Saturday, June 16, 2012

Full Court on Media Gate

Full Court on Media Gate

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Chief Justice Iftikhar Muhammad Chaudhry chairing the full court meeting in the Supreme Court building


A Full Court meeting was held today in the Supreme Court of Pakistan, Islamabad under the Chairmanship of the Hon'ble Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry and was attended by all the Hon Judges namely Mr. Justice Mian Shakirullah Jan, Mr. Justice Tassaduq Hussain Jillani, Mr. Justice Nasir-ul-Mulk, Mr. Justice Jawwad S. Khawaja, Mr. Justice Anwar Zaheer Jamali, Mr. Justice Khilji Arif Hussain, Mr. Justice Tariq Parvez, Mr. Justice Mian Saqib Nisar, Mr. Justice Asif Saeed Khan Khosa, Mr. Justice Sarmad Jalal osmany, Mr. Justice Amir Hani Muslim, Mr. Justice Ejaz Afzal Khan, Mr. Justice Ijaz Ahmed Chaudhry, Mr. Justice Gulzar Ahmed, Mr. Justice Muhammad Ather Saeed and Mr. Justice Sh. Azmat Saeed. Dr. Faqir Hussain, Registrar Supreme Court of Pakistan also attended the meeting.



At the beginning of the meeting, the Hon Chief Justice of Pakistan formally welcomed the newly elevated Judge of the Supreme Court namely Mr. Justice Sh. Azmat Saeed. The Chief Justice appreciated the qualities, dedication, devotion to duty and commitment of Hon Judge. Mr. Justice Sh. Azmat Saeed in his response thanked the Chief Justice of Pakistan for his compliments and said that it is an honour for him to serve on the Bench of apex Court.

Thereafter, the Full Court considered the note of Registrar dated 15.6.2012 in respect of "Malik Riaz Planted Interview with Mehar Bokhari and Mubashir Lukman on Dunya TV" which is reproduced as follows:

"It is submitted that Dunya TV aired an interview of Malik Riaz Hussain in its Special Talk Show on 13.6.2012 (8:00 – 9:00 pm and 10 - 11 pm), hosted by anchors, Mubashir Lucman and Mehar Bokhari. Furthermore, behind the scenes footage of the same show has been revealed and is available on YouTube and some other social media under the above-captioned title. The story has also been reported today in several newspapers (clippings from daily 'The News', 'Dawn', 'Express Tribune', 'Jang', 'Nawa-i-Waqt', 'Express', etc enclosed). Besides, the selective parts of the same footage were shown by Geo TV on 14.6.2012 in its programme Capital Talk with Hamid Mir and Dawn News in Live with Syed Talat Hussain. In the subject footage off screen conservation between the anchor persons and Malik Riaz Hussain has been shown, indicating the kind of questions to be asked, taking instructions for uninterrupted replies from the Channel administration, putting planted questions, suggesting answers of questions, telephone call statedly of Mr. Abdul Qadir Gillani to one of the anchor person, etc. From this footage it appears that the whole show was pre-planed in which planted questions were asked and the interviewer coached in giving answers. It is clearly indicative of a pre-planed conspiracy against judiciary to scandalize the Court, prejudice the determination of pending matters in the Court and bring the Court/Judge into hatred, ridicule or contempt.

It may be stated that the same matter remained subjudice in Suo Moto Case No. 5 of 2012 as well as Criminal Original Petition No. 48-49 of 2012. A bench of this Court comprising Mr. Justice Jawwad S. Khawaja and Mr. Justice Khilji Arif Hussain in the judgment passed in Suo Moto Case No. 5 of 2012 also bemoaned the role of some anchor persons in the matter and in particular the lake of due diligence to scrutinize the material and ascertain the true fact of the case.

