Updated: Sunday April 23, 2017/AlAhad
Rajab 27, 1438/Ravivara
Vaisakha 03, 1939, at 07:05:40 PM
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
Constitution Petition No. 29 of 2016
(
Imran Ahmad Khan Niazi Petitioner
versus
Mian Muhammad Nawaz Sharif, Prime
Minister of Pakistan / Member National Assembly, Prime Minister’s House,
Islamabad and nine others Respondents
|
For the petitioner: |
Syed Naeem Bokhari, ASC Mr. Sikandar Bashir Mohmad, ASC Mr. Fawad Hussain Mr. Faisal Fareed Hussain, ASC Ch. Akhtar Ali, AOR with the petitioner in person Assisted by: Mr. Yousaf Anjum, Advocate Mr. Kashif Siddiqui, Advocate Mr. Imad Khan, Advocate Mr. Akbar Hussain, Advocate Barrister Maleeka Bokhari, Advocate Ms. Iman Shahid, Advocate, |
|
For respondent No. 1: |
Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate |
|
For the National Accountability Bureau (respondent No. 2): |
Mr. Qamar Zaman Chaudhry, Chairman, National Accountability Bureau in person Mr. Waqas Qadeer Dar, Prosecutor-General Accountability Mr. Arshad Qayyum, Special Prosecutor Accountability Syed Ali Imran, Special Prosecutor Accountability Mr.
Farid-ul-Hasan |
|
For the Federation of (respondents No. 3 & 4): |
Mr. Ashtar Ausaf Ali, Attorney-General for Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate |
|
For the Federal Board of Revenue (respondent No. 5): |
Dr. Muhammad Irshad, Chairman, Federal Board of Revenue in person Mr. Muhammad Waqar Rana, ASC Mr. M. S. Khattak, AOR Kh. Tanvir Ahmed, Director-General (Intelligence) Mr. Shaukat Ali, Director-General Hafiz Muhammad Ali Indhar, Director (Legal) Dr. Muhammad Iqbal Khawaja, Member, Federal Board of Revenue |
|
For respondents No. 6, 9 & 10: |
Mr. Shahid Hamid, Sr. ASC Ms. Ayesha Hamid, ASC Syed Rifaqat Hussain Shah, AOR |
|
For respondents No. 7 & 8: |
Mr. Salman Akram Raja, ASC Syed Rifaqat Hussain Shah, AOR Assisted by: Malik Ahsan Mahmood, Advocate Malik Ghulam Sabir, Advocate Mr. Nadeem Shahzad Hashmi, Advocate Mr. Asad Ladha, Advocate Mr. Zeshaan Hashmi, Advocate Ms. Atira Ikram, Advocate Mr. Tariq Bashir, Advocate Mr. Muhammad Shakeel Mughal, Advocate |
Constitution Petition No. 30 of 2016
(
Sheikh Rasheed Ahmed
Petitioner
versus
Federation of
|
For the petitioner: |
In person |
|
For the Federation of (respondent No. 1): |
Mr. Ashtar Ausaf Ali, Attorney-General for Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate |
|
For the National Accountability Bureau (respondent No. 2): |
Mr. Qamar Zaman Chaudhry, Chairman, National Accountability Bureau in person Mr. Waqas Qadeer Dar, Prosecutor-General Accountability Mr. Arshad Qayyum, Special Prosecutor Accountability Syed Ali Imran, Special Prosecutor Accountability Mr.
Farid-ul-Hasan |
|
For the Federal Board of Revenue (respondent No. 3): |
Dr. Muhammad Irshad, Chairman, Federal Board of Revenue in person Mr. Muhammad Waqar Rana, ASC Mr. M. S. Khattak, AOR Kh. Tanvir Ahmed, Director-General (Intelligence) Mr. Shaukat Ali, Director General Hafiz Muhammad Ali Indhar, Director (Legal) Dr. Muhammad Iqbal Khawaja, Member, Federal Board of Revenue |
|
For respondent No. 4: |
Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate |
Constitution Petition No. 03 of 2017
(
Siraj-ul-Haq,
versus
Federation of
|
For the petitioner: |
Mr. Taufiq Asif, ASC Sh. Ahsan-ud-Din, ASC Mr. Atif Ali Khan, ASC Mr. Mehmood A. Sheikh, AOR with the petitioner in person. Assisted by: Mr. Khan Afzal Khan, ASC Mr. Ajmal Ghaffar Toor, Advocate Mr. Saif Ullah Gondal, Advocate Mr. Sher Hamid Khan, Advocate Mr. Imran Shafiq, Advocate Mr. Asad Ullah Bhutto, Advocate |
|
For the Federation of (respondents No. 1 to 3): |
Mr. Ashtar Ausaf Ali, Attorney-General for Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate |
|
For respondent No. 4: |
Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate |
Dates of hearing: 04.01.2017, 05.01.2017, 06.01.2017, 09.01.2017, 10.01.2017, 11.01.2017, 12.01.2017, 13.01.2017, 16.01.2017, 17.01.2017, 18.01.2017, 19.01.2017, 20.01.2017, 23.01.2017, 24.01.2017, 25.01.2017, 26.01.2017, 27.01.2017, 30.01.2017, 31.01.2017, 01.02.2017, 15.02.2017, 16.02.2017, 21.02.2017, 22.02.2017 & 23.02.2017.
JUDGMENT
The popular 1969 novel ‘The Godfather’ by
Mario Puzo recounted the violent tale of a Mafia family and the epigraph
selected by the author was fascinating:
Behind every great fortune there is a crime.
— Balzac
The
novel was a popular sensation which was made into an acclaimed film.
It is believed
that this epigraph was inspired by a sentence that was written by Honoré de
Balzac and its original version in French reads as follows:
Le secret des grandes fortunes sans cause
apparente est un crime oublié, parce qu’il a été proprement fait.
(The secret of a
great success for which you are at a loss to account is a crime that has never
been found out, because it was properly executed)
It is ironical and a sheer coincidence that the
present case revolves around that very sentence attributed to Balzac as through
Constitution Petition No. 29 of 2016 it has been alleged by the petitioner
namely Imran Ahmad Khan Niazi, Chairman of a political party named Tehreek-e-Insaf,
that while holding high public offices in the State of Pakistan over a
stretched period of time respondent No. 1 namely Mian Muhammad Nawaz Sharif,
the incumbent Prime Minister of Pakistan, and through him his immediate family
has amassed huge wealth and assets which have been acquired through means which
were illegal and unfair, practices which were unlawful and corrupt and exercise
of public authority which was misused and abused. Through Constitution Petition
No. 30 of 2016 Sheikh Rasheed Ahmed petitioner, Chairman of a political party
named Awami Muslim League, and through Constitution Petition No. 3 of 2017
Siraj-ul-Haq petitioner, Ameer of another political party named
Jamaat-e-Islami, have also agitated the same issue. All the above mentioned
petitioners have inter alia prayed that it may be declared by this Court
that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is
respondent No. 4 in the other two petitions) is not “honest” and “ameen” within
the purview of Article 62(1)(f) of the Constitution of the Islamic Republic of
Pakistan, 1973 and, thus, he is disqualified from being a member of the
Majlis-e-Shoora (Parliament). Some other reliefs have also been prayed for by
the petitioners and the same shall also be dealt with by me at appropriate
stages of the present judgment. For facility of reference Mian Muhammad Nawaz
Sharif shall be referred to in this judgment as respondent No. 1, his daughter namely Mariam Safdar shall be referred to as
respondent No. 6, his son-in-law namely Captain (Retired) Muhammad Safdar shall
be referred to as respondent No. 9, his sons namely Mr. Hussain Nawaz
Sharif and Mr. Hassan Nawaz Sharif shall be referred to as respondents No. 7
and 8 respectively and his Samdhi (father-in-law of one of his
daughters) namely Mr. Muhammad Ishaq Dar shall be referred to as respondent No.
10 as arrayed in Constitution Petition No. 29 of 2016. We have been informed by
the learned counsel for respondent No. 1 that the said respondent has so far
held the following high public offices:
Minister for Finance, Excise and Taxation, Government of the
(from April 25, 1981 to February 28, 1985)
Chief Minister, Government of the
(from April 09, 1985 to May 30, 1988)
Caretaker Chief Minister, Government of the
(from May 31, 1988 to December 02, 1988)
Chief Minister, Government of the
(from December 02, 1988 to August 06, 1990)
Prime Minister of
(from November 06, 1990 to April 18, 1993)
Prime Minister of
(from May 26, 1993 to July 18, 1993)
Leader of the Opposition in the National Assembly
(from October 19, 1993 to November 05, 1996)
Prime Minister of
(from February 17, 1997 to October 12, 1999)
Prime Minister of
(from June 05, 2013 till date)
A younger
brother of respondent No. 1 namely Mian Muhammad Shahbaz Sharif has also served
in the past as Chief Minister, Government of the
2. In
the last two and a half decades there had been a constant murmur nationally as
well internationally about respondent No. 1 indulging in corruption, corrupt
practices and money laundering, etc. with the active assistance and involvement
of respondent No. 10 and some specified properties in London, United Kingdom
had been identified as having been acquired by respondent No. 1 through
ill-gotten or laundered money. In that regard the British Broadcasting
Corporation (BBC) had come out with a documentary, the British newspaper
Guardian had published a story about it, Mr. Raymond W. Baker had mentioned
some specific details about it in his book ‘Capitalism’s Achilles Heel’
(published in 2005 by John Wiley & Sons, Inc., Hoboken, New Jersey) and
some prosecutions had been launched against respondents No. 1 and 10 and others
locally by the Federal Investigation Agency and the National Accountability
Bureau. However, this time it all started ominously on April 03, 2016 when the
International Consortium of Investigative Journalists (ICIJ) released some
information leaked from the internal database of a law firm named Mossack
Fonseca based in
3. At
the commencement of regular hearing of these petitions it had been decided by
this Court with concurrence of the learned counsel for all the parties that it
might not be possible for this Court to take stock of the entire gamut of the
business activities and personal lives of respondent No. 1 and his family
within the limited scope of these petitions and, therefore, these petitions
would be decided by focusing mainly, but not exclusively, on the properties
relevant to respondent No. 1 and his children which were revealed through the
Panama Papers. The details of the said properties are as follows:
(i)
Property No. 17,
Avenfield House,
(owned by a
(ii) Property No. 16, Avenfield House,
(owned by a
(iii) Property No. 16a, Avenfield House,
(owned by a
(iv) Property No. 17a, Avenfield House,
(owned by a
It may be pertinent to mention here that during the
course of hearing of these petitions it has come to light that there have been
and are many other properties and businesses owned by respondent No. 1’s
immediate family not only in Pakistan but also in many other countries the
value of which statedly runs into billions of Rupees or US Dollars. The net
worth of just the above mentioned four properties, situated in one of the most
expensive areas of London, is stated to be many millions of Pounds Sterling and
they had statedly come into the ownership of only one of the sons of respondent
No. 1 namely Mr. Hussain Nawaz Sharif (respondent No. 7 herein). Another son of
respondent No. 1 namely Mr. Hassan Nawaz Sharif (respondent No. 8 herein)
separately owns many companies and properties worth millions of Pounds Sterling
and a daughter of respondent No. 1 namely Mariam Nawaz Sharif, also known as
Mariam Safdar, (respondent No. 6 herein) also holds some valuable properties in
her own name. None of the children of respondent No. 1 has ever claimed that
the businesses set up or the properties acquired in his/her name had initially
been set up or acquired through any personal earning or resources of his/her
own.
4. Concise
statements/replies to these petitions had been filed by all the contesting
respondents and elaborate arguments had been heard by us from all the sides on
all the relevant issues. During the hearing of these petitions the following
issues inter alia had primarily been debated before us:
(a) What is the scope of the proceedings
before this Court under Article 184(3) of the Constitution and whether disputed
or intricate questions of fact can be decided in such proceedings with or
without recording of evidence?
(b) Whether the above mentioned four
properties in London in particular, statedly acquired in the name of Mr.
Hussain Nawaz Sharif, a son of respondent No. 1, had been acquired by
respondent No. 1 and his family through funds legitimately generated and transferred
and whether acquisition of those assets has duly and properly been explained
and accounted for by respondent No. 1 or his children?
(c) Whether respondent No. 1 and his
children have any decent explanation available for acquiring properties and setting
up various businesses in general in different parts of the world?
(d) Whether respondent No. 1 is not “honest”
or “ameen” as required by Article 62(1)(f) of the Constitution as he has failed
to duly account for his and his immediate family’s wealth and assets and his
various explanations advanced before the nation, the National Assembly and this
Court in that regard have been evasive, contradictory, unproved and untrue
rendering him disqualified from being elected to or from being a member of the Majlis-e-Shoora
(Parliament)?
(e) Whether Mariam Safdar, a daughter of
respondent No. 1, was respondent No. 1’s ‘dependent’ in the year 2013 and in
his nomination papers filed for election to the National Assembly in the
general elections held in that year respondent No. 1 had failed to disclose
such dependency and had, thus, been guilty of suppression of a material fact
for which the necessary legal consequences ought to follow?
(f) Whether respondent No. 1 had been
evading taxes and he had thereby rendered himself disqualified from being
elected to or from being a member of the Majlis-e-Shoora (Parliament)?
(g) Whether some allegations of indulging in
corruption, corrupt practices and money laundering, etc. leveled against
respondent No. 1, respondent No. 10 and some others in the past had unduly been
scuttled through some judicial recourses and what would be the remedies
available for reopening of those allegations and for their prosecution?
In the following paragraphs I intend to deal with
all the above mentioned and other related issues with reference to the
contentions of the learned counsel for the parties and the material made
available on the record.
5. Appearing for Mr. Imran Ahmad Khan
Niazi petitioner in Constitution Petition No. 29 of 2016 Syed Naeem Bokhari,
ASC read out the first speech made by respondent No. 1 namely Mian Muhammad
Nawaz Sharif before the nation on radio and television on April 05, 2016 and
maintained that in that speech respondent No. 1 had neither been honest nor
truthful because in that speech the source of funds for purchase of the
properties in London was stated to be the sale of a factory near Makkah whereas
in his subsequent speech made before the National Assembly on May 16, 2016 he
had introduced a factory in Dubai the sale of which was the initial source of
funds and the factory near Makkah was described as a factory in Jeddah. He
emphasized that in the speech made by respondent No. 1 before the National
Assembly it had categorically been stated that all the record relevant to the
factories in Dubai and Jeddah was available and would be produced before any
forum inquiring into the matter but except for a few documents of sale no such
record had been produced by him before this Court. He highlighted that on that
occasion respondent No. 1 had proclaimed that those were the resources through
which the properties in
6. Mr. Bokhari pointed out from the
documents produced on the record by respondent No. 1 and his children that some
land was obtained on lease in Dubai on March 28, 1974, permission to set up a
factory was granted by the Government of Dubai on April 28, 1974, a rent
agreement in that regard was executed on June 12, 1974, a factory was installed
on that land through funds which were never properly explained, 75% shares of
that factory were sold to the Ahli family through a Tripartite Agreement of
Sale in the year 1978 and then through a Final Share Sale Agreement dated April
14, 1980 the remaining 25% shares of that factory were also sold to the same
family. He maintained that a bare perusal of the Tripartite Agreement of Sale
of 1978 showed that no money became available to the seller on the basis of
that sale as the proceeds of the sale were completely consumed in paying off
debts, dues and liabilities which were much more than the sale proceeds
inasmuch as the seller owed the Bank of Credit and Commerce International a sum
of 27.6 million Dirhams and the outstanding liabilities of the company were to
the tune of about 36 million Dirhams. He pointed out that it was claimed by
respondent No. 1 and his children that an amount of 12 million Dirhams in cash
had become available to the seller as a result of the Final Share Sale
Agreement in the year 1980 but no independent proof had been produced in that
respect. He also pointed out that the Agreement in the year 1980 had been
signed by Mian Muhammad Shahbaz Sharif, a younger brother of respondent No. 1,
as an authorized agent of one Mr. Tariq Shafi, a cousin of respondent No. 1,
who was statedly a Benami owner of
that factory on behalf of respondent No. 1’s father namely Mian Muhammad Sharif
and no independent proof had been brought on the record of this case to
establish that Mian Muhammad Sharif was the actual owner of that factory, Mr.
Tariq Shafi was his Benamidar, Mian
Muhammad Shahbaz Sharif was an authorized agent of Mr. Tariq Shafi or 12
million Dirhams had actually been received in cash by the seller as a result of
that sale. While referring to the signatures of Mr. Tariq Shafi available on
his affidavit sworn on November 12, 2016 it was maintained by Mr. Bokhari that
the signatures of Mr. Tariq Shafi on the Agreement signed in the year 1980 were
fake. Mr. Bokhari emphasized that in his affidavit of November 12, 2016 Mr.
Tariq Shafi had clearly maintained that no money had come into his hands from
the sale of 75% shares of the factory in Dubai in the year 1978 but in the year
1980 a sum of 12 million Dirhams had been received by him in cash through the
sale of the remaining 25% shares of the factory in the year 1980. Thus, Mr.
Bokhari maintained that respondent No. 1 was not being truthful when he had
stated before the National Assembly on May 16, 2016 that the sale of the
factory in
7. Mr. Bokhari forcefully argued that
respondent No. 1 had never mentioned any investment by the family in the real
estate business in Qatar in his speeches made before the nation or in the
National Assembly and he had also failed to make any mention of the same in his
concise statements filed before this Court whereas respondent No. 1’s children
had based their entire case upon the resources generated through the family’s
investment made in the real estate business in Qatar. According to Mr. Bokhari
the contradictions between respondent No. 1 and his children in this regard
were irreconcilable because according to respondent No. 1 the resources
becoming available through sale of the factory in Dubai were used for setting
up a factory in Jeddah whereas his children had maintained that the resources
becoming available from the sale of the factory in Dubai were utilized for
investment in the real estate business in Qatar and thereafter the properties
in London had been acquired on the basis of a settlement of the business in
Qatar! Referring to a statement of one Mr. Hamad Bin Jassim Bin Jaber Al-Thani
of
8. Mr. Bokhari brought the statement of Mr.
Hamad Bin Jassim Bin Jabir Al-Thani of Qatar dated November 05, 2016 (to be
reproduced and discussed in the later part of this judgment) under scathing
criticism and maintained that the said statement did not even qualify to be
called evidence. According to him the contents of paragraph No. 1 of that
statement were not based upon personal knowledge of the maker of the statement;
the contents of paragraph No. 2 of that statements were based upon nothing but
hearsay; it was not disclosed in that paragraph as to who had disclosed the
facts stated therein to the maker of the statement; it was not revealed in that
paragraph as to who had disclosed the desire of late Mian Muhammad Sharif to
the maker of the statement; it was not disclosed in paragraph No. 3 of that
statement as to how and on what basis the maker of the statement had understood
what he had claimed to have understood; it was not mentioned in that paragraph
that the money invested by late Mian Muhammad Sharif in the real estate
business in Qatar was the sale proceeds of a factory in Dubai; in paragraph No.
4 of the statement no detail of the real estate business in Qatar was
disclosed; it was claimed in that paragraph that the bearer share certificates
of the properties in London were kept at that time in Qatar but it was not
claimed that the said certificates were in the custody of the Al-Thani family
of Qatar; no detail of the settlement of the real estate business in Qatar, no
detail of payment, no banking channel and no money trail from Qatar to London
was provided in that paragraph of the statement; no detail about use of the
properties in London had been mentioned in the said paragraph; in paragraph No.
5 of that statement it was not disclosed as to when and before whom late Mian
Muhammad Sharif had made his stated wish, what was the proof of that wish and
why all his heirs were kept out of the settlement of his real estate business
in Qatar; in paragraph No. 6 of that statement a settlement between Mr. Hussain
Nawaz Sharif (respondent No. 7) and Al-Thani family of Qatar was mentioned
without any mention of a settlement with the maker of the statement, i.e. Mr. Hamad
Bin Jassim Bin Jabir Al-Thani; and the said statement talked about the
available records in Doha, Qatar but no such record had been mentioned. Mr.
Bokhari stressed that the said statement from
9. Mr. Bokhari then referred to various
interviews given by respondent No. 1, his wife and three children on the issue of
the four properties in
10. Mr. Bokhari then referred to paragraph
No. 113 of the judgment of this Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief
Executive of Pakistan and others (PLD 2000 SC 869) wherein a reference had
been made to a judgment passed by the High Court of Justice, Queen’s Bench
Division, London on March 16, 1999 in the case of Al Towfeek Company v. Hudabiya Paper Mills Limited, etc. followed
by a decree dated November 05, 1999 against Hudabiya Paper Mills Limited, etc.
for about 34 million US Dollars. According to the record Mariam Safdar
(respondent No. 6 herein) and Mr. Hussain Nawaz Sharif (respondent No. 7
herein) were included in the Directors of Hudabiya Paper Mills Limited and Mian
Shahbaz Sharif (a younger brother of respondent No. 1 herein), Mian Muhammad
Sharif (father of respondent No. 1 herein) and Mian Muhammad Abbas Sharif
(another younger brother of respondent No. 1 herein) had beneficial interest
therein. In the year 1999 a caution was placed by the court upon the relevant
four properties in
11. Mr. Bokhari pointed out that respondent
No. 7 namely Mr. Hussain Nawaz Sharif lives in Jeddah, Saudi Arabia since the
year 2000 and till that year he had no income of his own to set up his own
business. Respondent No. 8 namely Mr. Hassan Nawaz Sharif was a student in
12. The next plank of the arguments advanced by Mr. Bokhari was that as a matter of fact respondent No. 6 namely Mariam Safdar, a daughter of respondent No. 1, was the beneficial owner of the relevant offshore companies owning the four properties in London. In this connection he referred to various emails exchanged in June 2012 between the Financial Investigation Agency of the British Virgin Islands, the law firm Mossack Fonseca and Minerva Trust & Corporate Services Limited, the administrator of the two companies, according to which there was no trust attached to the said companies and the beneficial owner of two of the properties in London was respondent No. 6. He also pointed out that in her Personal Information Form submitted before the law firm on October 14, 2011 respondent No. 6 had disclosed her source of wealth as the family’s wealth and business spread over a period of sixty years. He also referred to a document dated December 03, 2005 which established respondent No. 6’s connection with Minerva Financial Services Limited in the year 2005, prior to the claimed acquisition of the relevant properties in London in the year 2006, which document had statedly been signed by respondent No. 6 as the sole shareholder of one of the two offshore companies.
13. Mr. Bokhari also argued that the
documents relied upon by respondents No. 6 and 7 as Trust Deeds establishing
respondent No. 6 as a trustee of respondent No. 7 in respect of the four
properties in
14. It was conceded by Mr. Bokhari that
through these petitions none of the petitioners has sought any declaration or
relief against respondent No. 6 namely Mariam Safdar but he maintained that the
said respondent was, is and remains a dependent of her father, i.e. respondent
No. 1. According to him respondent No. 6 was the actual beneficial owner of the
four properties in London and respondent No. 1 had not disclosed that fact in
his declaration attached with the nomination forms filed for candidature in the
general elections held in the country in the year 2013 which suppression of
fact was sufficient to disqualify him as a Member of the National Assembly. He
pointed out that in his Wealth Statement submitted with the income-tax return
for the year 2011 respondent No. 1 had mentioned the land purchased by him in
the name of respondent No. 6 in Column No. 12 meant for “spouse, minor children
and other dependents” and, thus, he had acknowledged respondent No. 6 as his
dependent. He went on to submit that respondent No. 6 had no independent means
of income, her agricultural income was not sufficient to sustain her on her
own, her traveling expenses were more than her declared income, she paid no
bills and admittedly she was living with father who periodically gave her huge
gifts in cash and kind. He referred to the definition of ‘Dependent’ in Black’s
Law Dictionary and maintained that respondent No. 6 had no independent source
of income. In this connection he referred to the Wealth Statements submitted by
respondent No. 6 showing that in the year 2011 she had received Rs.
