IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:

Mr. Justice Iftikhar Muhammad Chaudhry, CJ

Mr. Justice Jawwad S. Khawaja
Mr. Justice Amir Hani Muslim

SUO MOTU CASE NO. 24 of 2010

[Regarding Corruption in Hajj Arrangements in 2010]

Criminal Original petition 68 AND 93 OF 2012

[Muhammad Mushtaq and another v. Federation of Pakistan]
[Khushdil Khan Malik v. Sohail Ahmed and other]

And
Human Rights Case No.42130-G of 2012
(Complaint of Dr. M. Naeed Akhter against re-employment of Dr.
Pakeeza Haider)

For the petitioner: Qazi Ahmed Qureshi, ASC (in Crl.O.P.68/2012)

Nemo (in Crl.O.P.93/2012)

On Court Notice: Mr. Shah Khawar,

Addl. Attorney General for Pakistan

For FIA: Mr. Hussain Asghar, Director

Mr. Khalid Rasool, Addl. Director
M/s Ghazanfar Abbas, Adnan &
Zia-ul-Hassan, Inspectors

For Hamid Saeed Mian Khalid Habib, ASC

Kazmi former Minister Mr. Mehmood A. Sheikh, AOR
Religious Affairs:

For Syed Yousaf Raza Mr. Amjad Iqbal Qureshi, ASC

Gilani, former PM:

For Abdul Qadir Gilani: Mian Gul Hassan Aurangzeb, ASC (not present)
(in CMAs.56-57/2013)
For Zain Iftikhar
Sukheira:

For M/o Religious Mr. Hasnat Rasool, Joint Secy.

Affairs: Mr. Farid Islam Khattak, Dy.Secy.

For M/o Interior: Nemo

SMC 24/10 2

For Establishment Mr. Abdul Hafeez Pirzada, Sr.ASC (not present)

Division: Mr. Shahbaz Kirmani, SO

For NAB: Mr. Fauzi Zafar, ADPG

In CMA No.218/2011: Mr. M. Ikram Chaudhry, ASC

For Tour Operators: Syed Zulfiqar Abbas Naqvi, ASC

Officers on Contract: Mr. Afnan Karim Kundi, ASC

(on behalf of Prof. Ghazala Mehmood)
Mr. Abdul Hafeez Amjad, ASC (in Crl.O.P.68/12)
Air Vice Martial (R) Aftab Hussain, in person
Dr. Pakeeza Haider, in person
Mr. Iftikhar Ahmed, NSPP, in person

Date of hearing: 20.11.2013

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, CJ – Instant case has been

initiated under Article 184(3) of the Constitution of Islamic Republic of

Pakistan regarding massive corruption in the arrangements of Hajj for

the year 2010.

2. The word Hajj (the holy pilgrimage) means “to intend a

journey” which connotes both the outward act of a journey and the

inward act of intentions. Hajj is a worship which used to be performed

even during pre-Islamic period. Although the Arabs had forgotten most

of the teachings of the Abrahamic religion, yet they, regarding it a

sacred duty, continued practicing Hajj throughout their history. During

that period, tribes from all around the Arabian Peninsula used to

congregate at Makkah. Like the other teachings of religion, they had

lost the true form of this worship and introduced some new practices

that they deemed appropriate. However, the Prophet Muhammad

(Peace be Upon Him) revived the same among the Muslims according

to Shariat-e-Muhammadi.
SMC 24/10 3

3. Hajj has a great significance among the basic tenets of

Islam. Allah Almighty has made it compulsory for all Muslims, including

male and female, to perform it at least once in their lifetime, if they

can afford. It is ordained in the Holy Quran by the Allah Almighty,

“And whosoever can afford should visit the House on

pilgrimage as duty to God. Whosoever denies should remember

that God is above heed of the world” (3:97). The Holy Prophet

(Peace be Upon Him) while highlighting the importance of Hajj said,

“If a man unhindered by a compelling necessity, or a tyrant

ruler, or a disabling disease dies without offering Hajj, God

doesn’t care if he dies the death of a Jew or a Christian” (Darmi,

No: 1792). Hajj is one of the main pillars of Islam, including Tuheed,

Namaz, Roza and Zakat. The Prophet (Peace Be Upon Him) once

answering a question said, “Islam means that you openly state

that there is no god except Allah, and Muhammad (Peace Be

Upon Him) is the Messenger of Allah; establish the prayer, pay

Zakah; fast during the month of Ramadan and offer the Hajj of

the House of Allah if you are able to afford journey to it” (Muslim,

No: 8). The Prophet (Peace Be Upon Him) at some other place said,

“Islam is based on five fundamentals: to proclaim that there is

no god but Allah and Muhammad (Peace Be Upon Him) is the

Messenger of Allah, and to establish the prayer, and pay Zakah,

to offer pilgrimage of the House [of God] and to fast during

Ramadan” (Bukhari, No: 7).

4. For the weak and women, Hajj is a Jehaad (holy crusade,

supreme effort). Past sins of the pilgrim are erased and poverty is

removed, as the blacksmith’s furnace separates dross from iron. Allah

SMC 24/10 4

Almighty forgives “Haaji” (the pilgrim) and those too for whom he

prays. The Prophet (Peace Be Upon Him) once said, “One who offers

Hajj in His way and doesn’t speak obscene language, and

doesn’t commit sins, will come back [purified] as he was at the

time of his birth” (Bukhari, No: 1421). According to Islamic

injunctions, the reward of Hajj (accepted by Allah Almighty) is nothing

but paradise. A Haaji will intercede for four hundred of his family

members on the Day of Judgment. It is also important because one

who performs Hajj gets to experience what life was like as a Muslim

during the Prophet Muhammad’s time.

5. Hujaj (the pilgrims) are delegates, guests of Allah

Almighty. Allah summoned them and they presented themselves to His

service. They supplicated Him and He granted them. One who leaves

his home for Hajj and dies in the way will keep gaining the reward of

every year’s Hajj till Qiyamah (the ultimate Judgment Day). He will not

be made to account for his doings on the Judgment Day and will be

entered into heavens without reckoning.

6. In order to obey the command of Allah almighty, Muslims

all over the world travel to Makkah, Saudi Arabia where the Baitullah is

situated. The pilgrimage occurs from the 8th to 12th of the month of

Zul-Hijjah, the last month of the Islamic calendar. About three million

Muslims perform Hajj each year out of which approximately two million

foreign pilgrims visit Makkah.

7. Since the independence, the Government of Pakistan has

been making Hajj arrangements and hundreds of thousands of pilgrims

travel to Makkah for performance of Hajj. The Hajj arrangements are

made in an effective manner and generally there were no complaints

SMC 24/10 5

at large scale by Hujaj regarding mismanagement and irregularities

committed by the concerned authorities of Pakistan. In the year 2010,

some irregularities and instances of corruption were highlighted in

print and electronic media. Inasmuch as, one of the Senators, Khalid

Mehmood Soomro in TV Programme "‫ "دﻧﯿﺎ ﻣﯿﺮے اۤﮔﮯ‬broadcast by a

private channel, requested this Court through electronic media to

initiate probe into the matter. Prior to the request made by the

Parliamentarians, H.E. Prince Bander Bin Khalid Bin Abdul Aziz al-Saud

sent a letter to this Court alleging corruption and embezzlement in

Hajj arrangements on the part of the officials, who were responsible in

the hiring accommodation for the Hujjaj. In pursuance of said letter,

vide order dated 29.10.2010 comments were called from Secretary,

Religious Affairs and the Ministry of Foreign Affairs.

