Updated: Sunday July 30, 2017/AlAhad
Thoul Ki'dah 07, 1438/Ravivara
Sravana 08, 1939, at 09:04:20 PM
IN THE SUPREME COURT OF
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN
C. M. A. NO. 4978 OF 2017 IN CONSTITUTION
PETITION NO. 29 OF 2016 ETC.
(Report by JIT).
AND
C. M. A. NO. 2939 OF 2017 IN CONSTITUTION
PETITION NO. 29 OF 2016 ETC.
Imran Ahmed Khan and others. …Applicant(s)
Versus
Mian Muhammad Nawaz Sharif, Prime Minister of
AND
CONSTITUTION PETITION NO. 29 OF 2016.
(Under Article 184 of the Constitution)
Imran Ahmed Khan Niazi. …Petitioner(s)
Versus
Mian Muhammad Nawaz Sharif, Prime Minister of
AND
CONSTITUTION PETITION NO. 30 OF 2016.
(Under Article 184 of the Constitution)
Sheikh Rasheed Ahmed. …Petitioner(s)
Versus
Federation of
AND
CONSTITUTION PETITION NO. 03 OF 2017.
(Under Article 184 of the Constitution)
Siraj-ul-Haq,
Versus
Federation of
………………
Const. Ps. No. 29-30/2016 & 03/2017.
2
IN ATTENDANCE.
(in Const. P. 29/2016).
For the petitioner(s): Syed Naeem Bokhari, ASC
Mr. Sikandar Bashir Mohmand, ASC
Mr. Fawad Hussain
Mr. Faisal Fareed Hussain, ASC.
Ch. Akhtar Ali, AOR.
Assisted by :
Barrister Maleeka Bokhari.
Shahid Naseem Gondal, Adv.
Kashif Nawaz Siddiqui, Adv.
M. Imad Khan, Adv.
For respdt. No. 1: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
For respdt. No. 2: Mr. Akbar Tarar, APGA.
Mr. Arshad Qayyum, Spl. Prosecutor.
Ch. M. Fariid-ul-Hassan, Spl. Prosecutor.
Mr. Imran-ul-Haq, Spl. Prosecutor.
Mr. Ajmal Aziz, Spl. Prosecutor.
For respdts. 3 to 5 : Mr. M. Waqar Rana, Addl. A.
G.
Mr. M. S. Khattak, AOR.
Assisted by :
Barrister Asad Rahim Khan.
For respdts. 6 to 9: Mr. Salman Akram Raja, ASC.
Syed Rifaqat Hussain Shah, AOR.
Assisted by :
Asad Ladha, Adv.
Ghulam Sabir Malik, Adv.
Usman Ali Bhoon, Adv.
M. Shakeel Mughal, Adv.
Aftab Zafar, Adv.
For respdt. No. 10: Dr. Tariq Hassan, ASC.
Syed Rifaqat Hussain Shah, AOR.
Const. P. 30 of 2016.
For the petitioner(s): Sheikh Rasheed Ahmed, (in
person)
For the respdts. 1 & 3: Mr. M. Waqar Rana,
Addl. A. G.
Mr. M. S. Khattak, AOR.
Const. Ps. No. 29-30/2016 & 03/2017.
3
Assisted by :
Barrister Asad Rahim Khan.
For respdt. No. 2 : Mr. Akbar Tarar, APGA.
Mr. Arshad Qayyum, Spl. Prosecutor.
Ch. M. Fariid-ul-Hassan, Spl. Prosecutor.
Mr. Imran-ul-Haq, Spl. Prosecutor.
Mr. Ajmal Aziz, Spl. Prosecutor.
For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
Const. P. No. 03 of 2017.
For the petitioner(s): Mr. Taufiq Asif, ASC.
Assisted by :
Atif Ali Khan, ASC.
Ajmal Ghaffar Toor, Adv.
Saifullah Gondal, Adv.
Sher Hamad Khan, Adv.
For respdts. 1 to 3: Mr. M. Waqar Rana, Addl. A.
G.
Mr. M. S. Khattak, AOR.
Assisted by :
Barrister Asad Rahim Khan.
For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
Date of Hearing: 17th to 21st July,
2017.
(Judgment Reserved).
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
Const. Ps. No. 29-30/2016 & 03/2017.
