The Supreme Court on Monday dismissed a petition filed by the National Accountability Bureau (NAB) seeking review of the top court's judgement regarding reopening of the Hudaibya Paper Mills (HPM) reference.

A three-judge SC bench comprising Justice Mushir Alam, Justice Qazi Faez Isa and Justice Mazhar Alam Khan Miankhel had rejected the NAB appeal on January 5 against the quashment of the Rs1.2 billion Hudaibya corruption reference by the Lahore High Court in 2014. The same bench heard the review petition today.

The 39-page NAB review petition, which was filed through special prosecutor Imran-ul-Haq, had argued that the Jan 5 judgement of the SC in the Hudaibya case was in conflict with the Panama Papers case verdict issued by a larger bench and was, therefore, required to be revisited.

At the outset of the hearing, the bench asked the NAB prosecutor to point out flaws in the SC judgement.

Haq argued that the accused in the corruption reference had never been indicted.

"It's your own doing, you may delay the indictment for years if you wish," Justice Isa told Haq, observing that the bureau had failed to proceed with indicting the accused even though the Hudaibya reference was filed in the year 2000.

Justice Isa noted that it was during the rule of an army general that the reference was filed. "There was no political pressure on [NAB]" not to file the reference, he remarked.

The reference was filed against members of the Sharif family in 2000 over the opening of alleged “Benami” foreign currency accounts in 1992. But the SC bench asked NAB today whether it was a crime to open foreign currency accounts abroad.

"No, it is not a crime," prosecutor Haq responded.

The prosecutor then argued that former finance minister Ishaq Dar, who had turned approver against the Sharifs in April 2000, had backtracked from his confessional statement after the LHC quashed the reference.

"The respondents in the reference never appeared before a court. The LHC judgement was flawed due to these two reasons," the prosecutor said.

The court then grilled NAB over why Dar's statement had been recorded before a magistrate. Justice Isa observed that an approver's statement could not have been recorded before a magistrate following an amendment in the accountability laws.

"[And] even if Ishaq Dar confessed to everything, what effect would it have on the case?" he asked.

Justice Alam wondered for how many years the sword of Damocles could be hung above a person.

'You are not the lawyer for Musharraf'

The NAB prosecutor requested the court to expunge paragraph 6 from the SC judgement in the Hudaibya case. The para dealt with how Gen Pervez Musharraf had ousted a democratically elected government on Oct 12, 1999 as the then army chief and proclaimed emergency on Oct 14, 1999, put the Constitution in abeyance, suspended the Senate and national and provincial assemblies, dismissed the prime minister, all the governors, chief ministers, federal and provincial ministers and also issued a Provisional Constitution Order (PCO).

Just a month after assuming power, Gen Musharraf enacted the National Accountability Ordinance, 1999 and appointed serving General Mohammad Amjad to head NAB as its chairman, the SC judgement had stated.

"I think you are not the lawyer for Pervez Musharraf," Justice Isa retorted, addressing the NAB prosecutor.

"Why is this [paragraph] bothering you?" he further asked, observing that the apex court's judgement had stated that Musharraf's conduct had been hostile, and not that of NAB.

The prosecutor also requested the court to expunge the para recalling how NAB came into being.

But the court asked the prosecutor to read out the concerned para, telling him to "not be embarrassed about reading Pakistan's history".

"Is NAB's historical background affecting your health in any way?" Justice Isa asked Haq.

Not convinced by NAB's irrelevant arguments regarding the review, the judge then told the prosecutor: "You are fighting someone else's battle."

With the NAB prosecutor having failed to satisfy the bench with arguments against the earlier SC judgement, the court rejected the review petition filed by the bureau.

Hudaibya reference: journey through courts

NAB had prepared the HPM reference against the Sharif family after the 1999 military coup which toppled the Nawaz Sharif government.

The LHC had on March 11, 2014 quashed the reference, but NAB did not challenge it in the apex court. The matter resurfaced during the hearing of the Panama Papers case.

A five-judge bench hearing the Panama Papers case had made a number of observations on the revival of the HPM reference. Justice Asif Saeed Khosa, in his dissenting note in the April 20, 2017 verdict, had also discussed the reference in detail and criticised the chairman and the prosecutor general of NAB for not challenging the LHC judgement.

Subsequently, NAB had filed an appeal in the apex court against the LHC verdict, but the bureau could not satisfy the three-judge SC bench for filing a time-barred case.

In its detailed judgement, the apex court had held that legal process was abused and due process was denied to Nawaz Sharif, his brother and then 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,” Justice Isa had written in a 34-page verdict.

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

In its review petition, NAB held the Pakistan Peoples Party, Pakistan Muslim League-Nawaz and the regime of former president Gen Pervez Musharraf responsible for keeping the Hudaibya corruption reference against the Sharif family adjourned for an indefinite period.

This was the reason why the NAB authorities did not show interest in prosecution of the reference, the petition explained. “Keeping the reference 5 of 2000 (Hudaibya reference) adjourned sine die was a collusive arrangement of PPP, PML-N and regime of Gen Pervez Musharraf,” it contended.