IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE SH. AZMAT SAEED
CONSTITUTION PETITIONS NO. 77 TO 85, 89 & 92 OF 2011
[Constitution Petition under Article 184(3) of
the Constitution regarding alleged
Memorandum to Admiral Mike Mullen by
Mr. Hussain Haqqani, former Ambassador of
Pakistan to the United States of America]
…
Watan Party … PETITIONER
[CP 77/2011]
M. Tariq Asad Advocate Supreme Court … PETITIONER
[CP 78/2011]
Muhammad Nawaz Sharif … PETITIONER
[CP 79/2011]
Senator Muhammad Ishaq Dar & another … PETITIONERS
[CP 80/2011]
Iqbal Zafar Jhagra & another … PETITIONERS
[CP 81/2011]
Lt. General ® Abdul Qadir Baloch & 2 others … PETITIONERS
[CP 82/2011]
Raja Muhammad Farooq Haider Khan & another… PETITIONERS
[CP 83/2011]
Syed Ghous Ali Shah & 2 others … PETITIONERS
[CP 84/2011]
Hafeez Ur Rahman … PETITIONER
[CP 85/2011]
Shafqatullah Sohail … PETITIONER
[CP 89/2011]
2
Shahid Orakzai … PETITIONER
[CP 92/2011]
VERSUS
Federation of Pakistan & others … RESPONDENTS
For the petitioners: Barrister Zafarullah Khan, ASC in person
Mr. Tariq Asad, ASC in person
Khawaja Muhammad Asif, MNA in person
Dr. M. Salahuddin Mengal, ASC
Sardar Asmatullah Khan, ASC
Mr. Naseer Ahmad Bhutta, ASC
Mr. M.S. Khattak, AOR
Mr. Shahid Orakzai in person
On Court notice: Mr. Irfan Qadir,
Attorney General for Pakistan
For Mr. Mansoor Ijaz: Mr. Muhammad Akram Sheikh, Sr. ASC
Date of hearing: 12.06.2012
…
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In pursuance
of directions contained in order dated December, 30, 2011 passed in
Constitution Petitions No.77 to 85 and 89 of 2011, this Court
constituted a Commission. Relevant para there from is reproduced
hereinbelow:-
“(b) To delineate measures with a view to ensure enforcement
of the fundamental rights noted in para ibid, a probe is called for
to ascertain the origin, authenticity and purpose of
creating/drafting of Memo for delivering it to Chairman of the
US Joint Chiefs of Staff Admiral Mike Mullen through Gen.
(Retd.) James Logan Jones, former US National Security
Advisor. Thus, in exercise of powers conferred upon this Court
under Article 187 of the Constitution, Order XXXII, Rules 1 and
2 read with Order XXXVI of the Supreme Court Rules, 1980
coupled with the principle of Civil Procedure Code, a Commission
is appointed. As the due process of law is the entitlement of all
3
the stakholders, therefore, to ensure probe into the matter in an
transparent manner the Commission shall be comprising of:
(i) Mr. Justice Qazi Faez Isa, (Chairman)
Chief Justice of Balochistan High Court
(ii) Mr. Justice Iqbal Hameed-ur-Rehman (Member)
Chief Justice, Islamabad High Court
(iii) Mr. Justice Mushir Alam (Member)
Chief Justice, High Court of Sindh
Raja Jawwad Abbas Hassan, District & Sessions Judge,
Islamabad is appointed as Secretary to the Commission.”
2. The Commission has submitted its report in a sealed cover
along with 5 sealed envelopes and proceedings conducted by the
Commission, which contain following documents:-
1. Report
Confidential report of the Commission in a sealed
envelop.
