IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
Civil Miscellaneous Application No. of 2013.
C. P. No. 2255 of 2010 & Constitution Petitions Nos. 14, 16, 17 and 18 Of 2013 alongwith CM Appeal No. 157/2009 with CMAs 2335-2337 of 2013 And CMA 2368 and 2705 of 2013
Moulvi Iqbal Haider
Federation of Pakistan, thr. Secy. M/o Law & Justice etc.
Lahore High Court Bar Association thr. Its President
General Rtd. Parvaiz Musharraf and another
Barrister Amjad Malik, Chairman Association of Pakistan Lawyers (England)
General Rtd. Parvaiz Musharraf
Sheikh Ahsan ud Din Advocate Supreme Court
Federation of Pakistan and others
Const.P.18 of 2013
Abdul Hakeem Khan, ASC
General Rtd. Parvaiz Musharraf
CMA No. 157 of 2009.
Communist Party of Pakistan vs. Federation of Pakistan & others
APPLICATION FOR CONSTITUTING AN IMPLEMENTATION BENCH AS WAS DONE IN NRO CASE FOR THE IMPLEMENTATION OF THE FULL BENCH ORDER DATED 3RD JULY, 2013 AS PASSED IN THE AFORESAID PETITIONS AND APPEAL UNDER THE ORDER XXXIII RULE 6 OF THE SUPREME COURT OF PAKISTAN RULES, 1980.
That the Full Bench of the Supreme Court of Pakistan comprising of the following honourable judges of the Supreme Court namely
Mr. Justice Jawwad S. Khawaja
Mr. Justice Khilji Arif Hussain and
Mr. Justice Ejaz Afzal Khan
who after a deliberate hearings and finally on the 3rd of July, 2013 passed the comprehensive consolidated single Order in all the aforesaid petitions and appeal, which is available on the website of the Supreme Court of Pakistan as http://www.supremecourt.gov.pk/web/user_files/File/C.P.2255-2010-03.07.2013.pdf
2. However, the relevant extract of the comprehensive order dated 3rd of July, 2013 as passed in the aforesaid petitions which also include the petition of the applicant titled as Communist Party of Pakistan vs. Federation of Pakistan & others, reads as under:-
“The petitioners in all these petitions have prayed that the Federal Government be directed to lodge a complaint under Article 6 of the Constitution against the respondent Gen (Retd) Pervez Musharraf and others. The Federal Government had filed an initial statement which has been reproduced in our order of 24.6.2013. In the said order, we had asked the learned Attorney General to file a further statement “providing details of the actions envisioned by the Federal Government in the light of the present petitions and the process through which such actions will be given effect”. Pursuant to the said order of 24.6.2013, the learned Attorney General filed the following statement on 26.6.2013:-
“1. The Prime Minister has directed the Secretary Interior to forthwith direct the Director General FIA to constitute a special investigative team of senior officers to commence an inquiry and investigation in relation to the acts of General (R) Parvez Musharraf of 3rd November, 2007 that may amount to high treason under Article 6 of the Constitution and to finalize as expeditiously as possible the statement of case to be put up by the Federal Government before the Special Court to be constituted under the Criminal Law Amendment (Special Courts) Act, 1976.
2. The Law entrusts the investigation of the offence of high treason to the FIA under entry No.14 of the Schedule of the FIA Act, 1974 read with Section 3(a) and 6 thereof. However, in order to ensure expeditious completion of the inquiry and investigation, the Prime Minister is also considering the constitution of a Commission to oversee and monitor the progress of the proceedings.
3. On the completion of the investigation, the Federal Government shall file the requisite complaint under Section 5 of the Criminal Law Amendment (Special Courts) Act, 1976 and take steps to constitute the Special Court in accordance with Section 4 of the said Act for the trial of the offence.”
2. The prayer in these petitions thus effectively appears to have been accepted by the Government. Moreover, the learned counsel representing the petitioners had also expressed their satisfaction with the statement, subject only to a reservation that no time frame for the inquiry had been given for conclusion of the inquiry/investigation of the case which was to be initiated by the Government. The learned Attorney General has stated that the government has constituted an Inquiry Committee comprised of senior functionaries of the FIA and it will be upto the said Committee to undertake the investigation. We can expect that such investigation shall be concluded without unnecessary delay. We may also note that the learned counsel representing the respondent had also stated on the previous date of hearing that these matters to be brought to an end in view of the statement filed by the Federal Government on 26.6.2013 as reproduced above. In addition, we had also taken into consideration the resolution of the Senate dated 23.1.2012 and have taken judicial notice of the speech of the President and that of the Prime Minister of Pakistan in the Parliament.
