IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
 
 
PRESENT: 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
MR. JUSTICE MIAN SHAKIRULLAH JAN 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE JAWWAD S. KHAWAJA 
MR. JUSTICE TARIQ PARVEZ 
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE AMIR HANI MUSLIM 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE IJAZ AHMED CHAUDHRY 
 
CONSTITUTION PETITIONS NO. 77 TO 85 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]  
 
VERSUS 
 
Federation of Pakistan & others  
 
 
…  
RESPONDENTS 
CONST P 77-2011/2010, etc.  
2 
For the petitioners:  
 
Barrister Zafarullah Khan, ASC in person  
Mr. Tariq Asad, ASC in person 
Mr. Muhammad Nawaz Sharif in person 
Senator Muhammad Ishaq Dar &  
Khawaja Muhammad Asif, MNA in person 
Mr. Attique Shah, ASC  
Dr. M. Salahuddin Mengal, ASC  
Sardar Asmatullah Khan, ASC  
Syed Ghous Ali Shah, ASC  
Ch. Naseer Ahmad Bhutta, ASC  
 
 
 
 
 
With Mr. M.S. Khattak, AOR 
 
On Court notice:   
 
Maulvi Anwar-ul-Haq 
 
 
 
 
 
Attorney General for Pakistan 
 
Respondents:  
 
 
Not represented.   
 
Date of hearing:  
 
01.12.2011  
…  
 
O R D E R 
 
 
 
IFTIKHAR 
MUHAMMAD 
CHAUDHRY, 
CJ. 
- These 
petitions under Article 184(3) of the Constitution of the Islamic 
Republic of Pakistan have been instituted on behalf of the petitioners 
belonging to political parties and others hailing from all the federating 
units of Pakistan including Azad Jammu & Kashmir and Gilgit & 
Baltistan, in the wake of the confidential memorandum of 10th May, 
2011, which was handed over by one Mansoor Ijaz, an American 
businessman of Pakistani origin to Admiral Mike Mullen, the then 
Chairman, Joint Chiefs of Staff of the United States through former US 
National Security Advisor James John. Mansoor Ijaz disclosed in an 
article published in the Financial Times London on 10th October, 2011. 
He claimed that the memorandum containing message from the 
Pakistan Government was handed over to him by the then Pakistan 
Ambassador Hussain Haqqani. According to him, both Mike Mullen and 
James John confirmed the contents of the memorandum. Upon such 
disclosure, there was unrest amongst the political government and the 
defence agencies as according to the contents of the memorandum, 
CONST P 77-2011/2010, etc.  
3 
which has now been published in the foreign as well as local media, 
prima facie, there was highly objectionable material relating to 
compromising the sovereignty, security and independence of Pakistan. 
The contents of the memorandum, which have been incorporated in 
most of the petitions, are reproduced hereinbelow: -  
“CONFIDENTIAL MEMORANDUM  
BRIEFING FOR ADM. MIKE MULLEN, CHAIRMAN, JOINT 
CHIEFS OF STAFF  
 
During the past 72 hours since a meeting was held between the 
president, the prime minister and the chief of army staff, there 
has seen a significant deterioration in Pakistan’s political 
atmosphere. Increasingly desperate efforts by the various 
agencies and factions within the government to find a home – 
ISI and/or Army, or the civilian government – for assigning 
blame over the UBL raid now dominate the tug of war between 
military and civilian sectors. Subsequent tit-for-tat reactions, 
including outing of the CIA station chief’s name in Islamabad by 
ISI officials, demonstrates a dangerous devolution of the ground 
situation in Islamabad where no central control appears to be in 
place.  
Civilians cannot withstand much more of the hard pressure 
being delivered from the Army to succumb to wholesale 
changes. If civilians are forced from power, Pakistan becomes a 
sanctuary for UBL’s legacy and potentially the platform for far 
more rapid spread of al Qaeda’s brand of fanaticism and terror. 
A unique window of opportunity exists for the civilians to gain 
the upper hand over army and intelligence directorates due to 
their complicity in the UBL matter.  
Request your direct intervention in conveying a strong, urgent 
and direct message to Gen Kayani that delivers Washington’s 
demand for him and Gen Pasha to end their brinkmanship aimed 
at bringing down the civilian apparatus – that this is a 1971 
moment in Pakistan’s history. Should you be willing to do so, 
Washington’s political/military backing would result in a revamp 
of the civilian government that, while weak at the top echelon in 
terms of strategic direction and implementation (even though 
mandated by domestic political forces), in a wholesale manner 
replaces the national security adviser and other national security 
officials with trusted advisers that include ex-military and 
civilian leaders favorably viewed by Washington, each of whom 
have long and historical ties to the US military, political and 
intelligence communities. Names will be provided to you in a 
face-to-face meeting with the person delivering this message.  
In the event Washington’s direct intervention behind the scenes 
can be secured through your personal communication with 
Kayani (he will likely listen only to you at this moment) to stand 
down the Pakistani military-intelligence establishment, the new 
national security team is prepared, with full backing of the 
civilian apparatus, to do the following:  
 