4
J U D G M E N T
EJAZ AFZAL KHAN, J.- This
judgment is in continuation of our judgments dated 20.04.2017 in Constitution
Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017 which
ended up in the following order of the Court :
“By a majority of 3 to 2 (Asif Saeed Khan Khosa
and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and
directions, we hold that the questions how did Gulf Steel Mill come into being;
what led to its sale; what happened to its liabilities; where did its sale proceeds
end up; how did they reach Jeddah, Qatar and the U.K.;
whether respondents No. 7 and 8 in view of their
tender ages had the means in the early nineties to possess and purchase the
flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber
Al-Thani is a myth or a reality; how bearer shares crystallized into the flats;
who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises
Limited and Nescoll Limited, how did Hill Metal Establishment come into
existence; where did the money for Flagship Investment Limited and other
companies set up/taken over by respondent No. 8 come from, and where did the
Working Capital for such companies come from and where do the huge sums running
into millions gifted by respondent No. 7 to respondent No. 1 drop in from,
which go to the heart of the matter and need to be answered. Therefore, a
thorough investigation in this behalf is required.
2. In normal circumstances, such exercise could
be conducted by the NAB but when its Chairman appears to be indifferent and
even unwilling to perform his part, we are constrained to look elsewhere and
therefore, constitute a Joint Investigation Team (JIT) comprising of the
following members :
i) a senior Officer of the Federal Investigation
Agency (FIA), not below the rank of Additional Director General who shall head
the team having firsthand experience of investigation of white collar crime and
related matters;
ii) a representative of the National
Accountability Bureau (NAB);
iii) a nominee of the Security & Exchange
Commission of Pakistan (SECP) familiar with the issues of money laundering and
white collar crimes;
iv) a nominee of the State Bank of
v) a seasoned Officer of Inter Services
Intelligence (ISI) nominated by its Director General; and
vi) a seasoned Officer of Military Intelligence
(M.I.) nominated by its Director General.
3. The Heads of the aforesaid departments/
institutions shall recommend the names of their nominees for the JIT within
seven days from today which shall be placed before us in chambers for
nomination and approval. The JIT shall investigate the case and collect
evidence, if any, showing that respondent No. 1 or any of his dependents or
benamidars owns, possesses or has acquired assets or any interest therein disproportionate
to his known means of income. Respondents No. 1, 7 and 8 are directed to appear
and associate themselves with the JIT as and when required. The JIT may also
examine the evidence and material, if any, already available with the FIA and
NAB relating to or having any nexus with the possession or acquisition of the
aforesaid flats or any other assets or pecuniary resources and their origin.
The JIT shall submit its periodical reports every two weeks before a Bench of
this Court constituted in this behalf. The JIT shall complete the investigation
and submit its final report before the said Bench within a period of sixty days
from the date of its constitution. The Bench thereupon may pass appropriate
orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the
Constitution including an order for filing a reference against respondent No. 1
and any other person having nexus with the crime if justified on the basis of
the material thus brought on the record before it.
4. It is further held that upon receipt of the
reports, periodic or final of the JIT, as the case may be, the matter of
disqualification of respondent No. 1 shall be considered. If found necessary
for passing an appropriate order in this behalf, respondent No. 1 or any other
person may be summoned and examined.
5. We would request the Hon’ble Chief Justice to
constitute a Special Bench to ensure implementation of this judgment so that
the investigation into the allegations may not be left in a blind alley.”
2. The Hon’ble Chief Justice of Pakistan
constituted the implementation Bench consisting of Ejaz Afzal Khan, J., Mr.
Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. The Bench vide order
dated 05.05.2017 constituted the JIT consisting of Mr. Amer Aziz, an Officer of
(BS-21) who is on deputation with NIBAF, Mr. Bilal Rasool, Executive Director,
SECP, Mr. Irfan Naeem Mangi, Director NAB, (BS-20). Brig. Muhammad Nauman Saeed
from ISI, Brig. Kamran Khurshid from M.I. and Mr. Wajid Zia, Additional
Director General (Immigration), FIA to head the JIT.
3. The JIT undertook the task thus assigned and
submitted a complete investigation report on 10.07.2017. Parties to the
proceedings were provided the report of the JIT and a weeks’ time to go through
it. Khawaja Harris Ahmed, learned Sr. ASC appearing on behalf of respondent No.
1 submitted a CMA expressing his reservations about the report. Dr. Tariq
Hassan, learned ASC for respondent No. 10 also filed a CMA expressing his
reservations about the report. Learned ASC appearing for petitioner in Const.