3,17,00,000, in the year 2012 she had received Rs. 5,16,24,000 and in the year
2013 she had received Rs. 3,78,68,000 as gifts from respondent No. 1 besides
receiving Rs. 4,23,04,310 as loans and advances from Chaudhry Sugar Mills in
the year 2011 and a loan of Rs. 2,89,33,800 from respondent No. 8 in the year
2012. He also pointed out that the husband of respondent No. 6 had not paid any
tax till the year 2013 and respondent No. 6 had admitted in an interview that
she had no house in
15. Mr. Bokhari further argued that respondent No. 1 had also been guilty of tax evasion. In this regard he submitted that respondent No. 1 had received Rs. 74 crores from his sons between the years 2011 and 2015 as gifts but no tax was paid by him on that amount. He referred to the Wealth Statement submitted by respondent No. 1 for the tax year 2011 in column No. 3(ii) whereof it was mentioned that the said respondent had received a gift of more than Rs. 12 crores from a son and he had gifted about Rs. 5 crores to R6 and R7. According to Mr. Bokhari total gifts received by respondent No. 1 from respondent No. 7 were for Rs. 81 crores. He referred to section 39 of the Income Tax Ordinance 2001 according to which all the loans and gifts received were to be declared but respondent No. 1 had not paid tax on such gifts. Mr. Bokhari questioned the capacity of respondent No. 7 to make such huge gifts to respondent No. 1 and maintained that money was being rotated and laundered money was being made kosher through such gifts. According to Mr. Bokhari nearly Rs. 74 crores had admittedly been received by respondent No. 1 from respondents No. 7 & 8 which was income from other sources but no tax was paid on that amount. He submitted that the Federal Board of Revenue may be directed to recover the tax due and respondent No. 1 may be disqualified under Article 62(1)(f) of the Constitution even on that score.
16. Adverting to respondent No. 10 namely Mr.
Muhammad Ishaq Dar, the incumbent Federal Minister for Finance and a Samdhi of respondent No. 1, Mr. Bokhari
referred to a confessional statement made by him under section 164, Cr.P.C.
before a Magistrate First Class, Lahore on April 25, 2000 wherein he had
confessed to laundering money for the benefit of respondent No. 1 and others
and on the basis of that Reference No. 5 of 2000 had been filed by the National
Accountability Bureau before an Accountability Court against Hudabiya Paper
Mills, three Sharif brothers, respondent No. 10 and others. That Reference was
quashed by a learned Division Bench of the Lahore High Court,
17. With the submissions made above Mr. Bokhari prayed that a declaration may be issued by this Court that respondent No. 1 is not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution and on the basis of such a declaration he may be held to be disqualified from membership of the National Assembly; the closed cases of corruption, corrupt practices and money laundering, etc. against respondents No. 1, 10 and others may be reopened for fresh investigation and prosecution; and the Chairman, National Accountability Bureau and the Chairman, Federal Board of Revenue may be directed to take every step possible under the law to recover the plundered wealth of the nation and to bring the culprits to book.
18. Sheikh Rasheed Ahmed petitioner appearing in person in Constitution Petition No. 30 of 2016 also argued that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is respondent No. 4 in Constitution Petition No. 30 of 2016) is liable to be disqualified from membership of the Majlis-e-Shoora (Parliament) because he is not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution. He maintained that in his Wealth Statement submitted with the income-tax return for the year 2011 respondent No. 1 had mentioned the land purchased by him in the name of his daughter namely Mariam Safdar in Column No. 12 which was meant for “spouse, minor children and other dependents” and, thus, he had acknowledged that the said daughter of his was his dependent but in the same statement in the column relating to family members and dependents respondent No. 1 had not shown her as his dependent which impinged upon his honesty.
19. The statements made by the gentleman from
20. Referring to the judgment and decree passed by the High Court of Justice, Queen’s Bench Division, London in the year 1999 the petitioner submitted that the relevant four properties in London were placed under caution till satisfaction of the decree and as the said decree had later on been satisfied by respondent No. 1’s family, therefore, the connection between respondent No. 1 and ownership of those properties clearly stood established way back in the year 2000.
21. Regarding the Trust Deed dated February 02, 2006 statedly executed between respondents No. 6 and 7 the petitioner pointed out that the document had not been attested by the Pakistani High Commission, it was not notarized and the witness of the document was not identifiable.
22. According to Mr. Sheikh some documents becoming available on the record showed that it was respondent No. 6 namely Mariam Safdar who was the actual beneficial owner of the relevant properties in London.
23. Adverting to the affidavits of Mr. Tariq Shafi brought on the record by the respondents the petitioner pointed out that Mr. Tariq Shafi was only nineteen years of age and admittedly a Benamidar when the factory in Dubai was set up in his name which fitted into a pattern of respondent No. 1’s family putting up a front man for its businesses and assets and the same pattern was also followed in acquisition of the four properties in London.
24. Mr. Sheikh vehemently argued that respondent No. 1 has not been “honest” with the nation, the National Assembly and this Court in the matter of explaining the mode of acquisition and the resources for acquisition of the properties in London and, thus, he has become disqualified from remaining a member of the National Assembly by virtue of the provisions of Article 62(1)(f) of the Constitution. In this regard he referred to the cases of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246), Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad–II and others (2013 SCMR 1271) and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369). He also maintained that the case in hand involves enforcement of the Fundamental Rights guaranteed by Articles 9, 14, 18, 23 and 24 of the Constitution besides attracting Articles 2A and 4 of the Constitution and that the matter is undeniably of great public importance sufficiently attracting the jurisdiction of this Court under Article 184(3) of the Constitution.
25. Mr. Taufiq Asif, ASC appearing for the petitioner in Constitution Petition No. 3 of 2017 argued that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is respondent No. 4 in Constitution Petition No. 3 of 2017) may be disqualified under Article 62(1)(f) of the Constitution because he concealed property, made a false declaration in the nomination papers filed in the general elections held in the year 2013 and evaded wealth-tax and income-tax by failing to disclose his properties in London. Referring to the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) he pointed out that in that case this Court had adverted to different definitions of “Honesty” and had held that the question of honesty could be decided on the basis of evidence or even with reference to “conduct” of a person.
26. Referring to the speech made by
respondent No. 1 in the National Assembly on May 16, 2016 Mr. Asif pointed out
that according to respondent No. 1 Ittefaq Foundries was returned to the family
in the year 1980, it became profitable in the year 1983 and in the year 1985
many more factories had been established by the family without disclosing the
actual funds becoming available. According to the learned counsel no source of
funds for setting up the factory in
27. The learned counsel for the petitioner also referred to the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (PLD 2000 SC 869) wherein the submissions made on behalf of the Federation of Pakistan had been noted and in those submissions the judgment of the High Court of Justice, Queen’s Bench Division, London dated November 05, 1999, placing of caution on the relevant four properties in London and lifting of that caution upon satisfaction of the decree for about 34 million US Dollars had been mentioned. According to the learned counsel for the petitioner no source of funds for satisfaction of that decree had been disclosed by respondent No. 1 and satisfaction of that decree by the said respondent’s family and lifting of caution on the said properties clearly established a direct connection between those properties and the respondent’s family in the year 2000.
28. Mr. Asif further argued that acquisition of the relevant four properties in London had been admitted by respondent No. 1 and his children, possession of those properties had not been denied and it was always maintained by them that the entire record in that respect was available but no such record had been produced before this Court. According to the learned counsel the initial onus of proof on the petitioners, thus, stood discharged and a heavier onus of proof shifted to respondent No. 1 and his children to explain that the said properties had been acquired through legitimate resources and lawful means but they had completely failed to discharge that onus of proof. He maintained that a fact admitted by a party may not be proved and that the onus of proof in such cases shifts to the person who admits ownership or possession of the property in issue. He referred in this regard to the provisions of Articles 30, 53, 114 and 122 of the Qanun-e-Shahadat Order, 1984.
29. The learned counsel for the petitioner went on to argue that the privilege in connection with a speech in the National Assembly contemplated by the provisions of Article 66 of the Constitution is not absolute and in support of that argument he referred to the case of Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823). He also referred to the provisions of Article 5(2) of the Constitution and to the oath of a Member of the National Assembly (Article 65) and of the Prime Minister (Article 91(5)) prescribed by the Constitution according to which he has to conduct himself honestly in all situations. In the context of Article 66 of the Constitution he pointed out that the Order of the Day for the National Assembly on May 16, 2016 did not mention any speech to be made by respondent No. 1 as the Prime Minister and that no such speech was a part of the agenda of the day. He maintained that although the speech made by respondent No. 1 on that day was something said in the proceedings of the National Assembly yet for the purposes of the privilege contemplated by Article 66 of the Constitution the speech of respondent No. 1 had to be relevant to the matter before the National Assembly and he referred to Rule 31 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007. He pointed out Rule 50 of the said Rules dealing with classes of business and Rule 51 according to which a Tuesday is a private members’ day and May 16, 2016 was a Tuesday. According to him the Speaker of the National Assembly ought not to have allowed respondent No. 1 to make a speech in the National Assembly on that day on a matter which was purely personal to him and if such speech was in fact allowed to be made then it was not a part of the proceedings of the National Assembly and, therefore, no privilege under Article 66 of the Constitution could be claimed for such speech. In the context of the privilege under Article 66 of the Constitution he also relied upon the case of Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383) and referred to an article written by Dr. Ken Coghill captioned as “Why Parliamentary Privilege Matters”.
30. Mr. Asif also argued that sanctity is attached to proceedings of the Parliament but by lying before the National Assembly respondent No. 1 had breached that sanctity as well. Regarding sanctity of the Parliament he referred to the cases of Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817) and Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828). He pointed out that in his speech in the National Assembly respondent No. 1 had stated that the entire record pertaining to setting up and sale of the factories in Dubai and Jeddah as well as the record pertaining to acquisition of the four properties in London was available and would be produced before any forum inquiring into the matter but no such record had been produced before this Court. He pointed out that respondent No. 1 had also stated before the National Assembly that no privilege or immunity would be claimed by him but before this Court the privilege under Article 66 of the Constitution had been claimed on his behalf. Referring to the oath of office of the Prime Minister he highlighted that respondent No. 1 had sworn that he would discharge his functions honestly and that he would not allow his personal interest to influence his official conduct but in his speech he had expressly stated that as the matter pertained to his family, therefore, he felt obliged to explain the matter.
31. On the issue of the scope of jurisdiction of this Court under Article 184(3) of the Constitution Mr. Asif referred to the cases of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642). He maintained that in an appropriate case this Court may also record evidence so as to ascertain a fact and in that regard he referred to the case of Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1).
32. Sheikh Ahsan-ud-Din, ASC also briefly
addressed arguments on behalf of the petitioner in Constitution Petition No. 3
of 2017 and maintained that the jurisdiction of this Court under Article 184(3)
of the Constitution is inquisitorial in nature and in an appropriate case this
Court may inquire into a fact itself or may get it inquired into or investigated
through an appropriate commission, body or agency before reaching a conclusion
in the matter. On the issue of respondent No. 6 being a dependent of respondent
No. 1 he referred to different definitions of the word ‘dependent’. With
reference to the jurisprudence developed in respect of the provisions of
section 342, Cr.P.C. he maintained that the speech made by respondent No. 1 in
the National Assembly was substantially untrue and, therefore, the same had to
be treated as false in toto. He lastly argued that the statements of the
gentleman from
33. At the outset Mr. Makhdoom Ali Khan, Sr. ASC appearing for Prime Minister Mian Muhammad Nawaz Sharif, respondent No. 1 in Constitution Petition No. 29 of 2016 and respondent No. 4 in Constitution Petitions No. 30 of 2016 and 3 of 2017, submitted that respondent No. 1’s name did not appear in the Panama Papers in any capacity whatsoever, no allegation was leveled against him therein and, thus, he did not have to answer for anything connected with the said issue. The learned counsel, however, hastened to add that some issues had been raised through the present petitions concerning respondent No. 1’s children and in respect of some speeches made by him and, thus, the said respondent felt obliged to offer some explanations in that regard and to make submissions on some legal aspects relevant to the present petitions.
34. Regarding the speeches made by respondent
No. 1 after leakage of the Panama Papers Mr. Khan maintained that no false
statement had been made by respondent No. 1 in such speeches and the said
speeches did not contain anything which could be termed as a misstatement or a
lie. According to him there could be some omissions in the said speeches which
could be inadvertent or the fora at which those speeches had been made were not
the fora obliging the respondent to make full disclosures. He maintained that
in those speeches only a broad overview of the family’s business and assets had
been presented by the respondent which business was initially set up and
commenced by the respondent’s father in the year 1937, prior to the
respondent’s birth, and his father remained incharge of the expanding business
till his demise in the year 2004. Mr. Khan submitted that in those speeches
respondent No. 1 was not swearing an itemized affidavit or a petition and,
thus, precision or correctness of the things stated in those speeches ought not
to be judged on that standard. He emphasized that respondent No. 1 had no
connection with the factory in
35. Mr. Khan also argued that the bar for disqualification under Article 62(1)(f) of the Constitution is higher than the bar for disqualification under section 99(1)(f) of the Representation of the People Act, 1976 because for the constitutional disqualification a prior declaration by a court of law is required whereas the said requirement is not there for the statutory disqualification. In support of this argument he referred to the cases of Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/O Law Justice and Parliamentary Affairs and others (2013 SCMR 1328), Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad–II and others (2013 SCMR 1271), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Muhammad Khan Junejo v. Fida Hussain Dero and others (PLD 2004 SC 452), Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97), General (R.) Pervez Musharraf v. Election Commission of Pakistan and another (2013 CLC 1461), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670) and Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). Referring to the cases of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) and Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) Mr. Khan maintained that affirmative evidence is required to establish dishonesty for the purposes of electoral disqualification and that the threshold has to be very high for disqualifying a person on the basis of qualifications which are obscure and vague. He also contended that no declaration about honesty can be made without there being a prior adjudication made by a court on the subject and in this regard he relied upon the cases of Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) some persons were declared to be disqualified in exercise of the constitutional jurisdiction on the ground of holding dual nationality in the absence of a prior adjudication in that regard but in those cases the facts were either admitted/undisputed or the same were conveniently ascertainable with minimum inquiry. He also referred to the case of Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246) wherein dual nationality was not disputed and was in fact admitted. He also referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under Article 62 of the Constitution. It was, however, conceded by Mr. Khan that a decision of the Election Commission of Pakistan is not binding upon this Court.
36. Adverting to the speech made by respondent No. 1 in the National Assembly on May 16, 2016 Mr. Khan referred to Article 66(1) of the Constitution which reads as under:
“66. (1) Subject
to the Constitution and to the rules of procedure of Majlis-e-Shoora
(Parliament), there shall be freedom of speech in Majlis-e-Shoora (Parliament)
and no member shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Majlis-e-Shoora (Parliament), and no
person shall be so liable in respect of the publication by or under the
authority of Majlis-e-Shoora (Parliament) of any report, paper, votes or
proceedings.”
He relied upon the universally acknowledged concept of parliamentary privilege recognized by the said provision of the Constitution for maintaining that respondent No. 1 cannot be “liable to any proceedings in any court” on the basis of any statement made by him on the floor of the National Assembly. He pointed out that the said privilege is subject to the Constitution and the only provisions of the Constitution relevant to the issue are those of Articles 68 and 204 placing restriction on discussing conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and commission of contempt of court. For highlighting various aspects of the concept of parliamentary privilege Mr. Khan referred to the cases of Lahore Development Authority through D. G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), Pakistan v. Ahmad Saeed Kirmani and others (PLD 1958 SC (Pak) 397), Regina v. Chaytor (2011 UKSC 52), [2011] 1 A.C. 684, Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383), United States v. Thomas F. Johnson (383 U.S. 169), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670), A v. United Kingdom (35373/97) (2003) 36 E.H.R.R 51, Tej Kiran Jain and others v. M. Sanjiva Reddy and others (AIR 1970 SC 1573), Dr. Suresh Chandra Banerji and others v. Punit Goala (AIR 1951 Calcutta 176), In the matter of Special Reference No. 1 of 1964 (AIR 1965 SC 745), Wason, Ex parte (1868-69) L.R. 4 Q.B. 573 and Richard William Prebble v. Television New Zealand Ltd. (1995) 1 A.C. 321. He also read out parts of some authoritative works and treatises on the subject and also referred to some similar provisions of the Indian Constitution and their interpretations by the courts of that country.
37. Mr. Khan pointed out that through these
petitions allegations have been leveled against respondent No. 1 regarding
evasion of tax on the sale proceeds of the factory in Dubai worth about 9
million US Dollars; regarding late filing of Wealth Statements for the years
2011 and 2012 (which allegation was not pressed during the arguments);
regarding the gifts of Rs. 31,700,000 by respondent No. 1 to respondent No. 6
and of Rs. 19,459,440 by respondent No. 1 to respondent No. 8 being sham and
not disclosed; and in respect of the gifts received by respondent No. 1 from
respondent No. 7 not having been treated as income from other sources.
According to him the said allegations attract the provisions of Article
63(1)(o) of the Constitution and section 99(1A)(t) of the Representation of the
People Act, 1976 but in terms of the facts of the present case the
disqualification mentioned in those provisions is not relevant. He maintained that
the crucial factors for the said disqualification are “default” and “dues” and
it has already been clarified in the cases of National Bank of Pakistan and 117 others v. SAF textile Ltd. and another (PLD 2014 SC 283), Messrs Summit Bank Limited through Manager
v. Qasim & Co. through Muhammad Alam and another (2015 SCMR 1341)
and Agricultural Development Bank of
Pakistan v. Sanaullah and others (PLD 1988 SC 67) that in the absence of any
adjudication there cannot be any dues and, hence, no default can be alleged.
According to him no determination had been made and no finding had been
recorded by any tax authority against respondent No. 1 in respect of any tax
due. He also clarified that respondent No. 1 was neither a Director nor a
shareholder of the factory in
38. On the issue of respondent No. 6
allegedly being a dependent of respondent No. 1 Mr. Khan argued that the
nomination papers filed by respondent No. 1 for election to NA-120 before the
general elections held in the country in the year 2013 had correctly been
filled, no misstatement was made by him in the relevant solemn affirmation
regarding the list of his dependents and the Wealth Statement filed by him for
the year 2011 was quite correct. He explained that in Column No. 12 of the said
Wealth Statement some land purchased by respondent No. 1 in the name of
respondent No. 6 had been shown but actually respondent No. 1 was not his
dependent and a mention to her had been made in Column No. 12 only because in
the relevant form there was no other column for disclosure of the land
purchased. He further clarified that respondent No. 6 had not been mentioned by
respondent No. 1 in Column No. 18 of the same form in respect of dependents. He
also pointed out that later on the income-tax form was amended and a new Column
No. 14 was introduced therein for “Assets in others’ name”. Mr. Khan drew our
attention towards a clarification issued by a reputed firm of chartered
accountants wherein it was asserted and opined that the land purchased by
respondent No. 1 in the name of respondent No. 6 had been shown in Column No.
12 of the relevant form because the said form did not contain any other column
wherein the above mentioned purchase by the father in the name of his daughter
could be shown. According to Mr. Khan showing the relevant purchase by
respondent No. 1, be it in a wrong column, established bona fide of the said respondent and that was surely better than
suppressing the said information. He emphatically maintained that respondent
No. 6 was a married lady having grown up children, she was a part of a joint
family living in different houses situated in the same compound, she
contributed towards some of the expenses incurred, submitted her independent
tax returns, owned sizeable property in her own name, was capable of surviving
on her own and she could not be termed a ‘dependent’ merely because she
periodically received gifts from her father and brothers. He drew our attention
toward a chart showing the details of the agricultural land owned by respondent
No. 6 and referred to the cases of M. A.
Faheemuddin Farhum v. Managing Director/Member (Water) WAPDA, WAPDA
House, Lahore and others (2001 SCMR 1955), In re Ball. Decd. (1947) 1
39. Mr. Khan categorically submitted that respondent No. 1 did not question competence and maintainability of the present petitions filed under Article 184(3) of the Constitution because they involved questions of public importance with reference to many Fundamental Rights conferred by Chapter 1 of Part II of the Constitution but he maintained that the scope of jurisdiction of this Court under Article 184(3) of the Constitution is limited and in exercise of such jurisdiction a person may not be disqualified from membership of the Parliament on the basis of disputed or unverified facts. In support of that submission he relied upon the cases of Khuda Bakhsh v. Mir Zafarullah Khan Jamali (1997 SCMR 561), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279), Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A., Former President of Defunct National Awami Party (PLD 1976 SC 57), Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad (PLD 2006 SC 697), Muhammad Saeed and 4 others v. Election Petitions Tribunal, Mehr Muhammad Arif, Ghulam Haider, West Pakistan Government and others (PLD 1957 SC 91), Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6), Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388), Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) and many other cases. In this context he also maintained that the book by Mr. Raymond W. Baker titled “Capitalism’s Achilles Heel” relied upon by the learned counsel for one of the petitioners was not evidence but was merely an opinion of the author. He also argued that newspaper reports were not sufficient proof of the facts stated therein, as observed in the cases of Messr Balagamwallah Cotton Ginning & Pressing Factory, Karachi v. Lalchand (PLD 1961 Karachi 1), Aftab Shaban Mirani v. President of Pakistan and others (1998 SCMR 1863) and Muhammad Azam v. Khalid Javed Gillani, etc. (1981 SCMR 734). He pointed out that a Writ Petition was already pending before the Lahore High Court, Lahore on the same subject and three petitions were also pending before the Election Commission of Pakistan seeking disqualification of respondent No. 1 on the basis of the same issues and, therefore, this Court ought not to interfere in the matter at such a stage through exercise of its jurisdiction under Article 184(3) of the Constitution.
40. Mr. Shahid Hamid, Sr. ASC represented respondent No. 6 namely Mariam Safdar (daughter of respondent No. 1), respondent No. 9 namely Captain (Retd.) Muhammad Safdar (husband of respondent No. 6 and son-in-law of respondent No. 1) and respondent No. 10 namely Mr. Muhammad Ishaq Dar (a Samdhi of respondent No. 1 and the incumbent Finance Minister of Pakistan) before us and at the outset he adopted all the arguments of Mr. Makhdoom Ali Khan, Sr. ASC representing respondent No. 1. He also pointed out in the beginning that no allegation had been leveled against respondent No. 6 in Constitution Petition No. 29 of 2016 but relief had been prayed therein regarding her disqualification under Article 63(1)(o) of the Constitution. He further pointed out that in Constitution Petition No. 30 of 2016 and also in Constitution Petition No. 3 of 2017 respondents No. 6, 9 and 10 had not been arrayed as parties and no relief had been prayed against them in those petitions. He submitted that the questions to be answered by him were in respect of respondent No. 9’s tax returns, the assets of his wife, i.e. respondent No. 6, the asserted dependence of respondent No. 6 on respondent No. 1 and the allegations leveled against respondent No. 10.
41. Mr. Hamid pointed out that respondents No. 6 and 9 had placed on the record of these petitions copies of the tax returns of respondent No. 6 for the years 2011 and 2012, the tax returns of respondent No. 1 for the years 2011 and 2012, an opinion of a reputed tax consultancy firm about correctness of the tax returns filed by respondent No. 1, the license granted for setting up a factory in Dubai, the lease deed for obtaining land in Dubai for setting up a factory, the land rent agreement executed in Dubai, the tripartite sale agreement in respect of sale of 75% shares of the factory in Dubai, the shares sale certificate pertaining to sale of the remaining 25% shares of the factory in Dubai, a photograph taken at the time of inauguration of the factory in Dubai, two affidavits of Mr. Tariq Shafi who was the Benamidar owner of the factory in Dubai, incorporation certificates of Nescoll Limited and Nielsen Enterprises Limited, all the share certificates in favour of respondent No. 7, a trust deed qua a company named Coomber, a trust deed dated 02/04.02.2006, two statements of a gentleman from Qatar, income-tax returns of respondent No. 6 from the year 2011 to the year 2016, income-tax returns of respondent No. 6’s grandmother from the year 2011 to the year 2016, wealth statement of respondent No. 1 for the year 2010 showing agricultural land in the ownership of respondent No. 6, bank statements of respondent No. 1 showing that all the relevant transactions were carried out through banks, SRO No. 84(I)/2015 amending the income-tax return form and the nomination papers of respondent No. 1 showing that respondent No. 1 lived in his mother’s house.