1. President of Pakistan will order an independent inquiry 
into the allegations that Pakistan harbored and offered 
assistance to UBL and other senior Qaeda operatives. The White 
House can suggest names of independent investigators to 
CONST P 77-2011/2010, etc.  
4 
populate the panel, along the lines of the bipartisan 9-11 
Commission, for example.  
 
2. The inquiry will be accountable and independent, and 
result in findings of tangible value to the US government and 
the American people that identify with exacting detail those 
elements responsible for harboring and aiding UBL inside and 
close to the inner ring of influence in Pakistan’s Government 
(civilian, intelligence directorates and military). It is certain that 
the UBL Commission will result in immediate termination of 
active service officers in the appropriate government offices and 
agencies found responsible for complicity in assisting UBL.  
 
3. The new national security team will implement a policy 
of either handing over those left in the leadership of Al Qaeda or 
other affiliated terrorist groups who are still on Pakistani soil, 
including Ayman Al Zawahiri, Mullah Omar and Sirajuddin 
Haqqani, or giving US military forces a “green light” to conduct 
the necessary operations to capture or kill them on Pakistani 
soil. This “carte blanche” guarantee is not without political risks, 
but should demonstrate the new group’s commitment to rooting 
out bad elements on our soil. This commitment has the backing 
of the top echelon on the civilian side of our house, and we will 
insure necessary collateral support.  
 
4. One of the great fears of the military-intelligence 
establishment is that with your stealth capabilities to enter and 
exit Pakistani airspace at will, Pakistan’s nuclear assets are now 
legitimate targets. The new national security team is prepared, 
with full backing of the Pakistani government – initially civilian 
but eventually all three power centers – to develop an 
acceptable framework of discipline for the nuclear program. This 
effort was begun under the previous military regime, with 
acceptable results. We are prepared to reactivate those ideas 
and build on them in a way that brings Pakistan’s nuclear assets 
under a more verifiable, transparent regime.  
 
5. The new national security team will eliminate Section S 
of the ISI charged with maintaining relations to the Taliban, 
Haqqani network, etc. This will dramatically improve relations 
with Afghanistan.  
 
6. We are prepared to cooperate fully under the new 
national security team’s guidance with the Indian government 
on bringing all perpetrators of Pakistani origin to account for the 
2008 Mumbai attacks, whether outside government or inside 
any part of the government, including its intelligence agencies. 
This includes handing over those against whom sufficient 
evidence exists of guilt to the Indian security services.  
 
Pakistan faces a decision point of unprecedented importance. 
We, who believe in democratic governance and building a much 
better structural relationship in the region with India AND 
Afghanistan, seek US assistance to help us pigeon-hole the 
forces lined up against your interests and ours, including 
containment of certain elements inside our country that require 
appropriate re-sets and re-tasking in terms of direction and 
extent of responsibility after the UBL affair.  
We submit this memorandum for your consideration collectively 
as the members of the new national security team who will be 
inducted by the President of Pakistan with your support in this 
undertaking.”   
 
CONST P 77-2011/2010, etc.  
5 
2.  
 
It is significant to note that the issue of confidential 
memorandum was highlighted after 21st November, 2011. In the 
meanwhile, the then Ambassador of Pakistan to the USA, was 
summoned who tendered his resignation as per undisputed reports 
aired on electronic media. It may not be out of context to observe here 
that as per media reports, the ISI had also collected SMS messages 
exchanged between the former Ambassador of Pakistan and Mr. 
Mansoor Ijaz, extracts of which have been incorporated in the 
petitions.  
3.  
 