P. No. 29 of 2016, Sheikh Rasheed Ahmed, petitioner appearing in person in
Const. P. No. 30 of 2016 and learned ASC appearing for the petitioner in Const.
P. No. 03 of 2017, by picking up the thread from
where they left off, sought to canvass at the bar that the JIT has collected
sufficient evidence proving that respondent No. 1, his dependents and
benamidars own, possess and have acquired assets which are disproportionate to
their known sources of income;
that neither respondent No. 1 nor any of his
dependents or benamidars before or during the course of investigation could
account for these assets, therefore, he has become disqualified to be a Member
of Parliament. They further stated that certified copies of the correspondence
between Mr. Errol George, Director Financial Investigating Agency and the
Anti-Money Laundering Officer of Mossack Fonseca & Co. (B.V.I.) Limited
collected through Mutual Legal Assistance prove that respondent No. 6 is the
beneficial owner of the Avenfield apartments, therefore, the document showing
her as trustee is a fabrication on the face of it for which she is liable to be
proceeded against for forgery and using forged documents; that use of Calibri
Font, which became commercially available in 2007, in the preparation of the
trust deed in February 2006 is another circumstance leading to the inference
that it was forged and fabricated; that narrative of Tariq Shafi vis-à-vis
receipt of AED 12 million from sale of 25% shares of Ahli Steel Mills formerly
known as Gulf Steel Mills is false on the face of it which has been confirmed
by the JIT in its report; that whatever has been stated in Qatri letters
remained unsubstantiated as the Qatri Prince neither appeared before the JIT
nor ever stated his point of view through any other legally recognizable means;
that respondents were given ample opportunities to provide the trail of money
and answer the questions asked in the order of the Court dated 20.04.2017 but
they throughout have been evasive; that the discrepancies between the first
Qatri letter and affidavit of Mr. Tariq Shafi show that neither of them is
credible; that the spreadsheet attached with the second Qatri letter too is of
no help to the respondents as it is neither signed nor supported by any
documentary evidence; that the entire story about trail of money is seriously
marred by inconsistencies surfacing in the statements of the respondents
recorded by the JIT; that story of transporting machinery from Dubai to Jeddah
and thereby establishing Azizia Steel Company Limited still awaits proof; that
how the entire amount running to SAR 63.10 million could be utilized by
respondent No. 7 notwithstanding he was entitled to only 1/3rd finds
no explanation therefor, the sources establishing Hill Metal Establishment have
not been proved; that failure of respondent No. 1 to disclose his assets
deposited in his account on account of his being Chairman of Capital FZE would
also call for his disqualification, as it being an asset for all legal and
practical purposes was required to be disclosed under Section 12(2)(f) of the
Representation of the People Act, 1976; that the respondent denied withdrawal
of salary, but payment of salaries to all employees electronically, through the
Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage
Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and
11(7) of the Jebel Ali Free Zone Rules, would belie his stance; that the assets
of respondents No. 7 and 8 have surprisingly grown manifold overnight
notwithstanding all of their business enterprises run in loss; that the facts
and figures showing in flow and outflow of Hill Metals Establishment also
appear to be fudged and fabricated when seen in the light of the material
collected during the course of investigation by the JIT; that material already
brought on the record and collected through the JIT leave no doubt that the
assets of respondent No. 1, his children and benamidars are disproportionate to
their known sources of income and that their failure to satisfactorily account
for them would inevitably entail disqualification of respondent No. 1 in terms
of Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999.
4. Learned Sr. ASC appearing for Respondent No. 1
contended that JIT overstepped its mandate by reopening the case of Hudabiya
Paper Mills when it was not so directed by the Court; that another
investigation or inquiry shall also be barred by the principle of double
jeopardy when the Reference relating to the said Mills was quashed in the case
of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (PLD 2016 Lahore
667); that no evidence has been collected by the JIT showing respondent
No.1 to have any nexus with the Avenfield apartments, Hill Metals
Establishment, Flagship Investment Limited or any other business concern run by
respondent no. 7 and 8; that all the material collected and finding given by
the JIT do not deserve any consideration inasmuch as they are beyond the scope
of investigation authorized by the order of this Court; that the investigation
conducted by the JIT cannot be said to be fair and just when none of the
respondents was questioned about or confronted with any of the documents
tending to incriminate them and that the JIT exceeded its authority while
obtaining documents from abroad by engaging the firm of the persons happening
to be their near and dear. Such exercise, the learned Sr. ASC added, cannot be
termed as Mutual Legal Assistance by any interpretation nor can the documents
thus obtained be vested with any sanctity in terms of Section 21(g) of the
National Accountability Bureau Ordinance, 1999. He next contended that no
weight could be given to the finding of the JIT when it is not supported by any
authentic document. An investigation of this type, the learned Sr. ASC added,
which is a farce and a breach of due process cannot form basis of any adverse
verdict against respondent No. 1. The learned Sr. ASC to support his contention
placed reliance on the cases of Khalid Aziz. Vs. The State (2011 SCMR 136)
and Muhammad Arshad and others. Vs. The State and others (PLD 2011 SC 350).