42. Mr. Hamid maintained that respondent No.
6’s alleged beneficial ownership of the apartments in
43. On the issue of the alleged dependence of respondent No. 6 on respondent No. 1 Mr. Hamid pointed out that there was no definition of ‘dependent’ provided in the Income-Tax Ordinance, 2001, section 2(33) of the said Ordinance provided for a “minor child” but section 90(8)(b) of that Ordinance provided that a “minor child” did not include a married daughter. He also pointed out that section 116(1)(b) of the said Ordinance referred to “other dependents” without defining them. He also referred in that context to section 116(2) of that Ordinance pertaining to a wealth statement, Rule 36 of the Income-Tax Rules, 2002 and Part IV of the Second Schedule containing the form of Wealth-Tax (amended on 26.8.2015) highlighting that assets in others’ names were contemplated in the said provisions but such others had not been defined. He further referred to the Representation of the People Act, 1976 and pointed out that even the said Act did not contain any definition of the word ‘dependent’ although the word ‘dependents’ found a mention in section 12(2)(d) of the said Act. He also referred to section 14(3)(c) of that Act pertaining to scrutiny of nomination papers and to section 14(5) of the said Act relevant to an appeal in that regard and then drew our attention towards a form captioned ‘Statement of Assets and Liabilities’ provided in the Representation of the People (Conduct of Election) Rules, 1977 and pointed out that in the verification provided in that form the word ‘dependents’ is mentioned. He also read out section 5(e) of the Prevention of Corruption Act, 1947 in the Explanation whereof the word ‘dependents’ is mentioned without defining or elaborating the same. In the absence of any statutory definition of the word ‘dependent’ Mr. Hamid referred to the case of M. A. Faheemuddin Farhum v. Managing Director/Member (Water) WAPDA, WAPDA House, Lahore and others (2001 SCMR 1955) and Black’s Law Dictionary in order to explain as to what the word ‘dependent’ meant. In that backdrop he vehemently argued that respondent No. 6 was not a dependent of respondent No. 1 at the time of filing of nomination papers by him on March 31, 2013. He maintained that the previous financial year had ended on June 30, 2012 whereas tax details of respondent No. 6 for the last 5 years till June 30, 2012 provided to this Court clearly showed that she was a lady of means and not dependent on respondent No. 1 financially. He pointed out that through a sale deed dated October 13, 2010 land worth Rs. 47,52,000/- had been purchased by respondent No. 1 in the name of respondent No. 6, through a sale deed dated December 14, 2010 land worth Rs. 34,78,750/- had been purchased by respondent No. 1 in the name of respondent No. 6, through a sale deed dated March 01, 2011 land worth Rs. 22,76,000/- had been purchased by respondent No. 1 in the name of respondent No. 6 and through a sale deed dated February 07, 2011 land worth Rs. 1,33,93,000/- had been purchased by respondent No. 1 in the name of respondent No. 6 and all the above mentioned sales had been registered on April 14, 2011. It was, thus, maintained by Mr. Hamid that, irrespective of the fact that the above mentioned assets had been gifted to her by her father, respondent No. 6 was for all intents and purposes a lady owning considerable property and, therefore, she could not be said to be dependent on her father for her sustenance or survival. According to him, a lady owning property worth about Rs. 20 crores could not be termed as dependent on anybody. He went on to maintain that all the tax returns and statements submitted by respondent No. 6 had been accepted by the concerned taxation authorities and the same had never been challenged and, therefore, after a lapse of the five years’ statutory period such returns and statements could not be reopened or questioned at any subsequent stage.
44. Adverting to the case against respondent No. 9 Mr. Hamid conceded that the said respondent had not filed any tax return before the year 2014 and that a National Tax Number had been issued in his name for the first time on January 28, 2014. He also admitted that for contesting the elections in the year 2013 respondent No. 9 had submitted the wealth statement and the tax return of his wife (respondent No. 6) with his nomination papers. While defending respondent No. 9 Mr. Hamid referred to sections 114 and 182 of the Income-Tax Ordinance, 2001 and also pointed out that the same issue was already pending before the Election Commission of Pakistan through five different petitions filed before it by different persons and also before the Lahore High Court, Lahore through a Writ Petition filed before it by an interested person. He maintained that respondent No. 9 was just a member of the National Assembly against whom no relief had been prayed for in these petitions and respondent No. 6 did not even hold a public office and, therefore, the matters against them did not involve any question of public importance with reference to enforcement of the Fundamental Rights conferred by the Constitution so as to attract the jurisdiction of this Court under Article 184(3) of the Constitution.
45. As far as respondent No. 10 namely Mr. Muhammad Ishaq Dar (a Samdhi of respondent No. 1 and the incumbent Finance Minister of Pakistan) is concerned Mr. Hamid pointed out that respondent No. 1 and some members of his family, etc. had been implicated as accused persons in FIR No. 12 of 1994 registered at Police Station Federal Investigation Agency, SIU, Islamabad on November 10, 1994 and also in FIR No. 13 of 1994 registered at Police Station Federal Investigation Agency, SIU, Islamabad on November 12, 1994 wherein various allegations, including those of money laundering, had been leveled but after submission of the Challans in those cases Writ Petitions No. 12172 and 12173 of 1997 filed by a nephew of respondent No. 1 were allowed by the Lahore High Court, Lahore on May 27, 1997, the Challans were quashed and the accused persons were acquitted. He informed that respondent No. 10 was not an accused person in those criminal cases and the Lahore High Court, Lahore had decided the above mentioned Writ Petitions at a time when respondent No. 1 was the Prime Minister of Pakistan and the said decision of the High Court had not been challenged before this Court by the Federal Investigation Agency or the State.
46. Mr. Hamid then referred to Reference No.
5 of 2000 filed by the National Accountability Bureau before an Accountability
Court against respondents No. 1 and 10 and some others with allegations of
money laundering, etc. to the tune of Rs. 1242.732 million (over Rs. 1.2
billion) and in that Reference reliance had also been placed upon a judicial
confession made by respondent No. 10 before a Magistrate First Class, Lahore on
April 25, 2000. He pointed out that initially respondent No. 10 was an accused
person in the said Reference but on the basis of his judicial confession the
said respondent was granted pardon by the Chairman, National Accountability
Bureau and was not treated as an accused person in the final Reference wherein
he had been cited as a prosecution witness. It was alleged in that Reference
that respondent No. 10 was instrumental in laundering of 14.886 million US
Dollars upon the instructions and for the benefit of respondent No. 1 by
opening fake foreign currency accounts in different banks in the names of
others. He pointed out that Writ Petition No. 2617 of 2011 filed before the
Lahore High Court, Lahore in connection with that Reference was allowed by a
learned Division Bench of the said Court on December 03, 2012 and the said
Reference was quashed through a unanimous judgment but the learned Judges
disagreed with each other over permissibility of reinvestigation of the matter
whereupon the matter was referred to a learned Referee Judge who held on March
11, 2014 that reinvestigation of the case was not permissible. Even that
judgment of the Lahore High Court,
47. While representing respondents No. 7 and
8 namely Mr. Hussain Nawaz Sharif and Mr. Hassan Nawaz Sharif, both sons of
respondent No. 1, Mr. Salman Akram Raja, ASC submitted at the outset that by
comparison of their verbal or written statements respondents No. 7 and 8 are
not to be treated as the standard to judge correctness and honesty of
respondent No. 1 because it could well be that respondent No. 1 is correct and
honest in the matter and respondents No. 7 and 8 are not. He pointed out that
no relief has directly been prayed for against respondents No. 7 and 8 in these
petitions. He also made a categorical statement that respondent No. 7 is the
exclusive owner of the relevant four properties in
48. Mr. Raja submitted that the relevant
record in respect of setting up and sale of the factories in
49. Mr. Raja stated that the family of
respondent No. 1 has been in possession of the properties in
50. Giving the background of the relevant
four properties in London Mr. Raja submitted that Al-Thani family of Qatar had
acquired the two offshore companies owning the said properties in the years
1993, 1995 and 1996 and in January 2006 the Bearer Share Certificates of the
two companies were handed over by Al-Thani family to a representative of
respondent No. 7. He added that upon instructions of respondent No. 7 Minerva
Holdings Limited took over management of the two offshore companies on January
26, 2006, Arrina Limited was entrusted with management service for the two
companies on February 06, 2006, JPCA Corporate Accountants took over
administration of the two companies from Minerva Holdings Limited and
thereafter two of the relevant properties were mortgaged with Deutche Bank (Suisse)
SA on September 02, 2008. He, however, went on to admit that the information
supplied by respondents No. 6 and 7 in respect of the relevant four properties
was “incomplete”.
51. Adverting to the laws of the British
Virgin Islands vis-à-vis companies
and their ownership Mr. Raja informed that section 28 of the International
Business Companies Act, 1984 provided for registered shares and bearer shares
and section 31 provided that a bearer share was transferable by delivery of the
certificate relating to the share. He also referred to the Financial Services
Commission Act, 2001, the British Virgin Islands Business Companies Act, 2004
and an article on ‘The BVI Bearer Shares Regime’ and went on to inform that in
July 2006 the bearer shares of the relevant two companies were cancelled and
registered shares were issued in favour of Minerva Holdings Limited on behalf
of respondent No. 7.
52. On the issue of the asserted dependence
of respondent No. 6 on respondent No. 1 Mr. Raja maintained that no valid document
had been produced by the petitioners before this Court to establish any
proprietary interest of respondent No. 6 in the relevant four properties in
London and, therefore, there was hardly any question of respondent No. 1 being
declared disqualified on his stated failure to disclose respondent No. 6 as his
dependent or failure to declare any property of respondent No. 6 as his
property in his nomination papers filed in the general elections held in the
country in the year 2013 or in his tax returns.
53. As far as the speeches made by respondent
No. 1 before the nation and in the National Assembly were concerned Mr. Raja
maintained that the “imperfections in the speeches” did not provide a valid
basis for holding that an asserted fact or an allegation about respondent No. 1
not being honest was proved.
54. Addressing the Court on the scope of
determining a fact in exercise of the jurisdiction under Article 184(3) of the
Constitution Mr. Raja referred to the case of Suo Motu action regarding
allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar
attempting to influence the judicial process (PLD 2012 SC 664) wherein the
scope of inquisitorial proceedings under Article 184(3) of the Constitution was
discussed and in view of the “object” of those suo motu proceedings the relevant statutory authorities were
activated under the supervision of this Court. On the said subject he also
referred to the cases of Muhammad Asghar Khan v. Mirza
Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1), Watan Party and another v. Federation
of Pakistan and others (PLD 2011 SC 997), Moulvi Iqbal Haider and others
v. Federation of Pakistan through Secretary M/o Law and Justice and
others (2013 SCMR 1683), General Secretary, West Pakistan Salt Miners
Labour Union (CBA) Khewra, Jhelum v. The Director,
Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061),
Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693), Mehr Zulfiqar Ali Babu and others v.
Government of The Punjab and others (PLD 1997 SC 11) and Watan Party and
others v. Federation of Pakistan and others (PLD 2012 SC 292). He
also relied upon the case of Emperor v. Khawaja Nazir Ahmed (AIR 1945
Privy Council 18) to assert that independence of an investigating agency and
the investigative process is as important and desirable as independence of the
judiciary. He pointed out that the said aspect was also emphasized by this
Court in the case of Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim
Khan Khakwani and others (PLD 1994 SC 281). Relying upon the case of State
v. Muhammad
Hanif and 5 others (1992 SCMR 2047) he pointed out that in criminal cases the statement of an accused
person recorded under section 342, Cr.P.C. has to be accepted or rejected in
its entirety and, thus, while exercising this Court’s jurisdiction under
Article 184(3) of the Constitution in respect of a matter involving an alleged
criminality the inculpatory part of the statement cannot be separated from the
exculpatory part. Dilating upon meanings of the word “declaration” in the
context of Article 184(3) of the Constitution he submitted that accusitory
function cannot be resorted to before an administrative tribunal and in that
context he referred to the cases of Jenkins
v. McKeithen (395 U.S. 411 (1969)) and Hannah Et Al v. Larche
Et Al (363 U.S. 420 (1960)) but conceded that the said judgments were not
relevant to a declaration made under Article 184(3) of the Constitution of
Pakistan. He further argued that no right of appeal was provided against a
judgment delivered under Article 184(3) of the Constitution and, therefore,
extra care is required to be taken while making a declaration under that
jurisdiction and for that submission he relied upon the cases of Khan Asfandyar Wali and others
v. Federation of Pakistan through
Cabinet Division, Islamabad and others (PLD 2001 SC 607), Pakistan
through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC
6) and Federation Of Pakistan through Secretary, Ministry of Religious
Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti
Iftikhar-ud-Din and another (2000 SCMR 1). He went on to maintain that no
fishing or roving inquiry can be made while exercising the jurisdiction of this
Court under Article 184(3) of the Constitution and he referred to the cases of Jam
Madad Ali v. Asghar Ali Junejo and others (2016 SCMR 251) and Dr. Akhtar
Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455)
in support of that submission. With reference to the Fundamental Right
guaranteed by Article 19A of the Constitution he argued that the right to
access to information does not extend to gathering of information from private
persons and such right is relevant only where information already exists and
not where the right is asserted for creating information. He lastly submitted
that in exercise of this Court’s jurisdiction under Article 184(3) of the
Constitution ordinarily no evidence is recorded and no right of
cross-examination of witnesses is available besides the absence of any right of
appeal and, therefore, in an appropriate case it may be argued that rendering a
finding of fact in exercise of such jurisdiction may militate against the
Fundamental Right guaranteed by Article 10A of the Constitution regarding fair
trial and due process.
55. Respondent No. 2 namely Qamar Zaman
Chaudhry, Chairman, National Accountability Bureau appeared before the Court in
person on February 21, 2017 along with the learned Prosecutor-General
Accountability and he maintained that the National Accountability Bureau was
cognizant of its duties and responsibilities in connection with the issues
arising out of the Panama Papers but respondent No. 2 was waiting for the
“regulators” to look into the matter first. We repeatedly asked him to
elaborate as to who those “regulators” were and where did they figure in the
National Accountability Ordinance, 1999 but he did not even bother to respond
to those questions and conveniently kept quiet! When his attention was drawn
towards the provisions of section 18 of the National Accountability Ordinance,
1999 according to which the Chairman, National Accountability Bureau could take
cognizance of such a matter on his own he simply stated that he would take
action in terms of the Ordinance. On that occasion the Court wondered who the
referred to “regulators” could be because the same word had also been used in
the two statements of a gentleman from
56. Respondent No. 5 namely Dr. Muhammad
Irshad, Chairman, Federal Board of Revenue appeared before this Court in person
along with his learned counsel on February 21, 2017 and apprised the Court that
after disclosures made through the Panama Papers the Federal Board of Revenue
approached the Ministry of Foreign Affairs for access to the Panaman
authorities for obtaining information about the Pakistani citizens involved in
the scam but it did not receive any response and then notices were issued by
the Federal Board of Revenue on September 02, 2016 to 334 persons located out
of the 444 persons named in connection with that scam through the print and
electronic media. He informed that only a few out of those 334 persons
responded to the notices and they included respondents No. 6, 7 and 8 herein.
According to him in her response dated November 21, 2016 respondent No. 6
denied the allegations whereas through their response of the same date
respondents No. 7 and 8 maintained that they were Non-resident Pakistanis and,
thus, owning offshore companies by them did not fall within the jurisdiction of
the Federal Board of Revenue. The Chairman stated before the Court in
categorical terms that no further steps had been taken by him in the matter.
Later on through a miscellaneous application filed on February 28, 2017
respondent No. 5 placed an formation before this Court that on February 22,
2017 notices had been issued to respondents No. 7 and 8 under section 176 of
the Income-Tax Ordinance, 2001 requiring them to substantiate their claimed
status of Non-resident Pakistanis. The Court was also informed through the same
application that the Immigration authorities had also been required by the
Federal Board of Revenue to produce the travel record of the said respondents
during the period between the years 2006 and 2016. It was assured through the
said application that after receiving the necessary information from
respondents No. 7 and 8 and the Immigration authorities the Federal Board of
Revenue would take further necessary action in the matter. It is unfortunate
that till passage of the final judgment of this case no further information has
been received by this Court from the Chairman, Federal Board of Revenue
regarding any progress made in the matter at his end.
57. Mr. Ashtar Ausaf Ali, the learned Attorney-General for Pakistan stated at the outset that although he had represented respondent No. 1 and some members of his family in many cases in the past before different courts of the country as a private practitioner yet in the present case he was appearing as the Attorney-General for Pakistan on Court’s notice under Order XXVII-A Rule 1, CPC and, therefore, he would be assisting this Court in the present matter completely independently on some jurisdictional and legal aspects involved. He straightaway conceded that this Court has the requisite jurisdiction to entertain and hear these petitions and these petitions are maintainable under Article 184(3) of the Constitution but according to him the facts of the case do not warrant any interference in the matter by this Court through exercise of such jurisdiction. He pointed out that Constitution Petition No. 35 of 2016 filed before this Court seeking disqualification of one of the present petitioners from being a member of the Parliament on somewhat similar grounds was already pending before this Court and he was to assist this Court in that matter also in the same capacity. He submitted that the grey areas inherent in the constitutional disqualifications involved in the present petitions have already been commented upon by this Court in the case of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). According to him the case in hand was a unique case wherein the forum chosen was this Court, the jurisdiction invoked was that under Article 184(3) of the Constitution and the main prayer made was in the nature of a writ of quo warranto. He argued that it was not the practice of this Court to entertain and proceed with such a case involving election to the Parliament under its original jurisdiction in the first instance and such issues were generally entertained by this Court in its appellate jurisdiction. He maintained that a declaration made by this Court is to be binding on all the other courts and tribunals in the country and, therefore, determination of a fact by this Court in exercise of its original jurisdiction may sparingly be resorted to because this Court may not be in the best position to record evidence, there is no appeal provided against a decision rendered in the said jurisdiction and the Fundamental Right under Article 10A of the Constitution may be jeopardized in such a process. He argued that in the context of the facts of this case it was to be seen by this Court as to which Fundamental Rights were involved or breached, who was complaining of breach of Fundamental Rights, which facts needed to be established first and what was the legal obligation of the respondents non-performance of which was detrimental to the petitioners? The learned Attorney-General went on to argue that in order to issue a writ in the nature of quo warranto this Court was to be guided by the provisions of Article 199(1)(b)(ii) of the Constitution regarding a High Court’s jurisdiction to issue a writ of quo warranto which can be issued only against a holder of a “public office” and, according to him, a Member of the National Assembly, which respondent No. 1 is, is not a holder of a “public office” in terms of the Constitution and the law. He, however, could not refer in this respect to any specific provision of the Constitution or the law or to any precedent of any court.
58. The learned Attorney-General also submitted that from the language of Article 62(1)(f) of the Constitution it was not clear as to which court was to give the requisite declaration and, at any rate, no sufficient material was available before this Court in the present proceedings to give a declaration of that nature. Suggesting an alternate approach to the issues posed by the present petitions the learned Attorney-General submitted that under section 42-A of the Representation of the People Act, 1976 every member of the Parliament or a Provincial Assembly is required to submit yearly statements of assets and liabilities before the Election Commission of Pakistan and if such a statement is found to be false then it amounts to a corrupt practice under section 78(3)(d) punishable under section 82 of that Act and for such falsehood the concerned person is to be tried by a Court of Session under section 94 of that Act and if found guilty of such corrupt practice he stands disqualified under section 99(1A)(1) of the Act. According to him instead of entering into factual controversies while exercising jurisdiction under Article 184(3) of the Constitution the matter might be left to the Election Commission of Pakistan to attend to. He maintained that in the light of the issues highlighted about a declaration about honesty in the cases of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) and Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) such issues ought not to be decided by this Court in the first instance or as a first and the only resort and the civil or criminal issues involved in the matter ought to be established through a trial before a court of plenary jurisdiction or an election tribunal. According to him a declaration by a court or tribunal of plenary jurisdiction ought to precede a finding by this Court about honesty of a person. He submitted that inquisitorial proceedings had been conducted by this Court in the past in exercise of its jurisdiction under Article 184(3) of the Constitution where public rights were involved or where issues raised could be resolved on the basis of admitted facts or official record as opposed to private records and in this respect he referred to the cases of Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120), Lahore Bachao Tehrik v. Dr. Iqbal Muhammad Chauhan and others (2015 SCMR 1520), Muhammad Asghar Khan v. Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1), Workers’ Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process (PLD 2012 SC 664) and Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292). He also referred to the case of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) to urge that intricate questions of fact requiring recording of evidence may not be resolved by this Court in its jurisdiction under Article 184(3) of the Constitution.
59. Adverting to the matter of failure/refusal of the Chairman, National Accountability Bureau to challenge the judgment of the Lahore High Court, Lahore whereby Reference No. 5 of 2000 was quashed and reinvestigation of the matter was barred the learned Attorney-General submitted that the said matter did not attract filing of a statutory appeal before this Court and that the matter could have been brought before this Court by anybody, including the present petitioners, through filing of a civil petition for leave to appeal. He stated that if such a petition for leave to appeal is filed before this Court by any of the petitioners then the office of the Attorney-General would not question the locus standi of the petitioner in filing of such petition.
60. The learned Attorney-General went on to maintain that the remedies under Article 63(2) and (3) of the Constitution were the exclusive remedies for seeking post-election disqualification of a member of the Parliament or a Provincial Assembly and he placed reliance in that regard upon the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another (PLD 1995 SC 66) and Aftab Shaban Mirani v. President of Pakistan and others (1998 SCMR 1863).
61. In respect of the alleged misstatement of facts by respondent No. 1 in his speeches the learned Attorney-General submitted that an omission in a statement does not necessarily constitute a misstatement and in this regard he relied upon the cases of Peek v. Gurney (1873) LR 6 HL 377, Hamilton and others v. Allied Domecq Plc (Scotland) (2007) UKHL 33, 2007 SC (HL) 142 and Shiromani Sugar Mills Ltd v. Debi Prasad (AIR 1950 All 508). According to him a misstatement on the floor of the National Assembly is property of that house to be dealt with in the manner prescribed by the parliamentary practices and the rules regarding privilege of the house.
62. In his brief submissions in rebuttal Syed
Naeem Bokhari, ASC for the petitioner in Constitution Petition No. 29 of 2016
submitted that respondent No. 7 was born on May 01, 1972, respondent No. 6 was
born on October 28, 1973 and respondent No. 8 was born on January 21, 1976 and,
thus, respondent No. 7 was about two years old, respondent No. 6 was less than
one year old and respondent No. 8 was not even born when the factory in Dubai
was stated to have been set up by their grandfather Mian Muhammad Sharif in
June 1974. He also highlighted that even at the time of sale of 75% shares of
that factory in the year 1978 and at the time of sale of the remaining 25%
shares of that factory in the year 1980 all the said respondents were minors.
He maintained that the entire story stated before this Court by the children of
respondent No. 1 was based firstly upon hearsay and secondly upon two
statements of a gentleman from Qatar who himself had no personal knowledge of
the matter and, therefore, that story was simply to be discarded by this Court.
He went on to submit that respondent No. 1 did not mention any investment made
by his father in
63. Sheikh Rasheed Ahmed petitioner in Constitution Petition No. 30 of 2016 referred in his submissions in rebuttal to the case of Abdul Waheed Chaudhry v. Abdul Jabbar and others (decided by this Court on March 25, 2015) wherein the word ‘honest’ appearing in Article 62(1)(f) of the Constitution had been interpreted. On the issue of parliamentary privilege he referred to the cases of Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823), Regina v. Chaytor (2011 UKSC 52), Canada (House of Commons) v. Vaid, (2005) 1 S.C.R. 667, Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Ch. Nisar Ali Khan v. Federation of Pakistan and others (PLD 2013 SC 568), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054). He maintained that this Court had the jurisdiction to grant any relief even beyond the reliefs prayed for in a petition and in this respect he relied upon the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another (PLD 1995 SC 66), Hitachi Limited and another v. Rupali Polyester and others (1998 SCMR 1618), Ch. Nisar Ali Khan v. Federation of Pakistan and others (PLD 2013 SC 568), Sindh High Court Bar Association through its Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad (PLD 2009 SC 879) and Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220). With reference to the case of Muhammad Siddiq v. State (1977 SCMR 503) he maintained that when stolen property is recovered from the custody of a person then it is for that person to explain such possession and the court is to presume his guilt as a thief.