On the face of it, the footage showing conversation behind the seen smells of a planned conspiracy to shake public faith/confidence in the administration of justice and undermine the dignity/prestige of the Court, thereby tending to bring the Court/Judges into hatred, ridicule or contempt. It further tends to prejudice the determination of pending cases before the Supreme Court. It therefore warrants action under Article 204 of the Constitution read with Contempt of Court Ordinance 2003.

Therefore, if approved, in the first instance, the Chairman, PEMRA may be directed to submit report in the matter and also produce the full and unedited footage of the video behind the scene conversation on CD alongwith multimedia equipment on 15.6.2012 at 2:00 pm in the Supreme Court."

The note was duly approved by the Hon Chief Justice of Pakistan and accordingly the requisite footage of the off-screen conversation was procured and parts of which were exhibited to the members of the Full Court. The Chief Justice of Pakistan subjected the Chairman PEMRA to certain critical questions, in particular, the role of PEMRA in preventing the telecast of contemptuous and scandalous material against the judiciary. After deliberations, the Full Court expressed its faith and determination in maintaining and further strengthening the independence of judiciary, so as to ensure the free, fair and impartial dispensation of justice by the Court. The Full Court further resolved to call for a comprehensive report from the Chairman PEMRA to be submitted to the Registrar, Supreme Court who will place the same before 2-members Committee comprising of Mr. Justice Jawwad S. Khawaja and Mr. Justice Khilji Arif Hussain for perusal and recommendation for further course of action, if required.

The Full Court also reviewed the report of last 6 months i.e. 1.12.2011 to 31.5.2012, regarding pendency and disposal of the cases by the Supreme Court. During this period total 8217 fresh cases were instituted and 7568 were decided. The Full Court expressed its satisfaction over the rate of disposal and resolved to reduce the backlog through quick and expeditious disposal.


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SUPREME COURT ORDER IN ARSALAN IFTIKHAR CASE

IN THE SUPREME COURT OF PAKISTAN




JUDGMENT



Jawwad S. Khawaja, J

.

The fateful events of 9th March, 2007 are now a part of


our collective consciousness. Five years later, this Court has found itself beleaguered by


the relics of a past that everyone knows, or certainly should know, as the same are now


indelibly etched in our history. But perhaps the ghosts of the past do not so easily


depart. In this case, the Court has found it necessary for the protection of the public


interest to ascertain some facts and to seek the truth in a matter of the highest national


importance, which has appeared recently in the public domain, through the auspices of


the media viz. the institutional credibility and authority of the highest Court of the land.


The facts of this case are explained in detail below. But, before we venture into laying


out the facts, let us say that some of our greatest national problems will be relieved if


only we realize the momentousness of what has transpired in this country since 2007,


through the blood, sweat, tears and toil of our people. Those of us who continue to


ignore the turn-around, do so only through denial of history.


2. Three years ago, in another case of great public importance, we wrote: "

the past three years in the history of Pakistan have been momentous, and can be accorded the same


historical significance as the events of 1947 when the country was created and those of 1971 when


it was dismembered. It is with this sense of the nation's past that we find ourselves called upon to


understand and play the role envisaged for the Supreme Court by the Constitution. The Court


has endeavored to uphold the Constitution and has stood up to unconstitutional forces bent upon


undermining it.

" Dr. Mobashir Hassan & others v. Federation of Pakistan & others (PLD 2010


SC 265): It has been another three years since then and we can say with confidence that


Pakistan's constitutional journey has gone not one step backwards. Today, as ever


before, the Court has endeavored to uphold the Constitution and has stood up to


unconstitutional forces bent upon undermining it.