8. In the meantime, a news item was published in the Daily

Dawn dated 07.11.2010 titled “Hajj Accommodation Scam “, wherein

a Senator demanded a ‘House Committee’ to probe into the allegations

contained in the letter of the Saudi Prince, addressed to this Court

(Chief Justice) about exorbitant rent being charged from Pakistani

pilgrims for their accommodations in Makkah. Similarly, a report titled,

"‫ "ﺣﺞ اﻧﺘﻈﺎﻣﺎت ﻣﯿﮟ ھﻮﻧﮯ واﻟﯽ ﮐﺮﭘﺸﻦ‬was published in the ‘Daily Nawa-i-Waqt’ on

10.11.2010, alleging therein that the former DG, Hajj Rao Shakeel

Ahmed was appointed to the office in violation of the rules, with a view

to facilitate him in indulging in corruption.

9. In addition to that, a representation was submitted to Mr.

Justice (R) Khalil-ur-Rehman Ramday, Judge (as he then was) by

some of the Hujjaj complaining ill treatment during the Hajj, which

was forwarded to one of us (Chief Justice) with the following remarks:

SMC 24/10 6

“A large number of persons came to me in Makkah

Mukarramah and even in Mina complaining of grave
mismanagement in the Hajj arrangements regarding the
buildings hired in Makkah and Madina and the
accommodation in Mina. The stories narrated were
pathetic. Complaints were made even in writing. I appear
to have misplaced those written complaints, but two of
them are available with me, which I am placing before
you for such action as may be deemed appropriate to
eliminate the sufferings of thousands of Hajis who collect
pennies all their lives to perform Hajj and this is how the
money earned by them through their blood and sweat is
wasted. “

The matter was ordered to be heard in the Court vide order dated

02.12.2010 and the hearing of the case commenced under Article

184(3) of the Constitution of Islamic Republic of Pakistan, 1973.

During hearing of the case, it was revealed that the Ministry of Hajj

had charged SR 700 from each Haji for providing them suitable

accommodation in Mina, however, they were not provided

accommodation despite collecting the rent from them and were made

to suffer the agony of non-accommodation. Therefore, vide order

dated 13.12.2010 the Secretary, Ministry of Religious Affairs was

directed to refund the said amount of SR 700 to the pilgrims and

submit certificate to that effect before the Court. In pursuance of the

aforesaid directions, the Government of Pakistan reimbursed an

amount of Rs.470 million to about 25000 Hujjaj, towards the rent

charged from them.

10. The investigation of the matter was entrusted to Federal

Investigation Agency (FIA) and Mr. Hussain Asghar, Director, FIA with
SMC 24/10 7

the rank of DIG, Police was appointed as head of the investigating

team. It was informed that an accused namely Ahmad Faiz s/o

Muhammad Shafi had been arrested and interrogated in Kingdom of

Saudi Arabia, therefore, incriminating evidence was to be collected

from there. In order to collect evidence and to determinate the

accusation of the persons involved in crime, directly or indirectly, the

FIA team proceeded to Saudi Arabia, where all transactions took place,

funds (ill-gotten money) were transferred/remitted and the concerned

officials and private persons were located.

11. One of the Federal Ministers was leveling the allegation of

corruption against another Federal Minister; therefore, in order to

ensure the fair and transparent investigation of the case, this Court

desired that the facts be brought in the notice of the Prime Minister,

who may personally look into the matter and ensure that the

investigation is conducted without influence of any official against

whom allegations of corruption and or corrupt practices have been

levelled.

12. As a result of investigation, many criminal cases were

registered against various accused persons. First case was registered

vide FIR No. 5/2010 dated 12.11.2010 under sections

409/420/467/468/471/109/3/4 PPC read with section 5(2) Prohibition

of Corruption Act, 1947. Second case was registered vide FIR

No.06/2010 dated 20.12.2010 against Malik Abdullah Mehmood

Khokhar (brother-in-law of Syed Hamid Saeed Kazmi) on the

allegation that he received an amount of Rs.200,000/- as token money

from one Raja Tariq Mehmood resident of Rawalpindi for providing Hajj
SMC 24/10 8

Quota for 110 individuals against the payment of Rs.2,200,000/- (2.2

million) @Rs.20,000/- per person which was to be paid later on. Third

case was registered vide FIR No.1/2011 dated 15.02.2011 against

Zain Iftikhar Sukhera and Majeebullah Malik with the allegations that

Zain Iftikhar Sukhera fraudulently obtained job of IT Consultant (BS-

20) in the Ministry of Information Technology, Islamabad by

misrepresenting himself and using fake Certificates/Degree. Yet

another case was registered vide FIR No.3/2011 dated 17.03.2011

against Shakeel Ahmad Rao, former DG Hajj; Mr. Ismail Qureshi,

former Secretary Establishment Division; S.M. Tahir, the then JS (T),

Establishment Division and some other persons for maneuvering

appointment of Shakeel Ahmad Rao as DG Hajj in violation of rules

and the law as he was over age, on ECL, facing trial in Accountability

Court in Lahore and a reference was pending against him with NAB,

Punjab.

13. It is permanent to mention here that Mr. Hussain Asghar,

who was heading the investigation team, started unfolding different

aspects of the case and collected sufficient material against influential

persons including the politicians and Government Officers. In the

meantime, Syed Jawaid Ali Shah Bokhari, was posted as Additional

Director General, FIA. After his appointment, without assigning any

reason, Mr. Hussain Asghar was disassociated from the investigation

and Syed Jawaid Ali Shah was assigned the said task. However, he

disassociated himself for which his explanation was sought. In his

reply, he explained that as his promotion was due in grade-22,

therefore, he wanted to avail the chance. The Government was

directed to initiate departmental proceedings against him as he had

SMC 24/10 9

refused to perform his duties. It is to be noted that the result of the

departmental proceedings has not been communicated to this Court.

14. Malik Muhammad Iqbal, in the meanwhile, took over the

charge as DG, FIA and Mr. Hussain Asghar was transferred to Gilgit-

Baltistan as Inspector General of Police. He was posted out on the

basis of a report submitted by the DG, FIA, wherein it was dishonestly

mentioned that he had completed the investigation and the challans in

the said cases had been submitted before the Courts knowing well that

Mr. Hussain Asghar was conducting investigation of an important case

in which not only the pilgrims had been looted but it had also brought

a bad name to the country.

15. After the transfer of Mr. Hussain Asghar, things came to a

standstill and no progress in the investigation was made. This Court

was of the view that Malik Muhammad Iqbal, DG, FIA being a senior

officer instead of ensuring to accelerate progress of the investigation in

the right direction, started hampering the investigation after taking

over the charge, therefore, he was called upon to explain as to why in

the mid of the investigation when the case was proceeding towards its

logical end, he spared and relieved Mr. Hussain Asghar without

bringing it in the notice of this Court. Thereafter, the then DG, FIA sent

a letter for reposting of Mr. Hussain Asghar, but no response was

received from the competent authority.

16. On 10.06.2011, the then Secretary Establishment Division

and DG, FIA appeared in Court and sought time to enable them to

approach the competent authority for reposting of Mr. Hussain Asghar

in the FIA. The Court directed the Secretary, Establishment to

immediately issue transfer orders of Mr. Hussain Asghar as Director,

SMC 24/10 10

FIA, enabling him to resume his duty and continue to investigate the

case, otherwise he had to face the proceedings for non-compliance of

the order. He was also directed to place on record the list of the

officers available at that time when Mr. Hussain Asghar was posted as

IG, Gilgit-Baltistan. The then DG, FIA was directed to provide every

cooperation and assistance to Mr. Hussain Asghar and his team which

was already conducting the investigation.