It is to be noted that not only in the publication of the 
‘Financial Times’ of 10th October, 2011, but subsequent thereto, 
material was published in the print media on behalf of Mr. Mansoor 
Ijaz, who emphasized that “Mr. Mullen insisted on having the 
Ambassador’s offers to be put in writing because the US Government 
had been repeatedly deceived by Pakistan’s verbal offers of action in 
the recent past.” “He also insisted that I obtain the Ambassador’s 
assurance that President Zardari had approved the offers contained in 
the memorandum. I did exactly those two things,” he told The News. 
Speaking after Admiral Mullen confirmed the Memo, Mansoor said at 
09:06:16 hours, “I spoke to Amb Haqqani at his London hotel (Park 
Lane Intercontinental Room 430) in a call lasting 11:16 minutes.” 
“During this call, he confessed that the final text of the memo was OK 
and that he had ‘the boss’ approval’ that the memorandum could be 
sent to Admiral Mullen. The boss was an obvious reference to 
President Zardari,” Mansoor insisted.”  
4.  
 
We note that exchange of messages has also been 
admitted as is reported in the UK Financial Times of 10th October, 
2011. The Federal Interior Minister Mr. Rahman Malik had, however, 
CONST P 77-2011/2010, etc.  
6 
admitted that Mr. Hussain Haqqani was involved in communication of 
voice/text messages with an American national, but there was no 
written letter, either from the Presidency or from any other agency of 
the Government. Mr. Malik is reported to have said that no doubt Mr. 
Haqqani was a close aide of the President, but this communication 
through SMS (text message) was between two individuals – one 
American national and the second was our Ambassador.  
5.  
 
The material available was exchange of SMS messages and 
blackberry messages and we have to examine as to who had initiated 
these messages. It is clear that the matter is open for investigation.  
6.  
 
All the petitioners were asked their opinion as to the 
objects and purposes for which the confidential memorandum in 
question attributed to the then Ambassador of Pakistan was sent to 
the US Chairman, Joint Chiefs of Staff by handing it over to James 
John and also utilizing the services of a businessman Mansoor Ijaz, 
particularly in the wake of the incident of Abbottabad of 2nd May, 2011. 
According to them, if the allegations contained hereinabove are 
established, then the culprits whosoever are involved, should be held 
liable for action and a Commission be constituted to probe into the 
memorandum scandal. Whereas the learned Attorney General for 
Pakistan stated that he is not against the probe, but as the matter is 
pending before the Parliamentary Committee on National Security, 
therefore, we should wait for the result of the Committee’s 
proceedings. In our opinion, both the forums are not against probe 
into the matter and subject to constitutionality of the Committee, 
proceeding can be taken up simultaneously.  
7.  
 
It may be observed that under Article 5 of the 
Constitution, it is the basic duty of every citizen to be loyal to the 
CONST P 77-2011/2010, etc.  
7 
State and to be obedient to the Constitution and law, being inviolable 
obligation wherever he may be and of every other person for the time 
being within Pakistan.  
8.  
 
The memorandum, issuance whereof, prima facie, seems 
to be established, has posed immediately two questions – one with 
regard to civil/constitutional liability with its consequences as 
envisaged by Article 6 of the Constitution, and the second, the criminal 
liability as well. We are conscious of the fact that the respondents who 
include the President of Pakistan, the Army Chief, ISI, etc., have to file 
their replies to explain their position. However, we may, at this stage, 
refer to the case of United States v. Richard M. Nixon, President of the 
United States [418 US 683] wherein the then President of the United 
States was facing proceedings before the Committee of the Senate, 
and at the same time, pretrial evidence was being collected by a 
special prosecutor general, which was objected to by him and the 
matter went up to the US Supreme Court and ultimately it was 
resolved that such pretrial evidence could be collected. Similarly, there 
are so many other cases, including the case of Imtiaz Ahmad v. 
Government of Pakistan (1994 SC 2142) wherein collection of pretrial 
evidence against persons who are found guilty ultimately is not 
prohibited.  
9. 
 