FACTUAL BACKGROUND:





3. This Suo Moto case was initiated on June 6, 2012 in response to a series of talk


shows aired on the electronic media in the period between June 3 and June 6. These talk


shows contained statements and insinuations which pertained to certain illegal acts


allegedly done by certain named individuals. These statements and innuendos clearly


tended to cast aspersions upon the independence and integrity of Pakistan's superior


judiciary, particularly that of the Supreme Court of Pakistan and its Chief Justice. In the


wee hours of June 6, a Suo Moto notice was issued, amongst others, to a businessman


Malik Riaz Hussain and to the son of the Chief Justice namely, Dr. Arsalan Iftikhar, for


the same day. On June 6 and June 7, two of the talk show hosts in whose programmes


the allegations surfaced were called to the Court to record their statements. They gave


detailed statements in open Court and also submitted signed copies of the same. For


further details of the facts, it is best to refer to their written submissions. The statement


of Mr. Kamran Khan, a journalist with a media group brought some material details of


this matter to the Court's notice. We consider it necessary to quote the relevant extracts


of that statement, taken from the signed copy, placed on the Court's record. Kamran


Khan said:




"I would like to state that my attention was first drawn to this subject in


the second week of May [2012] when I received an anonymous phone call


claiming that Dr. Arsalan Iftikhar son of the Chief Justice of Pakistan is


allegedly using his position to extract money from wealthy people whose


cases are pending before the Supreme Court of Pakistan.

A separate phone caller, two days later, said that Dr Arsalan Iftikhar had


allegedly blackmailed real estate tycoon Malik Riaz Hussain whose


case[s] were pending before the Supreme Court. I was also told that


Malik Riaz Hussain has also gathered evidence to prove that he has been


targeted for blackmail allegedly by Dr Arsalan Iftikhar….


… I contacted Malik Riaz Sb with this explicit intention and met him in


Karachi in the third week of May where he basically confirmed the


content of the information and after a lot of persuasion agreed to show


me the documentary evidence… At a subsequent meeting Malik Riaz Sb


showed me the dossiers that carry documents pertaining to Dr Asalan


Iftikhar's summer vacation trips to London over the past three years.


There were tenancy agreements signed by Dr Arsalan Iftikhar for five


star accomadations [sic.] in Central London and receipts / invoices


showed that the payments were made from the accounts/ credit cards


controlled by Malik Riaz Sb or his family members in London.


There were documents that also showed that travel and stay


arrangements for Dr Arsalan Iftikhar and a female accomplice ( I don't


remember the name) in Monte Carlo were made from the accounts


controlled by Mr Malik Riaz or his family members.


According to these documents most payments including those of several


shoppings made by Dr Arsalan Iftikhar and other family members at


pricey London stores were also made through credit cards owned by


Malik Sb's daughter and son in London…


… My lordships I left that meeting with Malik Riaz Sb with an


impression that either he's hell of a con, a forger par excellence or God


forbid the son of the Chief Justice of Pakistan has sold the name of his


great father…."





(Statement of Mr. Kamran Khan, Anchor, Executive Director, Geo News, submitted to


the Supreme Court on June 07, 2012)





Mr. Hamid Mir, another journalist and TV personality, gave the following statement:



"On the eve of 31st May, I called Malik Riaz Sahib on phone and

expressed my desire to meet him. [That evening] I met him at his


residence in Islamabad, around 9:30 pm. His son Ali was also present…


Malik Riaz asked someone to bring in a file which included a set of


documents. All the documents were photocopies. And according to


Malik Riaz Sahib, [these documents showed that] Arsalan Iftikhar had


taken a lot of money from his son and his son-in-law. Malik Riaz said


that he also has a number of [incriminating] videos but he did not show


me any such video…

(Statement of Mr. Hamid Mir, Executive Editor, Geo TV, submitted to the Supreme


Court on June 6, 2012,)





Mr. Shaheen Sehbai, Group Editor of the 'News' also submitted his affidavit on June 7


giving some particulars of his interview on an Internet based program called


"Washington Beat", viewable on YouTube.


