The Supreme Court declined the plea of Federal Investigation Agency (FIA) to close the Asghar Khan case, saying the object of the judgement was to cleanse the system. The secretary defence was directed to file a report regarding the process and proceedings for investigation/adjudication against the army personnel under the Army law. The FIA was ordered to submit a reply to Asghar Khan's family application.
The Chief Justice said the massive struggle of Asghar Khan, which culminated in the judgement by this court, would not go waste. "We can't nullify the judgement," he added. It is the foundation for the political process in the country and to stop the extraneous intervention in the democratic system. The object of the judgement was to cleanse the system, he further said.
CJP Mian Saqib Nisar was heading a two-member bench that heard the application of Supreme Court judgement in the Asghar Khan case on Friday. Former Chief of Army Staff General Aslam Beg (retd), ex-Director General Inter-Services Intelligence (ISI) Asad Durrani (retd) and many other army officers were named in distribution of funds among the politicians for allegedly rigging the 1990 general elections.
The court observed when the stage for the implementation of the judgement came, the FIA was asked to probe but the Agency says that it does not have evidence and, therefore, asked the court to close the case. However, the court has not closed it. "This court is not prepared to close it in view of the findings of the judgement."
The Chief Justice said the day this judgement was announced, he met with former Chief Justice Iftikhar Muhammad Chaudhry and appreciated the judgement and told him that it will reach its logical conclusion. The Chief Justice said that it was the suggestion of some friends that the judgement's part related to army officers be separated. He inquired whether the court could ever reach the logical conclusion on the basis of segregation. He noted that Cabinet Division apprised the court to separate the case of army officers. "We don't know about the proceedings and what's going on under the Army Law. We make it clear that every institution is bound to comply with the court order. Every institution is answerable to this court and we can summon anyone."
The court was dissatisfied over the reasons and the conclusion of the FIA that no material was found on the basis of which any person mentioned in the report in the Supreme Court judgement in Asghar Khan case can be prosecuted. The court observed that there are certain areas of the judgements in view of which the FIA should have extended the probe, adding if that had been done then definitely the case could be prepared for sending to a trial court.
The FIA in its report on December 29 proposed to the top court to close the Asghar Khan case as it is more than 25-year-old and the relevant banks do not have the details of deposits made at that times due to that the agency is unable to initiate criminal proceedings. The Chief Justice had issued notice to the family for their response.
The Chief Justice asked the DG if the FIA can't investigate then they will give this task to another institution. Salman Akram Raja, appearing on behalf of Asghar Khan family, contended that the judgement is final as the review petitions of Gen Aslam (retd) and Lt Gen Durrani (retd) have been dismissed. He said the FIA has not taken into consideration the findings of the judgement.
Former Air Marshal late Asghar Khan's family (wife, son and two daughters) on January 10, 2019 filed an application opposing the closure of the case and cited various reasons why this case can't be closed.
DG FIA Bashir Memon told the court that their mandate was very limited. Six persons who allegedly received money have died. The politicians who are alive deny that they have received money. He said that Brig Hamid accepts that he had given money but does not remember the details.
The counsel said they don't know what has happened behind the closed doors. The Chief Justice said: "We have sent the matter to the Ministry of Defence. We are with you and would not let go waste the struggle of Asghar Khan.
Salman argued that the FIA says they are not able to investigate the person who, according to the judgement, distributed the funds. The FIA says they don't have the address of Brig Hamid Saeed (retd) and have also not associated Asghar Khan's family to the investigation, he added.
Salman said that Brig Saeed's 'hand written note' is part of the judgement. The DG FIA said that on the basis of 'hand written note' they could not charge-sheet anyone. He said when Asad Durrani was inquired about that note, his reply was that he does not remember. He said in order to establish charges against anyone in the court of law, they need to have solid evidence, i.e., who gave politicians funds and before whom money was disbursed and received.
Justice Ijaz asked the DG, "You mean to say that there should be documentary evidence of money laundering and the documents to establish the link."
Salman Raja contended that the judgement itself is evidence. He said that Brig Hamid (retd) has accepted that he handed over Rs 10.5 million at that time to General Headquarters (GHQ). After retirement Asad Durrani himself said he had distributed money, he added. The hearing of the case was adjourned till Jan 25.
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