64. Mr. Taufiq Asif, ASC for the petitioner in Constitution Petition No. 3 of 2017 submitted in rebuttal that the word ‘honest’ appearing in Article 62(1)(f) of the Constitution had been interpreted by this Court in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) and it was held that an honest person ought not to be deceptive and he ought not to be given to cheating. In this context he also referred to the cases of Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Allah Wasaya and 5 others v. Irshad Ahmad and 4 others (1992 SCMR 2184).
65. I have attended to each and every
argument advanced, have perused the entire documentary material produced and
have also gone through all the precedent cases cited before the Court besides
brooding over the diverse aspects of this case from all possible angles.
66. The questions most hotly debated by the
learned counsel for the parties during the hearing of these petitions have been
as to what is the scope of the proceedings before this Court under Article
184(3) of the Constitution and as to whether disputed or intricate questions of
fact can be decided in such proceedings with or without recording of evidence
or not. It was decided by this Court on November 03, 2016 with reference to
some precedent cases that these petitions involved some serious questions of
public importance with reference to enforcement of some Fundamental Rights
conferred by Chapter 1 of Part II of the Constitution and, therefore, the same
were maintainable before this Court under Article 184(3) of the Constitution.
On that occasion none of the parties to these petitions raised any objection to
competence and maintainability of these petitions and even during the hearing
of these petitions no such objection has been raised at any stage of the
protracted hearings. In his two concise statements submitted by respondent No.
1 maintainability of these petitions under Article 184(3) of the Constitution had
not been contested and even the immunity available to a Prime Minister in some
matters under Article 248 of the Constitution was not claimed.
67. The jurisdiction of this Court under
Article 184(3) of the Constitution has so far been invoked and utilized on
diverse issues of public importance with reference to enforcement of different
Fundamental Rights guaranteed by the Constitution. The issues of qualifications
or disqualifications of persons who are candidates for election to or are
members of the Majlis-e-Shoora (Parliament) or a Provincial Assembly have often
cropped up before this Court in the context of Articles 62 and 63 of the
Constitution which prescribe such qualifications and disqualifications and such
issues have reached this Court either through the appellate jurisdiction of
this Court under Article 185 of the Constitution or through its original
jurisdiction under Article 184 of the Constitution. Article 62(1)(f) of the
Constitution, as it stands today, deals with the qualifications and provides as
under:
“62. (1) A person shall not be qualified to be elected or chosen
as a member of Majlis-e-Shoora (Parliament) unless-
---------------------
(f) he is sagacious, righteous, non-profligate, honest and
ameen, there being no declaration to the contrary by a court of law; and
---------------------”
It
is true that on the issue of honesty of a candidate or a member a prior
declaration by a court of law regarding lack of honesty is a prerequisite but
in the cases initiated before an Election Tribunal a practice has developed
that the same Tribunal first decides the issue of honesty on the basis of the
evidence led before it and then while issuing a declaration regarding honesty
or the lack of it simultaneously decides the matter of qualification or
disqualification. The plethora of case-law referred to by the learned counsel
for the parties in this regard may not be reproduced here because that is the
practice in vogue without any contest. The same is also the practice in cases
wherein the issue of qualification or disqualification is raised before a High
Court in its constitutional jurisdiction through a writ of quo warranto and then the matter reaches this Court through its
appellate jurisdiction. In all such cases some fact finding by a court or tribunal
below is involved and this Court then adjudicates upon the matter on the basis
of the evidence or material which is already on the record. The issue involved
in the present petitions is that the matter of qualification or
disqualification on the basis of honesty of respondent No. 1 or the lack of it
has been raised before this Court directly and the learned counsel for the
private respondents have maintained that while exercising its original
jurisdiction under Article 184(3) of the Constitution this Court ought to be
extremely reluctant to receive evidence or material on the issue of honesty in
the first instance in the absence of a proper evidentiary hearing and then
simultaneously to issue a declaration on that issue and proceed to disqualify a
person, particularly when no remedy of appeal is available against such
adjudication and the disqualification is permanent. They have maintained that
the issue of honesty or otherwise of respondent No. 1 involves disputed and
intricate questions of fact which cannot adequately or satisfactorily be
answered in the original jurisdiction of this Court. The stance of the learned
counsel for the private respondents in this regard can be attended to after
appreciating as to why these petitions had been entertained by this Court in
its original jurisdiction under Article 184(3), is there any other court of law
available at this stage to issue the prayed for declaration in the context of
Article 62(1)(f) of the Constitution regarding lack of honesty of respondent No.
1 and are there disputed or intricate questions of fact really involved in
these petitions or not.
68. According to Article 90(1) of the
Constitution by virtue of his being the Prime Minister of the country
respondent No. 1 is the Chief Executive of the Federation and it is practically
he who appoints the heads of all the institutions in the country which could
have inquired into or investigated the allegations leveled against respondent
No. 1 and his family on the basis of the Panama Papers. Even the Speaker of the
National Assembly who could refer the matter to the Election Commission of
Pakistan belongs to his political party and is his nominee. These petitions had
been entertained by this Court in the
backdrop of an unfortunate refusal/failure on the part of all the relevant
institutions in the country like the National Accountability Bureau, the
Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of
Revenue, the Securities and Exchange Commission of Pakistan and the Speaker of
the National Assembly to inquire into or investigate the matter or to refer the
matter to the Election Commission of Pakistan against respondent No. 1. A High
Court could have entertained a writ petition in the nature of quo warranto so
as to attend to the matter but it is agreed at all hands that the matter is of
immense public importance and involves enforcement of some Fundamental Rights
guaranteed by the Constitution and that is why all the parties before this
Court agree that the present petitions filed under Article 184(3) of the
Constitution are competent and maintainable and also that the jurisdiction
under Article 184(3) of the Constitution is free from the trappings of Article
199 of the Constitution. It is also not disputed that the remedy of filing an
Election Petition before an Election Tribunal under Article 225 of the
Constitution is not available at this juncture. The Speaker of the
National Assembly could have referred the matter to the Election Commission of
Pakistan under Article 63(2) of the Constitution but he has already dismissed
various petitions filed before him in this regard by as many as twenty-two
members of the National Assembly including one of the present petitioners. It
is proverbial that there is no wrong without a remedy. It was in the above
mentioned unfortunate background that this Court had entertained these
petitions and now this Court cannot turn around and shy away from deciding the
matter simply because it statedly involves some disputed or intricate questions
of fact which, as shall be discussed shortly, it does not. Apart from that if
this Court stops short of attending to the issue merely because it involves
some disputed or intricate questions of fact then the message being sent would
be that if a powerful and experienced Prime Minister of the country/Chief
Executive of the Federation appoints his loyalists as heads of all the relevant
institutions in the country which can inquire into or investigate the
allegations of corruption, etc. against such Prime Minister/Chief Executive of
the Federation then a brazen blocking of such inquiry or investigation by such
loyalists would practically render the Prime Minister/Chief Executive of the
Federation immune from touchability or accountability and that surely would be
nothing short of a disaster. It is said that how highsoever you may be the law
is above you. It is in such spirit of democracy, accountability and rule of law
that this Court would not give a Prime Minister/Chief Executive of the
Federation a field day merely because no other remedy is available or
practicable to inquire into the allegations of corruption, etc. leveled against
him or where such inquiry involves ascertainment of some facts. It is not for
nothing that Article 187(1) of the Constitution has empowered this Court to do
“complete justice” where all other avenues of seeking justice are either
unavailable or blocked. Apart from that I refuse to accept the contention that
the petitions in hand involve disputed and intricate questions of fact which we
cannot attend to or adjudicate upon in the present proceedings under Article
184(3) of the Constitution. The ownership and possession of the relevant four
properties in London are not denied by respondent No. 1’s family and the only
question relevant to the issue before us is as to whether respondent No. 1’s
denial of any connection with acquisition of those properties is honest or not.
It ought not to be lost sight of that it is not the property in
69. Apart from what has been observed above
in the case of Lt.-Col. Farzand
Ali and others v. Province of West
Pakistan through the Secretary, Department of Agriculture, Government of West
Pakistan, Lahore (PLD 1970 SC 98) this Court had clarified
that where the question is of a right to continue in public office the matter
is of public interest and in the absence of any other adequate remedy this
Court can interfere through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope. In the present case respondent No.
1 is not just a serving member of the National Assembly but also the Prime
Minister of the country and, thus, public interest in his right to continue in
office is immense. In the case of Muhammad
Azhar Siddiqui and others v. Federation of Pakistan and others
(PLD 2012 SC 774) Prime Minster Syed Yousaf Raza Gillani was declared by this
Court itself to be disqualified through proceedings conducted under Article
184(3) of the Constitution after his conviction had been recorded for
committing contempt of court. In the case of Syed Mehmood Akhtar Naqvi v.
Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) numerous members
of the Majlis-e-Shoora (Parliament) had been declared by this Court to be
disqualified on the basis of their being holders of dual nationality and were
shown the door through direct exercise of this Court’s jurisdiction under
Article 184(3) of the Constitution and on that occasion some factual inquiry
had also been conducted by this Court. It had clearly been held in that case
that this Court had the jurisdiction to satisfy itself on a question of fact
touching a disqualification notwithstanding any admission made by a party or
not. It is settled by now that the jurisdiction of this Court under Article
184(3) of the Constitution is inquisitorial in nature rather than adversarial
and while exercising such jurisdiction this Court can ascertain, collect and
determine facts where needed or found necessary. In the case of Pakistan Muslim League (N) through
Khawaja Muhammad Asif, M.N.A. and others v. Federation
of Pakistan through Secretary Ministry of Interior and others
(PLD 2007 SC 642) it was observed by this Court that there was a “judicial
consensus” on the scope of proceedings under Article 184(3) of the Constitution
and that even disputed questions of fact could be looked into where a
Fundamental Right had been breached provided there was no voluminous evidence
to be assessed and no intricate disputed questions of fact were involved. In
the case of Air Marshal
(Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig,
Former Chief of Army Staff and others (PLD 2013 SC 1) some
evidence was in fact recorded by this Court while hearing a petition filed
under Article 184(3) of the Constitution. Even in the case of General Secretary, West Pakistan Salt Miners
Labour Union (CBA) Khewra,
70. It was also argued before us that on September 02, 2016 a petition filed by Sheikh Rasheed Ahmed petitioner before the Speaker of the National Assembly for referring the matter of disqualification of respondent No. 1 to the Election Commission of Pakistan under Article 63(2) of the Constitution was dismissed whereafter the said petitioner had challenged that order of the Speaker before the Lahore High Court, Lahore through Writ Petition No. 31193 of 2016 which is still pending before that Court and, therefore, the present petitions filed on the same subject before this Court under Article 184(3) of the Constitution are not maintainable or they may not be adjudicated upon for the time being. This argument, however, overlooks the law declared by this Court in the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Suo Motu Case No. 10 of 2009 (2010 SCMR 885), Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858) wherein it had clearly been laid down that the jurisdiction of this Court under Article 184(3) of the Constitution is an independent and original jurisdiction which is not affected by pendency of any matter on the same subject before any other court or forum or even by a prior decision of the same issue by any other court or forum below.
71. It was also contended by the learned
counsel for the private respondents that in exercise of this Court’s
jurisdiction under Article 184(3) of the Constitution ordinarily no evidence is
recorded, no right of cross-examination of witnesses is available and no right
of appeal exists against the decision rendered and, therefore, it can be argued
that rendering a finding of fact in exercise of such jurisdiction may militate
against the Fundamental Right guaranteed by Article 10A of the Constitution
regarding fair trial and due process. Article 10A of the Constitution provides
as follows:
“10A. For the determination of his civil rights
and obligations or in any criminal charge against him a person shall be
entitled to a fair trial and due process.”
There
is hardly any “determination” of civil rights of the private respondents
involved in the present proceedings and no “trial” of the said respondents on
any “criminal charge” is being conducted in these proceedings and, therefore,
the said contention has failed to impress us. The case in hand is akin to the
cases of Mohtarma Benazir
Bhutto and another v. President of Pakistan
and others (PLD 1998
SC 388) clarified in Mohtarma
Benazir Bhutto v. President of Pakistan
and 2 others (PLD
2000 SC 77) and Air Marshal
(Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig,
Former Chief of Army Staff and others (PLD 2013 SC 1) wherein the constitutional
aspects of the cases were decided by this Court under Article 184(3) of the
Constitution whereas the criminal aspects of the matters were left to be
attended to by the appropriate investigation agencies or criminal courts.
72. The learned Attorney-General’s objection
that a member of the National Assembly does not hold a “public office” and,
therefore, a Constitution Petition in the nature of quo warranto is not maintainable against him either before a High
Court under Article 199(1)(b)(ii) or before this Court under Article 184(3) of
the Constitution has also failed to find favour with me as it has already been
held by this Court in the case of Salahuddin
and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10
others (PLD 1975 SC 244) that the words “public office” are much wider than
the words “service of Pakistan” and they include those who perform legislative
function. A similar view was also taken by this Court in the case of Syed
Mehmood Akhtar Naqvi v. Federation
of
73. The precedent cases cited before us by the learned counsel for the parties bear an ample testimony to the fact that the scope and practice regarding exercise of jurisdiction by this Court under Article 184(3) of the Constitution is still evolving and that no specific procedure for exercise of that jurisdiction has so far been laid down by this Court. The cases dealt with by this Court under that jurisdiction thus far have varied vastly in their subject and content and, therefore, this Court has consciously avoided to shut the door to any procedural modality which may be best suited to an effective and proper determination of an issue competently brought to this Court under that jurisdiction. It is for that reason that no hard and fast rule has so far been laid down by this Court regarding the mode, mechanism or modality through which the jurisdiction of this Court under Article 184(3) of the Constitution may be exercised and it has been left to the Court to decide as to which lawful procedure would suit the requirements of a given case best. It is the nature of the issue and the circumstances of the case which are to determine the procedure to be adopted. It may be pertinent to mention here that even interpretation of the words like “honest” and “ameen” used in Article 62(1)(f) of the Constitution is still not definite and precise and how to apply those words and provisions to the facts of a given case is also a question which has no certain answer as yet and that uncertainty gives this Court a lot of flexibility in the matter of interpretation and application besides keeping all possibilities of procedure to be adopted wide open. As far as the present petitions are concerned I have already mentioned above the circumstances in which this Court had entertained the same. It is not the normal function of this Court to enter into questions of fact in the first instance but where a question of immense public importance with reference to enforcement of Fundamental Rights is involved and all the statutory and constitutional institutions or authorities that could deal with the matter have failed/refused to perform their statutory or constitutional duties in that regard there even questions of fact may be looked into by this Court in the interest of doing “complete justice”. As already observed above, while attending to the questions of fact involved in the present petitions I have decided not to enter into disputed or intricate questions of fact and to confine my attention primarily to the facts asserted, explanations offered or the material placed on the record by respondent No. 1 and his family. It would surely be unreasonable on the part of respondent No. 1 and his family to maintain or contend that the facts asserted by them, the explanations offered by them or the material placed on the record by them are themselves disputed or intricate and, therefore, this Court ought not to attend to them!
74. At every step of the hearing of these
petitions we had afforded ample opportunities to all the parties to bring any
material on the record in support of their case. The petitioners have relied
upon two speeches made by respondent No. 1 addressing the nation on radio and
television and a speech made by him on the floor of the National Assembly
explaining how funds had become available for acquiring the four properties in
75. It may be advantageous to start the
discussion about the relevant properties in
وزیراعظم
نوازشریف کا
قوم سے خطاب
5اپریل2016ء
عزیزاہل
وطن!السلام
علیکم ،میں
اپنی پوری سیا
سی زندگی میں
آج پہلی بار
ذاتی حوالے سے
کچھ کہنے
کیلئے آپ کی
خدمت میں حا
ظر ہوا ہوں۔
مجھے ان
گزارشات کی
ضرورت اس لیے
محسوس ہوئی کہ
ایک بار پھر
کچھ لوگ اپنے
سیاسی مقاصد
کیلئےمجھےاور
میرےخاندان
کو نشانہ بنا
رہے ہیں۔25 سا
لوں سے بار
بار دہرائے
جانےوالے الزامات
کو ایک بار
پھر میڈیا پر
اچھالا جا رہا
ہے۔میں چند
بنیادی حقائق
آپ کے سامنے
پیش کرنا چا
ہتا ہوں تا کہ
آپ خود اندازہ
لگا سکیں کہ
ان الزامات کی
حقیقت کیا ہے۔
قیام پاکستان
سے کہیں سال
قبل میرے والد
صاحب نے لاہور
سے کاروبار کا
آغاز کیا اور
اتفا ق
فاوُنڈری کی بنیاد
ڈالی۔ قیام
پاکستان تک یہ
ایک ماشا اللہ
مستحکم اور
مظبوط صنعتی
ادارہ بن چکا
تھا۔اس کی ایک
شاخ ڈھاکہ میں
یعنی مشرقی
پاکستان میں بھی
قائم ہو چکی
تھی۔ یہ صنعتی
ادارہ ہزاروں
خاندانوں کو
روزگار کی
فراہمی کا ذریعہ
بن چکا تھا
اور قومی
خزانے میں
ٹیکسوں کی صورت
اپنا حصہ ڈال
رہا تھا۔16
دسمبر1971ءکو
مشرقی پاکستان
میں قائم
اتفاق
فاوُنڈریز
سقوط ڈھاکہ کی
نذر ہو گئ۔ اس
کے ٹھیک 15 دن
بعد 2
جنوری1972ءکو ذوالفقار
علی بھٹوکی
حکومت نے لاہورمیں
جوہماری
اتفاق
فاوُنڈریزتھی
اس پربھی قبضہ
کرلیااوریہ
اس وقت مغربی
پاکستان میں
سٹیل
اورمشینری
اور
انجینئرنگ کی
سب سے بڑی
صنعت بن چکی
تھی۔یوں1936ءسے
ہمارے بزرگوں
کی محنت،سرمایہ
کاری اورجمع
پونجی ایک
لمحےمیں ختم
کردی گئ۔یہ
ظلم اور
زیادتی
ہمارےوالدمرحوم
کےعزم اور
حوصلے میں
کوئی کمزوری
پیدا نہیں کر
سکتی، الحمد
اللہ کوئی
لمحہ ضائع کئے
بغیر انہوں نے
اللہ کا نام
لےکرایک بار
پھر کمر باندھی
اور بھٹو دور
میں ہی 18 ماہ کے
اندر اندر 6
نئی فیکٹریاں
قائم کر
لیں۔یہ وطن کی
مٹی سے محبت،لگن،عزم
اور ہمت کی
ایسی روشن داستان
ہے جس کی مثال
کم ہی ملے گی۔
اتفاق فاوُنڈریز
جولائی1979ءمیں
ہمیں کھنڈرات
کی شکل میں واپس
ملی۔ہمارے
والد نے تباہ
شدہ مالی حالت
والے اس اجڑے
ہوئے ڈھانچے
کو دوبارہ ایک
جاندار صنعتی
ادارے کی شکل
دی۔ انتہائی
مشکل اورناسازگار
حالت میں عزم
وہمت کی اس
داستان کا
تعلق اس دور
سےہےمیرے ہم
وطنو، جب میں
یونیورسٹی کی
تعلیم سے نیا
نیا فارغ ہوا
تھا۔ اور میرا
یا میرے
خاندان کے کسی
فرد کاسیاست
یا حکومت سے
دور کا بھی
تعلق نہیں
تھا۔ اس عرصے
کے دوران یہ
ادارے ملک کی
معا شی ترقی
میں ایک توانا
کردار ادا
کرتے ہوئے
ملکی خزانے میں
کروڑوں کے
ٹیکس اور
محصولات جمع
کراتے رہے اس
زمانےمیں۔خواتین
و حضرات جب ہم
سیاست سے کوسوں
دور تھے تو
بھی آزما ئش
سے گزرنا پڑا
اور سیاست میں
آنےکےبعدبھی
ہم سیاسی اور
ذاتی انتقام
کا نشانہ بنتے
رہے۔آپ میں سے
بہت سےخواتین
وحضرات کو یاد
ہو گا کہ1989ء میں
ہماری فیکٹری
کا خام مال
لانے والے
بحری جہاز جس
کا نام(جوناتھن)
تھا۔ اس کو
ایک سال تک
سامان اتارنے
کی اجازت نہیں
دی گئی۔ اس
اکیلے جھٹکے
سے ہمیں 50 کروڑ
روپےکا نقصان
برداشت کرنا
پڑا۔ 1989ء کی بات
کر رہا ہوں۔
اس وقت کا 50
کروڑ آج کے
شاید 50 ارب
روپےسے بھی
زیادہ ہو
گا۔پیپلز
پارٹی کے
دوسرے دور میں
بھی ہمارے کاروبار
کی معاشی ناکہ
بندی کی گئی
اور مختلف ہتھکنڈوں
کے
ذریعےاتفاق
فاوُنڈریز کی
چمنیاں ٹھنڈی
کر دی گئی اور
پھر 1999ء کا دور
آیا۔ جمہوری
حکومت کا تختہ
الٹنے کے بعد
جو کچھ ہوا اس
سے آپ سب اچھی
طرح واقف ہیں۔
14 ماہ تک ہمیں
جیلوں میں
ڈالے رکھا گیا
ہمارے کاروبار
کو ایک بار
پھر مکمل طور
پر تباہ کر
دیا گیا۔ یہاں
تک کہ ماڈل
ٹاوُن میں ہم
سے ہمارا
آبائی گھربھی
چھین لیا۔
جہاںہم،
ہمارے والدین
اور ہمارے بچے
رہتے تھے اور
ہمیں ملک بدر
کر دیا گیا آپ
کی آنکھوں کے
سامنے یہ سب
کچھ ہوا۔ ساری
حکومتی
مشینری کو
ہمارے
کاروبار، بینک
کھاتوں،
صنعتی یونٹس
اور دیگر
معاملات کے بے
رحمانہ
احتساب پر لگا
دیا گیا۔ یہ
کہنا بے جا نہ
ہوگا کہ سا
لہا سال تک ہم
اس یکطرفہ
احتساب کی پل
صراط پر
چلتےرہیں۔لیکن
اللہ کے فضل وکرم
سے ہمارے قدم
نہ ڈگمائے
کبھی بھی نہیں،
الحمداللہ ہم
قانون اور
انصاف کے ہر
معتبر فورم سے
سرخرو ہو کر
گزرے۔ کسی بھی
عدالت میں ہما
رے خلاف کوئی
الزام ثابت نہ
کیا جا سکا۔ جبری
جلا وطنی کے
ایام میں
ہمارے والد
محترم نے ایک
بار پھر مکہ
معظمہ کے قریب
سٹیل کا ایک کارخانہ
لگایا۔ اور
یاد رکھیں کہ
ہمیں وہاں ملک
سے باہر 7 سال
رہنا پڑا۔یہ
کارخانہ لگایا
جس کیلئے
سعودی بینکوں
سے قرض حاصل
کیا گیا اور
پھرچند برس
بعد یہ فیکٹری
تمام اثاثوں سمیت
فروخت کر دی
گئی۔ اور یہ
وسائل میرے
بیٹوں حسن
نواز اور حسین
نواز نے اپنے
نئے کاروبار
کیلئے
استعمال کیے۔
میں یہاں یہ
بھی بتا دوں
کہ حسن نواز 1994ء
سے لندن میں
مقیم ہے۔ جبکہ
حسین نواز 2000ء
سے سعودی عرب
میں رہائش
پذیر ہے۔
دونوں
ان ممالک کے
قوانین اور
قواعد و ضوبط
کے مطابق اپنا
کاروبار کرتے
ہیں۔ عجیب
منطق ہے میرے
ہم وطنو، کہ
ہمارے بچے ملک
کے اندر رزق
کمائیں تو بھی
تنقید اور اگر
بیرون ملک
محنت کرکے
اپنا کاروبار
قائم کریں اور
اس کو چلائیں
تو بھی
الزامات کی زد
میں رہتے ہیں۔
میں صرف اتنا
کہوں گا کہ
کرپشن یا ناجائز
ذرائع سے دولت
جمع کرنے والے
نہ تو اپنے
نام پر
کمپنیاں
رکھتے ہیں
اورنہ
اپنے
اثاثےاپنے
نام پر رکھتے
ہیں۔ میرے
عزیز اہل
وطنو، میں آپ
کے علم میں
لانا چاہتا
ہوں کہ مختلف
ادوار میں
اتفاق
فاوُنڈریز کی
مکمل تباہی
کیلئے باربار
کے حملوں کے
باوجود میرے
خاندان کے
واجب الادا
قرضوں کی ایک
ایک پائی ادا
کی جس کی
مالیت تقر
یباً پونے
6ارب روپے
بنتی ہے۔
ہمارے خاندان
نےاصل زرکا
ایک پیسہ بھی
کبھی معاف
نہیں کرایا۔
یہ کہنا غلط
نہ ہوگاکہ ہم
نے تو وہ قرض
بھی اتارے ہیں
جو ہم پر واجب
بھی نہیں تھے
اور اس سارے
پس منظر کے
باوجود ہمیں
جیلوں میں
ڈالا گیا، ملک
سے باہر بھیجا
گیا اور ہمارے
کاروبار کو
بالکل روک دیا
گیا، فیکٹریوں
کو تالے لگا
دئے گئے اور
گھر لے لئے
گئےاس کے
باوجود کسی
بینک سے ایک
پائی کے بھی
ہم ڈیفالٹ
نہیں ہیں۔
مجھے امید ہے
میرے ہم وطنو،
کہ ہمارے
کاروبار کا یہ
سارا پس منظر
اب آپ پر واضح
ہو چکا ہو گا۔
میں نے اس سفر
کے تمام اہم
مراحل سے آپ
کو آگاہ کر
دیا ہے۔ صرف
اتنا
مزیدکہوں گا
کہ حکومت
سےباہر یا
حکومت کے اندر
ہوتے ہوئے میں
نے یا میرے خاندان
کے کسی فرد نے
قومی امانت
میں رتی بھر خیانت
نہیں کی۔ اور
کبھی اقتدار
کو کاروبار سے
منسلک نہیں
کیا۔ خواتین
وحضرات میں
بہت کچھ کہنا
چاہتا تھا
لیکن انتہائی
مختصر طور پر
کچھ گزارشات
پیش کی ہیں۔
میں نے وطن
عزیز کو
اندھیروں سے
پاک کرنے اور
تعمیروترقی
کی نئی
بلندیوں کی
طرف لے جانے
کا عہد کر
رکھاہے۔ میری
تمام تر توجہ
اس عہد پر
مرکوز
ہے۔میرے پاس
اتنا وقت نہیں
کہ ہر روز
الزامات کی
یلغار کرنے
والوں کو جواب
دوں اور
وضاحتیں پیش
کروں۔ میں
الزامات کی
تازہ لہر کے
مقاصد خوب سمجھتا
ہوں لیکن اپنی
توانائیاں اس
کی ندر نہیں
کرنا چاہتا۔
میرے بعض
رفقاء کا
مشورہ تھا کہ
چونکہ میری
ذات پر کوئی
الزام نہیں
ہےاور یہ کہ
میرے دونوں
بیٹےبالغ اور
اپنے معاملات
کے خود نگہبان
ہیں اس لیے
مجھے اس
معاملے سے الگ
رہنا چاہیے۔
بعض رفقاء کا
خیال تھا کہ میرے
خطاب سے اس
معاملے کو غیر
ضروری اہمیت
حاصل ہو جائے
گی، کچھ رفقاء
کا کہنا تھا
کہ میری ذات
یا میرے
خاندان کے کسی
فرد پر کسی
غیر قانونی یا
ناجائز کام کا
کوئی الزام
نہیں لگا اس لیے
مجھے اس
معاملے میں
پڑنے کی ضرورت
نہیں۔ لیکن
میرے
عزیز اہل
وطن، میں
چاہتا ہوں کہ
اصل حقا ئق
پوری طرح قوم
کے سامنے آ
جائیں۔ اور ہر
پاکستانی
الزامات کی
اصل حقیقت سے
آگاہ ہو جائے۔
عزیز اہل وطن،
آج میں نے ایک
اعلٰی سطحی
عدالتی کمیشن
قائم کرنے کا
فیصلہ کیا ہے۔
سپریم کورٹ
کےایک
ریٹائرڈ جج اس
کمیشن کے سربراہ
ہوں گے۔ یہ
کمیشن اپنی
تحقیقات کے
بعد فیصلہ دے
گا کہ اصل
حقیقت کیا ہے
اور الزامات
میں کتنا وزن
ہے۔ میں گھسے
پٹے الزامات
دہرانے اور
روز تماشہ
لگانے
والوںسے کہتا
ہوں کہ وہ اس
کمیشن کے
سامنے جائیں
اوراپنے الزامات
ثابت
کریں۔اللہ
تعالٰی آپ کا
حامی و ناصر
ہو۔ پاکستان
پائندہ باد۔
The gist of the explanations offered by respondent No. 1 in that speech is reproduced below:
*
My father had started his business by establishing Ittefaq Foundries in
* In the year 1972 Ittefaq Foundries was nationalized obliterating and wiping out the hard work, investment and savings of our elders.