4. Immediately following the initiation of this suo moto case, similar statements


also appeared from a number of other prominent media personalities. All of them


referred to certain meetings between Malik Riaz Hussain and some journalists. For


instance, after the suo moto notice, in an op-ed written in Daily Express (Urdu) on


08.06.12, titled "Kya Chief Justice bhi qusoor war haen?" a columnist Mr. Javed


Chaudhry retold the details of a similar meeting between him and Malik Riaz on the eve


of June 2, 2012 where he apparently was shown the same "evidence". A story filed by


Mr. Ansar Abbasi, in The News, on Friday June 08.06.12, titled "Got no evidence against


CJ: Malik Riaz" also records the details of numerous similar encounters with Malik Riaz.


Mr. Ansar Abbasi writes:


"This correspondent had five sittings with Malik Riaz during the last

few weeks after the business tycoon invited this scribe to his residence to


share the documentary evidence against the alleged corruption of CJ's


son Dr Arsalan Iftikhar


5. It was on the basis of wide spread and disparaging media coverage that the


Court felt it necessary, in its order dated 7.6.2012 to require the various implicated


parties to file their responses in the form of Concise Statements. On 11.6.2012 Dr.


Arsalan filed his Concise Statement. Mr. Zahid Bokhari, learned counsel for Malik Riaz


Hussain, submitted that his client was unable to file his Concise Statement because of


health reasons. Although the Court found this submission to be untenable, he was


granted an extension of time in the interest of justice and even though learned counsel


for Dr. Arsalan objected to such extension on the ground that Malik Riaz was


deliberately delaying matters. On 12.06.08, Malik Riaz Hussan filed his Concise


Statement along with a set of documents.




ANALYSIS:





6. We do not deem it necessary to reproduce the complete contents of the Concise


Statements of both parties. It will suffice to note that in his Concise Statement, Malik


Riaz made two basic submissions firstly, that the suo moto proceeding was not


maintainable. His argument was that there was no issue of public importance involved


and that in any event whatever storm had been unleashed would die down in the next


few days. We find this submission to be quite extraordinary and divorced from reality in


view of the media frenzy, of which we must take judicial notice. The suo moto notice


was absolutely necessary to stem the uninformed opinion and comment feeding such


media frenzy and to ensure the right of the citizens to correct information on a matter of


the gravest national importance in a transparent manner. Learned Sr. ASC for Malik


Riaz also submitted that the Supreme Court is neither an investigative agency nor a trial


court and should not conduct a trial on this matter. This we have already stated in our


earlier order of 7.6.2012 (considered below).


7. It is established by precedent that this Court, particularly in the exercise of its


original jurisdiction under Article 184 (3) of the Constitution, is entitled to use


inquisitorial powers. However, generally, the Court refrains from the exercise of this


extra-ordinary power. We have taken cognizance of this matter, suo moto, for a specific


object. We need to exercise such powers only as are necessary to achieve that object. The


Concise Statements of the parties are before us. And now we can take note of such


material particulars in the Concise Statements of the parties, which have a direct bearing


on the object of this suo moto case. In so far as other questions, be these legal or factual


in nature, their determination may be left to a competent Court or forum.


8. The parts of the Concise Statements which have a bearing on the outcome of this


suo moto case, are those which pertain directly to the independence and integrity of the


judiciary. In his Concise Statement, Malik Riaz Hussain confirmed that he met with a


number of journalists and showed them 'documentary evidence' of payments made to


Dr. Arsalan, in exchange for promises on his part to gain favours for Malik Riaz from the


Supreme Court. However, Malik Riaz also stated, clearly and unequivocally that, till


today, no favour has actually been shown to him by this Court. In his Concise Statement


he says

"it is categorically stated that I have all the regards and respect for the esteemed Supreme


Court of Pakistan and its Honorable judges including the Honorable Chief Justice of Pakistan...


[And]

I did not get any relief whatsoever in the Suo-Moto/Human Rights cases pending


before August Court

contrary to the assurances and promises made by [Dr. Arsalan].

