ISLAMABAD: The Supreme Court judgement in Hudaibya corruption reference came as a much-needed relief for the beleaguered Sharif family as the court held that legal process was abused and due process was denied to former prime minister Nawaz Sharif, his brother and Punjab chief minister Shahbaz Sharif and other respondents through “protracted” proceedings in the reference.

“We have come to the painful conclusion that respondents 1 to 9 were denied due process,” wrote Justice Qazi Faez Isa in a 34-page detailed verdict issued by the apex court on Friday.

Justice Isa was part of the three-judge bench headed by Justice Mushir Alam which on Dec 15, 2017 had rejected the National Accountability Bureau’s (NAB) appeal against the 2014 Lahore High Court (LHC) verdict to quash the Rs1.2 billion Hudaibya corruption reference against the Sharif family.

“The legal process was abused by keeping the reference pending indefinitely and unreasonably,” the judgement regretted saying that the respondents were denied the right to vindicate themselves since the reference served no purpose but to oppress them.

The court noted with grave concern NAB’s lack of commitment and earnestness at the relevant time because the bureau never produced any accused in the accountability court, did not seek to frame charges and examine a single witness and sought innumerable adjournments and rather sought the reference to be adjourned indefinitely.

Detailed judgement issued on NAB appeal against 2014 LHC verdict to quash Rs1.2 billion corruption reference

The reference remained moribund for over four years but NAB did not submit an application under the chairman’s signature for the restoration/revival of the reference and when he did, it was not pursued, the judgement said.

Thus the high court was justified in quashing the reference and once it was quashed the question of reinvestigation did not arise, said the judgement.

Filed on Sept 20, 2017, NAB’s appeal was time barred by 1,229 days and under such circumstances, other than to procrastinate still further the agony of the respondents, no purpose would be served to condone the unreasonable delayed filing, it said.

About NAB’s stance that additional documents, fresh material and foreign currency accounts had been unearthed by the Supreme Court-appointed Joint Investigation Team (JIT) in the Panama Papers leak case, the verdict observed that if that was so, it could not be categorised as fresh material, because such evidence was already in the bureau’s possession.

The judgement also held as worrisome the accountability watchdog’s stance that the JIT had recommended the filing of the appeal saying that NAB was a statutory body and it was expected of it to act independently. NAB should not forego its independence to act at the behest of the JIT.

The reference was filed against the Sharifs in 2000 over the opening of alleged “Benami” foreign currency accounts in 1992, the Supreme Court reminded but said that a person could not indefinitely await the pleasure of a prosecuting agency to prosecute him.

If that was allowed prosecution became persecution and persecution or oppression was worse than death or killing, the judgement said.

The case record made it clear that the respondents were subjected to intensive investigation by those considered inimical to them since the then prime minister and the chief minister of Punjab were deposed, taken into custody and remained incarcerated till their exile and were not allowed to return to Pakistan.

Referring to money laundering, the judgement recalled that the JIT’s report referred to that allegation which took place in 1991-1992 whereas money laundering was declared an offence in Pakistan through the Anti-Money Laundering Ordinance-2007 enacted on Sept 7, 2007. Neither in 1991-1992 nor when the reference was filed, in the year 2000, did money laundering constitute an offence. The NAB never alleged that the monies in the foreign currency accounts were proceeds of crime, the judgement said highlighting that money laundering case should be tried by a session’s court and not by the accountability court under the National Accountability Ordinance.

Moreover the accountability court heard the reference in the Attock Fort, under the control of the military without any public access, it recalled.

But the Code of Criminal Procedure (CrPC) demanded open courts, accessible to public, the verdict said adding that the location of the trial court was determined by the NAB chairman though he had no power to do so. Thus a novel concept justified by using cherished words -- interest of justice, fair play and transparency of proceedings -- was introduced and the accountability court held the trial at a time when the country lay under the martial law.

The reference, it said, was based on an anonymous complaint which referred to the balance sheet of the Hudaibya Paper Mills Ltd for the year ending in June 30, 1998 and alleged that unexplained investments amounting to Rs642.743 million were made in the company. The complaint further alleged that amounts drawn from the foreign currency accounts were converted into rupees and injected into the company when its directors did not have sufficient legally declared money.

When the court enquired whether the respondents were called upon to explain the allegations, the court was told that nothing was on record to confirm that.

About former finance minister Ishaq Dar’s confessional statement, the Supreme Court said that the statement attributed to Mr Dar could not be categorised as one made under section 164 CrPC since it was not recorded before the NAB chairman or the accountability court. Moreover, if a section 164 statement was a confessional statement it must either admit in terms of the offence, the judgement said.

Published in Dawn, January 6th, 2018