* In the next 18 months my father established 6 new factories.
* In July 1979 Ittefaq Foundries was returned to us in the shape of ruins but my father again turned it into a functional and vibrant industrial unit.
* In the second tenure of the Pakistan Peoples Party’s rule an economic blockade led to Ittefaq Foundries becoming dysfunctional.
* In the year 1999 my government was toppled, we were imprisoned for 14 months and our business was completely destroyed. We were then thrown out of the country.
*
During our forced exile my father established a steel factory near Makkah in
* The steel factory near Makkah was sold after a few years along with all its assets. Those resources were utilized by my sons Hassan Nawaz and Hussain Nawaz for setting up their business.
* I hope that the entire background of our business is now clear to my fellow countrymen as I have informed you about all the important stages of our journey.
* As we have not committed any illegality at any stage, therefore, I have decided to address you so that the true facts are fully brought to the knowledge of my dear countrymen.
It has pertinently
been observed by me that in the above mentioned speech made by respondent No. 1
it had not been disclosed as to how and through which resources the
respondent’s father had established 6 new factories within 18 months of
nationalization of Ittefaq Foundries, especially when statedly the entire
savings of the respondent’s elders stood obliterated and wiped out. It is also
strikingly noticeable that in that speech there was no mention whatsoever of
setting up of any factory in
76. On April 22, 2016 respondent No. 1
addressed the nation again on the subject on radio and television but that
speech did not contain any specific information about the resources or assets
of the respondent and his family. Again, no explanation whatsoever was offered
in that speech as to how the properties in
77. On May 16, 2016 respondent No. 1 read out a written speech in the National Assembly which was broadcast and telecast live on radio and television and this is what he said on that occasion:
وزیراعظم
نوازشریف کا
قومی اسمبلی
میں خطاب
16 مئی 2016ء
جناب
اسپیکر! میں
آپ کی اجازت
اور آپ کی
وساطت سے کچھ
معروضات معزز
اراکان ایوان
کی خدمات میں
پیش کرنا
چاہتا ہوں۔
جناب
اسپیکر!جیسا
کہ آپ جانتے
ہیں اپریل کے پہلے
ہفتے میں ایک
رپورٹ میڈیا
میں آئی جسے
پاناما پیپرز
کا نام دیا
گیا۔ اس رپورٹ
میں پاناما میں
قائم ایسی آف
شور کمپنیوں
کی نشاندہی کی
گئی جن سے پا
کستانی
شہریوں اور
پاکستان سے
تعلق رکھنے
والے سمندر
پار پاکستانیوں
کا تعلق بتایا
گیا۔ اس رپورٹ
میں یہ واضح کر
دیا گیا کہ آف
شور کمپنیوں
سے تعلق کا
مطلب یہ ہر گز
نہیں کہ کوئی
شخص بد عنوانی
کا مر تکب ہوا
ہو۔اس رپورٹ
میں میرے دو
بیٹوں کا ذکر
بھی آیا جو
گزشتہ کئی
سالوں سے
بیرون ملک
مقیم ہیں اور
لاکھوں دیگر
پاکستانیوں
کی طرح وہاں
کے قوانین اور
ضابطوں کے تحت
اپنا کاروبار
کر رہے ہیں۔
جناب
اسپیکر!میرے
رفقاء کی یہ رائے
تھی کیونکہ
پاناما پیپرز
میں میرا کوئی
ذکر نہیں اس
لئےمجھےپہل
کرنے اور خود
احتساب کیلئے
پیش کر دینے
کی ضرورت
نہیں۔میرا اپنا
ردعمل یہ تھا
کہ اگرچہ میری
ذات کا
ان پیپرز سے
کوئی تعلق
نہیں لیکن
چونکہ میرے خاندان
کا ذکر آیا ہے
اس لئے مجھےیہ
معاملہ ایک با
اختیار اور
خودمختار
کمیشن کے سپرد
کر دینا چا
ہیےجو سارے
معاملے کی
چھان بین کرے
اور حقائق
سامنے لائے۔
میں نے
اپوزیشن کے
کسی مطالبے سے
بھی پہلے قوم
سے خطاب کیا
اور سپریم کورٹ
کے ریٹائرڈ جج
صاحب کی
سربراہی میں
ایک کمیشن کے
قیام کا اعلان
کر دیا۔ میں
اس بات پر جناب
اسپیکرپختہ
یقین رکھتا
ہوں کہ اپنی
زندگیاں
انصاف کے
اعلٰی ترین
ایوانوں میں
گزارنے والے
جج صاحبان
ریٹائرڈ ہونے
کے بعد بھی امانت
اور دیانت کے
ساتھ
منصفانہ، غیر
جانبدارانہ
اور بے لاگ
انصاف کے
تقاضے پورے کر
سکتے ہیں۔
مجھے افسوس
ہوا کہ میرے
اس مخلصانہ
اقدام پر مثبت
رد عمل کے
بجائے جج
صاحبان کو
نشانہ بناتے
ہوئے ایسا
ماحول پیدا کر
دیا گیا کہ
نہایت اچھی
شہرت کے حامل
چیف جسٹس
صاحبان کیلئے
بھی کمیشن کی
سربراہی قبول
کرنا مشکل ہو گیا۔پھر
اپوزیشن کی
طرف سے
پارلیمنٹ کے
ارکان پر
مشتمل ایک
کمیٹی قائم
کرنے کی
تجویزسامنے
آئی۔ حکومت نے
اس تجویزپر
بھی مثبت
ردعمل کا
اظہار
کیالیکن
ہمارے رابطے
کےباوجود
کمیٹی کے قیام
پر کوئی
پیشرفت نہ ہو
سکی۔ پھر کہا
گیا کہ ایف
آئی اے سے
تحقیقات
کرائی جائے،
اس مطالبے کو
تسلیم کرتے
ہوئے ہم نے
اپوزیشن سے کہا
کہ وہ اپنے
اعتماد کے
افسران کو
نامزد کریں۔
اس پیش کش
کوبھی نظر انداز
کر دیا گیا پھر
واحد مطالبہ یہ آیا
کہ صرف چیف
جسٹس کے جج
صاحبان پر
مشتمل کمیشن
کو ہی قبول
کیا جائے گا
جس کی سربراہی
جناب چیف جسٹس
خود
کریں۔ میں نے
22 اپریل کو قوم
سے خطاب کے دوران
یہ مطالبہ بھی
تسلیم کرنے کا
اعلان کر دیا۔
جناب سپیکر
مجھے یقین تھا
کہ اپنا واحد
مطالبہ تسلیم
کر لینے کے
بعد اپوزیشن
مطمئن ہو جائے
گی اور
تحقیقات کا
انتظار کرے
گی۔ لیکن ہوا
یہ کہ اس
کےبعد ٹی او
آرز کو بھی
متنازعہ بنا
دیا گیا۔
ہماری 3 جامع
ٹی او آرز کے
جواب میں 15 ٹی
او آرز پیش کر
دی گئیں۔
میڈیا ان کا
جا ئزہ لے چکا ہے اور
آئینی و
قانونی ما
ہرین اپنی
رائے دے چکے
ہیں۔ اس پر
شاید ہی
سنجیدہ پاکستانی
کو یہ شک ہو کہ
اپوزیشن کے ٹی
او آرزکسی بد
عنوانی اور
کرپشن کے
بجائے صرف اور
صرف ایک ہی
فرد کے گرد
گھومتی ہیں۔
اور وہ فرد
میں ہو۔ اور
اس کی مزید
تشریح کرتے
ہوئے کہا گیا
کہ اس کے معنی
وزیراعظم ہوں
گے اور پھر یہ
بھی کہہ دیا
گیا ہے کہ
جہاں جہاں
وزیراعظم کا
لفظ آ ئے گا اس
کے معنی صرف
نوازشریف لیے
جائیں گے۔ ان
ٹی او آرز کا
سب سے دلچسپ
پہلو یہ ہے کہ
جس شخص کا
ہزاروں،
لاکھوں صفحات
پر مشتمل
پاناما پیپرز
میں ذکر تک
نہیں۔ اس پر
کمیشن کے قیام
اور تحقیقات
کے آغاز سے پہلے
ہی با ضابطہ
فرد جرم عائد
کر دی گئی ہے۔
جناب اسپیکر!
میں اس ایوان
کو یقین دلاتا
ہوں کہ حکومت
معاملے کی بلا
تاخیر فوری
اور جامع
تحقیقات
چاہتی ہے۔ ہم
نہیں چاہتے کہ
ایک بار پھر
ملک کسی کشمکش
کا یر غمال ہو
جائے اور ایک
بار پھر ہم
دنیا کے سامنے
تماشہ بن
جائیں۔ایسے
معاملات میں
غیر ضروری
تحقیقات ہر گز
ملک و قوم کے
مفاد میں نہیں
ہوتی۔ ہم اپنی
توجہ ملک کی
تعمیرو ترقی
پر مرکوز
رکھنے کیلئے
نیک نیتی کے
ساتھ معاملے
کی بے لاگ
چھان بین
چاہتے ہیں۔
میرے وزراء
مسلسل کہتے
رہے اور میں
بھی پورے دل
کے ساتھ کہہ
رہا ہوں کہ ہم
کسی مسئلے کو
انا کا مسئلہ
نہیں بنانا
چاہتے۔ ہم صرف
پاکستان کی
انا کا پرچم
بلند رکھنا
چاہتے ہیں۔
اللہ کے فضل
سے ہمارا دامن
صاف ہے۔ ہمیں
کسی آئینی یا
قانونی
استثنی کی
ضرورت نہیں۔
ہم ماضی میں
کئی کئی بار
نہایت کڑے، یکطرفہ
اور انتقامی
احتساب سے
گزرے ہیں اور
آج بھی کسی
بھی احتسابی
عمل کا سامنا
کرنے کیلئے تیار
ہیں۔ اور ہم
جناب اسپیکر
یہ بھی چاہتے
ہیں کہ
بدعنوانی،
اختیارات سے
نا جائز فائدہ
اٹھانے، ٹیکس
چوری کرنے، کک
بیکس لینے،
پیسہ غیر
قانونی طور پر
پاکستان سے
باہر بھیجنے
اور سیاسی
اثرورسوخ سے
اربوں روپے کے
قرضے معاف
کرانے والوں
کی اصل کہانی
بھی عوام کے سامنے
آ جائے۔ اگر
ایک میڈیا
رپورٹ کو کسی
تحقیق کے بغیر
محض سیاسی
عداوت، شک اور
بد گمانی کی
بیناد پر بد
عنوانی اور
جرم قرار دیا
گیا ہے تو ان
دستاویزاور
مستند رپورٹس
کو کیوں نہ
دیکھا جائے جن
میں ٹھوس
ثبوتوں کے
انبار ہیں۔
جناب اسپیکر!
میں آپ کی
اجازت سے
ایوان کی توجہ
ایک نہایت ہی
اہم بات کی
جانب مبذول
کروانا چاہتا
ہوں۔ میری
گزارش ہے کہ
یہ ایوان
احتساب کے ایک
جامع، موثر
اور بے لاگ
نظام پر غور
کرے۔
ایسے نظام
احتساب کی
تشکیل اس
میثاق
جمہوریت کی
ایک اہم شک
ہے۔ جس پر آج سے
کوئی دس
سال قبل میں
نے اور محترمہ
بے نظیر بھٹو
نے دستخط کیے
تھے اور جس کی
توثیق دیگر
تمام قومی
جماعتوں نے
بھی کی تھی۔
میں جناب
اسپیکر گزارش
کرتا ہوں کہ اس
ایوان میں
ایسی مشاورت
کا اہتمام
کریں جو مروجہ
نظام احتساب
کی کمزوریوں
پر نظر رکھتے
ہوئے ایک ایسا
جامع نظام وضع
کرے جس پر
پوری قوم کو
اعتماد ہو اور
جو وطن عزیز
میں پگڑی
اچھالنے، الزامات
لگانے اور
بہتان تراشی
کے کلچر کو
ہمیشہ کیلئے
ختم کر دے۔ کسی
تحقیق کے بغیر
بے بنیاد
الزامات
لگانے سے
سیاستدان ہی
بے اعتبار
نہیں ہوتے،
سیاست بھی بے
وقار ہو جاتی
ہے اور پھر
سیاست بے وقار
ہو جائے تو
جمہوریت بھی بے
توقیر ہو جا
تی ہے۔ جناب
اسپیکر
ایک مطالبہ
یہ بھی سامنے
آیا کہ میں
پارلیمنٹ میں
آ کر حقائق
پیش کروں تو
جناب اسپیکر
یہ معاملہ اب
یوں ختم نہیں
ہو سکتا۔ اور
نہ ہی اسے
ایسا ہونا چاہیے،
بات چل ہی
نکلی ہے تو
دودھ کا دودھ
اور پانی کا
پانی ضرور ہو
نا چاہئے۔ قوم
کو اصل حقائق
کا پتا چلنا
چاہیے۔ جناب
اسپیکر میرے
دل میں
پارلیمنٹ کی
بہت عزت ہے۔
یہ ایوان 20
کروڑ اہل وطن
کی نمائندگی
کرتا ہے۔ یہ
ایوان آئین کی
بالادستی،
قانون کی
حکمرانی اور جمہوریت
کے استحکام کی
تابندہ علامت
ہے۔ تقریباًدو
سال قبل
شاہراہ دستور
پر دیئے گئے
دھرنوں کے
دوران اس
ایوان کا
کردار ہماری
جمہوری تاریخ
کا سنہری باب
ہے۔ اس ایوان
کا نمائندہ
ہونا میرے لیے
بھی اعزاز کا
باعث ہے۔ میں اس
مقدس ایوان کو
بتانا چاہتا
ہوں کہ میرے
پاس چھپانے کو
نہ پہلےکچھ
تھا اور نہ آج
ہے۔ سب کچھ
کھلی کتاب کی
طرح ہے۔ میرا
خاندان
پاکستان کا
واحد خاندان
ہے جس نے
سیاست سے کچھ
بنایا یا
کمایا تو نہیں
البتہ گنوایا
ضرور ہے۔ میں
کاروبار سے
سیاست میں
داخل ہوا۔
سیاست سے
کاروبار میں
نہیں آیا۔
جناب اسپیکر!
