Ex-minister moves SC for quashing Rental Power Project reference

Requests apex court to declare NAB Ordinance repealed, expired

Hasnat Malik July 01, 2018
Former finance minister Shaukat Tarin. PHOTO: FILE

ISLAMABAD: Former finance minister Shaukat Tareen has approached the Supreme Court for quashing proceedings of a reference filed by the National Accountability Bureau (NAB) against him regarding alleged corruption in the Rental Power Project (RPP).

Filed through his counsel Salman Aslam Butt, Tareen pleaded that the reference bearing No: 04 of 2014 initiated by NAB against him be declared illegal, without jurisdiction and without lawful effect and may kindly be quashed to the extent of him.

In 2012, the Supreme Court led by former chief justice Iftikhar Muhammad Chaudhry had declared all RPP contracts as illegal and directed NAB to proceed against nominated persons.

Earlier, the petitioner challenged the accountability court’s proceedings in the Islamabad High Court (IHC), wherein his plea was rejected on April 17.

Now he has approached the apex court requesting it to declare that the NAB Ordinance stood repealed and expired in the light of Article 89 read with Article 270-AA of the Constitution and the Fourth Schedule thereof.

Tareen also requested the court to declare that Sections 9 and 14 of the NAB Ordinance are inconsistent with the provisions of the Constitution and consequently all actions taken are illegal, void, without lawful authority and of no legal effect;

RPP case: Ex-finance minister wants corruption references quashed

“During the pendency of the instant petition, suspend/ stay the operation of all proceedings relating to, connecting with and/or arising from the impugned reference,” it is further pleaded.

The petition states that the proceedings against him have been, erroneously, based on the Supreme Court judgment, treating the same as the final verdict of the august court and have been filed without fulfilling the mandatory requirements of the NAB Ordinance.

“Despite the Supreme Court proceedings continuing for two and a half years, the petitioner (Tareen) was neither called nor issued a notice to express his point of view. It is reiterated that from a cumulative reading of the SC judgment as well as the order dated 08-05-2012, passed in the review petition, it is evident that the only action directed by the court to be undertaken by NAB was to investigate the matter in respect of the persons who were involved in originating the RPP’s scheme for getting financial benefits through corruption and corrupt practices.”

The petitioner contends that it is specifically averred that neither any financial benefit has been obtained by him nor he was engaged in any corruption or corrupt practice.

The same has also been found during the course of the investigation. However, contrary to the intention of the SC judgment, the order dated 08-05-2012 and the plea of the petitioner, the petitioner has been made an accused in the impugned reference on the basis of the SC judgment without there being an independent application of mind, which is further evident from the fact that the views of the prosecution department of NAB as well as the decision taken in its executive board meeting have been completely disregarded altogether.

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“In this respect and with utmost forbearance to the SC judgment, it is submitted that the SC judgment does not hold the Petitioner (Tareen) as an accused, in such a case there remains no need of a reference against the Petitioner.

“Even if as alleged, there was a violation of the rules of business or change in the terms of the rental services contract while increasing the advance, the Secretary, Finance who is primarily responsible for managing the affairs of the Ministry of Finance was not made a party in the Impugned Reference. It was incumbent upon the Respondent No. 1, being an investigation agency, to obtain evidence of criminality, corruption and corrupt practices, if any, against the Petitioner and then proceed with the trial of the Petitioner.

“The Respondent No. 1 (NAB) completely failed to discharge such statutory obligations casted upon it under the NAB Ordinance, rendering the Impugned Proceedings as illegal and unlawful. Such failure to discharge obligations is further evident from the fact that no payment was made in pursuance of the contract for Piranghaib Multan; yet, the Impugned Reference naming the Petitioner as an accused has been filed.No question of any corruption or taking of illegal financial benefit arises in the instant case. The same, coupled with the fact that the version of the Petitioner was not even taken into consideration or discussed, either in the investigation report or in the Impugned Reference, renders the same without jurisdiction and liable to be declared as such,” says the petition.

It also states, “The IHC has erred by dismissing the writ petition essentially on a ‘technical ground’, i.e., that the petitioner did not opt for assailing the order of the dismissal of his application under Section 265-K of Cr. PC.

“It is a settled proposition of the administration of justice that cases, especially of a Constitutional nature affecting the life and liberty of a citizen, ought to be decided on merits and not on hyper-technicalities of procedure.

“Even otherwise, it is specifically averred that the jurisprudence laid down by the Honourable Superior Courts envisages that a constitutional petition filed under Article 199 seeking quashment of criminal proceeding are maintainable and constitute an independent and distinct remedy in contrast from any remedy available under the Cr. PC (including a Section 265-K application or an appeal therefrom).

“Therefore, with profound respect, it is submitted that the Honourable Islamabad High Court’s dismissal of the Writ Petition on the ground that the Petitioner should have availed the remedy of appeal against the dismissal of his 265-K application is not sustainable in the eyes of law. As such, the Impugned Judgment is liable to be set aside on this score alone.”

It is also submitted that the IHC has failed to consider and construe the true nature, scope and import of the immunity enshrined under Article 248 of the Constitution in favour of the Petitioner.

It is specifically averred that Article 248 of the Constitution confers immunity upon certain constitutional functionaries, including the Federal Ministers, with respect to acts done in exercise of powers performance of functions in their official capacity. It is averred that the Controversy relating to the Petitioner stems out of acts performed in the capacity as a Federal Minister, i.e., Finance Minister. Hence, in terms of the said constitutional provision, the Petitioner is not answerable to any court in relation to exercise of powers and performance of functions of his office as a Federal Minister.

“Such privilege becomes more forceful on account of the fact that no evidence of corruption or corrupt practices has been found against the Petitioner, who has merely been roped in as an accused on account of certain purported/alleged procedural irregularities.

“The Impugned Proceedings against the Petitioner are thus not maintainable and the same are liable to be declared as such. Accordingly, the Impugned Reference and the Impugned Proceedings are void ab initio and the Impugned Judgment is liable to be set aside.”


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