5. Learned ASC appearing on behalf of respondents
No. 6, 7, 8 and 9 contended that Avenfield apartments are owned and possessed
by respondent No. 7, and that the trail of money and the way it has culminated
in the acquisition of the Avenfield apartments stand explained by Qatri
letters;
that respondent No. 6 besides being a trustee of
the apartments at some stage of time has not been their beneficial owner,
therefore, the correspondence between Errol George, Director FIA and Mossack
Fonseca & Co. (B.V.I.) Limited or the certified copies thereof obtained
through an MLA request cannot be relied upon unless proved in accordance with
law and that the JIT report and the material collected by it during the course
of investigation per se cannot form basis of a judgment in a proceeding under
Article 184(3) of the Constitution of the Islamic Republic of Pakistan.
6. Learned ASC appearing on behalf of respondent
No. 10 contended that assets of respondent No. 10 have been audited and
examined from time to time but no irregularity was ever found in any of them;
that the respondent has accounted for whatever assets he owns, possesses or has
acquired; that his assets were also subject matter of Reference No. 5 of 2000
which was quashed in the case of Hudabiya Paper Mills Limited. Vs.
Federation of
that the respondent cannot be impaled on the same
charge by imputing a wrongdoing without any tangible evidence; that failure on
the part of the FBR to provide the relevant record cannot be construed to the
detriment of the respondent when it has been with the NAB Authorities
throughout and that with this background in view, it would be rather unjust to
thrust the respondent in another treadmill of tiresome trial before the
Accountability Court.
7. We have carefully gone through the record, the
report submitted by the JIT and considered the submissions of the learned ASCs,
Sr. ASC of the parties as well as the learned Additional Attorney General for
8. We have already dealt with the background of
the case and detailed submissions of the learned ASCs for the parties in paras
1 to 12 of the majority judgment authored by one of us (Ejaz Afzal Khan, J) and
notes written by my learned brothers Mr. Justice Sh. Azmat Saeed and Mr.
Justice Ijaz ul Ahsan. What necessitated the constitution of JIT has been
highlighted in para 19 of the judgment which reads as under:-
“19. Yes, the officers at the peak of NAB and FIA
may not cast their prying eyes on the misdeeds and lay their arresting hands on
the shoulders of the elites on account of their being amenable to the influence
of the latter or because of their being beholden to the persons calling the
shots in the matters of their appointment posting and transfer. But it does not
mean that this Court should exercise a jurisdiction not conferred on it and act
in derogation of the provisions of the Constitution and the law regulating
trichotomy of power and conferment of jurisdiction on the courts of law. Any
deviation from the recognized course would be a recipe for chaos. Having seen a
deviation of such type, tomorrow, an Accountability Court could exercise
jurisdiction under Article 184(3) of the Constitution and a trigger happy
investigation officer while investigating the case could do away with the life
of an accused if convinced that the latter is guilty of a heinous crime and
that his trial in the Court of competent jurisdiction might result in delay or
denial of justice. Courts of law decide the cases on the basis of the facts
admitted or established on the record. Surmises and speculations have no place
in the administration of justice. Any departure from such course, however
well-intentioned it may be, would be a precursor of doom and disaster for the
society. It as such would not be a solution to the problem nor would it be a
step forward.
It would indeed be a giant stride nay a long leap
backward. The solution lies not in bypassing but in activating the institutions
by having recourse to Article 190 of the Constitution. Political excitement,
political adventure or even popular sentiments real or contrived may drive any
or many to an aberrant course but we have to go by the Law and the Book. Let us
stay and Act within the parameters of the Constitution and the Law as they
stand till the time they are changed or altered through an amendment therein.”
9. A careful examination of the material so far
collected reveals that a prima facie triable case under Section 9, 10 and 15 of
the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the
following assets:-
“(i) Flagship Investments Limited.
