        Attorney General for Pakistan

For alleged contemnor:                Mr. Hamid Khan, Sr. ASC

                                        Mr. M.S. Khattak, AOR with

                                        Imran Khan

                                       

Date of hearing:                 02.08.2013

O R D E R

          Iftikhar Muhammad Chaudhry, CJ.— Mr. Hamid Khan, Sr. ASC has placed on record two documents in the form of explanations, and he reserved his right to file detailed reply of the notice if need be. Contents of the said explanations are reproduced hereinbelow for reference:-

“EXPLANATION No. 1:              

1.     THAT Imran Khan has neither committed contempt of court under the law or the Constitution nor would even think of doing so.

2.     That Imran Khan has not started any campaign either to scandalize the Court or to bring judges into hatred, ridicule or contempt. On the contrary, he has always struggled to uphold dignity and independence of the Supreme Court and the judiciary in general.

3.     That Imran Khan believes in the rule of law, supremacy of the Constitution and independence of judiciary and, for this reason, he and his party was in the forefront of the movement for rule of law and restoration of judiciary.

4.     That, after the general elections, Imran Khan has repeatedly requested and appealed to the Supreme Court to redress the grievance of his party which has suffered massive electoral rigging at the hands of ECP and its officials. This clearly establishes that Imran Khan and his party have high expectations from the Supreme Court that justice would be done to them and that their grievance would be redressed.

5.     It is respectfully submitted that the notice may kindly be recalled.”

“EXPLANATION No. 2:

Respectfully Submitted

1.           That the press statement was made in good faith on 26^th July, 2013 where in reference to the ‘Judiciary’ was for the Returning Officers and/or District Returning Officers (belonging to the Subordinate Judiciary), assigned to the election process.

2.           That Mr. Imran Khan has high respect and esteem for the Supreme Court of Pakistan and has high expectations from this Honourable Court for redressal of the grievances of the PTI arising out of the general elections.”

2.            We have drawn his attention towards one of the press clippings (Press Conference of Imran Khan dated 26.07.2013) which is reproduced hereinbelow:-

3.            Selection of the words used against judiciary, Mr. Hamid Khan argued, is in a different context, for which explanation has been given and he has pointed out the same verbally. 

4.            it was pointed out to him that the Judiciary (عدلیہ ) is required to be respected and if there is any grievance, the remedy is available under the law, but using the words “شرمناک “, prima facie, tantamounts to abusing the Judiciary. The Courts try their best to avoid asserting itself in such like situation but are compelled to look into a matter where not only the dignity or respect of a Judge but of the entire Institution is involved, and the Courts are constrained to call for an explanation. The explanations noted above have been examined carefully and are hereby rejected not being satisfactory.

5.             Learned counsel has pointed out his grievance in respect of an application which was filed in C.R.P. No.191/2012 in Constitution Petition No.87/2011 (Workers Party Pakistan v. Federation of Pakistan etc.) as far back as 08.06.2013. He further stated that the grievance of the Chairman PTI was that his application is not being disposed of. We have pointed out to him that perhaps the correct facts have not been brought into his notice as this application was returned by the office on the same day by passing the following order:-

“That the above titled C.M.A. filed by you is not entertainable on the ground that instead of making this application in a pending Review Petition the applicant should approach the appropriate forum and avail the proper remedy available under the law, if so advised.

Hence this C.M.A. in C.R.P. 191/2012 in Constitution Petition No.87/2011 is returned herewith in original being not entertainable along with its paper books.”

6.             Against the order of the Institution Officer who exercises delegated powers of the Registrar of this Court, a Civil Miscellaneous Appeal No.82/2013 was filed under Order V rule 3 of the Supreme Court Rules, 1980 and thereafter no request has been made for fixation of the case either by the Senior ASC or his AOR. The cases are fixed in the Supreme Court under policy guidelines and wherever there is any sort of urgency, a request is to be made for out of turn fixation of the case, otherwise out of total pendency, which is about 19,000 cases; it is not possible to fix all the cases and dispose them of on the same day. However, by following procedure under Supreme Court Rules, 1980 on an urgent application such appeals could possibly be heard.

7.             In addition to the above, learned counsel has been appraised about 31 Election Petitions under section 52 of the Representation of People Act, 1976 filed by the candidates of Pakistan Tehreek-e-Insaf (PTI) before Election Tribunals requesting for, inter alia, examining the thumb impressions of the voters through the process of biometric system, particularly, in respect of the following four constituencies:-

S#	Constituency No.	Election Petition No.	Title of the case
1.	NA 122 Lahore-V	No.11(315)/2013	(Imran Khan Niazi vs. Sardar Ayaz Sadiq and others)
2	NA-125 Lahore VIII	No.11(194)/2013	(Hamid Khan vs. Khawaja Saad Rafiqu and others)
3.	NA-110 Sialkot-I	No.11(344)/2013	(Usman Dar vs. Khawaja Muhammad Asif and others)
4.	NA 154 Lodhran-I	No.11(355)/2013	(Jehangir Khan Tareen vs. Muhammad Siddique Khan Baloch and others)

7.             Learned counsel requests for time to file reply of notice. Adjourned to 28.08.2013.

Chief Justice

Judge

Judge

Islamabad, the

2^nd August, 2013

Nisar/*