17. The then Secretary Establishment forwarded a summary

for the reposting of Mr. Hussain Asghar but the needful was not done,

therefore, on 26.07.2011 in compliance of judicial order, he issued

notification of transfer of Mr. Hussain Asghar to FIA. However, Mr.

Hussain Asghar did not report to the FIA Headquarter and the then

learned Attorney General for Pakistan informed the Court that no

direct contact had been established with him except information

collected form the documents from the Chief Secretary, Gilgit-Baltistan

that the said administration had declined to relieve him without

provision of replacement. The report of the Attorney General dated

28.07.2011 is reproduced hereinbelow: -

(i) ADG Mr. Muhammad Manzoor tried to contact from his cell
number 0321-9480003 with Mr. Hussain Asghar on his cell
phone number 0345-3056663 & .0355-5550161 but the same
were not responding.
(ii) DIG HQ Gilgit Baltistan Police was contacted to know about IGP
(Mr. Hussain Asghar). He informed that the IGP was in Skardu
but he is having no contact with him. The DIG however, Faxed a
copy of the Service Department, Government of Gilgit Baltistan
Notification dated 26-7-2011 addressed to IGP, containing
directions that “the Chief Minister Gilgit Baltistan has verbally
directed you not to relinquish the charge of IG Police Gilgit
Baltistan without approval of the competent authority (Chief
Minister, GB) and without provision of your replacement “ …,
SMC 24/10 11

(iii) DIG HQ was asked to establish contact with IGP and inform him
about the orders of Hon’ble Supreme Court of Pakistan, dated
27-7-2011. He was also asked to communicate with SP Skardu
for locating Mr. Hussain Asghar and deliver the message to IGP
by utilizing wireless communication network.
(iv) The copies of the orders of Hon’ble Supreme Court of Pakistan
dated 27-7-2011 have separately been faxed to the Chief
Secretary, Government of Gilgit Baltistan (fax No.05811-
920144) and the Inspector General Police G.B. (fax No.05811-’
930015) for immediate compliance.
(v) Director General FIA gives an assurance to the apex court that
as and when Mr. Hussain Asghar reports for duty in FIA, the
investigation of Hajj Scam cases will be handed over to him and
the investigation team, already working with him, will be re-
attached with the officer. He will also be facilitated in all
manners to carry put the investigation of the Hajj Scam cases.

Sd/-

Syed Tahsin Anwar Ali Shah

Director General/FIA 28.7.2011 “

Thereafter, vide notification dated 26.07.2011, Mr. Sohail Ahmed, the

then Secretary Establishment, who in compliance with the order of this

Court had issued notification of transfer of Mr. Hussain Asghar, was

made OSD. Relevant para of the said notification reads as follows: -

“Mr. Sohail Ahmed, a BS-22 officer of Secretariat Group,

presently posted as Secretary, Establishment Division, is
transferred and posted as OSD, Establishment Division, with
immediate effect and until further orders.”

18. It is to be noted that placing an officer as OSD is

tantamount to penalizing him because the expression ‘OSD’ is not

known to either the Civil Servant Act, 1973 or the Civil Servants

(Appointment Promotion and Transfer) Rules, 1973. Therefore, this

Court was of the view that a civil servant like Mr. Sohail Ahmad, who

stood for supremacy of the Constitution and rule of law, by obeying

SMC 24/10 12

the judicial order, should not have been penalized by making him

OSD. These facts were incorporated in order dated 27.07.2011,

relevant paras therefrom read as under: -

“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.

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 26-7-2011. 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 25-7-2011 and
26-7-2011. If such officer is made OSD it will not send a good
message to the country.

7. The manner in which Mr. Sohail Ahmed, Secretary

SMC 24/10 13

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.

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. “

19. This Court considered all the facts and circumstances of

the case as well as the law and the rulings on the subject and vide

order dated 29.07.2011 reported as Corruption in Hajj Arrangements

in 2010 (PLD 2011 SC 963), held as under: -

(1) The Notification dated 26th July, 2011 issued by the

Secretary Establishment Division, Government of Pakistan,
whereby Mr. Hussain Asghar, presently posted as Inspector
General, Gilgit-Baltistan under Kashmir Affairs and Gilgit-
Baltistan Division, was transferred and posted as Director, FIA
under Ministry of Interior in pursuance of the order of this Court
SMC 24/10 14

dated 25th July, 2011 passed in the instant case, shall be

implemented in letter and spirit by the Government, i.e. the
Secretary Interior and Secretary Establishment by adopting all
appropriate measures;

(2) The Notification No.F.41/335/2009-E-I dated 26th July,

2011, placing Mr. Sohail Ahmed as OSD is not sustainable in
law. However, it is the prerogative of the competent authority to
post him either as Secretary Establishment or give him any
other assignment commensurate with his status, performance,
ability and work etc., as early as possible, but not later than a
period of 7 days from the date of receipt of this order. If no
order of his posting and transfer is passed on or before the
stipulated period, the aforesaid Notification placing him as OSD
shall cease to have effect and he shall be deemed to be
Secretary Establishment until otherwise transferred and posted
elsewhere by the competent authority;

(3) The DG, FIA shall take all necessary steps to ensure that
no sooner Mr. Hussain Asghar reports for duty, the investigation
team working earlier with him will be provided to him and shall
be extended all the facilities so that he can complete
investigation of mega corruption in Hajj arrangements. In the
meanwhile, DG, FIA shall also submit report for our perusal
after every 7 days of the progress in the investigation of the
case.

Despite clear orders of this Court as well as issuance of notification of

transfer of Mr. Hussain Asghar from the post of IG Police, Gilgit-

Baltistan, he did not join as Director, FIA.

20. It is to be noted that in somewhat similar circumstances,

when many police officers after transfer to the province of Balochistan

did not join their duties, this Court directed that if the transferred

police officers decline or fail to obey the orders of the competent

authority, disciplinary proceedings should be initiated against them

[President Balochistan High Court Bar Association v. Federation of

SMC 24/10 15

Pakistan (Const. Petition No. 77/2012)]. In line with said directions, in

the instant case too, the Secretaries, Establishment Division and

Interior were directed to follow the same course of action and

implement the orders of this Court, failing which they were to appear

before the court in person. Mr. Hussain Asghar did not join FIA,

therefore, it was clarified vide order dated 05.06.2012 that the

Secretary Establishment is bound to proceed against him not only for

violating the order of competent authority but also orders of this

Court.

21. Secretary, Establishment, vide Memo dated 05.06.2012,

directed Mr. Hussain Asghar to immediately relinquish the charge in

Government of Gilgat-Baltistan and report to FIA, failing which he

would be proceeded against in terms of rule 5(1)(iii) of E&D rules,

1973. As Mr. Hussain Asghar, failed to comply with the directions of

the competent authority, disciplinary proceedings were initiated

against him and on 27.06.2012 a summary was sent to Prime Minister

of Pakistan for approval of authorized officer. Resultantly, Mr. Hussain

Asghar was suspended vide notification dated 18.07.2012.

