ISLAMABAD: The ephedrine case, which rocked the PPP government some five years ago, still hasn’t moved forward.

Legal experts attribute this delay to a ‘half-baked’ investigation and the flawed legal strategy of the Anti Narcotics Force (ANF).

The ephedrine case dates from March 2011, when then-federal minister Makhdum Shahabuddin, told the National Assembly that a thorough investigation would be held into the alleged illegal allocation of 9000kg of ephedrine to two pharmaceutical companies: Berlex and Danas. Under the rules, a company cannot get more than 500kg of ephedrine.

The statement was enough to attract the Supreme Court’s attention.

Chief Justice Iftikhar Mohammad Chaudhry began hearing the case and in early 2012 he pointed out that Ali Musa Gillani, son of then-prime minister Yousaf Raza Gillani, was also a suspect.

The ANF had issued notices to Musa and one of his alleged ‘front men’ for manipulating the unauthorised allocation.

In June of the same year, just as President Asif Ali Zardari nominated Makhdoom Shahabuddin as the PPP candidate for the prime minister after Yousaf Raza Gillani was removed by a court order, the ANF issued arrest warrants in his name. Consequently, Makhdoom Shahab could no longer be PPP’s prime ministerial candidate.

The key evidence against him was a statement by Rasheed Juma, the former director general of health. Juma was the main accused in the case as he allocated the quota to pharmaceutical companies. But turning approver against the minister, he alleged that the allocations were made on Shahab’s verbal orders.

Prosecutors say govt doesn’t check for adequate evidence before instituting cases

According to defence lawyer Abdul Rashid Sheikh, there was nothing apart from Juma’s testimony to prove these allegations. He said that the main accused could not shift responsibility onto others.

The trail court for control of narcotic substances (CNS) moved so quickly in the matter that it also attached the properties of Makhdoom Shahab at ANF’s request, in 2012.

In February 2013, about two and half months after the registration of an FIR, ANF submitted the final challan in the CNS court, but the trial could not commence for one reason or another.

The delay was partly because Makhdoom Shahab and Musa Gillani, as well as the owners of pharmaceutical companies, filed a number of petitions in the CNS court and then in the Lahore High Court (LHC) against the trial. All this caused a delay of about four years.

In the meantime, ANF prosecutor general Shahid Abbasi moved out after being appointed an additional judge in the LHC. Some key civilian and military officials who were dealing with the case also retired or were transferred.

With the passage of time, judicial proceedings slowed to a crawl as those who were initially pursuing the case lost interest.

Finally, on November 27, 2014, an LHC division bench consisting of Justice Chaudhry Mushtaq Ahmed and Justice Ali Baqir Najafi disposed of a petition filed by Makhdoom Shahab related to the jurisdiction of CNS court in Rawalpindi, holding that “the learned special court lacked the territorial jurisdiction to adjudicate upon the matter”.

The evidence against Makhdoom Shahab was a statement by Rasheed Juma, the main accused in the case. But turning approver against the minister, he alleged that the allocations were made on Shahab’s verbal orders

Current ANF prosecutor general Raja Inam Ameen Minhas told Dawn they had challenged the orders before the Supreme Court, where the matter was currently pending.

However, he said ANF would resume proceedings as soon as the case was decided by the apex court, insisting that the CNS court in Rawalpindi did have jurisdiction to hear the matter.

According to advocate Abdul Rasheed Sheikh, who is the defence counsel for Makhdoom Shahab, ANF could have filed a case in the CNS court in Multan, where the ephedrine was sold, or in Islamabad where it was allocated by the officials of the devolved health ministry, but not Rawalpindi.

In subsequent proceedings, the trial court returned all court documents to the ANF with a direction to file them before a court of “competent jurisdiction”. Hence, the case is basically back where it had started.

“Technically speaking, after the court returned the case file to the prosecution agency, there is no case against Makhdoom Shahab and Musa Gillani and the other accused,” claimed Advocate Rasheed Sheikh, counsel for Makhdoom Shahab.

Advocate Sheikh then filed another petition in the LHC for the possession of his client’s assets, arguing that no case was pending against his client in any CNS court. Ironically, this petition came up before Justice Shahid Abbasi’s case, who had investigated this case as ANF prosecutor general. Each time, Abbasi recused himself.

Former Punjab additional prosecutor general Punjab Mohammad Ishaq Hinjra told Dawn that such cases expose the flaws in the investigation and prosecution strategies.

He said that in the West, it was the prosecution that decided the fate of a case; whether it could be instituted before the court or dropped. “The prosecution in other countries gives its opinion after thoroughly examining the evidence, the facts of the case and investigation reports. If there is a strong possibility of losing the case, the prosecution can decide against pressing charges,” he explained. Under our Criminal Procedure Code (CrPC) and Prosecution Act, the prosecution has been empowered to give such opinion but it is not heard, he said.

“Here, cases are instituted and the accused are implicated at the sweet will of the government or the department concerned,” he said. “As an additional prosecutor general, when I pointed out the weakness of certain cases and suggested that they were ‘not fit for trial’ I was asked to ‘mind my own business’; I was told that it was the court’s job to decide which case is fit for trial or not.”

Published in Dawn, April 11th, 2016