(ii) Hartstone Properties Limited;
(iii) Que Holdings Limited;
(iv) Quint Eaton Place 2 Limited;
(v) Quint Saloane Limited (formerly Quint Eaton
Place Limited).
(vi) Quaint Limited;
(vii) Flagship Securities Limited;
(viii) Quint Gloucester Place Limited;
(ix) Quint Paddington Limited (formerly Rivates
Estates Limited);
(x) Flagship Developments Limited;
(xi) Alanna Services Limited (BVI);
(xii) Lankin SA (BVI);
(xiii) Chadron Inc;
(xiv) Ansbacher Inc;
(xv) Coomber Inc; and
(xvi) Capital FZE (
So is the case against respondent No. 10
vis-à-vis 91 times increase (from Rs.9.11 million to 831.70 million) in his
assets within a short span of time. What to do in the circumstances has already
been dealt with in the majority judgment in the words as follows:-
“Any liability arising out of these Sections has
its own trappings. Any allegation leveled against a holder of public office
under these provisions of law requires an investigation and collection of
evidence showing that he or any of his dependents or benamidars owns, possesses
or has acquired assets etc disproportionate to his known means of income. Such
investigation is followed by a full-fledged trial before an
We must draw a line of distinction between the
scope of jurisdiction of this Court under Article 184(3) of the Constitution
and that of the Accountability Court under the Ordinance and between the
disqualifications envisioned by Articles 62 and 63 of the Constitution and
Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9,
10 and 15 of the Ordinance lest we condemn any member of Parliament on
assumptions by defying the requirements of a fair trial and due process. We
cannot make a hotchpotch of the Constitution and the law by reading Sections 9
and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99
of the Act and pass a judgment in a proceeding under Article 184(3) of the
Constitution which could well be passed by an Accountability Court after a
fullfledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft
them onto Article 63 of the Constitution, construe them disqualifications and
proceed to declare that the member of Parliament so proceeded against is not
honest and ameen and as such is liable to be disqualified. A verdict of this
nature would not only be unjust but coram non judice for want of jurisdiction
and lawful authority. If a person is sought to be proceeded against under
Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode,
mechanism and machinery provided thereunder. Let the law, the Investigation
Agency and the
10. The same theme was reiterated by my learned
brother Mr. Justice Sh. Azmat Saeed by holding as under:-
“22. It is evident from a bare reading of the
aforesaid provisions that the prosecution must establish that a person or his
spouse or dependent or benamidar owns or possesses a property. If the aforesaid
allegation is proved then the accused must give an explanation as to the source
of legal funds for acquiring such property and upon his failure to do so, he
becomes liable for punishment under the aforesaid law. Such punishment not only
includes fine and imprisonment but also disqualification from holding a public
Office, including that of Member of the Majlis-e-Shoora for a period of 10
years under Section 15 of the NAB Ordinance, 1999. Reference, in this behalf,
can be made to the judgments, reported as (1) Iqbal Ahmed Turabi and others v.
The State (PLD 2004 SC 830), (2) Ghani-ur-Rehman v. National Accountability
Bureau and others (PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The
State and others (PLD 2013 SC 594), (4) The State through Prosecutor General
Accountability, National Accountability Bureau,
23. In none of the aforesaid cases was any person
convicted without a definitive finding that the assets were in fact owned or possessed
by the accused, his spouse, his dependents or benamidars.
And thereafter, the accused had failed to account
for the source of funds for acquiring the said property and if the explanation
was found unsatisfactory, conviction followed.”
11. Almost the same view was expressed by my
learned brother Mr. Justice Ijaz ul Ahsan in the words which reads as under:-
“58. Where there is an allegation that a holder
of public office or any of his dependents or benamidars owns or possesses any
assets or pecuniary resources which are disproportionate to his known sources of
income which he cannot reasonably account for he can be convicted of an offence
of corruption and corrupt practices and upon such conviction, penal
consequences would follow. However, such conviction can only be recorded by an
Adopting any other mode would set a bad precedent
and amount to a constitutional Court following an unconstitutional course.
This, we are not willing to do, in the interest of upholding the rule of law
and our unflinching and firm belief in adherence and fidelity to the letter and
spirit of the Constitution.”
12. The argument that the JIT overstepped its
authority by reopening the case of Hudabiya Paper Mills when Reference No. 5
was quashed by the High Court does not appear to be correct as the JIT has
simply made recommendations in this behalf which can better be dealt with by
this Court if and when an appeal, before this Court, as has been undertaken by
Special Prosecutor NAB, is filed and a view to the contrary is taken by this
Court.