22. One of the main accused in the Hajj scam, namely, Hamid

Saeed Kazmi, former Minister for Religious Affairs was granted bail on

statutory ground of delay in the conclusion of trial. It was for the

reason that the case could not be proceeded/concluded within

reasonable time as the post of Special Judge (Rawalpindi) remained

vacant, therefore, the Federal Government was directed to ensure

appointment to the said post expeditiously.

23. In the meantime, it was informed that Mr. Hussain Asghar

SMC 24/10 16

had returned from Gilgit to Islamabad but on account of departmental

proceedings he was not allowed to join as Director FIA as he was

under suspension. It was made clear by the Court that as he had been

transferred to FIA for the purpose of conducting investigation of Hajj

scam, pending decision of the departmental proceedings, he may

takeover charge as Director, FIA and start investigation of the matter.

As such, Mr. Hussain Asghar started the investigation of the cases.

24. Vide order dated 24.03.2011, the FIA was restrained to

cause the arrest, without the leave of this Court, of Mr. Muhammad

Ismail Qureshi, the then Secretary (Establishment), who succeeded in

making appointment of Rao Shakeel Ahemd as DG, Hajj. On

08.04.2011, the FIA was directed that he may not be arrested till

further orders. However, on 13.11.2012, it was informed that due to

above said order, the FIA was handicapped to further interrogate the

case on that issue. In such view of the matter, notice was issued to

Mr. Muhammad Ismail Qureshi, the then Secretary Establishment.

25. On 09.04.2013, Mr. Hussain Asghar informed that accused

Ahmed Faiz had been declared proclaimed offender and though his

passport had been cancelled and red warrants had been issued, he

could not be arrested from Saudi Arabia. A treaty for extradition of

persons involved in criminal cases existed between Saudi Arabia and

Pakistan but the Saudi Government informed that Interior Ministry of

Pakistan should take up the matter with its counter part in this regard.

Regarding appointment of Zain Iftikhar Sukhera and Rao Shakeel

Ahmed as Incharge, IT and DG, Hajj respectively, the then Prime

Minister Syed Yousaf Raza Gilani was required by FIA to join the
SMC 24/10 17

investigation, however, vide letter dated 01.03.2012, issued by M/o

Law & Justice, Government of Pakistan informed the FIA that he, being

the Prime Minister, has immunity under Article 248(1) of the

Constitution. The Court directed to issue notice to Syed Yousaf Raza

Gilani to appear in person. It was further informed that Mr.

Muhammad Ismail Qureshi after obtaining protective bail on

06.04.2012 from Lahore High Court, instead of joining the

investigation had left for America.

26. The case remained pending for many years in this Court,

during hearing whereof following issues surfaced: -

(1) Corruption was done by political persons as well as

officers in the higher echelons of government due to
which Hujjaj were robbed as not only extra money
was charged from them but the accommodation was
not provided to them at Mina;

(2) During investigation of the cases arising out of the

Hajj scam, many officers/officials, who succeeded in
collecting evidence against politicians/government
officers involved in the corruption/looting of money,
were disassociated from the investigation and
transferred to other positions; and

(3) Hajj tour operators charged Rs.5000/- extra from

each Haji.

27. As far as the first issue is concerned, it is to be noted that

the investigating agency succeeded in registration of many FIRs

against various accused persons involved in corruption and corrupt

practice. In this regard, FIR No.5/2010 dated 12.11.2010 was

registered under sections 409/420/467/468/471/109/3/4 PPC read

SMC 24/10 18

with section 5(2) Prohibition of Corruption Act, 1947, wherein four

challans under section 173 Cr.PC dated 03.01.2011, 03.05.2011,

18.01.2012 and 08.06.2012 were submitted in the court of Special

Judge (Central) Rawalpindi (now in Islamabad).

28. During the investigation of the said case, accused Shakeel

Ahmad Rao, former DG Hajj was arrested on 13.11.2010 while

accused Aftab-ul-Islam Raja, former JS, Hajj Ministry of Religious

Affairs was arrested on 9.12.2010 and both of them are still behind

the bars, whereas, Syed Hamid Saeed Kazmi, former Minister for

Religious Affairs was arrested 15.3.2011 but was released on bail. One

of the accused namely Ahmed Faiz has not been arrested however,

efforts are being made through different channels i.e. Interpol,

Ministry of Foreign Affairs, Ministry of Interior, etc., as reportedly he

is stationed at Jeddah in Saudia Arabia. Properties/assets worth

Rs.117,652,815/- (117.65 million) belonging to accused Shakeel

Ahmad Rao, Syed Hamind Saeed Kazmi and Ahmad Faiz have been

seized under section 5(5) of the FIA Act, 1974. However, International

Letter of Request has been sent to United Kingdom Central Authority,

Judicial Corporation Unit, London through Ministry of Foreign Affairs for

obtaining details of Bank account No.0008080320001 in the name of

Syed Hamid Saeed Kazmi maintained with United National Bank

London GB.

29. Another FIR No.06/2010 dated 20.12.2010 has been

registered against Malik Abdullah Mehmood Khokhar (brother-in-law of

Syed Hamid Saeed Kazmi) on the allegation that he received an

amount of Rs.200,000/- as token money from one Raja Tariq

SMC 24/10 19

Mehmood resident of Rawalpindi for providing Hajj Quota for 110

individuals against the payment of Rs.2,200,000/- (2.2 million)

@Rs.20,000/- per person which was to be paid later on. During

investigation of the case the said accused was arrested on 22.12.2010,

the Challan was submitted on 07.01.2011 and the trial is in progress.

30. Vide FIR No.1/2011 dated 15.02.2011, a case was

registered against Zain Iftikhar Sukhera and Majeebullah Malik. The

allegations contained in the FIR against Zain Iftikhar Sukhera are that

he fraudulently obtained job of IT Consultant (BS-20) in the Ministry of

Information Technology, Islamabad by misrepresenting himself and

using fake Certificates/Degree. However, pr-arrest bail of both the

accused was confirmed on 11.05.2011 by the Special Judge (Central)

Rawalpindi [now in Islamabad] and application for cancellation of bail

is pending before the learned Islamabad High Court. The interim

challan in the said FIR has been submitted on 12.03.2013. Whereas,

final challan has been forwarded to Law Officer of FIA for onward

submission to the trial Court.

31. Yet another case was registered vide FIR No.3/2011 dated

17.03.2011 against Shakeel Ahmad Rao, former DG Hajj; Mr. Ismail

Qureshi, former Secretary Establishment Division; S.M. Tahir, the then

JS (T), Establishment Division and some other persons for

maneuvering appointment of Shakeel Ahmad Rao as DG Hajj in

violation of rules and the law as he was over age, on ECL, facing trial

in Accountability Court in Lahore and a reference was pending against

him with NAB, Punjab. S.M. Tahir accused has been discharged by the

learned High Court vide Order dated 10.04.2012 passed in W.P. No.
SMC 24/10 20

3519/2011. However, three interim challans dated 30.11.2011,

24.04.2012 and 30.05.2012 have been submitted in the trial Court.

Charge against Shakeel Ahmad Rao has been framed and the trial is in

progress. With regard to the role of Mr. Ismail Qureshi, the then

Secretary Establishment Division and the competent Authority i.e. the

former Prime Minister of Pakistan who approved the appointment of

Shakeel Ahmad Rao as DG Hajj, investigation/probe is still going on.

The final challan has been forwarded to the Law Officer for submission

before the trial Court.