میں ایسی
باتوں سے گریز
کرنا چاہتا
ہوں لیکن
دوسروں پر
کیچڑ اچھالنے
والوں کو
بتانا چاہتا
ہوں کہ میں
نےبطور
وزیراعلٰی
پنجاب اور
بطور وزیراعظم
پاکستان
عوامی فلاح و
بہبود کے کام
کرنے والے
رفاحی اداروں
اورٹرسٹس کو
مفت سرکاری
زمینیں دی ہوں
گی۔ مالی
گرانٹس دی ہو
گی۔ مشینری کی
درآمد میں
ٹیکسوں کی
چھوٹ دی ہوں
گی۔ ہمارے
خاندان کے زیر
انتظام چلنے
والے اتفاق اسپتال
یا شریف
میڈیکل
کمپلیکس بھی
بڑے رفاحی
ادارے ہیں
لیکن جناب
اسپیکر ان
اداروں کیلئے
ایک انچ
سرکاری زمین
دی گئی نہ
کوئی ما لی
گرانٹس اور نہ
ہی کوئی اور
عایت۔ کیا
کرپشن کرنے
اور سرکاری
وسائل سے
تجوریاں
بھرنے والوں
کا طرز عمل
صحیح ہوتا ہے۔
جناب
اسپیکر!اللہ
کے فضل وکرم
سے ہمارے
کاروبار کی
کہانی محنت،
مشقت، عزم و
ہمت اور رزق
حلال کیلئے
جدوجہد کی
کہانی ہے۔ اس
میں قبضہ،
چوری، کمیشن،
کک
بیکس، پرمٹ،
کوٹے یا کسی
بھی قسم کے خیانت
کا شائبہ تک
نہیں۔ ہم نے
کسی بھی
کاروبار
کیلئے حاصل
کیے گئے قرضے
کی پائی پائی
ادا کی ہے۔
ہمارے
کاروبار کا
آغاز قیام
پاکستان سے 11
سال اور آج سے
کوئی 80 برس قبل
اتفاق
فاوُنڈری سے
ہوا۔ ہمارے
کاروبار کا سب
سے قیمتی
اثاثہ ہمارے
والد محترم کا
اللہ تعالٰی
پر پختہ ایمان،
محنت، دیانت
اور امانت
تھا۔ وقت کے
ساتھ ساتھ اس
کاروبار نے
ترقی کی۔ ۔
وقت کے ساتھ
ساتھ اس
کاروبار نے
ترقی کی منازل
طے کیں- 1970 ء تک
اتفاق
فاوُنڈریز کو
پاکستان میں
اسٹیل اور
انجینئرنگ کی
سب سے بڑی
صنعت کا مقام مل
چکا تھا۔ اور
1972ءمیں جناب
اسپیکر اتفاق
فاوُنڈریز کو
حکومت نے قبضے
میں لے
لیایعنی نیشنلایز
کر لیا۔ تو
ہمیں مشینری،
زمین دیگر
اثاثوں کے
معاوضے کے طور
پر ایک
پیسہ بھی ادا
نہیں کیا گیا۔
نیشنلائزیشن
سے قبل اتفاق
فاوُنڈری کا
سا لانہ ٹرن
اوور ساڑھے 4
کڑور روپے
تھا۔ یہ میں 1971ء
کی بات کر رہا
ہوں جناب۔اس
کے پاس 1 کروڑ 80
لاکھ کے
اسٹاکس موجود
تھے اور فیکٹری
کی زمین 700 کنال
کے وسیع رقبے
پر پھیلی ہوئی
تھی۔ جناب
اسپیکر میں آج
سے 44 سال پہلے
کا ذکر کر رہا
ہوں۔ جب ڈالر
کی قیمت4روپے
تھی۔ سی ایس
پی افسر کی
تنخواہ 500 روپے
تھی۔ اور جو
سونا آج 50 ہزار
روپےفی تولہ بک رہا
ہے اس وقت اس
کی قیمت صرف 155
روپے فی تولہ
تھی۔ یہ سارے
حقائق اس دور
سے تعلق رکھتے
ہیں جب میرا
یا میرے
خاندان کے کسی
فرد کا سیاست
سے دور دور کا
کوئی واسطہ
نہ تھا۔ جناب
اسپیکر! 8 سال
بعد اتفاق فاوُنڈریز
ہمیں واپس کی
گئیں تو یہ
کھنڈر بن چکی
تھیں۔ ان کی
مشینری زنگ
آلود
اورناکارہ ہو
چکی
تھیں۔کروڑوں
روپے منافع
کمانے والی
انڈسٹری 6
کروڑ روپے سا
لانہ کے خسارے
میں جا چکی
تھی۔ ہمارے
والد نے اس
تباہ حال
ڈھانچے
کو دوبارہ
آباد کیا۔ یہ
میرے والد
گرامی کی محنت
و مشقت کا
نتیجہ تھا کہ
صرف ایک سال
کی قلیل مدت
میں بے جان
ڈھانچہ پھر سے
متحرک اور فعال
صنعتی یونٹ بن
گیا۔ 1983ء تک
اتفا ق
فاوُنڈر یز کا
ٹرن اوور 60
کروڑ روپےسا
لانہ سے تجاوز
کر چکا تھا۔
اور یہ ادارہ 6
کروڑ روپے سا
لانہ خسارے سے
نکل کر 7 کروڑ 57
لاکھ روپے سا
لانہ کا منافع
کما رہا تھا۔ 1995
ء تک اتفا ق
فاوُنڈر یز کا
دائرہ مزید
کئی کمپنیوں
تک پھیل چکا
تھا۔ جناب
اسپیکر! میں
یہ تفصیل ان
لوگوں کیلئے
فراہم کر رہا
ہوں جو حقائق
کو جان بوجھ
کر جھٹلا رہے
ہیں۔ میں اس
ایوان کو اور
پوری قوم کو
بتا نا چاہتا
ہوں کہ سیاست
کے میدان میں
قدم رکھنے سے
پہلے میری اور
میرےخاندان
کی الحمد اللہ
مالی حالت کیا
تھی۔ میں اللہ
تعالیٰ کے
حضور احساسِ
شکر کے ساتھ
کہہ سکتا ہوں
کہ مجھے وراثت
میں ایک
کامیاب ترقی
کرتا اور
پھلتا پھولتا
ہوا کاروبار
بھی ملا۔ میں
نے پوری
دیانتداری
کے ساتھ اپنے
خاندانی
کاروبار اور
مالی حیثیت کی
تفصیل بیان کر
دی گئی ہے
لیکن آج عا
لیشان گاڑیوں
میں گھومنے،
بڑےبڑے قطع
ہائے زمین پر
پھیلے محلات
میں رہنے
والے، ہیلی
کاپٹروں اور
جہازوں میں اڑنے
اور دنیا بھر
کی سیروسیاحت
کرنے والے بھی
مناسب سمجھیں
تو اس ایوان و
قوم کو آگاہ
کر دیں کہ ان
کے سفر کا
آغاز کیسے
ہوا۔ 1970ء اور 80ء
کی دہائی میں
وہ کہاں کھڑے
تھے۔اور آج ان
کی شاہانہ
زندگی کے
ذرائع آمدنی
کیا ہے۔ کچھ
لوگ یہ الزام
بھی لگاتے ہیں
کہ جناب اسپیکر
ہم ٹیکس نہیں
دیتے۔ جنا ب
اسپیکر! میں
صرف اتنا بتا
دوں کہ میرے
خاندان کے
صنعتی اور کاروباری اداروں
نے گزشتہ 23 سال
کے دوران اس
میں سے 7 سے 8 سال
باہر کے بھی
لگا لیں جب ہم
اس ملک میں
نہیں تھے۔ 23
سال کے دوران
تقریباً 10 ارب
روپے کے ٹیکس
اور حکومتی
محصولات کی
شکل میں ادا
کیے۔جناب
اسپیکر! اس کو
پوری
تفصیل ایف بی
آر کے
ریکارڈ میں شامل
ہے۔ میں یہ
تفصیل آپ کی
خدمت میں پیش
کر رہا ہوں۔
"یہ اسپیکر
صاحب کو دے
دیں"۔
جناب میرے
ذاتی ٹیکس کے حوالے
سےبھی بے بنیاد
کہانیاں
تراشی گئیں۔
میں گزشتہ 23
سال کے دوران 8برس
جبری جلا وطنی
پر
تھا۔
باقی کے 15 برس
میں ذاتی طور
پر جناب
اسپیکر ذاتی
طور پر 3 کروڑ 60
لاکھ روپے
ٹیکس ادا کر
چکا ہوں۔ یہ
تفصیل بھی میں
آپ کی خدمت
میں پیش کر
رہا ہوں۔ "یہ بھی
اسپیکر صاحب
کو دے دیں" یہ
بھی ایف بی آر
کے ریکارڈ میں
ہے۔ جناب
اسپیکر! میں
اب آتا ہوں
لندن فلیٹس کے
بارے میں
پھیلائی جانے
والی من گھڑت
کہانیوں اور
بے سروپا
انسانوں کی طرف۔
کاش یہاں
اسلام کی
تعلیمات کے مطابق
بغیر تحقیق
الزام لگانے
کا کلچر
عام نہ ہوا
ہوتا۔ جناب
اسپیکر! 1972ء میں
جب اتفاق فا
وُنڈریز کو
ایک پیسہ یا معاوضہ
دئیے بغیر نیشنلائزیشن
ہوئی۔ تو
پاکستان کے
بہت سے دوسرے کاروباری
حضرات اور
صنعتکاروں کی
طرح ہمارے والد
کے سا منے بھی
یہ سوال آ
کھڑا ہوا کہ
اب کیا کیا
جائے۔پاکستان
کے اندر پیدا
ہو جا نے والی
بے یقینی اور
بے بسی کے
احساس نے بہت
سے صنعتکاروں
کو ہجرت پر
مجبور کر دیا۔
ہمارے والد
محترم بھی
کاروبار کی
خاطر دبئی
پہنچے اور گلف
اسٹیل کے نام
سے ایک فیکٹری
قا ئم کی جو 10 لاکھ
مر بع فٹ پر
مشتمل تھی۔اس
فیکٹری کا
افتتاح اس وقت
کے دبئی کے
حکمران شیخ
راشد المکتوم
مرحوم نے کیا
موجودہ رورل
کے وہ والد
گرامی تھے۔
میں اس افتتاح
کی یادگار تصویر
آپ کی خدمت میں پیش
کر رہا ہوں۔
جناب اسپیکر!
یہ 4 یا5
تصویریں ہیں
یہ اس سے
متعلقہ ہیں۔
جناب اسپیکر!
یہ فیکٹری
اپریل 1980ء میں
تقریباً33.37ملین
درہم میں
فروخت ہوئی۔
یعنی 9 ملین
ڈالرز میں
فروخت ہوئی۔
اس وقت بھی
میرا سیاست سے
کوئی تعلق
نہیں
تھا۔جناب
اسپیکر!میں
دوبارہ یہ بات
بتانا چاہتا
ہوں۔ ہمارے والد
محترم
نے عدم تحفظ
کے جس احساس
کےتحت دبئی
میں سرمایہ
کاری کی تھی
وہ 1999ء میں درست
ثابت ہوا جب
ہمارے خاندان
کا کاروبار
ایک بار پھر
مفلوج کر دیا
گیا۔ ہمارے
گھروں پر قبضہ
کر لیا
گیا،اولڈ ایج
ہوم میرے گھر کو بنا
دیا گیا اور
ہمیں ملک بدر
کر دیا گیا۔
جناب یہ وہ
وقت تھا کہ
گھروں، ہمارے
دفتروں اور
ہمارے کاروباری
اداروں سے
سارا ریکارڈ
قبضے
میں لے لیا۔
جو بار بار کے
تحریری
تقاضوں کے با
وجود ہمیں
واپس نہیں
ملا۔ اس سارے
ریکارڈ کا کئی
کئی جگہ بڑی
باریک بینی سے
جائزہ لیا گیا
اور ہمارے
بینکوں کے
کھاتوں کو
کھنگالہ گیا۔
ملک سے باہر
بھی ٹیمیں
بھیجی گئیں
اور اس دوران
ہم جیلوں میں
بند تھے اور
کرپشن، منی لانڈرنگ،
نا جائز اثاثہ
جات بنانے اور
ریاستی وسائل
کے نا جائز
استعمال جیسے
الزامات کی
یلغار میں
تھے۔ حکومت
وقت نے سر توڑ
کوشش کر
لی لیکن اللہ
کے فضل وکرم
کسی بھی فورم
پر ہمارے بارے
میں رتی برابر
بد عنوانی
ثابت نہ ہو سکی۔
ہم ایک ایسے
ظالمانہ اور
یکطرفہ
احتساب میں
بھی سر خرو
نکلے جس میں سےشاید
ہی کوئی دوسرا
خاندان گزرا
ہو۔جب حکومت
کی سر توڑ کوششوں
کے با وجود
کرپشن تو کیا
کوئی مالی بے
ضابطگی بھی نہ
مل سکی تو
ہمیں سزا دینے
کیلئے طیارہ
اغواء کے
مضحکہ خیز
ڈرامے کا
سہارا لیا
گیا۔ جناب
اسپیکر! تب
ہمارے والد
محترم حیات
تھے، انہوں نے
جلا وطنی میں
ایک بار
پھر کمر باندھی
اور جدہ میں
ایک اسٹیل مل
لگائی۔ اس کی
بنیادی
سرمایہ کاری
کیلئے دبئی فیکٹری
کے فروخت سے
حا صل ہونے
والے سرمائے
نے بھی مدد
کی، جدہ کی یہ
فیکٹری جون 2005ء
میں اپنی مشینری
وسیع قطع
اراضی اور
دیگر اثاثوں
سمیت تقریباً
64 ملین ریال
یعنی 17 ملین
ڈالرز میں
فروخت ہوئی۔
جناب اسپیکر!
دبئی اور جدہ
کی فیکٹری کے
حوالے سے تمام
ریکارڈ اور دستاویز
موجود ہیں۔ یہ
ہیں وہ ذرائع
اور وسائل جن
سے لندن کے
فلیٹس خریدے
گئے۔ جناب
اسپیکر! میں
بلا خوف تردید
حتمی طور پر
واضح اور دو
ٹوک الفاظ میں
کہہ سکتا ہوں
کہ جدہ مل
اسٹیل مل ہو یا
لندن کے فلیٹس
یا اور کوئی
ادائیگی،
پاکستان سے ان
کیلئے ایک
روپیہ بھی
باہر نہیں
گیا۔ کمیشن کے
قیام کے بارے
میں جناب اسپیکر
محترم چیف
جسٹس صاحب کا
خط حکومت کو
موصول ہو گیا۔
ہمارے قانونی
ماہرین اس کا
جائزہ لے رہے
ہیں۔ اگر مقصد
حقیقی معنوں
میں بد عنوانی
کا تدارک اور
بد عنوان
عناصر کو بے
نقاب کرنا ہے
تو ہمیں جناب
چیف جسٹس کے
خط کی روشنی
میں ایک قابل
عمل طریقہ کار
طے کرنے میں
کوئی مشکل پیش
نہیں آنی
چاہئے۔ جناب
اسپیکر میری
درخواست ہے کہ
آپ قائد حزب
اختلاف جناب
خورشید شاہ
صاحب اور دیگر
پارلیمنٹری
لیڈرز کی مشاورت
سے ایک
پارلیمانی
کمیٹی بنائیں
جو اتفاق رائے
سے جا مع ٹرمز
آف ریفرنس اور
دیگر معاملات
کو حتمی شکل
دیں۔ تاکہ بد
عنوانی کا ارتکاب
کر نے والوں
کا تعین اور
معاسبہ کیا جا
سکے۔ جناب
اسپیکر میں
یہاں یہ بھی
کہنا چاہتا ہوں
کہ ایوان کی
مجوزہ کمیٹی
جو بھی فورم
اور طریقہ کار
طے کرے گی
میرے بیان
کردہ حقائق کی
مزید تفصیل
تمام شواہد کے
ساتھ اس کے سامنے
رکھ دی جائے
گی۔ تا کہ
الزام اور
بہتان کا
سلسلہ ختم ہو۔
اور یہ تاثر نہ دیا
جا سکے کہ کچھ
تو گناہوں میں
لت پت ہیں اور
کچھ ایسے بھی
ہیں جن کے
لباس سے
فرشتوں کی خو
شبو آتی ہے۔
جناب
اسپیکر!اصولوں،
اخلاقیات اور
احتساب کی بات
کرنی ہے تو
پھر الگ الگ
معیار اور الگ
الگ پیمانے
نہیں چلیں گے۔
تولنا ہے تہ سب
کو ایک ہی
ترازو میں
تولنا ہو گا۔
جناب اسپیکر! 70
برس قوم
کےمقدر کو
ایسے ہی
تماشوں کے بھینٹ
چڑھایا جاتا
رہا ہے۔ خدا
خدا کر کے ہم
سنبھلے ہیں ہم
نے واضح
منزلوں کیلئے
واضح راستوں کا
تعین کر لیا
ہے۔
بڑی مشکل سے
نوجوانوں کی
مایوس آنکھوں
میں امید کے
چراغ روشن ہو
رہے ہیں۔
ہماری معشیت
مستحکم ہو رہی
ہے۔ ہمارے
شہروں کا امن
واپس آ رہا
ہے۔ قومی سطح
پر ہمارے وقار
اور اعتماد
میں اضافہ ہو
رہا ہے۔ ہر
پاکستانی
تسلیم کرتا ہے
جناب
اسپیکرکہ آج کا
پاکستان 3 سال
پہلے کے
پاکستان سے زیادہ
روشن، زیادہ
توانا اور
زیادہ مستحکم
ہے۔ اور جناب
اسپیکر میرا
دل گواہی دے
رہا ہے کی اللہ
کے فضل وکرم
2018ء کا
پاکستان آج کے
پاکستان سے
بھی کہیں
زیادہ
روشن،کہیں
زیادہ توانا،
کہیں زیادہ پر
امن اور کہیں
زیادہ مستحکم
ہو گا۔
انشاءاللہ۔
پاکستان
پائندہ باد۔
The salient points of that speech are reproduced below:
* I want the allegations against my family to be inquired into. We are ready for accountability and we do not need any constitutional or legal immunity.
* I have nothing to hide and everything is like an open book.
* Upon nationalization of Ittefaq Foundries not a single Paisa was paid to us as compensation for the machinery, land or other assets.
* After 8 years Ittefaq Foundries was returned to us and it was in ruins. My father turned it around in just one year and made it into an active and vibrant industrial unit.
* By the year 1983 Ittefaq Foundries was yielding profit of Rupees 7 crores and 57 lacs per annum and by the year 1995 it had expanded to many other companies.
* Before my entry into politics our family was quite prosperous and I inherited a successful and growing business.
* In the last about 23 years my family’s businesses have paid about 10 billion Rupees in taxes and government dues.
* In the last 23 years, excluding 8 years of forced exile, I have personally paid Rupees 3 crores and 60 lacs as tax.
*
After nationalization of Ittefaq Foundries in the year 1972, for which no
compensation was paid, my father proceeded to
* In the year 1999 our business was again crippled, our houses were taken over and we were exiled from the country. At that time the entire record was taken away from our homes, offices and business concerns which was not returned to us despite repeated efforts.
* Despite an exhaustive scrutiny of that record and our bank accounts no illegality or corruption had been found by the concerned quarters.
*
While in exile my father set up a steel factory in
* The steel factory in Jeddah was sold along with its machinery, land and other assets in June 2005 for about 64 million Riyals (about 17 million US Dollars).
*
The entire record and documents pertaining to the
*
These are the means and resources with which the flats in
*
No money was sent out of
* The entire evidence and other details in support of the facts stated by me shall be produced before any committee or forum.
A careful
reading of that speech made by respondent No. 1 shows that it was for the first
time that any mention had been made therein by the respondent to setting up and
sale of a factory in Dubai as no mention of the same had been made by the
respondent in his first or second address to the nation on the issue. It had
been stated in the latest speech that in the year 1999 the entire record of the
family’s business had been taken away by the authorities and the same had not
been returned despite repeated requests but later on in the same speech respondent
No. 1 had categorically stated that the entire record and documents pertaining
to the Dubai and Jeddah factories was available and that such record could be
produced before any committee or forum! The first address to the nation
mentioned setting up of a steel factory near Makkah but the speech made in the
National Assembly referred to a steel factory in Jeddah. In the first address
to the nation respondent No. 1 had claimed that the proceeds of sale of the
steel factory near Makkah had been utilized by his two sons for setting up
their business but in the speech made in the National Assembly he had changed
his earlier stance and had maintained that the generated resources had been
utilized for “purchase” of the flats in London. Even in that speech respondent
No. 1 had never stated that he had no concern with the ownership of those
properties or that no money belonging to him had been utilized for their
acquisition. The story about “purchase” of the relevant properties in
78. Although it had specifically and repeatedly been said by respondent No. 1 on the floor of the National Assembly in the above mentioned speech that the entire record relevant to the setting up and sale of the factories in Dubai and Jeddah was available and would be produced whenever required yet when this Court required Mr. Salman Aslam Butt, Sr. ASC, the then learned counsel for respondent No. 1, on December 07, 2016 to produce or show the said record he simply stated that no such record existed or was available and that the statement made by respondent No. 1 in the National Assembly in that respect was merely a “political statement”! It may be pertinent to mention here that in the evening preceding the said stand taken by the learned counsel for respondent No. 1 before this Court an interview was telecast on Geo News television wherein Mr. Haroon Pasha, the chief financial advisor of respondent No. 1 and his family, had stated before the host namely Mr. Shahzeb Khanzada that the entire record about Dubai and Jeddah factories was available and that the said record had been handed over to respondent No. 1’s lawyers and now it was for those lawyers to present it before the Court. The transcript of that interview is available on the record of this Court and none from either side of this case has disputed the authenticity of that transcript. In one of his interviews with Mr. Javed Chaudhry on Express News television on March 07, 2016 Mr. Hussain Nawaz Sharif, respondent No. 7, had also categorically maintained that the entire record pertaining to acquisition of the four properties in London was available with the family and the same would be produced before any court looking into the matter. Such state of affairs has been found by me to be nothing but shocking as it tends to be an attempt to suppress the relevant facts and the truth and to mislead the Court. Mr. Haroon Pasha and Mr. Hussain Nawaz Sharif have never denied or contradicted the contents of the above mentioned interviews.
79. Respondent No. 1 and his children have
maintained before this Court that a factory in Dubai was set up by respondent
No. 1’s father namely Mian Muhammad Sharif through his Benamidar and nephew namely Mr. Tariq Shafi in the year 1974 and
then it was sold by him in parts in the years 1978 and 1980 through the said
Mr. Tariq Shafi fetching about 33.37 million Dirhams (about 9 million US
Dollars) and it is claimed by respondent No. 1 and his children that the
relevant properties in London had been acquired in the year 2006. No record has
been produced before us to show how much money was available for setting up the
factory in Dubai, how that money was transferred to or arranged in Dubai, what
happened to the 33.37 million Dirhams received by respondent No. 1’s father
upon sale of the factory in Dubai, how funds were generated for setting up the
factory in Jeddah, what happened to the 64 million Riyals (about 17 million US
Dollars) received upon sale of the factory in Jeddah in June 2005, how funds were
transferred to London for “purchase” of the relevant properties in London and
through which legal instrument the said properties or the offshore companies
owning them were acquired. It is ironical that on the one hand respondent No. 1
as well as respondent No. 7 had claimed that the entire relevant record was
available and the same would be produced when required but on the other hand
except for a copy of a Share Sale Contract in the year 1978, a copy of the
Tripartite Sale Agreement pertaining to the factory in Dubai in the year 1980
and an affidavit of Mr. Tariq Shafi dated November 12, 2016 no record
whatsoever had initially been produced establishing any connection between the
proceeds of such sale in the years 1978 and 1980 and acquisition of the relevant
properties in London in the year 2006. Apart from that the money fetched by
sale of the factory in
80. The only concrete material produced by
respondent No. 1 before this Court in respect of generation of funds outside
Pakistan is in the shape of copies of the above mentioned Share Sale Contract
and Tripartite Sale Agreement through which the factory in Dubai was sold in
the years 1978 and 1980 and the supporting affidavit of Mr. Tariq Shafi sworn
on November 12, 2016. The learned counsel for the petitioners have dug holes in
the said documents and have pointed out that through the sale of 75% shares of
that factory in the year 1978 not a single Dirham had become available to
respondent No. 1’s father as the entire proceeds of the sale had to be adjusted
towards some admitted outstanding liabilities. With reference to clauses
(4)(B), (4)(C), (4)(D) and (5) of the Share Sale Contract mentioned above it
has been pointed out by the learned counsel for the petitioners that at the
time of sale of 75% shares of the factory in Dubai in the year 1978 Mr. Tariq
Shafi’s liability as the ostensible owner was more than 36 million Dirhams and
at that time an amount of 6 million Dirhams was still due to the Bank of Credit
and Commerce International (BCCI). They have also pointed out from the above
mentioned document that at that time Mr. Tariq Shafi was still to discharge
some liabilities towards Dubai Electricity Company to the tune of about 3
million Dirhams. On April 14, 1980 Mr. Tariq Shafi had sold his remaining 25%
shares in the said factory in
81. I have further noticed that while concluding the above mentioned Tripartite Sale Agreement respondent No. 1’s father had acted through his attorney and nephew namely Mr. Tariq Shafi. A bare look at the affidavit statedly sworn by Mr. Tariq Shafi on November 12, 2016 and referred to above makes it apparent to a naked eye that the signatures of Mr. Tariq Shafi on the said affidavit are clearly different from the signatures on the Tripartite Sale Agreement attributed to him. I may, therefore, be justified in observing that either the copy of the Tripartite Sale Agreement produced before the Court is bogus or the affidavit attributed to Mr. Tariq Shafi is not genuine.
82. On account of the facts mentioned above I
have entertained serious doubts about the claim of respondent No. 1 and his
family that the relevant properties in London had legitimately and lawfully
been acquired by them through the resources and funds stated by them and such
doubts have been compounded by some interviews given by them to the local and
international print and electronic media. The authenticity of the reports
regarding such interviews has never been denied by the persons giving the
interviews nor the learned counsel for the respondents have contested the same
when specifically asked by the Court. Respondent No. 8 namely Mr. Hassan Nawaz
Sharif, a son of respondent No. 1, had admitted in an interview with Tim
Sebastian on BBC’s programme Hard Talk in November 1999, about seven years
prior to the stated acquisition of the properties in London, that he was a
student with no earnings of his own, he did not own those properties but he was
living in the same on rent and the money for his living in those properties
came from Pakistan on a quarterly basis. The newspaper Guardian,
83. A chart reproduced below highlights the
serious contradictions in the stands taken by respondent No. 1 and his
immediate family from time to time in the matter of acquisition of the relevant
four properties in
|
Respondents |
Medium |
Stance |
Problems |
|
Respondent No. 1: Mian Muhammad Nawaz Sharif |
Address to the nation: April 05, 2016 |
During
the days of forced exile our father once again established a steel factory
near the city of This
factory was established, for which loans were obtained from Saudi Banks, and
then after a few years the factory was sold with all its assets. These
resources were used by my sons Hassan Nawaz and Hussain Nawaz for their new
business. |
*
Did not mention setting up and sale of the factory in *
Did not explicitly mention any particular resource for acquisition of the
properties in *
Did not mention that the sale proceeds of the factory in Jeddah were used to
acquire the properties in *
Did not even hint at any investment made in *
Proceeds of sale of the factory in Jeddah mentioned as the source of funds
for his two son’s business but the said sons maintained that investment with
Al-Thani family of Qatar was the source of funds for Hassan Nawaz Sharif’s
business. |
|
Speech in the National
Assembly: May16, 2016 |
Our
father also reached |
*
Setting up and sale of a factory in *
No reference made to any investment in *
Clearly stated that no money for the factory in Jeddah or the flats in *
The stance about “purchase” of the flats in *
In his address to the nation he stated that sale of the factory in Jeddah was
the source of funds for his sons’ business but in this address he stated that
proceeds of sale of the factory in Jeddah were used to purchase the flats in |
|
|
All concise statements
filed by Mian Muhammad Nawaz Sharif before this Court |
Denied
ownership of any of the four properties in |
*
Never denied possession of the four properties in *
Never said that the said four properties belong to his children. *
Did not mention sale of the factory in Jeddah being the sources of funds for
acquisition of the flats in *
No mention of the factory in |
|
|
|
Mrs. Kulsoom Nawaz Sharif quoted by Guardian, April 10, 2000. |
“ |
*
Children were studying in *
Supported her husband’s stance that the flats in *
Contradicted the stance of her children that the flats were acquired in 2006. |
|
Respondent No. 6: Mariam Safdar |
Interview: Lekin, Geo News: November 08, 2011 |
I
do not have any property in Central London, in fact far from it, I do not own
any property even in
|
*
In 2011 she denied that she or her siblings owned any property in |
|
Joint concise statement
filed by respondents No. 6, 7 and 8: November 07, 2016 |
“Respondent
No. 6 is only a trustee for Respondent No. 7 in relation to Nescoll.” |
*
Did not mention that she was a trustee for respondent No. 7 in relation to
Nielsen Enterprise Limited also.
|
|
|
Additional statement filed
by respondent No. 6: January 24, 2017 |
She
came to know of the settlement in |
*
That meant that she knew about acquisition of the flats in * She maintained that she
had been asked to become a trustee for her brothers in respect of the flats
in
|
|
|
Respondent No. 7: Mr. Hussain Nawaz Sharif |
Interview: Capital Talk, Geo News: January 19, 2016 |
Stance
1: The
sale of the factory in Stance
2: From
that officially transferred
money to Stance 3: All the
assets were distributed in 2005 whereafter my father ceased to have any
“legal” connection with his sons’ businesses but according to Shariah “everything belonging to me is his”
and even I am owned by him. |
*
No document produced to show that any amount was officially transferred from *
No proof of any
mortgage created for acquisition of the properties in *
The story about mortgage was a totally new story and completely contradictory
to the other stories based upon purchase or settlement in *
A document produced by respondent No. 1 before the Court showed that after
the death of Mian Muhammad Sharif in 2004 his inheritance had been settled in
2009 with distribution of assets. *
Under Shariah respondent No. 7 was not an heir of his grandfather Mian
Muhammad Sharif and, thus, he did not inherit anything from him in 2004.