13. The next question emerging for the
consideration of this Court is whether respondent No. 1 as a Chairman of the
Board of Capital FZE is entitled to salaries and whether the salaries if not
withdrawn being receivable as such constitute assets which require disclosure
in terms of Section 12(2) of the Representation of the People Act, 1976 and
whether his failure to disclose them would entail his disqualification? The
word asset has not been defined in the Representation of the People Act, 1976,
(“ROPA”), therefore, its ordinary meaning has to be considered for the purposes
of this case. The word asset as defined in Black’s Law Dictionary means and
contemplates “an asset can be (i) something physical such as cash,
machinery, inventory, land and building (ii) an enforceable claim against
others such as accounts receivable (iii) rights such as copyright, patent
trademark etc (iv) an assumption such as goodwill”. The definition of the
word receivable as used in the above mentioned definition as given in the
Black’s Law Dictionary is also relevant which means and contemplates “any
collectible whether or not it is currently due. That which is due and owing a
person or company. In book keeping, the name of an account which reflects a
debt due. Accounts receivable a claim against a debtor usually arising from
sales or services rendered”. The word ‘receivable’ also has similar ring
and connotation according to Business Dictionary which reads as under:-
“Accounting term for amount due from a customer,
employee, supplier (as a rebate or refund) or any other party. Receivables are
classified as accounts receivable, notes receivable etc and represent an asset
of the firm”.
The definitions reproduced above leave no doubt
that a salary not withdrawn would nevertheless be receivable and as such would
constitute an asset for all legal and practical purposes. When it is an asset
for all legal and practical purposes, it was required to be disclosed by
respondent No. 1 in his nomination papers in terms of Section 12(2) of the
ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the
said respondent has ever acquired work permit (Iqama) in
“So far as the designation of Respondent No. 1 as
Chairman of the Board is concerned, this was only a ceremonial office acquired
in 2007 when the respondent No. 1 was in exile, and had nothing to do with the
running of the Company or supervising its affairs. Similarly, the respondent
No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the
Employment Contract in effect never constituted an “asset” for the respondent
No. 1.”
It has not been denied that respondent No. 1
being Chairman of the Board of Capital FZE was entitled to salary, therefore,
the statement that he did not withdraw the salary would not prevent the
un-withdrawn salary from being receivable, hence an asset. When the
un-withdrawn salary as being receivable is an asset it was required to be
disclosed by respondent No. 1 in his nomination papers for the Elections of
2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not
disclose his aforesaid assets, it would amount to furnishing a false
declaration on solemn affirmation in violation of the law mentioned above,
therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and
Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.
14. As a sequel to what has been discussed in
paragraphs 7 to 11 the following directions are made:-
i) The National Accountability Bureau (NAB) shall
within six weeks from the date of this judgment prepare and file before the
Accountability Court, Rawalpindi/Islamabad, the following References, on the basis
of the material collected and referred to by the Joint Investigating Team (JIT)
in its report and such other material as may be available with the Federal
Investigating Agency (FIA) and NAB having any nexus with the assets or which
may subsequently become available including material that may come before it
pursuant to the Mutual
Legal Assistance requests sent by the JIT to
different jurisdictions:-
a) Reference against Mian Muhammad Nawaz Sharif
(Respondent No. 1), Maryam Nawaz Sharif (Maryam Safdar) (Respondent No. 6),
Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8)
and Capt. (Retd) Muhammad Safdar (Respondent No. 9) relating to the Avenfield
properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London,
United Kingdom). In preparing and filing this Reference, the NAB shall also
consider the material already collected during the course of investigations conducted
earlier.