32. It is to be noted that except one accused Ahmed Faiz (PO)

all the other accused have been arrested and the trials have been

going on before the competent Jurisdiction. However, the investigating

agencies have failed to bring back the above named accused who is

presently residing in Jaddah Saudia Arabia despite existence of a

treaty for extradition of persons involved in criminal cases between

Saudi Arabia and Pakistan. It was informed that the Saudi Government

asked that Interior Ministry of Pakistan should take up the matter with

its counter part in this regard. The efforts are being made at the

diplomatic channel for his extradition but so far no success has been

achieved. In this regard, it may be noted that Pakistan is a sovereign

State and Government is bound to exercise its authority to ensure that

any person involved in a criminal case should be brought to this

country to face the law under the principal of rule of Law.

33. The matter of corruption is always of prime concern

throughout the world. In order to achieve the object of elimination of

corruption from the society, a convention known as United Nation’s

SMC 24/10 21

Convention Against Corruption, was signed by the comity of nations.

The Government of Pakistan signed the above UN Convention on

09.12.2003 and ratified the same on 31.08.2007, regarding

international cooperation in criminal matters in accordance with

Articles 44 to 50 of the above noted UN Convention, according to

which, where appropriate and consistent with their domestic legal

system, the State Parties shall consider assisting each other in

investigation or proceedings in civil and administrative matters,

relating to corruption. Relevant portion therefrom is reproduced

hereinbelow for convenience:--

“The purposes of this Convention are:

(a) To promote and strengthen measures to prevent and

combat corruption more efficiently and effectively;

(b) To promote, facilitate and support international

cooperation and technical assistance in the prevention of
and fight against corruption, including in asset recovery;

(c) To promote, integrity accountability’ and proper

management of public affairs and public property.

Recalling the work carried out by other international and

regional organizations in this field, including the “activities of
the African Union, the Council of Europe, the Customs
Cooperation Council (also known as the World Customs
Organization), the European Union, the League of Arab States,
.the Organization for Economic Cooperation and Development
and the Organization of American States,

Taking note with appreciation of multilateral instruments to

prevent and combat corruption, including inter alia, the Inter-
American Convention against Corruption, adopted by the
Organization of American States on 29 March 1996, the
Convention on the Fight against Corruption involving Officials of
the European Communities or Officials of Member States of the
European Union, adopted by the Council of the European Union
on 26 May 1997, the Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions,
adopted by the Organization for Economic Cooperation and
Development on 212(sic) November 1997, the Criminal Law
Convention on Corruption, adopted by the Committee of
Ministers of the Council of Europe on 27 January 1999, the Civil
Law Convention on Corruption, adopted by the Committee of
Ministers of the Council of Europe on 4 November 1999, and the
African Union Convention on Preventing and Combating
SMC 24/10 22

Corruption; adopted by the Heads of State and Government of

the African Union on 12 July, 2003.

Welcoming the entry into force on 29 September, 2003 of the

United Nations Convention against Transnational Organized
Crime. “

It is pertinent to note here that the Kingdom of Saudi Arabia has also

signed the above noted UN Convention on 09.01.2004 and ratified it

on 29.04.2013. Therefore, the Government Pakistan may have also

agitated the matter with the Saudi Government for extradition of

accused Ahmed Faiz involved in the corruption of large magnitude,

under the said Convention.

34. Under the above circumstances, we direct the Federal

Government to expedite the matter of extradition of said Ahmed Faiz

from Saudi Arabia to Pakistan and ensure his return to Pakistan as

early as could be possible by taking all the necessary steps required in

this regard, so that the accused may be placed before the authority of

law. The concerned authorities are also directed to complete

investigation of the cases within shortest possible time and ensure

completion of trials as early as possible.

35. With regard to issue of employment of retired government

servants, it is to be noted that section 14 of the Civil Servants Act,

1973 provides the mechanism for such appointments. It provides that

a retired civil servant shall not be re-employed under the Federal

Government unless such re-employment is necessary in the public

interest and is made with the prior approval of the authority next

above the appointing authority, provided that, where the appointing

authority is the President, such re-employment may be ordered with

the approval of the President. For convenience, section 14 ibid is

 SMC 24/10 23

reproduced hereinbelow: -

“14. Employment after retirement. (1) A retired civil servant

shall not be re-employed under the Federal Government, unless
such re-employment is necessary in the public interest and is
made with the Prior approval of the authority next abovethe
appointing authority:
Provided that, where the appointing authority is the President,
such re-employment may be ordered with the approval of the
President.
(2) Subject to the provisions of sub-section (1) of section 3 of
the Ex-Government Servants (Employment with Foreign
Governments) (Prohibition) Act, 1966 (XII of 1966), a civil
servant may during leave preparatory to retirement, or after
retirement from Government service, seek any private
employment:
Provided that, where employment is sought by a civil servant
while on leave preparatory to retirement or within two years of
the date of his retirement, he shall obtain the prior approval of
the prescribed authority. “

In the instant case, following officers were re-appointed after

retirement: -

S. NAME RE-EMPLOYED PERIOD COMMENTS

No. AS FROM TO
1. Rear Deputy 17.10.2012 In terms of He was appointed as Deputy
Admiral Chairman, . Section 7 of Chairman, NAB, on
(Retd) National NAB 17.10.2012 in terms of
Saeed Accountability Ordinance, Section 7 of National
Ahmed Bureau (NAB). 1999. Accountability Bureau
Sargana Ordinance, 1999, which
provides that the Deputy
Chairman, NAB, will be
appointed by the President
in consultation with the
Chairman NAB and he shall
be a person who is or has
been an officer of the Armed
Forces of Pakistan
equivalent to the rank of a
Major General or a Federal
Government officer in BPS-
21. In terms thereof, the
Deputy Chairman, NAB,
holds office for a (non-
extendable) period of three
years and cannot be
removed except on the
ground of misconduct as
 SMC 24/10 24

defined in sub-rule (4) of

rule 2 of the Government
Servants (Efficiency &
Discipline) Rules, 1973.
2. Mr. Member 08.06.2012 07.06.2014 He was retired as Director
Muhamm (Coordination & General, Agriculture
ad Riaz Monitoring), Research Directorate,
Khan, a Pakistan Government of Balochistan.
retired Agriculture He has been appointed as
officer of Research Member (Coordination &
Governm Council (PARC). Monitoring) taking into
ent of consideration his
Balochist qualification / 39 years’
an. experience in the relevant
field in terms of Section 10
of PARC Ordinance, 1981
(XXXVIII of 1981) read with
Rule 9 of PARC Rules, 1984,
which provides that the
President of Pakistan may
appoint a Whole Time
Member (Coordination &
Monitoring), on contract
basis, for a period of two
years.
3. Mr. Directing Staff, 04.11.2012 03.11.2014 National School of Public
Shahid National School . Policy (NSPP) is a body
Nasim, a of Public Policy. corporate established under
retired Ordinance No. XCIX of 2002
BS-21 and its faculty members are
officer of appointed in terms of
Income Section 7 read with Section
Tax 11 of NSPP Ordinance,
Group 2002. Furthermore, the post
of Directing Staff is not a
promotion post. In view
thereof, Mr. Shahid Nasim,
has been re-employed as
Directing Staff, National
School of Public Policy,
Lahore, on contract basis in
terms of Sections referred
to above.
4. Major Member, NEPRA 24.11.2012 23.11.2016 National Electric Power
(Retd) from province of Regulatory Authority
Haroon Balochistan. (NEPRA) consists of a
Rashid, a Chairman and four
retired Members, one from each
BS-22 province. The Member of
officer of National Electric Power
Secretari Regulatory Authority
at Group. (NEPRA) is appointed by the
Federal Government after
considering the
recommendations of the
respective Provincial
Governments in terms of
Section 3 of Regulation of
Generation, Transmission
and Distribution of Electric
Power, Act, 1997 (XL of
1997). Consequent upon the
completion of four years’
tenure of Mr. Ghiasuddin
 SMC 24/10 25