During


the hearing, Malik Riaz was repeatedly asked by us to confirm whether he stood by this

statement given by him in writing. Accordingly, he did so in the most categorical and


unambiguous terms through his counsel.


9. To a large extent, this statement settles the question of public importance. If the


man who is accusing Dr. Arsalan of involvement in wrongdoing, himself concedes that


the Court, as an institution or its judges have never been involved in any such act, then


the aspersion cast on the Court's reputation stands cleared. Any doubts which may have


arisen in the mind of the public can now be safely put to rest since the person who is


supposed to have created these doubts with the help of certain segments of the media,


has made an admission on record and cleared the situation.


10. Another aspect of the case also becomes clear from the above. Malik Riaz, going


by his own admission, does not appear to be averse to bribing or attempting to bribe


high functionaries of the State or other persons he considers to be influential. We can


only try to understand the motivation behind his strange conduct of doling out huge


sums of money over a period starting from 2009 without ever getting any return for the


same. A clue, however, is to be found in his Concise Statement wherein Malik Riaz has


said that Dr. Arsalan has not only cheated him and his son-in-law but has also


committed fraud, extortion and other offences under the Prevention of Corruption Act


and under the National Accountability Ordinance. The inference, if any, to be drawn is


not in relation to the Court; it is to be drawn in relation to Malik Riaz himself. It appears


that Malik Riaz may not have encountered failure in the past in receiving favours


against payments of illegal gratification. He may, therefore, in his own mind, have


considered the lack of any relief or favourable orders from the Supreme Court as simply


an attempt to extort money from him. With such thinking, it may not have crossed his


mind and he may actually have missed the reality that the Court was only doing its job


in accordance with the law and the Constitution, dealing with cases solely on the basis


of merit. His logic, perhaps not so strange to him, can be best explained by referring to


the wisdom of the great Hafez, sage of Shiraz, who said:-

A CURSORY LOOK ON THE DOCUMENTARY EVIDENCE:





11. We have also briefly examined the documents placed on record by Malik Riaz


and Dr. Arsalan. These documents pertain mainly to the record of a flow of money and

other valuables, alleged to have passed between Mr. Salman Ali Khan (son-in-law of


Malik Riaz) and Dr. Arsalan. If indeed this flow did take place, and if it was done in


exchange for promises of illegal favours, then the individuals involved must be tried


and punished in accordance with the laws of Pakistan. We may just state for the record


that no affidavit or statement of Salman Ali Khan, whether confirming or denying any


transactions between him and Dr. Arsalan or their relationship

inter se, have been filed


by Malik Riaz. Nonetheless attempts by individuals to obstruct the course of justice are


indeed a matter of serious and grave concern and imperil the reputation of the justice


system at large. This is why such exchange of bribes with the attempt, even a failed one,


to influence the course of justice, has been declared illegal and punishable under various


laws. If proven guilty by a court of competent jurisdiction, the parties involved are liable


to be punished. These laws may include section 163 (illegal gratification using


personal influence over public servant), section 383 (extortion) section 415 and section


420 (cheating), of the PPC and section 9 of the National Accountability Ordinance,


1999. We need not delve deeply into the contours of these various legal


provisions or determine the manner of their applicability to the present facts. That is a


job best left to investigating agencies and the trial court, to be decided on the basis of


evidence. All we need to do here is to highlight the underlying spirit of these


laws, which, in essence, is the timeless wisdom encapsulated in the prophetic saying:-


. . The one who gives bribes as well as the one who


takes bribes are doomed to hell fire. The people of Pakistan, who have chosen to be


governed by a government of laws, are entitled to see a temporal manifestation of this


principle.




