Hajj corruption case: FIA wasted time, money and resources: IHC

Justice Kayani notes prosecution did not collect proper documentary evidence

ISLAMABAD:  

The Federal Investigation Agency (FIA) just wasted time, money and resources in the Hajj corruption case. To add insult to injury, the judge of the trial court had failed to decide objections raised on the admissibility of evidence presented by the prosecution while awarding sentence in the case.

These details emerged in the detailed judgement of the Islamabad High Court in which Justice Mohsin Akhtar Kayani exonerated from corruption charges former federal minister for religious affairs Hamid Saeed Kazmi, ex-Hajj Director General Rao Shakeel and the former Joint Secretary of the ministry Aftabul Islam Raja.



Justice Kayani had set aside the trial court’s verdict and acquitted Kazmi, Shakeel and Raja observing that “entire documentary evidence is inadmissible and cannot be relied upon for the purpose of conviction” in the case.

“In a nutshell, the investigation officers have just wasted time, money and resources of the government of Pakistan and have not collected any substantial evidence to connect the appellant with the commission of the offence,” Justice Kayani stated in the judgement.

On June 3, Judge Malik Nazir Ahmad of the Special Court Central in Islamabad had sentenced Kazmi, Shakeel and Raja to six years in prison each on two counts. The court had also imposed a fine of approximately Rs147.4 million on each of them while declaring their alleged crime as one of the worst examples of corruption.

“The offence committed by the accused is not only heinous in nature, rather, the same is against society and has shaken the trust of the whole nation,” Judge Ahmad had said at the time.

Justice Kayani’s judgment is also a scathing indictment on the standard of FIA’s investigation and the lower court’s trial.

The court noted that the FIA had failed to collect any substantial evidence to link the accused with the offence.

Moreover, Justice Kayani observed that the defence counsel had raised objections to the admissibility of the documents as “majority of the documents are in the Arabic language, some are produced along with translation and (but) majority of the documents are photocopies or manually prepared computer-generated lists.”



However, the trial court judge had stated that the “objections will be decided at the time of final judgment.”

“I have gone through the judgment of the learned trial court and I could not see any findings in this regard,” Justice Kayani noted.

Discussing the legal status of the documents admitted as evidence, Justice Kayani stated that “documents which were referred in the Arabic language are photocopies which are not admissible by any stretch of imagination”.

He noted that primary evidence - original documents - were not provided in the case while “investigation officers have not taken any pain to look into the matter with this legal angle. Rather, they are not aware of the scheme of the Qanun-e-Shahadat 1984,” he stated.

Law on evidence states that any document which is not original cannot be tendered as evidence. Moreover, without the author or the witnesses, contents of the documents cannot be proved as admissible.

Precise allegations against Kazmi, Shakeel and Raja were – acquiring of 87 buildings against exorbitant rates, misuse of authority, loss caused to the public exchequer, the benefit to the owners of the buildings and personal gain.

Justice Kayani stated that two MNAs and two Senators – Bilal Yasin, Pirzada Syed Imran Ali Shah, Muhammad Saleh Shah and Abdur Rehman, respectively – of a Senate Review Committee were not able to collect the required information to prove a criminal case.

Moreover, he added that the inquiry report of a parliamentary review committee, which has been made a basis for registering criminal cases, had not recorded the testimony of any witness nor had it received any documents to substantiate its claim.

The judge ruled that statement of these four witnesses can only be considered as the story of a journey to Saudi Arabia. By contrast, the prosecution was legally bound to prove these allegations through solid evidence.



“The document [inquiry report of Review Committee of Senate/National Assembly] has no legal worth in the eyes of law,” Justice Kayani stated.

Moreover, he noted that documents tendered by the investigation officers are inadmissible and cannot be taken into consideration since they do not qualify as primary or secondary evidence.

Ironically, the court noted that the investigation officer Naimat Ali did not visit Saudi Arabia for investigations, instead he prepared all recovery memos in Islamabad after receiving documents from the Ministry of Religious Affairs and was unaware of the original documents.

In addition, the judgement added, the officer cannot understand Arabic language, admits that information is not first hand, that Kazmi had not misappropriated any amount, had no evidence to connect income or assets of Kazmi with the crime, no evidence of kickbacks and commission received while no official or private passport was issued to Ahmad Faiz – the middle man in Saudi Arabia.

“[This] brought me to an irresistible conclusion that prosecution has miserably failed to discharge the onus of hiring, acquiring and utilisation of buildings in Saudi Arabia on exorbitant rates, receiving of kickbacks or any violation of law,” Justice Kayani stated.

“The investigation officer has exonerated the appellant Syed Hamid Saeed Kazmi from all the charges as he has not brought any evidence against him in the instant matter.”

In the end, Justice Kayani remarked that the entire case against Kazmi had been based on the violation of Hajj Policy 2010 and Policy Guidelines which did not constitute an offence under any law.

Published in The Express Tribune, March 24^th, 2017.