Ahmed, former Member,

National Electric Power
Regulatory Authority
(NEPRA) representing the
Province of Balochsitan,
Government of Balochistan,
was requested to provide a
panel of three suitable
nominees for appointment
as Member, National Electric
Power Regulatory Authority
(NEPRA). In response
thereto, Government of
Balochsitan submitted a
panel of suitable nominees
including Major ® Haroon
Rashid. Accordingly, he has
been appointed as Member,
National Electric Power
Regulatory Authority in
terms of Section referred to
above.
5. Malik Director 25.08.2010 His contract The post of Director
Ghulab (Coordination), has been (Coordination) is a project
Khan, a National Health further post. Mr. Ghulab Khan, a
retired Information extended retired BS-20 officer of
BS-20 Resources for a period Secretariat Group, was
Officer of Centre (NHIRC). of two initially appointed as
Secretari years on Director (Coordination) on
at Group. 26.08.2012 25.08.2010, for a period of
or till the two years. His contract has
completion been further extended for a
of NHIRC period of two years on
Project. 26.08.2012 or till the
completion of NHIRC
Project, whichever is earlier,
on standard terms and
conditions, in the public
interest, as his services
were essentially required
after the devolution of
Ministry of Helath.
6. Ch. Riaz Vice Chairman, 01.05.2012 30.04.2014 Ch. Riaz Ahmad has been
Ahmad, a Evacuee Trust . re-employed as Vice
retied Property Board Chairman, Evacuee Trust
officer of (ETPB). Property Board (ETPB), on
Evacuee contract basis, for a period
Trust of two years as there was
Property no suitable replacement
Board. thereof.
7. Mr. Shah Managing 21.02.2012 20.02.2014 Mr. Shah Zaman Khan was
Zaman Director, . originally from Information
Khan, a Shalimar Group and retired in BS-21.
retired Recording Shalimar Recording &
BS-21 Broadcasting Broadcasting Company is a
officer of Company Company registered under
Secretari (SRBC). the Companies Ordinance,
at Group 1984 and is owned by PTVC,
PBC and PNCA.
Traditionally, retired officers
of Information Group are
appointed thereupon. In
view thereof, Mr. Shah
Zaman Khan has been re-
 SMC 24/10 26

employed as Managing
Director, SRBC, on
21.02.2012, on contract
basis, for a period of two
years.
8. Mr. Iqbal Director 12.03.2012 11.03.2014 The post of Director
Nabi General, Urdu General, Urdu Science
Nadeem, Science Board Board, is an ex-cadre post.
a retired (USB). In the past, even Director
BS-20 Generals have also been
officer of appointed from the private
Secretari sector. As service rules of
at Group. the post have not been
framed, Mr. Iqbal Nabi
Nadeem, has, therefore,
been re-employed as
Director General, Urdu
Science Board, on
12.03.2012, on contract
basis, for a period of two
years in terms of
Establishment Division’s
instructions issued vide d.o
letter No. 7/3/89-OMG-II
dated 28.01.1989 from
amongst the panel of
suitable persons taking into
consideration his earlier
experience as Director
General.
9. Mr. Abdul Chairman, 12.03.2012 11.03.2014 The post of Chairman falls in
Hameed, Pakistan the category of direct
ex- Academy of recruitment quota. Pakistan
Chairman Letters (PAL). Academy of Letters is a
/ Director subordinate Office of
General, Ministry of Information,
Pakistan Broadcasting and National
Post. Heritage. In the past, the
post of Chairman has also
been traditionally held by
the renowned Men of
Letters. Mr. Abdul Hameed
has been re-employed as
Chairman, Pakistan
Academy of Letters (PAL) on
12.03.2012, on contract
basis, for a period of two
years from amongst the
panel of suitable persons.
10. Air Vice Director 01.10.2012 30.09.2014 He has been appointed as
Marshal General, Civil . Director General, Civil
(Retd) Defence, Defence, on 01.10.2012, on
Aftab Islamabad. contract basis, for a period
Hussain of two years, on a Prime
Minister’s directive dated
03.09.2012.
11. Dr. Dental Surgeon 11.10.2012 10.10.2014 She has been re-employed
Pakiza (BS-19), Federal on contract basis, for a
Hyder, a Government period of two years against
retried Polyclinic a newly created post in the
BS-19 Hospital, public interest as she was
officer of Islamabad. imparting training to
FGPH. Postgraduate students of
MCPS as well as FCPS
 SMC 24/10 27

Trainees and her retirement

was likely to affect the
performance of the Hospital.
12. Mr. Chairman, Oil 13.04.2012 12.04.2016 The post of Chairman, OGRA
Saeed and Gas , on was advertised in local and
Ahmed Regulatory contract international press. In
Khan, a Authority basis, for a response thereto, 91
retired (OGRA). period of applications were received.
BS-22 four years. In order to shortlist
officer of candidates, the Cabinet
Secretari Secretary constituted a
at Group short-listing Committee. The
Committee held five
meetings on 15th, 17th, 29th,
21st & 28th February, 2012
and scrutinized each and
every application, strictly in
accordance with the criteria
published in the
advertisement, provisions of
OGRA Ordinance and
guidelines given by the
Hon’able Supreme Court of
Pakistan in its Judgment
dated 25.11.2011 passed in
Constitution Petition No.
42/2011 and shortlisted ten
(10) candidates, who
fulfilled eligibility criteria.
The Prime Minister approved
the Selection Committee as
per composition for
interview of the ten (10)
short-listed candidates. In
the meantime, one of the
short-listed candidates, Mr.
Muhammad Ejaz Chaudhry,
withdrew his application.
Out of the remaining
candidates, only 07
appeared in interview. The
Selection Committee after
interviewing the eligible
candidates recommended a
panel of suitable persons
amongst whom Mr. Saeed
Ahmed Khan was appointed
as Chairman OGRA in terms
of Section 3(8)(a) of OGRA
Ordinance, 2002.
13. Lt. Col. Managing 28.07.2009 His contract National Construction
(Retd) Director, , on has further Limited (NCL), Islamabad, is
Engr. National contract been a Public Limited Company
Hassan Construction basis. extended registered under the
Salim Limited (NCL), for another Companies Ordinance,
Haqqani Islamabad. term of two 1984. It is functioning since
years w.e.f. 1978 under the
28.07.2012 administrative control of
to Ministry of Housing and
27.07.2014 Works on self-sustaining
basis without any budgetary
support from the
government. In pursuance
of directions of the Prime
Minister, the post of
 SMC 24/10 28