THE SCOPE OF THESE PROCEEDINGS:





12. While highlighting the need for bringing these individuals to justice, we must


clarify that it is not for us to judge the guilt or innocence of the parties concerned


without evidence or trial. We, as judges, should be the last people to draw premature


conclusions which are required to be proved through evidence. In the order dated


7.6.2012, we had stated: "

we do not intend to hold a trial because that would be a matter which,


if necessary, will be undertaken by a competent trial Court in accordance with law. For the

present, the exercise being undertaken by us is to ensure that the truth … be uncovered


Indeed, it is the cornerstone of the administration of justice in this country that all


people, whether they appear to us innocent or guilty, are entitled to the due process of


law and are to be deemed innocent until proven guilty after a fair trial. Malik Riaz, Dr.


Arsalan or Salman Ali Khan are thus entitled to due process and fair trial. Article 10A of


the Constitution has now codified this principle of due process in the form of a


fundamental right. It says: "

For the determination of his civil rights and obligations or in any


criminal charge against him a person shall be entitled to a fair trial and due process.

13. Therefore, through this suo moto action, it is not the intention to pronounce final


judgment on the guilt or innocence of those allegedly involved. Our purpose is to take


cognizance of this matter so that the people's right to have access to information about


matters of public importance can be vindicated. This object, in our opinion, has been


achieved in these proceedings. The matter of public importance in this case was the


aspersion cast on the independence and integrity of the superior judiciary of this


country. The above-quoted statement of Malik Riaz, given in open Court, and put in


writing, should clear all doubts on this score. He has admitted in writing that the


judiciary has been, and remains, ill-disposed to the grant of favours, despite his own


efforts to the contrary. To put it simply, even a resourceful person such as Malik Riaz


has been forced to concede failure in his attempt to compromise the integrity and


independence of the judiciary, despite the alleged payment of 34 crore rupees. This


demonstrates that the gains won by the people's struggle since 2007 are not yet frittered


away.



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ROLE OF MEDIA:





14. The series of events which comprise the run-up to this suo moto case also raise


concerns about issues of media law and ethics. It is indeed sad that the people of


Pakistan were, for a number of days, held hostage to a fear about the independence and


integrity of their country's superior judiciary, on the basis of what has turned out be an


utterly baseless allegation, withdrawn now by the same person who is alleged to have


started it. The ethic and legal framework of the media requires fairness and objectivity; it


requires that journalists conduct due diligence before reporting any news so that


rumours and insinuations are filtered out, particularly in matters of grave significance


such as ones arising in this case. Even when they have come across a particular


information, fair conduct requires it is checked and rechecked. From the statements filed


by certain media persons in court the requisite due diligence

prima facie, appears not to


have been undertaken. Had this been done, the concerned media persons would have


found out what has been ascertained by us with very little effort. Moreover, Dr. Arsalan


and his conduct should have, from the very beginning, been kept separate and distinct


from the integrity and independence of the judiciary. It should not have taken an incourt


statement from Malik Riaz to settle the matter. Without proper care and


professional excellence, even sincere and honest journalists risk being used as tools in


the hands of those who may not be obedient to the laws and the constitution of Pakistan.


15. Among the documents filed in Court is a statement of Mir Ibrahim Rehman,


Chief Executive, Geo Network. He has placed stress on the "good intention" of Geo


anchor persons and has expressed his view that they had acted in a "responsible


manner" to protect the respect of the Judiciary. Stress has also been placed on media


ethics of the group. Mr. Shaheen Sehbai has also submitted an affidavit acknowledging


that there was "

a plan which was aimed at maligning the top Judge of Pakistan and son of the


Chief Justice of Pakistan

". Iftikhar Muhammad Chaudhry according to him, had been


named under a plan as the beneficiary of business deals involving crores of rupees. It is


quite clear from the affidavit of Mr. Sehbai that he was neither in possession of the


evidence nor had he seen it. Likewise none of the persons mentioned in his affidavit was


in possession of the evidence. This omission was not considered important enough. Mr.


Sehbai goes on to state that his "

prime goal was to warn the Judges of a conspiracy". We are


left wondering if giving an Internet-based interview without seeing any of the


documents and then uploading such interview on YouTube was indeed the best way to


warn the Judges of a conspiracy.


