Islamabad: A five member bench headed by the Honourable Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan and comprising other members namely Mr. Justice Mian Shakirullah Jan, Mr. Justice Khilji Arif Hussain, Mr. Justice Tariq Parvez and Mr Justice Amir Hani Muslim heard the Suo Motu Case No. 24 of 2010 and Human Rights Cases No.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K and 1291-K, 1292-K of 2010 regarding Corruption in Hajj Arrangements in 2010.
The senior lawyers, Government Officers and FIA Officers appeared in this case. The case was heard today and the bench passed the following order:-
“Syed Tehseen Anwar Ali Shah, DG FIA has appeared and states that the orders passed by this Court dated 25.07.2011 and 26.07.2011, pursuant to which Establishment Division has issued Notification on 26th July, 2011, transferring Mr. Hussain Asghar from the office of Inspector General, Gilgit Baltistan to Director, FIA enabling him to conduct investigation of the Hajj scam case, shall be fully implemented. According to him the investigation team which was headed by Mr. Hussain Asghar earlier has also joined him in investigation. He, however, further states that Mr. Hussain Asghar so far has not reported to the FIA Headquarters. The DG FIA has submitted that he was out of station i.e. in Karachi and has reached last night and could not contact Mr. Hussain Asghar. He, however, ensures that Mr. Hussain Asghar will reach Islamabad immediately on relinquishing the charge and shall take over the charge of the Director FIA either by air if any flight is available or he could be asked to reach Islamabad by Road.
2. In view of the above, we postponed the hearing of the case for this purpose till tomorrow to see whether Mr. Hussain Asghar has assumed the charge as Director FIA in compliance with the orders of this Court dated 25.07.2011 and 26.07.2011.
3. It has been reported in the Electronic and Print Media that Mr. Sohail Ahmed, Secretary Establishment has been removed from his office and has been made OSD. This development has taken place soon after the issuance of the Notification by him transferring Mr. Hussain Asghar from the office of the Inspector General of Police Gilgit Baltistan to Director FIA to enable him to continue the investigation of the Hajj corruption scam. In fact the Secretary Establishment in compliance with the orders of this Court, has issued the notification of transfer of Mr. Hussain Asghar as Director FIA.
4. We may observe that prior to passing of the orders on 25th and 26th July, 2011, the observations were made by this Court at times requiring the Competent Authority to transfer and post Mr. Hussain Asghar as Director FIA to enable him to conduct the investigation in Hajj Scam case which case has not only brought bad name to the country but also reveals that senior government officials and influential persons are involved in the scam who have pocketed huge amounts. After the transfer of Mr. Hussain Asghar to the Gilgit, the investigation in the scam had come to a stand still. Despite repeated efforts, Mr. Hussain Asghar, who was previously conducting the investigation and has made break through was not brought back as Director, FIA as a result whereof this Court was left with no option but to pass the orders in exercise of its Constitutional Jurisdiction. During the course of proceedings on 26th July, 2011, it has also been revealed that Mr. Sohail Ahmed, Secretary Establishment had floated a summary to the Competent Authority regarding transfer of Mr. Hussain Asghar, as Director FIA but no action was taken on it by the Competent Authority.
5. Needless to observe that this Court is of the considered view that once a judicial order is passed, it has binding effect on the Executive as well as Judicial functionaries in terms of Articles 5 and 190 of the Constitution of Islamic Republic of Pakistan. Therefore, the attention of Mr. Sohail Ahmed, Secretary Establishment was drawn towards these Constitutional provisions, non-compliance of which would have exposed him liable to contempt proceedings. This fact finds place in our order passed in the earlier past of the day on 26.07.2011. However, Mr. Sohail Ahmed, Secretary Establishment has complied with the order after tea break when the Court assembled for further hearing and placed the copy of the notification in terms of order of this Court. The language of the notification clearly speaks this fact that the notification was issued in compliance with the orders of this Court which act on his part was in discharge of his Constitutional commitment as required under Article 190 of the Constitution. Such officer cannot be penalized inter alia on the ground that he issued the notification in violation of the rules. The Secretary Establishment has issued the notification in compliance with the order of this Court dated 25.07.2011 and 26.07.2011. If such officer is made OSD it will not send a good message to the country.