2. Envelop No.1 containing
(i) CD containing Mansoor Ijaz’s Interview (Ex-W4-31)
(ii) Envelop containing transcript (Ex-W4-162)
(iii) Newspaper (Ex-W5-10)
(iv) Booklet (Ex-W5-11)
(v) Forensic Report CDs (Ex-CW1-20/2 & CW-1-20/3)
3. Envelop No.2 containing
(i) CD of Hussain Haqqanis Interviews
(ii) Book titled “Pakistan Between Mosque and Military”
4. Envelop No.3 containing
Telephone Bills (02) of Mr. Mansoor Ijaz directly received
from service provider & certificate
5. Envelop No.4 containing
Telephone bills of Mr. Haqqani submitted by his counsel
6. Envelop No.5 containing
Secret and confidential information
7. Complete order sheet of the commission (Book No.1)
8. Evidence/statement (Book No.2)
9. Exhibited documents (Book No.3/1)
10. Exhibited documents (Book No. 3/2)
11. Marked/exhibited documents (book No.4)
12. CMA,s (Book No.5)
13. Notices issued during the proceedings of the commission
(Book No.6/1)
4
14. Published notices (Book No.6/2)
15. Miscellaneous (Book No.7)
3. The report along with envelopes was received in sealed
covers. The envelope No.1, containing the report has been unsealed in
the open Court and handed over to learned Attorney General for
reading the final conclusion/findings of the Commission. For
convenience same are also reproduced hereinbelow:-
Final Conclusion and findings:
(1) The Hon’ble Supreme Court appointed this Commission to probe,
“to ascertain the origin, authenticity and purpose of creating /
drafting of Memo for delivering it to Chairman of the Us Joint Chiefs
of Staff Admiral Mike Mullen.”
(2) It has been incontrovertibly established that the Memorandum was
authentic and Mr. Haqqani was the originator and architect of the
Memorandum. Mr. Haqqani Sought American Help; he also wanted
to create a niche for himself making himself forever indispensable
to the Americans. He lost sight of the fact that he is a Pakistani
Citizen and Pakistan’s Ambassador to the United States of America,
and therefore his loyalty could only be to Pakistan.
(3) Mr. Haqqani’s by offering his services as part of a proposed
‘national security team’ to a foreign government, voicing the ‘great
fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’
and thus seeking to bring ‘Pakistan’s nuclear assets under a more
verifiable, transparent regime,’ stating that ISI maintains ‘relations
to the Taliban’ and offering to ‘eliminate Section S of the ISI and to
help ‘ pigeon – hole the forces lined up against your interests’
created fissures in the body politic and were acts of disloyalty to
Pakistan, that contravened the Constitution of Pakistan.
(4) The purpose of the Memorandum was to show that the civilian
government was friends of America, but needed to be strengthened
to prevail upon the army and the intelligence agencies, and to be
able to do so American help was required to set up a civilian
national security team, to be headed by Mr. Haqqani.
(5) There can be no two views that terrorism must be contested,
terrorists fought, nuclear proliferation opposed, civilians (and not
the military) determine foreign policy and the ship of State guided
5
by civilian hands at the helm; however, what is not acceptable is
for Pakistan’s Ambassador to beseech a foreign government to with
impunity meddle in and run our affairs.
(6) We may observe that Mr. Haqqani has chosen not to live in
Pakistan, has been working in USA, where he appeared to have
made his life, held no property or asset in Pakistan, held no money
(save a paltry amount ) in a Pakistani bank, but despite having no
obvious ties to Pakistan was appointed to the extremely sensitive
position of Pakistan’s Ambassador to the USA, and in addition to
being paid a salary and accompanying emoluments was handed a
largesse of over an amount of two million dollars a year.
4. Needless to observe that Commission was constituted in
pursuance of a judicial order passed by this Court; its final conclusion
and findings have also been read over by the learned Attorney
General, therefore, formally we direct to make this report public.
5. As notices of the report have to be issued to all the
respondents, therefore, case is adjourned for a period of two weeks.
Office is directed to prepare the extra copies of the report for
supplying to the respondents as well as the learned Attorney General.
However, the petitioners, members of the media and general public
have to obtain copies of the same according to the Supreme Court
Rules.
6. Prima facie it seems that Mr. Hussain Haqqani, former
Ambassador of Pakistan in USA has to answer about the findings so
recorded by the Commission. He was allowed to leave the country with
the commitment vide order 30.1.2012 that whenever the Court
requires, he will appear in person within a period of four days,
therefore, we direct his presence on the next date of hearing, which
shall be intimated by the office according to the rules.
6
7. As far as remaining sealed envelopes containing
documents, noted above, are concerned, same are ordered to be kept
in the safe custody of the Registrar and any of them shall be opened, if
need be, during the proceedings of the case.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MIAN SHAKIRULLAH JAN, J. JAWWAD S. KHAWAJA, J.
KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J.
ASIF SAEED KHAN KHOSA, J. AMIR HANI MUSLIM, J.
IJAZ AHMED CHAUDHRY, J. SH. AZMAT SAEED, J.
