ISLAMABAD: A day after the Sindh High Court (SHC) struck down the commission constituted by the federal government to probe the sugar crisis, the Islamabad High Court (IHC) on Tuesday not only acknowledged the legality of the commission but also validated its report that recommended criminal cases against the sugar mills for misuse of public money and cartelisation leading to massive price hike of sugar.

A division bench of the IHC comprising Justice Aamer Farooq and Justice Miangul Hassan Aurang­zeb upheld the judgement of IHC Chief Justice Athar Minallah.

Justice Minallah had approved the inquiry report against the sugar mills and held that the investigation agencies could proceed against them in accordance with the law.

While striking down the commission, the SHC had directed the National Accountability Bureau (NAB), Federal Board of Revenue (FBR) and Federal Investigation Agency (FIA) to conduct independent and separate inquiries into the sugar scam.

Legal experts, however, believed that since the judgements of the SHC and the IHC were contradictory in nature, the Supreme Court may pass a ruling to end an impasse.

Legal experts believe SC may pass a ruling after the ‘contradictory’ judgements handed down by SHC, IHC on the matter

According to senior lawyer Mohammad Akram Sheikh, it was not the first time that the two high courts took different views on the same issue. It had happened in the past when the high courts passed contradictory judgements and then the Supreme Court issued a consistent order.

The IHC verdict describing an overview of the issue stated: “Facts essential for the disposal of the instant appeal are that the adverse effects on the common man caused by the dearth in the availability of sugar as well as a sharp increase in its price caused the Prime Minister of Pakistan to constitute a three-member Inquiry Committee on 20.02.2020. The Convener of this Committee was the Director General, Federal Investigation Agency (FIA), and its mandate was to probe into the “sugar crises in the country”.

On March 9, the inquiry committee in a letter to the PM suggested that the matter be probed through a commission comprising Grade-21 or equivalent officers from the Securities and Exchange Commission of Pakistan (SECP), the Federal Board of Revenue (FBR) and the State Bank of Pakistan (SBP). Subsequently, on March 16, the government notified FIA DG Wajid Zia, director-general of the Anti-Corruption Establishment of Punjab, Gohar Nafees, Intelligence Bureau (IB) Deputy DG Ahmad Kamal, SECP Executive DirectorBilal Rasool, SBP Joint Director Majid Hussain Chaudhry, FBRIntelligence and Investigation DG Bashirullah Khan. Later, an official of the Inter-Services Intelligence (ISI) Col Faisal Gul was included in the commission.

Makhdoom Ali Khan, counsel for the sugar industry, adopted before the court that since under the provisions of the Pakistan Commission of Inquiry 2017 Act, an Inquiry Commission had wide ranging powers, including certain powers of a court, the decision of the federal government to appoint an inquiry commission had to be with a proper and independent application of mind; that the federal government had constituted the inquiry commission on the basis of the suggestion made by the inquiry committee convener in his letter, dated March 9, addressed to the prime minister; and that other than the said letter, there was no document on record which formed the basis of the federal government’s decision to constitute the inquiry commission.

He further argued that the inquiry commission had not been lawfully constituted; with the pre-requisites prescribed in Section 3(1) and (2) of the 2017 Act for constituting an inquiry commission and appointing members of the inquiry commission had not been satisfied; that even though Section 3(1) of the 2017 Act empowered the federal government to constitute an inquiry commission “by notification in the official gazette” and Section 3(2) of the said Act required the federal government to appoint members of the inquiry commission “by notification in the official gazette,” such notifications were not published in the official gazette until after the inquiry commission had submitted its report.

He went on to state that the report of the commission was tainted with bias since three members of the commission had pre-conceived notions and were pre-disposed against the sugar industry.

Attorney General Khalid Jawed Khan, however, stated that the constitution of the commission had been necessitated by the sharp increase in the price of sugar, which is an essential commodity affecting the public at large. He said the federal government, instead of taking cosmetic steps for media consumption, decided to take robust action in order to get to the root of the problem and alleviate the plight of the public at large. The decision to constitute the commission with elaborate Terms of Reference was taken by the federal government even though it had the potential to destabilise or even jeopardise the federal government, he said, adding that the commission members were public servants with unimpeachable reputation.

It was also submitted that the essential purpose of requiring a notification to be published in the official gazette was to make the public aware of what was being notified; that where the law did not provide any consequence for the non-publication of a notification in the official gazette, then such non-publication would not be fatal.

He argued that the appellants could not question the proceedings of the commission on the ground that the notifications had not been published in the official gazette since they had ample knowledge of the notifications constituting the commission when they were initially issued. He was of the opinion that the appellants were agitating a technical objection in order to avoid the consequences of the recommendations made in the inquiry report.

The IHC noted that the inquiry commission had conducted a fact-finding exercise with no mandate or power to impose any penalty. Moreover, no adverse action could be taken against any party on the basis of the findings of fact or even the recommendations made by the commission, and that at best the findings of fact may be a starting point for a competent statutory authority like NAB and FIA etc to apply their mind and decide as to whether any action was required to be taken against the party concerned.

Published in Dawn, August 19th, 2020