ISLAMABAD: In its detailed verdict in the Asghar Khan case issued on Thursday, the Supreme Court held that unlawful orders by superior military officers or their failure to prevent unlawful actions by their subordinates were culpable.
Although the judgment dwelt at length on the role of the president, it did not specifically point finger at President Asif Ali Zardari.
It rejected a perception that the president could have issued an order to then army chief Gen Aslam Beg or ISI director general Lt-Gen (retd) Asad Durrani to dole out funds among politicians to prevent the PPP from winning the elections in 1990.
The president, the verdict said, did not have any operational authority with respect to the armed forces even after the Eight Amendment.
Similarly, the president has no authority to create an election cell or to manage in any manner or by giving directions to the armed forces or to civilians to make efforts to achieve desired results. “If any such illegal order is transmitted, the same is not worthy to be obeyed.”
In its short order issued on Oct 19, the apex court had directed the federal government to take necessary action under the Constitution and the law against Gen (retd) Aslam Beg and Lt-Gen (retd) Asad Durrani for their role in facilitating a group of politicians and political parties to ensure their success against their rivals in the 1990 elections.
Against the usual practice, the detailed judgment was released to the media by SC Registrar Dr Faqir Hussain himself. The practice, he explained, was to avoid confusion, ambiguity or out of context reporting.
“All officers who obey unlawful commands are individually liable and in the event of failure of the state authorities to take action, the rights of the people of Pakistan are to be upheld by the Supreme Court,” said the 141-page verdict authored by Chief Justice Iftikhar Muhammad Chaudhry.
It explained why the three-judge bench had ruled that the 1990 general elections were polluted by the dishing out of Rs140 million to a particular group of politicians only to deprive the people of being represented by people chosen by them.
“In upholding people’s right, this court can make all necessary directions to functionaries and institutions of the state, including the Election Commission of Pakistan, and the direction to investigate and prosecute,” it said.
Citing the July 31, 2009, Sindh High Court Bar Association case, the court reiterated that military rule was against the dignity, honour and glory of the nation achieved after sacrifices. “It is against the dignity and honour of each and every soldier of the armed forces of Pakistan, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution,” the verdict said.
Within the prescribed parameters, it said, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war and subject to law, acting in aid of civil power when called upon to do so under the directions of the federal government.
In the course of the discharge of his duty, a soldier was, therefore, obligated to see that the Constitution was upheld, it was not abrogated, not subverted and not mutilated, the judgment said, adding that if a member of the armed forces did any of these he violated his oath and rendered himself liable to action under the Constitution and the law.
The judgment made it clear that vesting the supreme command in the president did not empower him, even after the Eight Amendment, to act in his discretion or upon his discretion. “Consequently, no question of a command arises, let alone a lawful command having been made by the president to make disbursement of money among favoured politicians.”
List of beneficiaries
The verdict also highlighted details and names of the recipients of the money as mentioned by Gen Asad Durrani in his affidavit filed on July 24, 1994:
NWFP (Khyber Pakhtunkhwa): Former chief minister Mir Afzal received Rs10 million.
PUNJAB: Nawaz Sharif received Rs3.5m, Lt-Gen (retd) Rafaqat Rs5.6m (for media), Jamaat-i-Islami Rs5m, Syeda Abida Hussain Rs1m, Altaf Hussain Qureshi and Mustafa Sadiq Rs0.5m and miscellaneous smaller groups Rs3.339m.
SINDH: Jatoi received Rs5m, former chief minister Jam Sadiq Rs5m, (Mohammad Khan) Junejo Rs2.5m, Pagara Rs2m, Maulana Salahuddin Rs0.3m and miscellaneous and smaller groups Rs5.4m.
BALOCHISTAN: Humayun Mari (son-in-law of Akbar Bugti) Rs1.5m, Jamali Rs4m, Kakar Rs1m, K. Baluch Rs0.5m, Jam Yousaf Rs0.75m, Bazinjo Rs0.50m and Nadeem Mengal Rs1m.