Islamabad, the
12TH June, 2012
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE SH. AZMAT SAEED
CONSTITUTION PETITIONS NO. 77 TO 85, 89 & 92 OF 2011
[Constitution Petition under Article 184(3) of
the Constitution regarding alleged
Memorandum to Admiral Mike Mullen by
Mr. Hussain Haqqani, former Ambassador of
Pakistan to the United States of America]
…
Watan Party … PETITIONER
[CP 77/2011]
M. Tariq Asad Advocate Supreme Court … PETITIONER
[CP 78/2011]
Muhammad Nawaz Sharif … PETITIONER
[CP 79/2011]
Senator Muhammad Ishaq Dar & another … PETITIONERS
[CP 80/2011]
Iqbal Zafar Jhagra & another … PETITIONERS
[CP 81/2011]
Lt. General ® Abdul Qadir Baloch & 2 others … PETITIONERS
[CP 82/2011]
Raja Muhammad Farooq Haider Khan & another… PETITIONERS
[CP 83/2011]
Syed Ghous Ali Shah & 2 others … PETITIONERS
[CP 84/2011]
Hafeez Ur Rahman … PETITIONER
[CP 85/2011]
Shafqatullah Sohail … PETITIONER
[CP 89/2011]
2
Shahid Orakzai … PETITIONER
[CP 92/2011]
VERSUS
Federation of Pakistan & others … RESPONDENTS
For the petitioners: Barrister Zafarullah Khan, ASC in person
Mr. Tariq Asad, ASC in person
Khawaja Muhammad Asif, MNA in person
Dr. M. Salahuddin Mengal, ASC
Sardar Asmatullah Khan, ASC
Mr. Naseer Ahmad Bhutta, ASC
Mr. M.S. Khattak, AOR
Mr. Shahid Orakzai in person
On Court notice: Mr. Irfan Qadir,
Attorney General for Pakistan
For Mr. Mansoor Ijaz: Mr. Muhammad Akram Sheikh, Sr. ASC
Date of hearing: 12.06.2012
…
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In pursuance
of directions contained in order dated December, 30, 2011 passed in
Constitution Petitions No.77 to 85 and 89 of 2011, this Court
constituted a Commission. Relevant para there from is reproduced
hereinbelow:-
“(b) To delineate measures with a view to ensure enforcement
of the fundamental rights noted in para ibid, a probe is called for
to ascertain the origin, authenticity and purpose of
creating/drafting of Memo for delivering it to Chairman of the
US Joint Chiefs of Staff Admiral Mike Mullen through Gen.
(Retd.) James Logan Jones, former US National Security
Advisor. Thus, in exercise of powers conferred upon this Court
under Article 187 of the Constitution, Order XXXII, Rules 1 and
2 read with Order XXXVI of the Supreme Court Rules, 1980
coupled with the principle of Civil Procedure Code, a Commission
is appointed. As the due process of law is the entitlement of all
3
the stakholders, therefore, to ensure probe into the matter in an
transparent manner the Commission shall be comprising of:
(i) Mr. Justice Qazi Faez Isa, (Chairman)
Chief Justice of Balochistan High Court
(ii) Mr. Justice Iqbal Hameed-ur-Rehman (Member)
Chief Justice, Islamabad High Court
(iii) Mr. Justice Mushir Alam (Member)
Chief Justice, High Court of Sindh
Raja Jawwad Abbas Hassan, District & Sessions Judge,
Islamabad is appointed as Secretary to the Commission.”
2. The Commission has submitted its report in a sealed cover
along with 5 sealed envelopes and proceedings conducted by the
Commission, which contain following documents:-
1. Report
Confidential report of the Commission in a sealed
envelop.
