ISLAMABAD: The Supreme Court ordered the National Accountability Bureau (NAB) on Thursday to furnish a complete record of recoveries it had made through voluntary returns, or plea bargain, of misappropriated funds over the last decade, as well as the amount the bureau disbursed to the federal and provincial governments.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, who headed a three-judge Supreme Court bench, observed it was being said that NAB had made huge recoveries in recent years.

The bench had taken up a challenge to the amendments made in the National Accountability Ordinance (NAO) in August last year.

Mumtaz Yousaf, the bureau’s additional prosecutor general (APG), informed the court that NAB had retrieved an unspecified amount of money under the voluntary return scheme and other heads on misappropriated funds.

Judges call amendments in accountability law ‘step in wrong direction’

Khawaja Haris Ahmed, who is representing petitioner Imran Khan in the case, informed the court that NAB always compiled a report on annual basis mentioning the amount it had recovered from individuals accused of misappropriating funds.

Justice Ijazul Ahsan, pointing towards senior counsel Makhdoom Ali Khan, regretted that instead of taking one step forward, the government had taken several steps back by making amendments in the NAB law.

After the amendments, the onus to establish the actual beneficiary, or who indirectly controls benami properties, had been shifted to the prosecution to prove that a certain accused owned the properties and its title documents, which was beyond his known source of income, but parked somewhere else.

“The main onus has been placed on the prosecution and it is next to impossible to prove as to who is the ostensible beneficiary of the properties in question,” regretted Justice Ahsan.

The CJP said that through the amendments, the definition of ‘benamidar’ has been changed and instead of updating a law in keeping with changing needs, the government went back to outdated laws in force since centuries.

The actual beneficiary always manages properties or assets parked somewhere else by remote control, Chief Justice Bandial observed.

The CJP earlier recalled if the properties were parked in the name of spouses, relatives or associates, the first task would be to establish whether the benamidars have known sources of income to amass such wealth. But the latest amendments had made it difficult to establish that the properties had been amassed through tainted money.

Makhdoom Ali Khan contended that the Supreme Court had to look at both sides of the story, recalling how the apex court had, through various judgements, laid down tests to determine benamidars.

The counsel regretted that in many cases NAB had named wives in corruption references even if they had their own sources of income and were taxpayers as well.

Mr Khan said if the bureau accuses an individual of holding benami properties, it should have some basis or facts to underpin such an accusation.

He contended that the petitioner had based his case on speculations and suppositions. Every statute comes before the court for interpretation, the counsel argued. By amending the law, the legislature is asking NAB to bring something concrete against an accused before charging the individual with corruption, Mr Khan said.

The counsel recalled the 2003 oil spill in the sea off Karachi which had polluted Pakistani waters and had devastated marine life during the rule of then president Pervez Musharraf. Islamabad filed a suit for damages in an international court, but it turned out that the owners were hiding behind multiple layers.

Still Pakistan managed to win damages to the tune of $100 million, but then an individual wrote a letter to then prime minister recalling that billion of dollars were paid in damages after the 1989 Exxon Valdez oil spill.

Nothing happened against the ship’s owners since the prime minister at the time lost interest due to fears that the bureau could file a case against him for “causing damage to the national exchequer”.

Published in Dawn, March 17th, 2023