NAB kept putting off Hudabiya case until it was too late

In 2017, SC rejected anti-graft body's appeal for reinvestigation


Hasnaat Malik May 20, 2021
Supreme Court of Pakistan. PHOTO: AFP/FILE

ISLAMABAD:

As the PTI-led federal government is going for a fresh investigation into the Rs1.2 billion Hudabiya Paper Mills case against the Sharif family, the slackness of the National Accountability Bureau (NAB) cannot be ruled out in deciding the matter on merit. 

After going through the facts of the case, it can be easily understood as to how the term “accountability” is being used as a political engineering tool.

Supreme Court's Justice Qazi Faez Isa while authoring the final ruling in the Hudabiya case also narrated these facts.

He noted that just a month after assuming power, then army chief Gen Musharraf enacted the National Accountability Ordinance, 1999 and appointed a serving general, Lt Gen Syed Muhammad Amjad, to head the National Accountability Bureau (NAB) in the capacity of its chairman.

The then NAB chairman filed a reference on March 27, 2000 pursuant to section 18 (g) of the NAO, which was numbered as reference No 5 of 2000.

Another reference under the same provision of law was filed by the next NAB chairman, another serving general Lt Gen Khalid Maqbool, on November 16, 2000, which referred to the earlier one as an "interim reference".

On April 12, 2001, a little over a year after the filing of the Reference No 5 of 2000, the NAB additional prosecutor general requested that it should be adjourned sine die.

Whenever it is deemed legal that further proceedings be taken in the reference, NAB will move an application in this regard.

An accountability court accepted NAB's request and indefinitely adjourned the reference "sine die".

Six years later, on August 2, 2007, the NAB deputy prosecutor general submitted an application stating that the reference, which had been adjourned sine die, should be resurrected and the trial be commenced.

The accountability court allowed the NAB application.

The case was then fixed before the accountability court on August 25, and then on September 7, 2007 and it was adjourned on both these dates.

On September 13, 2007 the accountability court noted that NAB had been seeking adjournments, and that if they did so again on the next date of hearing, the reference might be adjourned "sine die once again".

On the next day, the case was adjourned to October 19, 2007, then again till November 8, 2007, then till November 22, 2007, and then further till December 5, 2007.

On December 5, 2007, the court directed the NAB prosecutor general accountability (PGA) to appear on the next date of hearing to make it clear as to whether or not the government intended to prosecute the accused persons.

However, on January 12, 2008, the PGA sought time and the case was adjourned to February 21, 2008.

The anti-graft body again sought time and the case was adjourned to March 28, 2008. NAB again sought adjournment and the case was adjourned to May 8, 2008.

However, the accountability court observed that "long adjournment has been requested from the side of prosecution".

Notwithstanding the long adjournment, NAB again sought an adjournment on May 22, 2008, which was the next date of hearing. The case was adjourned to June 19, 2008, but NAB again sought adjournment and the case was adjourned to July 31, 2008, continuing the litany of adjournments requested by the anti-graft body, Justice Isa pointed out in hus verdict.

Interestingly, the NAO mandates that "the case shall be heard from day to day and disposed of within 30 days". 

On August 21, 2008, the accountability court noted that it could not keep this file pending for purpose of simple adjournments only.

“The reference is again adjourned sine die till an application is moved by the NAB chairman for the commencement of trial,” it added.

Instead of simply complying with the order, and the NAB chairman signing an application himself, the PGA filed an application under section 369 of the Code of Criminal Procedure stating that the accountability court had committed an error in adjourning the reference sine die.

On August 23, 2008, the accountability court ordered that the application be heard on September 4, 2008.

However, the case was adjourned on that date and on October 7, 2008 and November 7, 2008. On November 12, 2008, NAB was not represented before the accountability court.

Consequently, the NAB application was dismissed for non-prosecution. The application was not sought to be restored by NAB.

On February 17, 2010 -- after about 15 months -- NAB submitted another application for the revival of the case, but this application too was not filed by the anti-graft body's chairman.

On February 22, 2010 when the application was listed for hearing, the judge was on leave and the matter was adjourned to February 24, 2010.

NAB again sought an adjournment and the matter was adjourned to March 10, 2010 when the anti-graft body filed an authorisation, which empowered the additional deputy PGA to pursue the matter, and the case was adjourned to March 19, 2010 – the date on which the case was adjourned again because the judge had died.

On April 8, 2010 and the next day, NAB sought an adjournment. The case was adjourned to April 16, 2010 when the application was heard, and April 24, 2010 was fixed as the date for announcing the decision on the application. However, it could not be announced and the case was adjourned to April 26, 2010, the date on which the case was adjourned yet again for want of time.

On May 3, 2010, the application was disposed of by the accountability court, which directed NAB to submit it again this time signed by the chairman.
On October 17, 2011, Sharif family members filed the writ petition. The writ petition, amongst other things, sought the quashment of the reference.

On October 18, 2011, a division bench of the Lahore High Court, comprising of Justice Ijaz ul Ahsan (before his elevation to the top court) and Justice Abdul  Waheed Khan halted the accountability court from proceeding on the matter.

A notice was issued to the attorney general for Pakistan, NAB and other respondents for further hearing. 

However, the bench noted that the stay would not affect the application filed by the NAB for the revival of the proceedings.

A division bench of the LHC, comprising of Justice Imtiaz Ahmad and Justice Muhammad Farrukh Irfan Khan allowed the writ petition and quashed the reference unanimously.

However, Justice Imtiaz Ahmad in the ultimate sentence of the judgment "clarified that the NAB authorities are competent to proceed against Sharif family members if the investigation is again initiated in accordance with law”.

Justice Muhammad Farrukh Irfan Khan did not agree with the addition of the clarification because the observation was uncalled for in the writ petition filed to quash the reference.

In view of the difference of opinion with regard to the matter of reinvestigation or fresh investigation, Justice Sardar Muhammad Shamim Khan was appointed as the referee judge who agreed with the opinion of Justice Muhammad Farrukh Irfan Khan.

"[The] reinvestigation of the reference, after about 13 years of filing of it, would be contrary to the scheme of aforesaid law during the hearing NAB did not make any request for allowing them to re-investigate the matter, therefore, there was no reason for making such an observation,” he noted.

The petition for leave to appeal has assailed the entire judgment of the division bench and of the referee judge with regard to the quashment of the reference and the majority view with regard to the matter of reinvestigation.

Interestingly, NAB decided not to file appeal against LHC majority judgment in the apex court.
However, in pursuance of the Panamagate proceedings, NAB filed a petition against the LHC majority judgment.

In December 2017, a three-judge bench of the apex court, led by Justice Mushir Alam and comprising Justice Qazi Faez Isa and Justice Mazhar Alam Miankhel, rejected the NAB appeal against the LHC judgment.

Justice Isa, while authoring the judgment, noted that the judges of the LHC were justified to quash the reference. Once it was quashed, the question of reinvestigation did not arise.

"Fortuitously for NAB, one judge permitted reinvestigation, even though NAB had not requested it; the matter of reinvestigation is mentioned in the very last sentence of his judgment. The judge also gave no reason why he permitted reinvestigation. We also agree with the reasons articulated by the learned judge's learned brethren who did not agree with him on the matter of reinvestigation. Under such circumstances, other than to procrastinate still further the agony of respondents Nos. 1 to 9, [Sharif family] no purpose will be served to condone the unreasonable and unjustified delayed filing of the petition,” the judgment read.

Published in The Express Tribune, May 13th, 2021.


 

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