Hijazi requests IHC to quash FIR

Published: September 13, 2017
Tahir Mahmood says Hijazi told him: ‘Are you a son of prophet that you can’t lie’. PHOTO: FILE

Tahir Mahmood says Hijazi told him: ‘Are you a son of prophet that you can’t lie’. PHOTO: FILE

ISLAMABAD: Zafarul Haq Hijazi, the suspended chairman of the Securities and Exchange Commission of Pakistan (SECP), has requested the Islamabad High Court to quash an FIR against him in a case pertaining to tampering with the record of the Sharif family’s companies, claiming that those involved in the matter have falsely blamed him to save their own skin.

A petition filed on Tuesday through his counsel Hamid Ali Shah and Ishfaq Hussain Naqvi contended that the FIR should be quashed because it was illegal, suffered from jurisdictional error and had no legal effect.

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The petitioner cited as respondents the interior secretary, the director general of the Federal Investigation Agency (FIA) and the SHO of the Special Investigation Unit, Islamabad.

In the petition, the counsel said the petitioner had impugned the FIR on the grounds that it suffered from jurisdictional defects, involved patent violation of provisions of the law, the allegations mentioned in it did not contain or constitute an offence and was mala fide. “The FIR is thus liable to be quashed,” the counsel stated.

The counsel argued that the allegations levelled against Hijazi were false and he had never pressured any official of the SECP to tamper with the record. They alleged that the officials had tampered with the record themselves and accused Hijazi of pressuring them to do so.

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“The whole case against petitioner has been made/established on the basis of the statements of the persons who are primarily involved in the illegal act and responsible for the offence,” the petition said.

The FIR 13/17 was lodged against Hijazi on July 10 under Sections 466 and 471 of the Pakistan Penal Code, read with Section 5(2) of the Prevention of Corruption Act, 1947. He was arrested on July 21 and remained in physical custody till July 29 and in judicial custody till August 8, before being released on bail.

Counsel Hamid Shah argued that Hijazi had been subjected to and had become a victim of mala fide investigation by the prosecution, adding that the charges framed under the FIR were motivated by enmity, malice and ulterior motives on part of the prosecution and also the prosecution witnesses.

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He said it was an admitted fact that the petitioner was a public servant, whereas Section 466 made the offence of forging a document applicable to a person who did so by “purporting” the document “to be made by a public servant in his official capacity”.

The provisions of Section 466 were, therefore, inapplicable to the case, he said.

Section 471 of the PPC, relating to the use of a forged document as genuine, was also not made out, he said, adding that applicability of the section of the act of 1947, relating to criminal misconduct, was also misguided and immaterial to the case.

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“The element of obtaining any gain or the consideration is lacking in the instant case,” he stated.

The petitioner reiterated that in his capacity as chairman, he neither had the intention nor in reality any benefit accrued to him in the course of making the backdated entry in the impugned document and he “had never passed any direction as alleged”.

He said that the registration of the FIR appeared to be a misuse of the process of law and without any legal justification.

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Shah said the FIA had stated in its final inquiry report that Hijazi had been found guilty of “violation of the provisions of the Securities & Exchange Commission of Pakistan Act, 1997” but the impugned recommendation had been made for a criminal case to be registered under Sections 466/471 of the PPC, read with the PCA, 1947.

Since the alleged findings were under the SECP Act, the matter should have been proceeded with under its provisions, he contended.

Special Judge Iram Niazi, who recently granted bail to Hijazi, had noted in her order that “it has yet to be ascertained if Hijazi pressurised his subordinates, or closure of the record in back dates was made with consensus by all of them”. She added, “At this stage, a deeper appreciation of evidence cannot be given.”

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However, the judge said, a tentative look at the evidence showed that the closure note in back date had been made after meetings and full discussions among SECP officials Maheen Fatima, Tariq Ahmed, Ali Azeem, Tahir Mahmood and Abid Hussain, “as these persons also signed the same likewise applicant”.

“All of them are sailors of the same boat,” the judge stated in her order. “Other than the statements of officers who signed the same alleged closure note in back date,” she said, “independent corroborated piece of evidence is needed”.

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