b) Reference against respondents No. 1, 7 and 8
regarding Azizia Steel Company and Hill Metal Establishment, as indicated
above;
c) Reference against respondents No. 1, 7 and 8
regarding the Companies mentioned in paragraph 9 above;
d) Reference against respondent No. 10 for possessing
assets and funds beyond his known sources of income, as discussed in paragraph
9 above;
e) NAB shall also include in the proceedings all other
persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani
and Saeed Ahmed, who have any direct or indirect nexus or connection with the
actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets
and funds beyond their known sources of income;
f) NAB may file supplementary Reference(s) if and
when any other asset, which is not prima facie reasonably accounted for, is
discovered;
g) The
h) In case the
15. As a sequel to what has been discussed in
paragraphs 13 above, the following declaration and direction is issued:-
i) It is hereby declared that having failed to
disclose his un-withdrawn receivables constituting assets from Capital FZE,
Jebel Ali, UAE in his nomination papers filed for the General Elections held in
2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976
(ROPA), and having furnished a false declaration under solemn affirmation
respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section
99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic
of Pakistan, 1973, therefore, he is disqualified to be a Member of the
Majlis-e-Shoora (Parliament);
ii) The Election Commission of Pakistan shall
issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif
from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter
he shall cease to be the Prime Minister of Pakistan; and
iii) The President of the Islamic Republic of
Pakistan is required to take all necessary steps under the Constitution to
ensure continuation of the democratic process.
16. The Hon’ble Chief Justice of
17. This Court commends and appreciates the hard
work and efforts made by Members of the JIT and their support and ancillary
staff in preparing and filing a comprehensive and detailed Report as per our
orders. Their tenure of service shall be safeguarded and protected and no
adverse action of any nature including transfer and posting shall be taken
against them without informing the monitoring Judge of this Court nominated by
the Hon’ble Chief Justice of Pakistan.
18. We also record our appreciation for the
valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Khawaja Harris
Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq
Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali,
Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney-General for
Pakistan and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their
respective teams.
19. These petitions are thus disposed of in the
terms mentioned above.
JUDGE
JUDGE
JUDGE
Announced on 28.07.2017 at
JUDGE
JUDGE
JUDGE
‘Approved For Reporting’
M. Azhar Malik
Const. Ps. No. 29-30/2016 & 03/2017.
19
IN THE SUPREME COURT OF
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE GULZAR AHMED
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN
C. M. A. NO. 4978 OF 2017 IN CONSTITUTION
PETITION NO. 29 OF 2016 ETC.
(Report by JIT).
AND
C. M. A. NO. 2939 OF 2017 IN CONSTITUTION
PETITION NO. 29 OF 2016 ETC.
Imran Ahmed Khan and others. …Applicant(s)
Versus
Mian Muhammad Nawaz Sharif,
Prime Minister of
AND
CONSTITUTION PETITION NO. 29 OF 2016.
(Under Article 184 of the Constitution)
Imran Ahmed Khan Niazi. …Petitioner(s)
Versus
Mian Muhammad Nawaz Sharif,
Prime Minister of
AND
CONSTITUTION PETITION NO. 30 OF 2016.
(Under Article 184 of the Constitution)
Sheikh Rasheed Ahmed. …Petitioner(s)
Versus
Federation of
AND
CONSTITUTION PETITION NO. 03 OF 2017.
(Under Article 184 of the Constitution)
Siraj-ul-Haq,
Versus
Federation of
………………
Const. Ps. No. 29-30/2016 & 03/2017.
20
IN ATTENDANCE.
(in Const. P. 29/2016).
For the petitioner(s): Syed Naeem Bokhari, ASC
Mr. Sikandar Bashir Mohmand, ASC
Mr. Fawad Hussain
Mr. Faisal Fareed Hussain, ASC.
Ch. Akhtar Ali, AOR.
Assisted by :
Barrister Maleeka Bokhari.
Shahid Naseem Gondal, Adv.
Kashif Nawaz Siddiqui, Adv.
M. Imad Khan, Adv.
For respdt. No. 1: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
For respdt. No. 2: Mr. Akbar Tarar, APGA.
Mr. Arshad Qayyum, Spl. Prosecutor.
Ch. M. Fariid-ul-Hassan, Spl. Prosecutor.
Mr. Imran-ul-Haq, Spl. Prosecutor.
Mr. Ajmal Aziz, Spl. Prosecutor.
For respdts. 3 to 5 : Mr. M. Waqar Rana, Addl. A.
G. Mr. M. S. Khattak, AOR.
Assisted by :
Barrister Asad Rahim Khan.
For respdts. 6 to 9: Mr. Salman Akram Raja, ASC.
Syed Rifaqat Hussain Shah, AOR.
Assisted by :
Asad Ladha, Adv.
Ghulam Sabir Malik, Adv.
Usman Ali Bhoon, Adv.
M. Shakeel Mughal, Adv.
Aftab Zafar, Adv.
For respdt. No. 10: Dr. Tariq Hassan, ASC.
Syed Rifaqat Hussain Shah, AOR.