After the death of the grandfather in 2004 all his assets, including any
investment in |
|
Interview: Hum Dekhaingay 92 News: April 04, 2016. |
In 2005 I
sold a factory in The
factory that was installed in |
*
The subsequent stand that the properties in *
The subsequent statement of the gentleman from |
|
|
Joint concise statement
filed by respondents No. 6, 7 and 8: November 07, 2016 |
“Source
of funds, resulting in vesting of beneficial ownership of the entities and,
consequently the properties in Respondent No. 7, in January 2006, was the
investment made by late Mian Muhammad Sharif, in the year 1980, from the sale
proceeds of his steel business in |
*
The first statement of the gentleman from *
A case of obvious and deliberate suppression of facts. *
The statement of the gentleman from *
Did not mention setting up or sale of the factory in Jeddah which, according
to respondent No. 7’s interviews, was the source of funds for purchase of the
properties in |
|
|
Joint supplement-ary
concise statement filed by respondents No. 6, 7 and 8: November 15, 2016 |
The
four flats in London had been purchased by Al-Thani family of Qatar through
two offshore companies, the said family had allowed late Mian Muhammad Sharif
and his family to use the said properties whilst bearing all the expenses
relating to them including ground rent and service charges and ultimately in
2006 the account between Al-Thani family and Respondent No.7 was settled
through which the properties were transferred to him by delivery of the
bearer shares of the companies to a nominee of respondent No. 7. |
*
Within 8 days between filing of the joint concise statement on November 07,
2016 and filing of the joint supplementary concise statement on November 15,
2016 the story jointly put forward by the children of respondent No. 1
underwent a sea change. Al-Thani family and investment in *
Contradicted by respondent No. 8’s interview with BBC in 1999 according to
which he was then a student living in these flats which had been taken on
rent and the rent for the same was sent from *
Contradicted by both the parents of respondents No. 6, 7 and 8 who have
consistently maintained that the said properties had been “purchased” or
“bought”. *
No material produced to show who paid the utility bills and taxes, etc.
relevant to the said properties before 2006. |
|
|
Further statement filed by
respondents No. 7 and 8 jointly: January 26, 2017 |
After
a settlement of the investment of Mian Muhammad Sharif a balance amount of
over 8 million US Dollars was determined as payable by the Al-Thani family of
|
* Contradicted by
respondent No. 7’s stance in different interviews wherein he had maintained
that the properties in *
Contradicted by both the parents of respondents No. 6, 7 and 8 who have
consistently maintained that the said properties had been “purchased” or
“bought”. |
|
|
Respondent No. 8: Mr. Hassan Nawaz Sharif |
Interview on Hard Talk, BBC
London: November 1999 |
Categorically
stated that he was a student with no earnings of his own, he did not own the
relevant flats in |
*
Contradicted by his mother who had told Guardian newspaper of *
Contradicted by his father who never talked about taking the relevant flats
on rent. *
Contradicted by two statements of the gentleman from |
The facts
mentioned above are neither disputed nor intricate. The material referred to
above is not controverted by respondent No. 1 or his children and the same
material is in fact also relied upon by the petitioners. None of the parties
has asked us to record any evidence or to call for any evidence. No detailed
assessment of such material is required because the material speaks for itself.
Res ipsa loquitur (the thing speaks
for itself). Even a layman can appreciate, and one does not have to be a lawman
to conclude, that what had been told to the nation, the National Assembly or
even this Court about how the relevant properties in
84. On one of the dates of hearing of these
petitions Mr. Muhammad Akram Sheikh, Sr. ASC, the then learned counsel for the
children of respondent No. 1, dramatically, and with theatrical impact, took
out an envelope from his brief and produced before the Court a document
containing a statement of one Mr. Hamad Bin Jassim Bin Jaber Al-Thani who
statedly belongs to the royal family of Qatar and had remained a Prime Minister
of that country in the past. That statement was made on November 05, 2016 and
the signatures of the gentleman on that statement had been attested by the
Ambassador of Pakistan to
“Hamad Bin Jassim Bin Jaber Al-Thani
5 November 2016
I, the undersigned, do hereby state the following:
1. My father had longstanding business relations with Mr.
Mian Muhammad Sharif, which were coordinated through my eldest brother. Our
Families enjoyed and continue to enjoy personal relations.
2. I was informed that during the year 1980, Mr. Mian
Muhammad Sharif expressed his desire to invest a certain amount of money in
real estate business of Al Thani family in
3. I understood at that time, that an aggregate sum of
around 12 Million Dirhams (AED 12,000,000) was contributed by Mr. Mian Muhammad
Sharif, originating from the sale of business in
4. The properties Flat # 17, Flat # 17a, Flat # 16, Flat #
16a at Avenfield House, Park Lane, London were registered in the ownership of
two offshore companies, bearer share certificates of which were kept during
that time in Qatar. These were purchased from the proceeds of the real estate
business.
On account of relationship between the families, Mr.
Mian Muhammad Sharif and his family used the Properties whilst bearing all
expenses relating to the Properties, including the ground rent and service
charges.
5. I can recall that during his life time, Mr. Mian Muhammad
Sharif wished that the beneficiary of his investment and returns in the real
estate business is his Grandson, Mr. Hussain Nawaz Sharif.
6. In the year 2006, the accounts in relation to the above
investment were settled between Mr. Hussain Nawaz Sharif & Al Thani family,
who then delivered the bearer shares of the companies referred in para 4 above
to a representative of Mr. Hussain Nawaz Sharif.
The foregoing, as far as my recollection of events and
the available records in
This statement is private and confidential; it cannot
be used or disclosed to any party without my prior written consent, except to
the benefit of the courts and regulators of the Islamic Republic of Pakistan.
(signed)
Hamad bin Jassim bin Jaber Al Thani
Signature of H. E. Sheikh Hamad bin Jassim bin Jaber
Al Thani is ATTESTED.
(signed)
(Shahzad Ahmad)
Ambassador of
Doha-Qatar
(seal)”
That document was dropped on the Court like a bombshell hoping that the same would destroy the allegations leveled in the present petitions by explaining as to how the properties in London had come in possession of respondent No. 1’s family and in the ownership of Mr. Hussain Nawaz Sharif, a son of respondent No. 1, and putting to rest the controversy about availability as well as legitimacy of the resources for acquisition of those properties. It is, however, ironical that the said bombshell has caused more damage to the case of respondent No. 1 and his children than to the case of the petitioners. In fact the devastation wreaked by that document upon the case of respondent No. 1 and his children may be incalculable and beyond their contemplation.
85. The first thought that comes to mind in
the context of the said statement of Mr. Al-Thani is about its timing. In the
first address to the nation respondent No. 1 talked about a factory near Makkah
but not about any factory in Dubai and certainly not about any real estate business
in Qatar as the source of funds for acquisition of the properties in London. In
his second address to the nation respondent No. 1 did not talk about any
specific source of funds for such acquisition at all. In his speech in the
National Assembly respondent No. 1 introduced the factory in Dubai and the
proceeds of its sale besides the purchase and sale of a factory in Jeddah (not
near Makkah) but uttered no word about any investment in Qatar or any resource
becoming available through any real estate business in Qatar. In those speeches
respondent No. 1 had categorically said that those were the funds and resources
through which the properties in
86. The above mentioned statement from
87. The learned counsel for the petitioners
had referred to a judgment dated March 16, 1999 handed down by the High Court
of Justice, Queen’s Bench Division, London whereby a huge sum of money was
decreed on November 05, 1999 in favour of Al Towfeek Company and against
Hudabiya Paper Mills Limited, Mian Muhammad Shahbaz Sharif (a younger brother
of respondent No. 1), Mian Muhammad Sharif (the father of respondent No. 1) and
Mian Muhammad Abbas Sharif (another younger brother of respondent No. 1). The
record pertaining to the said judgment and decree shows that for satisfaction
of the decree the same four properties in London which are also the subject
matter of the present petitions had been attached and subsequently on February
21, 2000 the charge/caution on those four properties was lifted by the court
upon satisfaction of the decree which was to the tune of about 34 million US
Dollars. The Directors of Hudabiya Paper Mills Limited included Mr. Hussain
Nawaz Sharif and Mariam Safdar, respondents No. 6 and 7 herein. The said
respondents and the other defendants would not have paid such a huge amount to
get the charge/caution lifted from the four properties in
88. The petitioners had brought on the record
of these petitions some emails and documents based upon some correspondence
between the Financial Investigation Agency of the
89. Respondent No. 8 namely Mr. Hassan Nawaz
Sharif had maintained in his interview mentioned above that he was a student in
the year 1999, he had no earnings of his own and the money required for his
stay and studies in
90. It is of significance to mention here
that in his speeches made before the nation and in the National Assembly
respondent No. 1 had never stated in black and white that he had nothing to do
with ownership of the two offshore companies or the relevant properties in
91. It has already been observed by me above
that in his speeches made before the nation and in the National Assembly
respondent No. 1 had never stated in black and white that he had nothing to do
with ownership of the two offshore companies or the relevant properties in
92. When the above mentioned issues were
highlighted by the Court during the hearing of these petitions there landed
another statement of the same gentleman from
“Hamad Bin Jassim Bin Jaber Al-Thani
22 December 2016
It has come to my attention that certain queries have
been raised with respect to my statement dated 5 November 2016.
In response to such queries, I wish to clarify that in
1980, Mr. Mian Muhammad Sharif (Mr.
Sharif), a longstanding and trusted business partner of my father, made an
investment (the Investment) of
approximately twelve million AED in the real estate business of the Al-Thani
family. This investment was made by way of provision of cash, which was common
practice in the Gulf region at the time of the investment and also, given the
longstanding relationship between my father and Mr. Sharif, a customary way for
them to do business as between themselves.
At the end of 2005, after reconciling all accruals and
other distributions made over the term of the investment, it was agreed that an
amount of approximately $ 8,000,000 was due to Mr. Sharif. In accordance with
Mr. Sharif’s wishes, the amount due to him was settled in 2006 by way of the
delivery to Mr. Hussain Nawaz Sharif’s representative of bearer shares of
Nescoll Limited and Nielsen Enterprises Limited, which had been kept during
that time in
This statement is private and confidential; it cannot
be used or disclosed to any party without my prior written consent, except to
the benefit of the courts and regulators of the Islamic Republic of Pakistan.
(signed)
Hamad bin Jassim bin Jaber Al Thani
Signature of H. E. Sheikh Hamad Bin Jassim Bin Jaber
Al-Thani is ATTESTED.
(signed) 10th January 2017.
(Shahzad Ahmad)
Ambassador of
Doha-Qatar
(seal)”
It
is noteworthy that both the statements of the gentleman from Qatar produced
before this Court talked about longstanding business relations and partnership
between the said gentleman’s father and the father of respondent No. 1 which
relationship and partnership existed even prior to the investment made by
respondent No. 1’s father in Qatar in the year 1980 after sale of the factory
in Dubai. No details of the previous business dealings have been provided to
this Court and, therefore, it is not clear as to where such business was
conducted, any money for such business was generated out of
93. The first statement of the gentleman from
Qatar showed that the final settlement of the investment made by Mian Muhammad
Sharif took place with Al-Thani family and not with Mr. Hamad Bin Jassim Bin
Jaber Al-Thani and the said gentleman did not claim to be the person dealing
with the matter of the settlement personally and he was not the one who had
handed over the bearer share certificates of the two offshore companies owning
the relevant properties in London personally to anybody. In both the statements
of that gentleman it had not been disclosed as to how 12 million Dirhams had
been delivered to the gentleman’s father on behalf of respondent No. 1’s father
and who was the representative of respondent No. 7 who had received the bearer
share certificates of the two offshore companies. In the first affidavit of Mr.
Tariq Shafi dated November 12, 2016 Qatar was not mentioned at all despite the
fact that by that time the first statement of the gentleman from Qatar was
already available but in his second affidavit sworn on January 20, 2017 and
placed before the Court subsequently Mr. Tariq Shafi maintained as follows:
“3. That the sum of UAE
Dirhams twelve million was deposited by me in cash with Mr. Fahad Bin Jassim
Bin Jaber Al Thani of Qatar after receipt of each installment from Mr. Muhammad
Abdullah Kayed Ahli. This deposit was made by me on the instructions of my
uncle, late Mian Muhammad Sharif.
4. That
at that time Mr. Fahad Bin Jassim Bin Jaber Al Thani was frequently present in
Dubai in connection with his business activities and received the net aggregate
cash payment of UAE Dirhams twelve millions from me in Dubai.”
No
independent proof has, however, been produced before this Court in this regard,
no statement of Mr. Fahad Bin Jassim Bin Jaber Al-Thani has been brought on the
record and we have found it hard to believe that a sum of 12 million Dirhams in
cash had been handed over to another without obtaining any receipt or keeping
any record. Through filing of a Joint Further Statement by respondents No. 7
and 8 the Court was informed that one Waqar Ahmad had collected the bearer
share certificates from one Nasir Khamis in
94. That story about investment in the real
estate business of Al-Thani family in
95. In all his relevant speeches or his
concise statements filed before this Court respondent No. 1 never mentioned
96. In two of his speeches respondent No. 1
had talked about setting up of a factory in Jeddah but the sources of funds for
that venture had also remained an enigma and the following chart highlights the
same:
|
Respondents |
Medium |
Stance |
Problems |
|
Respondent No. 1: Mian Muhammad Nawaz Sharif |
Address to the nation: April 05, 2016 |
During
the days of forced exile our father once again established a steel factory
near the city of This
factory was established for which loans were obtained from Saudi banks. |
*
*
Loan from friends not mentioned by respondent No. 1 as mentioned by
respondent No. 7 in his interviews on January 19, 2016 and March 7, 2016. |
|
Speech in the National
Assembly: May 16, 2016 |
In
exile our father once again established a steel factory in Jeddah. Among the
primary source of funds which helped in establishing that factory was the
funds received from the sale of the factory in |
*
Mentioned funds from sale of the factory in |
|
|
Respondent No. 7: Mr. Hussain Nawaz Sharif |
Interview on Capital Talk,
Geo News television: January 19, 2016 |
“Our good old friends gave us loan, which was
later paid off”. |
*
Did not mention the settlement of investment in |
|
Interview on Kal Tak,
Express News television: March 7, 2016 |
“We
were given loans by friends and Saudi banks.” “Their
loans have been returned.” “Personal
friends gave us loans. Those have been paid back before the agreed time”. |
*
Did not mention the returns from 12 million Dirham investment in *
Stance clearly showed that loans were obtained from friends which were paid
back. *
Money given by Al-Thani family was not loans. If loans were obtained from
friends and were returned then the story about settlement of investment in |
|
|
Joint Concise Statement
(CMA No. 3719 of 2016) |
No
stance taken regarding the source of funds for setting up the factory in
Jeddah. |
|
|
|
Joint Supplement-ary
Concise Statement filed by respondents No. 6, 7 and 8 (CMA No. 7531 of 2016)
on November 15, 2016 |
No
stance taken regarding the source of funds for setting up the factory in
Jeddah. |
*
In this concise statement the investment in *
In the subsequent CMA No. 432 of 2017 it was maintained by respondents No. 7
and 8 that in 2005 respondent No. 7 was told that the money he received for
setting up the factory in Jeddah was from returns of the investment in |
|
|
Further Statement filed by
respondents No. 7 and 8 (CMA No. 432 of 2017) on January 23, 2017 |
“7.
That over the period 2001 to 2003 the late Grandfather of Respondent no. 7
arranged for the benefit of Respondent No. 7 US dollars 5.41 million for
investing in the setting up of Al Azizia Steel Company Limited. These
transfer of funds were caused by the Al-Thani family on the request of
Respondent No. 7’s grandfather Mian Muhammad Sharif. This fact was stated to
Respondent No. 7 by Sheikh Hamad bin Jassim bin Jaber Al Thani’s
representative, Nasir Khamis, at the time of an overall settlement in late
2005. The equity caused to be injected by the Late Mian Muhammad Sharif,
along with borrowings from financial institutions, was utilized for the
setting up of the aforesaid steel manufacturing plant near Makkah, |
*
This source contradicted respondent No. 7’s interviews wherein he mentioned
the source of funds for setting up the factory in Jeddah as loans from
friends and Saudi banks. *
This source was not mentioned in the initial concise statement (CMA No. 3719
of 2016). *
It is incredible that respondent No. 7 was said to have set up the factory in
Jeddah but for many years after setting up the factory he did not know where
the funds for setting up that factory had come from until he was told about
it by one Nasir Khamis in 2005! *
The worksheet about the investment in *
It is unbelievable that respondent No. 7’s father (respondent No. 1) or his
grandfather did not tell him about those funds but one Nasir Khamis of *
This information about the source of funds for setting up the factory in
Jeddah was available with respondent No. 7 when he gave the above mentioned
interviews but he did not mention it even then. *
According to the interviews given by respondent No. 7 the funds for setting
up the factory in Jeddah had come from Saudi banks and loans given by friends
whereas in his speech in the National Assembly respondent No. 1 had
maintained that the basic investment for setting up the factory in Jeddah
came from proceeds of sale of the factory in Dubai. |
A
bare look at this chart makes one wonder where truth and honesty stand in the
list of priorities of respondent No. 1 and his children. The most unbelievable
part of the story about setting up of the factory in Jeddah is told through the
second statement of the gentleman from Qatar dated December 22, 2016 wherein it
is maintained that between the years 2001 and 2003 Al-Thani family of Qatar had
transferred 5.41 million US Dollars in favour of respondent No. 7 for investing
in setting up a factory in Jeddah and that information was supplied to respondent
No. 7 by one Nasir Khamis, a representative of Mr. Hamad Bin Jassim Bin Jaber
Al-Thani, at the time of over all settlement of the investment at the end of
the year 2005. The said story wants this Court to believe that respondent No. 7
was given a huge sum of 5.41 million US Dollars between the years 2001 and 2003
but he was told about it in the year 2005! As against that in one of his
interviews given much later than 2005 respondent No. 7 had maintained that
loans had been obtained from friends and banks for setting up the factory in
Jeddah which loans had then been repaid before the time due. We have also been
told that the said factory in Jeddah had been sold in the year 2005 and it had
fetched 20,630,000 Riyals (about 17 million US Dollars) but no banking
transaction or money trail in that regard has been produced before this Court
showing from where did that money come and then where did it go.
97. Invoking the concept of parliamentary privilege the learned counsel for respondent No. 1 had argued that the said respondent could not be held liable for anything said by him in a speech made in the National Assembly on May 16, 2016 and in this context he relied upon Article 66(1) of the Constitution which reads as under:
“66. (1)
Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora
(Parliament), there shall be freedom of speech in Majlis-e-Shoora (Parliament)
and no member shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Majlis-e-Shoora (Parliament), and no
person shall be so liable in respect of the publication by or under the
authority of Majlis-e-Shoora (Parliament)
of any report, paper, votes or proceedings.”
He maintained
that the historical and universally acknowledged parliamentary privilege
recognized by the said Article of the Constitution is subject only to two
provisions of the Constitution and they are Article 68 and Article 204 which
deal with restriction on discussion in the Majlis-e-Shoora (Parliament) with respect
to conduct of a Judge of the Supreme Court or of a High Court in the discharge
of his duties and commission of contempt of court. I have, however, found that
for various reasons the issue of parliamentary privilege is not relevant to the
case in hand. To start with, the relevant speech made by respondent No. 1 was
not just a speech made in the National Assembly but it was also an address to
the nation because of live radio and television coverage of it. It is not
denied that at least four or five microphones of different television companies
including the official Pakistan Television were placed on the desk of
respondent No. 1 and a television camera was placed right in front of him when
he had made that speech and that speech was broadcast and telecast live on the
national hookup. Apart from that by making that speech respondent No. 1 had
merely utilized the floor of the National Assembly for advancing a personal
explanation regarding a matter which was not even on the agenda of the National
Assembly on the relevant day and was personal to himself and his family. This
Court in the cases of Zahur Ilahi,
M.N.A. v. Mr. Zulfikar Ali Bhutto
(PLD 1975 SC 383) and Syed Masroor Ahsan
and others v. Ardeshir Cowasjee and others (PLD 1998
SC 823) and the United Kingdom Supreme Court in the case of Regina v. Chaytor (2011 UKSC 52), [2011]
1 A.C. 684 SC-UK have already clarified that parliamentary privilege is
relevant to “the core or essential business of Parliament, which consists of
collective deliberation and decision making” or “which relates in any way to
the legislative or deliberative processes” of the Parliament “or of its
Members, however widely construed” and parliamentary privilege does not protect
criminal acts merely because such acts are committed within the precincts of
the Parliament. The argument of the learned counsel for respondent No. 1 that
the parliamentary privilege recognized by Article 66(1) of the Constitution is
subject only to Articles 68 and 204 of the Constitution has not been found by
me to be correct because Article 66(1) is subject to all the other provisions
of the Constitution and not just the two provisions indicated by the learned
counsel. In an appropriate case it may be argued that Article 66(1) of the
Constitution is also subject to Article 62(1)(f) thereof requiring a member of
the Parliament to be ‘honest’ in everything stated by him in the Parliament and
there being no parliamentary privilege in respect of stating something which is
untrue. It had been held by this Court in the case of Syed Masroor Ahsan and others v.
Ardeshir Cowasjee and others (PLD
1998 SC 823) that parliamentary privilege under Art 66 of the Constitution was
not absolute and exceptions to the same existed. It was also held in that case
that no immunity or privilege existed against criminal, illegal or
unconstitutional acts committed in the Parliament. It is also pertinent to note
that the parliamentary privilege under Article 66(1) of the Constitution is in
respect of liability to any proceedings in any court in respect of anything
said in the Parliament but in the present case the speech made by respondent
No. 1 is not the basis of any liability to any proceeding in a court and that
speech is being referred to in the present proceedings only as a circumstance in
a series of circumstances showing lack of honesty of the said respondent before
the nation, before the representatives of the nation in the National Assembly
and before this Court. Surely, respondent No. 1 is not being proceeded against
for making that speech and the said speech is being utilized in the present
proceedings only for a collateral purpose to determine as to whether the said
respondent had been making divergent statements on the same issue at different
occasions or not and as to whether he had been honest in the matter or not. It
had been held in the case of Buchanan v.