3. We are consciously, deliberately and as submitted by Mr. Muhammad Ibrahim Satti, learned Sr. ASC for the respondent not touching the question of “abrogation” or “subversion” or “holding in abeyance the Constitution” or “any conspiracy in that behalf” or indeed the question of suspending or holding the Constitution in abeyance or the issue as to abetment or collaboration in the acts mentioned in Article 6 of the Constitution. This is so because any finding/observation or view expressed by us may potentially result in prejudice to the inquiry/investigation or subsequent trial should that take place as a result of such investigation.
4. The Federal Government has, as noted above, proceeded in furtherance of its constitutional obligation envisioned in Article 6 of the Constitution and for the present this suffices in terms of the said Article and the reliefs respectively sought by the petitioners in these petitions. We, therefore, dispose of these petitions in the above terms with the observation that the Federal Government shall proceed as per undertaking dated 26.6.2013, reproduced above without unnecessary delay.”
3. That it would not be out of place to mention here that nothing concrete has been done by the Federal Government so far. So much so, the undertaking of the Prime Minister conveyed to the Court through the Attorney General of Pakistan dated 26-6-2013 as reproduced above has not been fulfilled except to the extent that the Secretary Interior has directed the Director General FIA to constitute a special investigative team of senior officers to commence an inquiry but that inquiry team has not concluded its inquiry report even after the lapse of more than four months.
4. That it was also committed in the statement of the Attorney General dated 26-6-2013 that “in order to ensure expeditious completion of the inquiry and investigation, the Prime Minister is also considering the constitution of a Commission to oversee and monitor the progress of the proceedings.” But surprisingly neither any Commission to oversee and monitor by the Prime Minister nor the progress of the proceedings of the case has been examined by the Prime Minister yet. However, sometimes back, the Federal Interior Minister Chaudhry Nisar Ali Khan said in a press conference that in the coming six weeks, the Inquiry under Article 6 against General (Retd) Pervaz Musharraf would be completed within six weeks but it is submitted with utmost respect that nothing in the positive direction has been done by the Inquiry Committee yet.
5. That lot of peoples locally and abroad in the print and electronic media are saying and predicting that a deal in the shape of a new NRO at the behest of those, who are in corridors of power locally and abroad has already been finalized between the Federal Government of PMLN and the Respondent General (Retd) Pervaz Musharraf through those hidden forces which matter much in our country and people are predicting that within the coming days or months, his name would also be removed from the Exit Control List.
PRAYER IN CMA:-
It is, therefore, respectfully and graciously prayed that this learned Court be pleased to kindly interfere to exercise its constitutional power at this critical juncture in the history of this country, to defend and protect the Constitution and that under such circumstances as stated above, it is the bounden duty of the Supreme Court to direct the Federal Government to complete the process of Inquiry forthwith and on priority basis and in the interest of justice, an implementation Bench may kindly also be constituted as was done in the case of NRO. Furthermore, a time schedule may kindly also be given to the Inquiry Team of FIA to finalize the proceedings against the Respondents General (Retd) Pervaz Musharraf and others concerned.
Meanwhile, the direction may kindly be given to the Federal Government (Respondent No. 1) to immediately arrest General (Retd) Pervaz Musharraf (Respondent No. 2) till the finalization of the Inquiry proceedings against him and also direct the Federal Government to do anything he is required by law to do.
2. Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this CMA may kindly be accepted. This prayer is made in the interest of justice.
Drawn up and filed by:
Dated:- 12th November, 2013. (Engineer Jameel Ahmad Malik)
Chairman of Communist Party,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
LIST OF BOOKS:
1. The Constitution of the Islamic Republic of Pakistan, 1973.
2. High Treason (Punishment) Act, 1973.
3. PLD 1988 SC 719
4. PLD 2005 SC 719
5. 1999 SCMR 382
6. PLD 2000 SC 84
7. PLD 2006 SC 697
Certified that this is the first Civil Miscellaneous Application in the Supreme Court on the subject.
(Engineer Jameel Ahmad Malik)