We are told that the Prime Minister of Pakistan has also 
announced that the Parliamentary Committee on National Security will 
probe into the matter. We do not know the mandate of the Committee. 
However, we have been informed that as far as this Committee is 
concerned, it has no constitutional backing, i.e. it has not been 
constituted under any provision of the Constitution. Be that as it may, 
if any incriminating evidence is collected by the Committee both for 
CONST P 77-2011/2010, etc.  
8 
civil and criminal action by probing into the matter, we would welcome 
the same. During the pendency of the proceedings, we would 
appreciate if the outcome of the proposed inquiry by the Committee is 
shared with us, if possible. Similarly, if the local Commission, which we 
are contemplating to constitute, succeeds in collecting forensic or 
other physical evidence, we would also be sharing the same with the 
Parliamentary Committee because the object and purpose both of the 
Parliament and of this Court is that there should not be any 
compromise on the sovereignty, security and independence of the 
country.  
10.   
The petitioners, however, undoubtedly had to discharge 
their burden while arguing their cases with regard to the remedy, 
which they have invoked under Article 184(3) of the Constitution, 
however, it is considered appropriate that in the meantime, the 
respondents may file their replies to all the petitions within 15 days of 
the passing of this order. To protect and preserve the evidence, we 
would like to appoint a Commission comprising a competent officer for 
the purpose of collecting evidence on the issues, which have been 
highlighted hereinabove, including the question of authenticity of the 
memorandum, and the circumstances under which it was sent and the 
object behind addressing such memorandum to the high ups of a 
foreign country, and whether such an act is tantamount to 
compromising the sovereignty, security and independence of Pakistan.  
11.   
The Registrar of the Court is directed to address a letter on 
behalf of the Court to Mr. Tariq Khosa, a former PSP officer, who had 
worked as Secretary Norcotics, DG, FIA as well as Inspector 
General/PPO, Balochistan to obtain his consent whether he agrees to 
perform this national duty. On receipt of his consent, the matter shall 
CONST P 77-2011/2010, etc.  
9 
be handed over to him. The Commission shall be entitled to the 
remuneration, TA/DA and other perks, which Mr. Tariq Khosa was 
receiving at the time of his retirement. If need be, Mr. Tariq Khosa 
may travel outside Pakistan for the purposes of collecting evidence as 
this Court had allowed such practice in the case of Benazir Bhutto v. 
State (PLD 1999 SC 937). As far as the expenditures of the 
Commission are concerned, those shall be borne by the Foreign 
Affairs, Interior, Cabinet and Defence Divisions.  
12.   
In the meanwhile, we direct that all the concerned 
authorities of the Federal and the Provincial Governments shall extend 
their full cooperation to Mr. Tariq Khosa in collecting evidence. He 
would be free to associate with him any other sitting and/or retired 
officer of the police or any other technical person to collect evidence. 
He would be holding the probe in the Cabinet Division. The Cabinet 
Secretary shall provide him all logistic support for the purpose of 
performing the function on behalf of the Court. He is required to 
complete this task as early as possible, preferably within a period of 
three weeks from the receipt of this order. It is to be noted that in 
case Mr. Tariq Khosa declines to act as the Commission, he may 
inform the Registrar who shall place the matter in Chambers for 
passing of appropriate order for taking up the matter either in the 
Court or holding proceedings in the Chambers.  
13.   
We may also observe here that no sooner the issue of 
memorandum came to limelight, the former Ambassador of Pakistan 
tendered his resignation. We do not want to attribute to him anything 
adverse about his involvement and he is entitled to due respect. But, 
we desire that he should fully cooperate with the Commission and 
during the pendency of the cases before this Court, he would not be 
CONST P 77-2011/2010, etc.  
10 
leaving the country without prior permission of this Court. This order 
should be communicated to the Secretaries of the Ministries of Interior 
and Foreign Affairs with the direction that if Mr. Hussain Haqqani 
violates the terms of this order and goes abroad, they shall be held 
personally responsible. At this juncture, we would expect from all the 
foreign agencies that they will extend full cooperation to the 
Commission as it is an issue of utmost importance for the sovereignty, 
security and independence of the country.  
14.   
Adjourned to a date in office.         
 
 
 
 
 
 
 
Sd/-  
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
 
 
 
 
Sd/-   
 
 
 
 
Sd/-  
MIAN SHAKIRULLAH JAN, J.   
TASSADUQ HUSSAIN JILLANI, J.  
 
 
 
 
Sd/-   
 
 
 
 
Sd/- 
JAWWAD S. KHAWAJA, J.  
 
TARIQ PARVEZ, J.  
 
 
 
 
 
Sd/-   
 
 
 
 
Sd/- 
MAIN SAQIB NISAR, J.   
 
AMIR HANI MUSLIM, J.   
 
 
 
 
Sd/-   
 
 
 
 
Sd/- 
EJAZ AFZAL KHAN, J.   
 
IJAZ AHMED CHAUDHRY, J. 
 
 
Islamabad, the 
1st December, 2011  
 
 
 
APPROVED FOR REPORTING 
 
 