Const. P. 30 of 2016.
For the petitioner(s): Sheikh Rasheed Ahmed, (in
person)
For the respdts. 1 & 3: Mr. M. Waqar Rana,
Addl. A. G.
Mr. M. S. Khattak, AOR.
Assisted by :
Barrister Asad Rahim Khan.
For respdt. No. 2 : Mr. Akbar Tarar, APGA.
Mr. Arshad Qayyum, Spl. Prosecutor.
Ch. M. Fariid-ul-Hassan, Spl. Prosecutor.
Mr. Imran-ul-Haq, Spl. Prosecutor.
Mr. Ajmal Aziz, Spl. Prosecutor.
For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
Const. P. No. 03 of 2017.
For the petitioner(s): Mr. Taufiq Asif, ASC.
Assisted by :
Atif Ali Khan, ASC.
Ajmal Ghaffar Toor, Adv.
Saifullah Gondal, Adv.
Sher Hamad Khan, Adv.
For respdts. 1 to 3: Mr. M. Waqar Rana, Addl. A.
G.
Mr. M. S. Khattak, AOR.
Assisted by :
Barrister Asad Rahim Khan.
For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC.
Assisted by:
M. Amjad Pervaiz, ASC
Saad Hashmi, Adv.
Adnan Khawaja, Adv.
Date of Hearing: 17th to 21st July,
2017.
(Judgment Reserved).
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
Const. Ps. No. 29-30/2016 & 03/2017.
22
FINAL ORDER OF THE COURT
The National Accountability Bureau (NAB) shall
within six weeks from the date of this judgment prepare and file before the
Accountability Court, Rawalpindi/Islamabad, the following References, on the
basis of the material collected and referred to by the Joint Investigating Team
(JIT) in its report and such other material as may be available with the
Federal Investigation Agency (FIA) and NAB having any nexus with assets
mentioned below or which may subsequently become available including material
that may come before it pursuant to the Mutual Legal Assistance requests sent
by the JIT to different jurisdictions:-
a) Reference against Mian Muhammad Nawaz Sharif, (respondents
No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif
(Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd).
Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats
No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom).
In preparing and filing this Reference, the NAB shall also consider the
material already collected during the course of investigations conducted
earlier, as indicated in the detailed judgments;
b) Reference against respondents No. 1, 7 and 8 regarding
Azizia Steel Company and Hill Metal Establishment, as indicated in the main
judgment;
c) Reference against respondents No. 1, 7 and 8 regarding
the Companies mentioned in paragraph 9 of the judgment unanimously rendered by
Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz
ul Ahsan;
d) Reference against respondent No. 10 for possessing
assets and funds beyond his known sources of income, as discussed in paragraph
9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr.
Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;
e) NAB shall also include in the proceedings all other
persons including Sheikh Saeed, Musa Ghani,
Kashif Masood Qazi, Javaid Kiyani and Saeed
Ahmed, who have any direct or indirect nexus or connection with the actions of
respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds
beyond their known sources of income;
f) NAB may file supplementary Reference(s) if and
when any other asset, which is not prima facie reasonably accounted for, is
discovered;
g) The
h) In case the
2. It is hereby declared that having failed to
disclose his un-withdrawn receivables constituting assets from Capital FZE
Jebel Ali, UAE in his nomination papers filed for the General Elections held in
2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976
(ROPA), and having furnished a false declaration under solemn affirmation
respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section
99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of
Pakistan, 1973 and therefore he is disqualified to be a Member of the
Majlis-e-Shoora (Parliament).
3. The Election Commission of
4. The President of the Islamic Republic of
Pakistan is required to take all necessary steps under the Constitution to
ensure continuation of the democratic process.
5. The Hon’ble Chief Justice of
6. This Court commends and appreciates the hard
work and efforts made by Members of the JIT and their support and ancillary
staff in preparing and filing a comprehensive and detailed Report as per our orders.
Their tenure of service shall be safeguarded and protected and no adverse
action of any nature including transfer and posting shall be taken against them
without informing the monitoring Judge of this Court nominated by the Hon’ble
Chief Justice of Pakistan.
7. We also record our appreciation for the
valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali
Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman
Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC;
Sheikh Rasheed Ahmed, petitioner in person, Mr.
Ashtar Ausaf Ali, Attorney-General for
8. These petitions are thus disposed of in the
terms mentioned above.
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Announced on 28.07.2017 at
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
‘Approved
for Reporting’
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