16. The statement submitted by Mr. Kamran Khan also shows that even rudimentary


checks would have made it clear that Malik Riaz had indeed had no direct contact or


transaction or other dealing whatsoever with Dr. Arsalan. Furthermore, we have not


found that any due diligence was undertaken to ascertain or verify the true facts of cases

pending in the Supreme Court for which Malik Riaz has stated he paid large sums of


money for relief and favourable decisions. With the object of illustrating our comment


through the documents filed by Malik Riaz with his Concise Statement, we can refer to


the very first case i.e. HRC No. 10322-P/2009, mentioned at page 69 of the Concise


Statement of Malik Riaz. In his own words action in the case was

"taken on press clipping


in Daily Jang dated 12.10.2009 on appeal of Raja Riasat"

. The subject of the case according to


Malik Riaz, is the murder of Raja Fiaz son of Raja Riasat over a land dispute in Mauza


Sihala. The simplest inquiry into HRC No. 10322-P/2009 would have revealed that 9


Investigating Officers and 6 DSPs are facing criminal charges because they have


committed the most serious illegalities in the conduct of the investigation and have


thereby subverted the course of justice in a murder case. This is the situation even


according to FIA. It is a matter of concern to the people of Pakistan that such inquiry


was not undertaken before the airing of, perhaps the most damaging and tendentious


media onslaught on the Judiciary in the recent past.


17. Because of the limited scope of these proceedings, it is not necessary for us to


embark upon any inquiry as to the thoroughness of journalistic inquiry commensurate


with the magnitude of the disclosures which all the three journalists appear to be fully


aware of. It is, however, our considered opinion that appropriate levels of due diligence


could have avoided the situation which the whole nation including this Court found


itself in, on the morning of 6.6.2012.


18. Just to illustrate,

prima facie, the absence of professional thoroughness and


apparent lack of due diligence, let us briefly record here an interesting aspect of the


documentary "evidence" filed by Malik Riaz with his Concise Statement which we have


noticed through a cursory glance over these papers. The documents attached with the


Concise Statement relate only to 4.5% of the total money allegedly spent on behalf of


Malik Riaz. The rest remains unaccounted for. This is because the total alleged amount


spent as illegal gratification is almost Rs. 342.5 million or around 34 crore Rupees. This


spending is alleged to have been done by two distinct means: one, in the form of


facilitation during the 'foreign trips', i.e. paying for tickets, accommodation, food and


entertainment; second, by way of 'cash transfers'. It is the second kind of spending i.e.

cash transfers which are alleged to comprise the largest chunk of the alleged bribes. So


the three foreign trips in aggregate come to Rs. 15.5 million (8.9 + 0.7 + 5.9) or around 1.6


crore; the rest, a staggering sum of Rs. 327 million or 32.7 crore is supposed to have been


transferred as cash, i.e. currency notes of unspecified denomination. The documents


which have been attached to the Concise Statement only deal with the foreign trips


component of the alleged bribes. For the alleged cash transfers, no evidence at all (not


even a bare affidavit of Salman Ali Khan) has been provided. Even the dates of such


cash transfers or their location have not been indicated. These transfers are alleged to


have taken place in four installments. The largest such installment is said to have been


Rs. 157 million, i.e. 15.7 crore. By any standards, that is a lot of money for anyone to be


giving or receiving in the form of hard cash. It is not impossible. But it does raise some


suspicion about the veracity of the narrative which any diligent or even rudimentary


inquiry should have addressed. The fact of the matter is we have seen senior and


intelligent persons buying into the claim, after seeing "evidence" which admittedly


pertains to less than 5% of the alleged illegal transactions.


19. It is worth remembering that ultimately every person and every institution is the


custodian of his/its own reputation and integrity. If we donot guard our reputation the


honourable people of Pakistan will be justified in pointing fingers at us. The same


applies to all other institutions, including the media.