6. We have already expressed at number of times that transfer and posting is the domain of the Executive Authority; however, keeping in view the peculiar facts and circumstances of the case, instead of passing orders ourselves, we had send the issue of transfer/reposting of Mr. Hussain Asghar as Director FIA to the Government through Attorney General for Pakistan but it did not work. Under these circumstances, we examined the administrative orders ourselves in exercise of the powers of Judicial Review and have passed the orders on 25.07.2011 and 26.07.2011, which have resulted in making Mr. Sohail Ahmed as OSD. It is not only Mr. Sohail Ahmed, Secretary Establishment, who had suffered for obeying the lawful orders and if such acts are allowed to continue, it will have serious impacts on the officials/authorities and will send message to them that if they comply with orders of Supreme Court without seeking prior approval of the Competent Authority, they will be posted out or they shall be proceeded against departmentally. Moreover, it would discourage upright, honest and committed officers as well. Therefore, under these circumstances, this Court cannot leave such officers at the mercy of the Executive to deal with them in a manner they like. There is no cavil that the Executive has to exercise powers under the Rules but such discretion has to be exercised judiciously as has been spelt out in the case of Tariq Aziz-ud-Din: In re. (2010 SCMR 1301).
7. The manner in which Mr. Sohail Ahmed, Secretary Establishment has been penalized persuade us to have strong reasons to believe that it was an act designed to frustrate the orders of this Court. The immediate reaction shown by the Competent Authority was not called for, because Mr. Sohail Ahmed has obeyed the judicial order, which he was bound under the Constitution, which is a sacred document and every authority in the country is bound to follow it; if any authority makes a departure from any of its provisions, it is likely to lead to chaos in the country which may lead to serious consequences. Such an eventuality ought to be avoided by all persons in authority. Under the Constitution, if this Court passes orders, it should be complied with and no approval of any authority in Executive is required for its implementation. The rules or even statutes, which are subordinate to the Constitution could not place bar on the authority of this Court to seek the enforcement of its orders.
8. However, when we enquired from the Attorney General from Pakistan as to whether he had seen the notification under which Mr. Sohail Ahmed, Secretary Establishment has been made OSD, he has stated that he came to know about it only through Electronic media and newspapers. We may note here that the Registrar of this Court has also placed a note for our perusal, indicating the events which took place after the issuance of the notification of transfer of Mr. Hussain Asghar.
9. At this stage, we have asked the learned Attorney General for Pakistan, in whose presence this order has been dictated, to contact the Competent Authority and convey the above order and also ensure that Mr. Sohail Ahmed be reinstated as Secretary Establishment and the notification/ order of his being posted as OSD be withdrawn. The Attorney General shall submit the report in writing in this behalf i.e. whatever he has communicated to the Competent Authority and the reply he has received in response thereto.
10. We postponed the hearing till 11.30 a.m. today for compliance of the above order.
11. When the matter is taken up again after 11.30 a.m. the learned Attorney General for Pakistan has placed on record the copy of the Notification No.F.No.41/335/2009-E-I, dated 26th July, 2011 in pursuance whereof Mr. Sohail Ahmed, Secretary Establishment was made OSD with immediate effect and until further orders. He has informed that the Chief Executive/Prime Minister of Pakistan was out of town and no sooner he arrived back to Islamabad, he had gone to attend the Cabinet meeting already scheduled for today, therefore, he could not establish contact with him. He, however, had spoken to the Principal Secretary to the Prime Minister and had asked him to bring to the notice of the Prime Minister the observations made by this Court today in the order passed in Court, who has assured that he will convey him. Since the case is being adjourned, we asked the learned Attorney General for Pakistan that he should personally meet with the Prime Minister today along with certified copies of the order passed by this Court and explain him the intrinsic of the Constitutional and legal provisions along with the observations made herein above and that whatever reaction he gives should be reduced in writing and be placed before us tomorrow. The learned Attorney General shall also produce before us the relevant file including the summary on the basis of which the notification referred to herein before has been issued.
12. The learned Attorney General has also informed that the DG FIA has been deputed by him to contact Mr. Hussain Asghar, enabling him to come back and resume the charge of Director FIA, therefore, he has gone to his office to implement the directions, which were passed in his presence in the Court.
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