Managing Director, National

Construction Limited (NCL)
was advertised in the press.
In order to shortlist
candidates, a Selection
Committee was constituted
vide Notification dated
17.06.2009. In the
meantime, out of the five
candidates, Syed Manzar
Hussain did not appear due
to his pre-occupations and
as such the remaining four
candidates were interviewed
as per laid down selection
criteria. The Selection
Committee after
interviewing the eligible
candidates, recommended
Lt. Col. (Retd) Engr. Hassan
Salim Haqqani taking into
consideration his
qualifications, experience,
professional competence,
expression and presentation
skills, for appointment as
Managing Director, National
Construction Limited (NCL).
14. Mr. Deputy Director 01.01.2012 31.12.2014 Mr. Muhammad Roshan
Muhamm in Capital Junejo has been re-
ad Development employed as Deputy
Roshan Authority. Director, Capital
Junejo. Development Authority from
the date of his retirement
i.e. 01.01.2012 in the public
interest taking into
consideration his earlier
experience in various special
assignments as the officer
had an immaculate carrier
record by all perspectives in
accordance with rule and
professionalism.
15. Mr. Baqir Member, 15-03-2013 For a period Mr. Baqir Ali Rana was
Ali Rana. National of two appointed as Member,
Industrial years i.e till National Industrial Relations
Relation 15-03-2015 Commission (NIRC) on
Commission contract basis, on standard
(NIRC). terms and conditions, for a
period of two years in terms
of Ministry of Labour &
Manpower (devolved) SRO
No. 662(1)/2002, dated
16.09.2002, promulgated in
exercise of powers
conferred by Sub-Section
(3) of Section 22-A of the
Industrial Relations
Ordinance, 1969, which
provides that the Member of
Commission shall be a
retired or serving District
and Session Judge.
16. Mirza Directing Staff, 01.11.2010 His contract National School of Public
 SMC 24/10 29

Shams- National School has been Policy (NSPP) is a body

ul- of Public Policy, further corporate established under
Hassan, Lahore. extended Ordinance No. XCIX of 2002
a retired for a period and its faculty members are
BS-21 of six appointed in terms of
officer of months Section 7 read with Section
PSP w.e.f. 11 of NSPP Ordinance,
01.11.2013 2002. Furthermore, the post
, on of Directing Staff is not a
existing promotion post. In view
terms and thereof, Mirza Shams-ul
conditions. Hassan has been re-
employed as Directing Staff,
National School of Public
Policy, Lahore, on contract
basis in terms of Sections
referred to above.
17. Mr. Dean, National 19.08.2009 His contract National School of Public
Iftikhar School of Public has been Policy (NSPP) is a body
Ahmad, a Policy (NSPP), further corporate established under
retired Lahore. extended Ordinance No. XCIX of 2002
BS-21 for a period and its faculty members are
officer of of six appointed in terms of
PAS months Section 7 read with Section
w.e.f. 11 of NSPP Ordinance,
19.08.2013 2002. Furthermore, the post
. of Dean is not a promotion
post. In view thereof, Mr.
Iftikhar Ahmad, has been
re-employed as Dean,
National School of Public
Policy, Lahore, on contract
basis in terms of Sections
referred above.
18. Professor Gyne & Obs and 22.07.2012 21.07.2014 Professor Ghazala Mahmud
Ghazala Dean, Pakistan , on was re-employed as Gyne &
Mahmud Institute of contract Obs and Dean, Pakistan
Medical Sciences basis, for a Institute of Medical Sciences
(PIMS). period of (PIMS), on contract basis,
two years. for a period of two years,
with effect from 22.07.2012
on a Summary dated
11.06.2013 submitted by
Ministry of Capital
Administration and
Development
19. Lt. Secretary, 27-07-2012 26-07-2014 On verbal approval of the
General Defence Division Prime Minister which was
(Retd) confirmed through
Asif Yasin Summary for the Prime
Malik Minister dated 17-10-2012
(Retd) moved by the Establishment
Pak Army Division.
20. Mr. Special 17-04-2013 16-04-2015 Law, Justice and Human
Justice Secretary, Law Rights Division moved the
(Retired) and Justice Summary for the Prime
Muhamm Division Minister dated 05-03-2013
ad Raza wherein that Division
Khan proposed the contract
(BS-22) appointment of Mr. Justice
(Retd) Muhammad Raza
Khan former Chief Justice,
Peshawar High Court as
Secretary to Government of
 SMC 24/10 30

Pakistan, Law and Justice

Division.
21. Mr. Aziz Member, (Social 16-03-2013 15-03-2014 The officer was re-employed
Ahmed Sector), on contract basis as Member
Bilour Planning (Social Sector), P & D
(Retired Commission Division, in view of his
SG BS- experience in the service of
22) Pakistan through a
Summary for the Prime
Minister on 14-03-2013.
22. Mr. JEA, CA&D 9-01-2013 8-01-2016 CA&D Division in the
Shamsud Division Summary for the Prime
din Minister dated 13-07-2012
Mangrio proposed the re-
(BS-20) employment of Mr.
Shamsuddin Mangrio, in
view of his professional
experience in the field of
education.
23. Mr. Member, 7-01-2013 6-01-2014 Planning and Development
Muhamm Planning Division proposed the re-
ad Javed Commission employment of the officer
Malik on contract basis, for two
(Retd)/B years, in view of his service
S-22) background and experience
24. Maj. Gen Additional 14-05-2013 13-05-2015 GHQ recommended that the
(Retd.) Secretary, Maj. Gen ® Raja
Raja Defence Division Muhammad Arif Nazir, after
Muhamm his retirement from Pakistan
ad Arif Army, may be re-employed
Nazir on contract basis for a
period of two years.
25. Lt. Secretary, 03-07-2013 02-07-2015 Defence Division proposed
General Defence that Lt. General (Retd)
(Retd) Production Tanvir Tahir HI (M) may be
Tanvir Division appointed as Secretary,
TAhir HI Defence Production Division
(M) on contract basis for a
period of two years.
26. Rana Advisor, Finance 16-04-2013 15-04-2014 In the light of the request of
Assad Division Ministry of Finance, the
Amin Prime Minister has
confirmed the previous
approval for extension in the
contact appointment of
Rana Assad Amin for one
year 16-04-2013.
27. Major Member, 07.01.2013 06.01.2015 He was re-employed as
(Retd.) Directing Staff, . Directing Staff, National
Mubashir National School School of Public Policy
ullah of Public Policy (NSPP), on contract basis,
(Retd.) (NSPP). for a period of two years, on
PSP/ BS- standard terms and
20. conditions vide
Establishment Division’s
notification dated
07.01.2013, with the
approval of the Prime
Minister.
28. Mr. Director (BS- 21.01.2013 21.01.2014 He was re-employed as
Muhamm 19), National . . Director (BS-19), National
ad Riaz Vocational and Vocational and Technical
Maken Technical Training Commission
(Retd.) Trainign (NAVTTC), on contract
 SMC 24/10 31

PSP / BS- Commission basis, for a period of one

19. (NAVTTC). year, on standard terms and
conditions with effect from
21.01.2013 vide
Establishment Division’s
notification dated
17.01.2013, with the
approval of the Prime
Minister.
29. Mr. Director 15.09.2012 14.09.2014 A Summary submitted by
Muhamm General, National Commission for
ad Tariq National Government Reform to
Rafiq Commission for Prime Minister’s Office for
(Retd / Government re-employment of the
PAS / Reforms. officer. Prime Minister’s
BS-20) Office sent the Summary to
Date of Establishment Division for
superann views / comments.
uation Establishment Division
14.09.20 endorsed the proposal of
12. NCGR. Prime Minister’s
Office approved the
proposal of the Summary
for re-employment of the
officer. Accordingly,
Establishment Division
notified the re-employment
of the officer.
30. Mr. Ejaz Member, 15.03.2013 14.03.2014 Establishment Division
Ali Directing Staff, moved a Summary for the
Zaigham National School Prime Minister for re-
of Public Policy employment of the officer.
(NSPP). Prime Minister’s Office
approved the same.
Accordingly, Establishment
Division notified the re-
employment of the officer.