20. Finally, let us add that this suo moto case has presented to us, like the proverbial


dark cloud, its own silver lining. Openness and transparency in the full glare of an open


Court hearing with equal opportunity to the two sides, is one of the defining features of


our legal system. The people of Pakistan can rightfully demand such openness and


transparency as their right. These hearings have given us an opportunity to demonstrate


and make it absolutely clear, as we have done previously in a large number of highprofile


cases, that in the Islamic Republic of Pakistan, no one is above the law. Even the


highest constitutional functionaries, and their kith and kin, cannot but submit


themselves and their affairs to the law. We must know that howsoever high and mighty


a person may be, the law is higher and mightier. In a recent case, we have cited a

hadith


of the Holy Prophet (peace be upon him), which informs or should inform the actions of


the people of Pakistan. The Holy Prophet (peace be upon him) warned:

O people, those


before you were ruined because when someone of high rank among them (sharif) committed theft,


they would spare him, but when a weak person from amongst them (zaeef) committed theft, they


would inflict the prescribed punishment upon him

." (Sahih Bukhari)." Cited in the case of


Syed Yousaf Raza Gillani versus Assistant Registrar, Supreme Court of Pakistan

(2012 SCMR


424). The Holy Prophet (peace be upon him), in these words, warned us against the path


of corruption, nepotism and favouritism, indicating that it is one which leads only to


sure destruction. This insistence upon equality before law has found its way into our


Constitution, and we have repeatedly emphasized it in a number of recent judgments


just as we do in rendering this judgment. We are not in any doubt the Supreme Court


will never shy away from discharging its constitutional duty to uphold the principle of


the rule of law without fear or favor. Other creations of the Constitution and the law be


they executive agencies or courts must also show equal diligence in giving effect to the


rule of law in their respective spheres of authority. Investigative agencies and courts are


reminded that they must proceed with no consideration before them, save the law and


the Constitution.


21. Today, we, as a nation, stand at what is undeniably a fateful cross-roads in our


history. But at least since 9

th March, 2007 this Court has trod only one path ahead of it –


the path of the law and the Constitution, which is our only hope of preserving the gains


of the "

unremitting struggle of the people against oppression and tyranny." This is the path


that we, and indeed all organs of the state are commanded to follow, in the very


preamble of the Constitution. If we fail in this duty, we risk returning, as we said in the


beginning, to the period before March 9, 2007. The significance of that water-shed in our


constitutional history may have been lost upon some, but certainly not upon this Court.


But for that moment of truth, there would have been no deliverance – for anyone.


22. While this suo moto action has been brought to an end in view of the material


considered above, the learned Attorney General who has assisted us in this case is fully


abreast of all aspects of this case. It is our expectation that he will set the machinery of


the State in motion so that all those who may have committed any illegal acts, including

Malik Riaz Hussain, Dr. Arsalan, Salman Ali Khan etc. are pursued and brought to book


with the full force and rigour of the law.


23. The matters giving rise to this Suo Moto case may have been seen by some as a


dark and sordid affair. We have, however, been confident from the very beginning that


only

khair and the clearest dawn will emerge from this case. We can conclude by quoting


once again from the sage of Shiraz as the bearer of hope and good tidings, reflected in


the following couplets:-


Judge


Judge


ISLAMABAD


14.6.2012.




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NOTE BY KHILJI ARIF HUSSAIN, J


I have had the opportunity of going through the judgment authored by my learned


brother Jawwad S. Khawaja, J. and am in complete agreement with the same. I only wish


to add this brief note on an aspect of this case which has been highlighted by the facts.


While we as judges are particularly in the public domain, all persons exercising State


functions are in the eyes of the people. Although family members of public functionaries


are, properly speaking, not performing State functions, the alleged facts of this case


highlight the necessity of extreme caution and discretion in their private and public


dealings and conduct.


(Khilji Arif Hussain)


Judge

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