2. Envelop No.1 containing
(i) CD containing Mansoor Ijaz’s Interview (Ex-W4-31)
(ii) Envelop containing transcript (Ex-W4-162)
(iii) Newspaper (Ex-W5-10)
(iv) Booklet (Ex-W5-11)
(v) Forensic Report CDs (Ex-CW1-20/2 & CW-1-20/3)
3. Envelop No.2 containing
(i) CD of Hussain Haqqanis Interviews
(ii) Book titled “Pakistan Between Mosque and Military”
4. Envelop No.3 containing
Telephone Bills (02) of Mr. Mansoor Ijaz directly received
from service provider & certificate
5. Envelop No.4 containing
Telephone bills of Mr. Haqqani submitted by his counsel
6. Envelop No.5 containing
Secret and confidential information
7. Complete order sheet of the commission (Book No.1)
8. Evidence/statement (Book No.2)
9. Exhibited documents (Book No.3/1)
10. Exhibited documents (Book No. 3/2)
11. Marked/exhibited documents (book No.4)
12. CMA,s (Book No.5)
13. Notices issued during the proceedings of the commission
(Book No.6/1)
4
14. Published notices (Book No.6/2)
15. Miscellaneous (Book No.7)
3. The report along with envelopes was received in sealed
covers. The envelope No.1, containing the report has been unsealed in
the open Court and handed over to learned Attorney General for
reading the final conclusion/findings of the Commission. For
convenience same are also reproduced hereinbelow:-
Final Conclusion and findings:
(1) The Hon’ble Supreme Court appointed this Commission to probe,
“to ascertain the origin, authenticity and purpose of creating /
drafting of Memo for delivering it to Chairman of the Us Joint Chiefs
of Staff Admiral Mike Mullen.”
(2) It has been incontrovertibly established that the Memorandum was
authentic and Mr. Haqqani was the originator and architect of the
Memorandum. Mr. Haqqani Sought American Help; he also wanted
to create a niche for himself making himself forever indispensable
to the Americans. He lost sight of the fact that he is a Pakistani
Citizen and Pakistan’s Ambassador to the United States of America,
and therefore his loyalty could only be to Pakistan.
(3) Mr. Haqqani’s by offering his services as part of a proposed
‘national security team’ to a foreign government, voicing the ‘great
fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’
and thus seeking to bring ‘Pakistan’s nuclear assets under a more
verifiable, transparent regime,’ stating that ISI maintains ‘relations
to the Taliban’ and offering to ‘eliminate Section S of the ISI and to
help ‘ pigeon – hole the forces lined up against your interests’
created fissures in the body politic and were acts of disloyalty to
Pakistan, that contravened the Constitution of Pakistan.
(4) The purpose of the Memorandum was to show that the civilian
government was friends of America, but needed to be strengthened
to prevail upon the army and the intelligence agencies, and to be
able to do so American help was required to set up a civilian
national security team, to be headed by Mr. Haqqani.
(5) There can be no two views that terrorism must be contested,
terrorists fought, nuclear proliferation opposed, civilians (and not
the military) determine foreign policy and the ship of State guided
5
by civilian hands at the helm; however, what is not acceptable is
for Pakistan’s Ambassador to beseech a foreign government to with
impunity meddle in and run our affairs.
(6) We may observe that Mr. Haqqani has chosen not to live in
Pakistan, has been working in USA, where he appeared to have
made his life, held no property or asset in Pakistan, held no money
(save a paltry amount ) in a Pakistani bank, but despite having no
obvious ties to Pakistan was appointed to the extremely sensitive
position of Pakistan’s Ambassador to the USA, and in addition to
being paid a salary and accompanying emoluments was handed a
largesse of over an amount of two million dollars a year.
4. Needless to observe that Commission was constituted in
pursuance of a judicial order passed by this Court; its final conclusion
and findings have also been read over by the learned Attorney
General, therefore, formally we direct to make this report public.
5. As notices of the report have to be issued to all the
respondents, therefore, case is adjourned for a period of two weeks.
Office is directed to prepare the extra copies of the report for
supplying to the respondents as well as the learned Attorney General.
However, the petitioners, members of the media and general public
have to obtain copies of the same according to the Supreme Court
Rules.
6. Prima facie it seems that Mr. Hussain Haqqani, former
Ambassador of Pakistan in USA has to answer about the findings so
recorded by the Commission. He was allowed to leave the country with
the commitment vide order 30.1.2012 that whenever the Court
requires, he will appear in person within a period of four days,
therefore, we direct his presence on the next date of hearing, which
shall be intimated by the office according to the rules.
6
7. As far as remaining sealed envelopes containing
documents, noted above, are concerned, same are ordered to be kept
in the safe custody of the Registrar and any of them shall be opened, if
need be, during the proceedings of the case.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MIAN SHAKIRULLAH JAN, J. JAWWAD S. KHAWAJA, J.
KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J.
ASIF SAEED KHAN KHOSA, J. AMIR HANI MUSLIM, J.
IJAZ AHMED CHAUDHRY, J. SH. AZMAT SAEED, J.
Islamabad, the
12TH June, 2012
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