Gen Durrani added a few more names to the list of recipients in his letter submitted on June 7, 1994. These are: (Mustafa) Khar Rs2m, Hafeez Pirzada Rs3m, Sarwar Cheema Rs0.5m and Miraj Khalid Rs0.2m. The last two were not on the wrong side. It was merely someone’s ‘soft corner’ that benefited them.
The remaining Rs80m of a total of Rs140m was either deposited in the ISI’s ‘K’ fund (Rs60m) or given to Director External Intelligence for special operations.
According to details provided by former Sindh chief of the Military Intelligence (MI) Brig (retd) Hamid Saeed Akhtar on Oct 18 this year, six accounts were opened in different banks and on the directions of the MI director general the funds were remitted to: GHQ account (Rs40m), regional office of MI Quetta (Rs10.5m), interim prime minister Ghulam Mustafa Jatoi (Rs5m), interim chief minister of Sindh Jam Sadiq Ali (Rs5m), Muhammad Khan Junejo (Rs2.5m), Abdul Hafeez Pirzada (Rs3m), Sibghat-Ullah Pir Sahib Pagara (Rs2m), Muzaffar Hussain Shah (Rs3m twice), Ghulam Ali Nizamani (Rs0.3m), Arbab Ghulam Rahim (Rs0.2m), Salah-ud-Din of Takbeer (Rs3m), Yousaf Haroon (Rs5m) and Sindh Regimental Centre and also used for construction of men’s living barracks, interrogation cells (Rs3,828m).
The remaining amount of Rs67m, including interest, was later sent to the GHQ, along with up-to-date bank statements.
An amount of Rs6.72m was transferred to the GHQ Welfare Fund. Approximately Rs30m was reportedly drawn and given to “FRIENDS” under the instruction of Gen Aslam Beg during his last days as the army chief. The remaining amount is in the GHQ Welfare Fund.
An amount of Rs20m was given to Punjab and Rs20m to NWFP. The details of expenditure/payoff are with the respective MI commendations.
All payments in Sindh were made by Lt-Col Mir Akbar Ali Khan who is under-cover appointment in Saudi Arabia.
Six to eight pseudonymous accounts were opened on the instructions of Gen Beg who accorded verbal approval to the Survey and Construction Group Karachi whose accounts were not brought to the notice of Gen Beg.
The number of the said accounts was communicated to the head of now defunct Mehran Bank Yunus Habib who deposited Rs140m through one of his representatives on different dates.
In his statement recorded before an investigating officer in Karachi, Yunus Habib disclosed that he had paid Rs140m to Gen Beg, Rs70m to former CM Jam Sadiq Ali, Rs20m to Altaf Hussain of MQM, Rs50m to Javed Hashmi thorough Advocate Yousaf Memon, Rs150m to Jam Sadiq Ali (1992), Rs1 million to Liaquat Jatoi, Rs12m to Imtiaz Sheikh (1993), Rs5m to Afaq of MQM-Haqiqi (1993), Rs1m to the Sindh CM through Imtiaz Sheikh (1993), Rs1.4m to former federal minister Ajmal Khan, Rs3.5m to Nawaz Sharif (1993), Rs2.5m again to Nawaz Sharif (Sept 27, 1990), Rs0.5m to Jam Mashooq, Rs1m to Dost Mohammad Faizi, Rs2m to Jam Haider and Rs3m to Jam Mashooq (Sept 93).
Misuse of IB funds
In its detailed verdict, the apex court ordered to de-link the case of doling out of Rs270m in 2008-09 from the accounts of Intelligence Bureau to topple the Punjab government. It issued notices to the publishers, printers and reporter of an English daily which had published the report to substantiate the allegations.
Notices have also been issued to the IB and Attorney General Irfan Qadir for a date after two weeks.