36. In the instant case, an 8-Member Bench of this Court took

up the issue of appointments after retirement in the light of the law,

namely, section 14 ibid as well as the instructions contained in Esta

Code, Volume-1, Edition 2007 under the heading “Re-Employment “

and the judgments of the superior courts on the subject, and vide

order dated 27.01.2011 reported as SUO MOTU CASE NO.24 OF 2010

(PLD 2011 SC 277) held that re-employment of such persons in

services on their retirement must be made in public interest because

re-employment against a sanctioned post is likely to affect the junior

officers, who are waiting for promotion to the next higher rank as their
SMC 24/10 32

right of promotion is blocked. They have to wait till such re-employed

officer completes his contract. In the meanwhile, they have to face

difficulties in maintaining their seniority, etc. The promotion of an

employee is not to be blocked to accommodate a retired officer,

however, if the right of promotion is not blocked by re-employment,

then such powers can be exercised, that too in an exceptional case.

The Federal and Provincial Governments were also directed to ensure

that if any Civil Servant or other person who has been re-employed,

his case be examined in terms of the provisions of law and that take

necessary steps to ensure that re-employment or employment on

contract basis are not made in violation of the relevant law. Relevant

para therefrom is reproduced hereinbelow: -

“5. Learned Attorney General has also placed on record

summary of some of the Police Officers who are re-employed on
contract basis. A perusal whereof indicates that prima facie
while they were re-employed, the provisions of law i.e.
section 14 of the Civil Servants Act, 1973 as well as instructions
contained in Esta Code in Volume-1, Edition 2007 under the
heading “Re-Employment “ and the judgments of the superior
courts on the subject were not considered/adhered to. It is to be
noted that for establishing rule of law and Constitutionalism, it is
necessary that the relevant provisions should be followed strictly
in letter and spirit otherwise it would not be possible to provide
an effective machinery in law particularly in Police Department
to ensure law and order, so the peace in the country, at the
same time to avoid violation of the relevant provisions of law
noted hereinbefore, which is tantamount to blocking the
promotion of the Officers who have also served in the Forces
and are waiting for their promotion but they are not getting
chance because of the re-employment/contract awarded to the
retired Officers. This is not only in the Police Department but for
the purpose of achieving good governance; the same principle
should be followed and strictly applied in other Departments as
well. Be that as it may, we are adjourning this case and in the
meanwhile learned Attorney-General shall take up the matter
with the Government/Competent Authority so it may take
necessary steps to rectify if any omission has been committed,
before the next date of hearing. Similarly, the learned Attorney-
General shall convey this order to the Secretary, Establishment
Division and the Chief Secretaries of the Provinces to ensure
that if any Civil Servant or other person who has been re-
employed, his case be also examined in terms of the provisions
of law and both Federal and Provincial Governments should take
necessary steps to ensure that re-employment or employment
SMC 24/10 33

on contract basis are not made in violation of the relevant law. “

37. On 01.03.2011 the Court was informed that a Committee

has already been constituted to look into the cases of persons who

were appointed on contract basis. The Court observed that

appointments on contract basis should not be allowed to continue in

terms of section 14 of the Civil Servants Act, 1973, and the Policy

unless the conditions specified therein are satisfied. The Government is

not interested in obeying the order of the Court because so far the

contract appointments of only 9 officers have been terminated

whereas there is a list of more than 100 persons serving on contract

basis in different capacities, including Secretaries awaiting orders

thereon. This Court has more than once observed that incumbent DG,

FIA who himself is holding this post on contract basis in a disciplined

force, is responsible for not allowing the investigation of the instant

case to proceed in a transparent manner, however, despite these

observations, no action has been taken against him.

38. The matter of re-employment of police officers after their

retirement also came under consideration by this Court in the case of

In Re: Suo Motu Case No.16 of 2011 (PLD 2013 SC 443) wherein on

22.03.2013 it was held that re-employment in disciplinary force like

Police or for that matter in any other department has to be made

subject to section 14 of the Civil Servants Act, 1973 read with

instructions contained in Esta Code under the heading “Re-

Employment”. It was further observed that undoubtedly, it is the

Government, which has to perform its function strictly in accordance

with law but, prima facie, re-employment of police officers (noted

SMC 24/10 34

therein) was not in conformity with the law and the judgment of this

Court. Consequently, with the approval of the Competent Authority i.e.

Chief Minister Sindh, the contract appointments of 8 police officers

were terminated, whereas, one of the re-employed employee, namely,

Mr. Waseem Ahmed, Additional Chief Secretary, Home Department

(BS-21), who was also a former Police Officer and on retirement has

been appointed by the Government of Sindh, tendered his resignation,

which was accepted by the competent authority.

39. At this stage it is to be noted that every employee who

comes within the government hierarchy, is subject to the law and the

instructions applicable in that regard. As far as the case of Dr. Pakizah

is concerned, a post was created for making her appointment. In such

a way extra burden was created on the public exchequer. It is to be

noted that no one is indispensible for any institution. People may come

and go but the institutions continue to function. However, if there was

dire need to create such post, appointment should have been made

following the procedure prescribed in law/rules, namely, through

advertisement or promotion from the senior most officers next below.

40. Hajj tour operators charged Rs.5000/- extra from each Haji,

which was in excess of actual amount. Such conduct on their part is

tantamount to looting the Hujjaj, who were performing a sacred

religious duty. Claim of operators is that no such amount was received.

As this is a question of investigation/probe, therefore, Secretary

Ministry of Religious Affairs is directed to refer cases of the operators

who had been charging extra amount of Rs.5000/- from each pilgrim, in

addition to agreed amount for security of each of them, to FIA,

SMC 24/10 35

which shall first of all issue notices to them to seek their explanation. If

they fail to satisfy, investigation shall be carried out and all possible

efforts shall be made to ensure refund of said amount of Rs.5000/- to

each pilgrim, if has been charged and appropriate action shall be

initiated against them under the law for Hajj of 2010 to 2013. Secretary

Religious Affairs shall ensure that in future no extra amount in the

name of security etc. shall be received.

41. For the foregoing reasons, it is held as under: -

(i) Federal Investigation Agency is directed to probe into the

matter in depth and determine as to whether the extra

amount charged by the authorities has been reimbursed to

the Hujjaj or not?

(ii) Strict measures should be adopted in future in order to

avoid such like incidents of corruption in Hajj

arrangements, whereby not only the pilgrims had been

looted but also it had brought a bad name to the country.

(iii) The Government should issue the guidelines regarding the

Hajj arrangements including hiring of buildings for

providing accommodation to Hujjaj as well as

transportation and other facilities during Hajj.

(iv) The FIA is directed to take strict action against all those

persons including politicians, officers and others in

echelons of power, who interfered with and hampered the

investigation.
SMC 24/10 36

(v) The amount of Rs.5000/- charged by the Hajj Tour

Operators from each Haji in excess of the actual amount

be refunded to them.

42. In the above terms, the case is disposed of with directions

to all concerned authorities to submit compliance report to Registrar of

this Court for our perusal in Chambers.

Chief Justice

Judge

Judge

Announced in open Court on 06.12.2013 at Islamabad.

Chief Justice

Approved For Reporting