98. The matter of payment of about 34 million
US Dollars to Al-Towfeek Company towards satisfaction of the decree in
99. The bottom line is that according to the sons of respondent No. 1, as is evident from the their Joint Further Statement (Civil Miscellaneous Application No. 432 of 2017 filed on January 23, 2017) the 12 million Dirhams “placed” with Al-Thani family of Qatar by their grandfather late Mian Muhammad Sharif and “retained” by that family (which was no longer called by the sons of respondent No. 1 as an “investment” in real estate business in Qatar) were utilized in the following manner till the time that chapter was finally closed and wound up in the year 2005:
(i) 8
million US Dollars paid by Al-Thani family to Al-Towfeek Company in the
year 2002 towards satisfaction of the decree in
(ii) 5.4 million US Dollars given to respondent No. 7 for setting up a factory in Jeddah between 2001 and 2004,
(iii) 4.2 million US Dollars given to respondent No. 8 for setting up his business in the United Kingdom between 2001 and 2004 and
(iv) the remaining about 8 million US Dollars adjusted and settled by delivering bearer share certificates to a representative of respondent No. 7 and thereby transferring ownership of the two offshore companies and the relevant four properties in London in favour of respondent No. 7.
And what was the evidence produced before this Court in respect of all those millions of US Dollars rolling around? It is amazing and unbelievable. The following two handwritten documents were all that had been produced before this Court in support of all those transactions:
We
have been told that the last of the said documents is a worksheet which reads
in English language as follows:
Nothing
has been produced before this Court to establish or even indicate as to who had
prepared those documents, where those documents were kept, what was the
authenticity of those documents, how the relevant amounts were disbursed and by
whom. The said documents are not backed by any banking transaction and no money
trail has even been hinted at. The claim regarding handling of some money in
cash may be accepted with a pinch of salt as far as the transactions taking
place in the Middle Eastern countries are concerned but cash running in
millions of US Dollars being transferred to the United Kingdom and then
utilization of such cash in some business in that country or for acquisition of
property there may be very hard to believe or accept in the absence of any
legitimate transfer, a banking transaction, a money trail or a proper and
lawful disclosure. If that is how it all actually happened then it would be
nothing but money laundering.
100. Money laundering is an allegation which is
not new to respondent No. 1 and his close relative respondent No. 10. The
learned counsel for the petitioners had drawn our attention towards a very
detailed and documented report prepared and submitted by Mr. A. Rehman Malik in
September 1998 in his capacity as an Additional Director, Federal Investigation
Agency, Islamabad and that report tended to establish the money trail through
which the relevant four properties in London and many other properties and
businesses had been purchased or set up by respondent No. 1 in the names of his
children through opening of fake and fictitious bank accounts, clandestine
money transfers amounting to money laundering and use of huge unaccounted for
money. According to that report all that had happened in the 1990s and much
prior to sale of the factory in Jeddah in June 2005 and the claimed settlement
of the real estate business in
101. Respondent No. 1’s brush with criminal law
is also not new. In the case of Mian
Hamza Shahbaz Sharif v. Federation of Pakistan and others (1999 P.Cr.L.J.
1584) two FIRs had been registered by the Federal Investigation Authority in
the year 1994 and Challans in respect of such FIRs had been submitted before the
competent court with the allegations that respondent No. 1 and others had
indulged in serious corruption and money laundering, etc. Those Challans had
been quashed later on at a time when respondent No. 1 was serving as the Prime
Minister of the country. In the case of Messers
Hudabiya Paper Mills Ltd. and others v. Federation of Pakistan and others (PLD
2016 Lahore 667) a Reference had been filed by the National Accountability
Bureau against respondent No. 1 and others with the allegations of corruption
and money laundering, etc. but even that Reference was quashed during the
incumbency of respondent No. 1 as the Prime Minister of the country. In the
case of Mian Muhammad Nawaz Sharif v. The
State (PLD 2009 SC 814) respondent No. 1 had been convicted and sentenced
on April 06, 2000 by an Anti-Terrorism Court for offences under section 402-B,
PPC and section 7(f) of the Anti-Terrorism Act, 1997 on the allegation of
highjacking a commercial aeroplane and thereby committing the offence of
terrorism but later on he was acquitted of the charge by this Court on July 17,
2009. In the case of Air Marshal
(Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig,
Former Chief of Army Staff and others (PLD 2013 SC 1) a declaration was recorded by this Court in
exercise of its jurisdiction under Article 184(3) of the Constitution to the
effect that corruption and corrupt practices had been committed in the holding
of a general election in the country and in the judgment passed in that case
respondent No. 1’s stated involvement in the matter had been referred to twice
in that context and the matter of criminality of respondent No. 1 and others in
that connection was required to be investigated by the Federal Investigation
Agency. Unfortunately no investigation in that matter has so far been conducted
for obvious reasons. In the case of Mian
Muhammad Nawaz Sharif v. The State (PLD 2010 Lahore 81) respondent No. 1
had been convicted and sentenced by an Accountability Court on July 22, 2000
but subsequently his conviction and sentence had been set aside by the Lahore
High Court on June 26, 2009. In that case the allegation was that in October
1993 respondent No. 1 had purchased a helicopter and had used and maintained
the same for his election campaign whereas the costs and maintenance expenses
incurred by respondent No. 1 were beyond his known sources of income.
Respondent No. 1 had been acquitted in that case because it had been shown that
the helicopter was actually purchased by one Abdul Rehman Bin Nasir Al-Thani of
(https://en.wikipedia.org/wiki/Hamad_bin_Jassim_bin_Jaber_Al_Thani)
“Legal
issues
BAE
Systems
Following
courting by Michael Portillo,
Fawaz
Al-Attiya
HBJ
is facing a lawsuit brought on by Fawaz Al-Attiya, former official spokesman
for Qatar, who says that agents acting on behalf of HBJ imprisoned and tortured
him in Doha for 15 months from 2009-2011. Al-Attiya says that he was kept in
solitary confinement, only let out of handcuffs to be interrogated, subjected
to sleep deprivation, and denied proper access to food, water, and sunlight.[16] Al-Attiya also alleged that he was not
adequately compensated for his Qatari land that was expropriated by the state.[17] Documents submitted by Al-Attiya’s
lawyers state that in 1997, HBJ offered to buy 20,000 square meters of land
from Al-Attiya in west
After
his release, HBJ filed another case against Attiya claiming that he had forged
a check worth 3 million riyals and as a result owed money to Qatar National
Bank. This case was also dropped due to intervention by the crown prince.[16]
HBJ
denies all claims against him in regards to Fawaz Al-Attiya and says that he
has diplomatic immunity and state immunity given his diplomatic position in
Heritage
Oil
In
June 2014, HBJ acquired 80% of Heritage Oil, which was listed as a
Controversies
A
May 2008 diplomatic cable sent by then U.S. chargé d'affaires in Doha, alluded
to a dispute between HBJ and the Qatari intelligence officials over a Qatari
senior bank official imprisoned for 6 months over his role in funding Khalid Sheikh Mohammed (KSM), the al-Qaeda mastermind of September 11. The senior bank official was
Khalifa Muhammad Turki al-Subaiy who financed KSM while working at Qatar Central Bank.[14]
In
November 2016, Pakistani Prime Minister produced a letter from Hamad Bin Jassim
to claim that the properties identified as owned by his daughter in Panama
Leaks are actually are result of a settlement that happened in 2006. The letter
was mostly based on hearsay and soon after the first letter second letter was
produced which tried to cover up holes left in the first letter. The properties
were purchased by Sharif family from 1992-1996 through off shore companies
Nescoll and Nielson. The beneficial owner of those four flats is Maryam Safdar
(daughter of Prime Minister Nawaz Sharif) according to leaked
102. While dwelling on the issue of money
laundering I may observe that it was argued before us by the learned counsel
for the petitioners that a number of so-called gifts made by respondent No. 7
namely Mr. Hussain Nawaz Sharif to his father also hinted at concealment of
assets, rotation of money and money laundering by respondent No. 1 and his
family. The uncontested record produced before us showed that respondent No. 7
had sent the following amounts of money from
Tax year 2011: Rs. 129,836,905
Tax year 2012: Rs. 26,610,800
Tax year 2013: Rs. 190,445,024
Tax year
2014: Rs. 197,499,348
Total: Rs. 544,392,077
Respondent No. 7
had claimed before us that he had sold the factory in Jeddah in the year 2005
and initially he had not disclosed that he had another factory in
103. The record produced before the Court also discloses another pattern showing that crores of Rupees in cash are sent from Saudi Arabia by a son (respondent No. 7) to his father (respondent No. 1), the father purchases landed property in the name of his daughter (respondent No. 6), some money is gifted by the father to the daughter and then the daughter pays the father the amount spent by him on such purchases and becomes owner of such property in her own right. According to the record an amount of Rs. 24,851,526 had been paid by the daughter (respondent No. 6) to her father (respondent No. 1) out of the money gifted by the father to the daughter by following the same pattern! The pattern may be mindboggling to some but we are told that those versed well with taxation laws know of such ways of rotating money and in the process whitening money which may otherwise be black. In the above mentioned report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency some specified persons had actually been named and some evidence in that regard had been mentioned establishing how through Havala/Hundi some unaccounted for money available with respondent No. 1 was siphoned off abroad and then the same money was brought back to the country as white money through gifts.
104. At every stage of the hearing of these petitions the question regarding onus of proof kept on recurring before the Court. According to the learned counsel for the petitioners the initial onus on the petitioners had been discharged by them through producing sufficient material to show that the relevant four properties in London were owned by respondent No. 1’s family, the said respondent and his family acknowledged ownership and possession of those properties, the children of the said respondent did not possess sufficient means of their own to acquire the said properties at the relevant time and respondent No. 1 and his family had failed to account for the funds utilized for acquisition of such properties which factors had shifted the onus of proof to respondent No. 1 and his family requiring them to account for the relevant acquisitions to the satisfaction of the Court and to establish that respondent No. 1 had been honest in his explanations advanced in that regard before the nation, the National Assembly and this Court. As against that the learned counsel for respondents No. 1, 6, 7 and 8 had maintained that the allegations leveled against the said respondents were essentially of quasi criminal nature and, therefore, the onus was always upon the petitioners to establish their allegations before the Court through positive and admissible evidence and it was not for the said respondents to disprove those allegations. I have attended to this controversy with reference to the relevant statutory provisions and a brief reference to such provisions is being made in the following paragraphs.
105. The present case brought before this Court
by invoking Article 184(3) of the Constitution is not a case of a civil wrong
or of commission of a criminal offence but it is essentially a case of a
constitutional qualification for and disqualification from becoming or
remaining a member of the Majlis-e-Shoora (Parliament) mainly on the ground of
lack of honesty on the part of respondent No. 1. Proceedings of this Court
under Article 184(3) of the Constitution are essentially civil in nature. The
allegations leveled by the petitioners are largely based upon some material
disclosed by the International Consortium of Investigative Journalists (ICIJ)
which material had been put to respondents No. 1, 6, 7 and 8 by ICIJ before it
was made public and the said respondents had failed to rebut or even contest
the same at that stage. The material so disclosed did have a tendency to
incriminate those respondents and to raise serious questions qua their honesty and integrity. In
their private capacities the petitioners had no means to inquire into or
investigate the matter or to penetrate the multiple veils of offshore
companies. Like the ICIJ the petitioners have acted in the matter as
whistleblowers. Because of respondent No. 1 being the Prime Minister of the
country and the Chief Executive of the Federation besides being the appointing
authority of the heads of all the relevant institutions tasked to inquire into,
investigate or prosecute such matters nobody even initiated any inquiry or
investigation against respondent No. 1 and his children in respect of the
allegations leveled. The initial onus of proof on the petitioners stood
discharged when the relevant respondents admitted their possession and
ownership of the relevant properties in
Section 5-C of the Prevention of Corruption Act, 1947:
“5-C. Possession of property disproportionate to
known sources of income.-
(1) Any
public servant who has in his possession any property, movable or immovable either
in his own name or in the name of any other person, which there is reason to
believe to have been acquired by improper means and which is proved to be
disproportionate to the known sources of income of such public servant shall, if
he fails to account for such possession to the satisfaction of the Court
trying him, be punishable with imprisonment for a term which may extend to
seven years and with fine, and on such conviction the property found to be
disproportionate to the known sources of income of the accused by the Court
shall be forfeited to the Provincial Government.
(2) The
reference in subsection (1) to property acquired by improper means shall be
construed as a reference to property acquired by means which are contrary to
law or to any rule or instrument having the force of law or by coercion, undue
influence, fraud or misrepresentation within the meaning of the Contract Act,
1872.”
Section 9(a)(v) of the National Accountability Ordinance, 1999:
“A holder of a public office, or any other person, is
said to commit or to have committed the offence of corruption and corrupt
practices:-
---------------------
(v) if
he or any of his dependents or benamidars owns, possesses, or has acquired
right or title in any assets or holds irrevocable power of attorney in respect
of any assets or pecuniary resources disproportionate to his known sources of
income, which he cannot reasonably account for or maintains a standard
of living beyond that which is commensurate with his sources of income ---”
Section 14(c) of the National Accountability Ordinance, 1999:
“In any trial of an offence punishable under clause
(v) of sub-section (a) of Section 9 of this Ordinance, the fact that the
accused person or any other person on his behalf, is in possession for which
the accused person cannot satisfactorily account, of assets or pecuniary
resources disproportionate to his known sources of income, or that such person
has, at or about the time of the commission of the offence with which he is
charged, obtained an accretion to his pecuniary resources or property for
which he cannot satisfactorily account, the Court shall presume, unless the
contrary is proved, that the accused person is guilty of the offence of
corruption and corrupt practices and his conviction therefor shall not be
invalid by reason only that it is based solely on such presumption.”
(underlining has
been supplied for emphasis)
It is a fact not disputed in this case by any party that respondent No. 1 was, and he still is, a holder of a public office when he and his children came in possession of the relevant properties in London between the years 1993 and 1996 and they are still in admitted possession of those assets which are claimed to be owned by one of the children of respondent No. 1 since the year 2006. It is again an uncontroverted fact that at the time of taking over possession of the said properties all the children of respondent No. 1 were non-earning students and his wife was a household lady with no independent sources of income of their own and, thus, they were dependents of respondent No. 1 at that time. No other claimant to those assets has surfaced anywhere ever since. The issue of corruption and corrupt practices is essentially a criminal law issue but when it arises in the electoral context of a constitutional or statutory qualification or disqualification then such issue becomes a quasi criminal issue. When dealing with a quasi criminal issue it is impossible not to be guided in the matter by the broader principles applicable to the criminal law relating to corruption and corrupt practices which are inseparably linked with the issue of honesty of a person. As seen above, one of the basic features governing this field of the law is that where a public servant or a holder of a public office is in possession of an asset either directly or through his dependents or Benamidars then it is for him to account for that asset which is disproportionate to his known sources of income and a court dealing with the issue is to presume the absence of a satisfactory explanation.
106. The law of evidence in vogue in the country is the Qanun-e-Shahadat Order, 1984 and the following provisions of that law are quite relevant to the case in hand:
Article 122 of the Qanun-e-Shahadat Order, 1984:
“122. Burden of proving fact especially within
knowledge. When any fact is especially within the knowledge of any person
the burden of proving that fact is upon him.
Illustrations
(a)
---------------------
(b)
A
is charged with traveling on a railway without a ticket. The burden of proving
that he had a ticket is on him.”
Article 117 of the Qanun-e-Shahadat Order, 1984:
“117. Burden of proof. (1) Whoever desires any Court to give
judgment as to any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist.
(2) When
a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.”
Article 129 of the Qanun-e-Shahadat Order, 1984:
“129. Court may presume existence of certain
facts. The Court may presume the existence of any
fact, which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in
their relation to the facts of the particular case.
Illustrations
The
Court may presume:
(a) that
a man who is in possession of stolen goods soon after the theft is either the
thief or has received the goods knowing them to be stolen, unless he can
account for his possession;”
Article 2(4), (7) and (8) of the Qanun-e-Shahadat Order, 1984:
Definition of “proved”:
“(4) A
fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that
a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists.
---------------------
(7) Whenever
it is provided by this Order that this Court may presume a fact, it may either
regard such fact as proved, unless and until it is disproved, or may call for
proof of it.
(8) Whenever
it is directed by this Order that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.”
The facts about
generation and availability of the requisite funds for taking over or setting
up the relevant offshore companies and acquisition of the relevant properties
in London, about transfer of such funds to Panama or England, about the modes
of payment, about how, when and from whom possession of the relevant properties
was obtained and about who became the beneficial owner of the said properties
were all especially within the knowledge of respondent No. 1 and his children
and, thus, the burden of proving those facts was upon them (Article 122).
Respondent No. 1 and his children have always maintained that the relevant
properties had been acquired through lawful money generated and transferred
through legitimate means and that the matter ought to be decided by a court of
law before which they would establish their claim by producing all the relevant
record which was in their possession. The burden of proof in that respect,
therefore, lied on them (Article 117). Respondent No. 1 and his children admit
being in possession of the relevant properties which are being alleged to have
been acquired through corruption, corrupt practices and money laundering, etc.
and, thus, a court may presume correctness of the allegations (Article 129) and
it was for respondent No. 1 and his children to establish otherwise (Article 2(7)
and (8)). Apart from that a finding by a court that a fact exists and stands
proved is not always dependent upon direct or positive proof led by the parties
in support of their rival claims and in an appropriate case even the
circumstances of a given case may convince the court that a fact exists and
stands proved, as is evident from the provisions of Article 2(4) of the
Qanun-e-Shahadat Order, 1984 according to which “A fact is said to be proved
when, after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it
exists”. Instead of giving any straight answer the learned counsel for respondent
No. 1 maintained before this Court that the said respondent had nothing to do
with acquisition of the relevant properties in
107. Corruption at high places is not a new phenomenon but the methods of corruption and concealing the proceeds of corruption have seen a dramatic change in recent times. Previously a corrupt official would make illegal money and then put the amount in his bank account or a bank account of someone close to him or would convert that amount into property. Such proceeds of corruption and the property acquired through the same were not difficult to detect and, therefore, the normal onus and standard of proof required in a criminal case, i.e. the prosecution to prove its allegations beyond reasonable doubt and the accused person presumed to be innocent till proved guilty were applicable to the cases of corruption as well. Things have, however, changed now. There are now tax havens available in different parts of the world and through creation of offshore companies not only tax is being evaded by concealing wealth but even ill-gotten money is parked behind multiple veils of secrecy which are extremely difficult to lift or penetrate. This new development has forced legislatures around the world to modify the laws about onus and standard of proof in cases of corruption and even the courts and tribunals in different parts of the world are adopting different approaches for concluding as to whether the allegations of corruption leveled against an accused person have been established or not. In Pakistan, as already noticed above, section 5-C of the Prevention of Corruption Act, 1947 places a light initial onus of proof on the prosecution to establish that the accused person is in possession of some movable or immovable property and there is reason to believe that such property had been acquired by improper means and the same is disproportionate to his known sources of income and then a heavier onus shifts to the accused person to account for possession of the relevant properties to the satisfaction of the court. Again, section 9(a)(v) of the National Accountability Ordinance, 1999 places a light initial onus of proof on the prosecution to establish that a holder of a public office, or any other person, or his dependent or Benamidar owns, possesses, or has acquired right or title in any asset or holds irrevocable power of attorney in respect of any asset or pecuniary resource disproportionate to his known sources of income or maintains a standard of living beyond that which is commensurate with his sources of income and thereafter a heavier onus shifts to the accused person to reasonably account for his ownership, possession, acquiring of right or title or holding irrevocable power of attorney in respect of such assets or pecuniary resources. Section 14(c) of the National Accountability Ordinance, 1999 goes a step further and provides that “In any trial of an offence punishable under clause (v) of sub-section (a) of Section 9 of this Ordinance, the fact that the accused person or any other person on his behalf, is in possession for which the accused person cannot satisfactorily account, of assets or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.” This change of approach in cases of corruption and corrupt practices is not just confined to Pakistan but there is also some international arbitral and common law authority available now showing that when it comes to establishing corruption and corrupt practices in civil proceedings the standard of proof required is the balance of probabilities and understanding of a prudent man and not beyond reasonable doubt and that such an issue can even be clinched on the basis of circumstantial evidence. It has already been observed by us above that proceedings of this Court under Article 184(3) of the Constitution are essentially civil in nature. A survey of the following cases would demonstrate that in civil proceedings at the international level the standard of proof in relation to corruption and corrupt practices is ‘balance of probabilities’ (allowing inferences from circumstantial evidence) and not ‘beyond reasonable doubt’.
108. In
the field of international commercial arbitration we note that in the case of Agrima Ltd. v. Republic of Zambia (ICC
Case No. 12732) [(2011) 22 ICC International Court of Arbitration Bulletin at
page 78] a distinguished ICC Tribunal was asked to address claims that the
contract in issue was part of a corrupt transaction and had entailed illegal
conduct under the applicable English law. The Tribunal observed that it was of
the view that:
“the standard of proof need not be, and should not be,
weakened, nor that it need be or should be strengthened. The same standard of
proof, namely one based upon the balance of probability, should be applied.
That standard does not require “certainty”, or even “likelihood beyond a
reasonable doubt”. Nor does it require conclusive, direct evidence. It requires
evidence, to be sure, but such evidence may be indirect or circumstantial, to
the extent it is sufficient, in the context of the surrounding circumstances,
to tip the balance of probability.”
Similarly, in ICC Case No 8891 [(2000) 127 Journal du droit international at pages 1076, 1079] another learned ICC Tribunal concluded, by drawing on circumstantial evidence, described by the Tribunal as “indicia”, that corruption had taken place. The Tribunal set out and applied the following test (translated from the original French text):
“According to the traditional rules concerning the
standard of proof, it is incumbent on the party that alleges a wrongful act to
prove it. This often turns out to be difficult in practice. The illicit object
is generally hidden behind contractual dispositions which appear on their face
to be anodyne. That is why arbitrators often have no choice but to base
themselves on indicia. Those indicia must be serious.”
In the case of Argentine Engineer v. British Company (ICC Case No 1110) [Award of 1963 (Lagergren) (1996) 47 Yearbook of International Arbitration 47] the Sole Arbitrator Lagergren (a Judge of the International Court of Justice) held on the basis of circumstantial evidence and adverse inferences that the contracts there at issue had been entered into through corruption.
109. In
the field of international investment arbitration (Investor-State Arbitration)
the ICSID Tribunals (tribunals formed under the auspices of the International
Centre for the Settlement of Investment Disputes) have also been alive to the
difficulties that practically persist in trying to prove corruption and the
consequences that must perforce have for the applicable standard of proof. In
the case of Oostergetel v. The Slovak
Republic [UNCITRAL Final Award (23 April 2012)] the Tribunal held that
whilst
“[f]or obvious reasons, it is generally difficult
to bring positive proof of corruption --------------------- corruption can also
be proven by circumstantial evidence.”
In the case of Metal-Tech Ltd. v. Uzbekistan (ICSID Case No. ARB/10/3, Award, 4 October 2013) the Tribunal observed that:
“the Tribunal will determine on the basis of the
evidence before it whether corruption has been established with reasonable
certainty. In this context, it notes that corruption is by essence difficult to
establish and that it is thus generally admitted that it can be shown through
circumstantial evidence.”
In the case of Tokios Tokeles v. Ukraine (Case No. ARB/02/18, Award, 26 July 2007) the Tribunal said that in relation to government corruption-like activities the standard of proof was whether the assertion “is more likely than not to be true”, that is, balance of probabilities.
110. Similar conclusions can be drawn from the jurisprudence of the International Court of Justice which in the case of Corfu Channel (ICJ Rep 1949 at page 18) laid down the rule that, where an allegation is particularly difficult to prove, the party which is trying to prove the allegation at issue
“should be allowed a more liberal recourse to
inferences of fact and circumstantial evidence. This indirect evidence is
admitted in all systems of law, and its use is recognized by international
decisions. It must be regarded as of special weight when it is based on a
series of facts linked together and leading logically to a single conclusion.”
111. Even
in the English law it was incisively observed by the Appellate Committee of the
House of Lords in the case of Secretary
of State for the Home Department v.
Rehman [2001] UKHL 47, [2002] 1 All ER 122 that:
“The civil standard of proof always means more
likely than not. The only higher degree of probability required by the law is
the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H
(Sexual Abuse, Standard of Proof) (Minors) [1996] AC 563 at 586, some things
are inherently more likely than others. It would need more cogent evidence to
satisfy one that the creature seen walking in Regent’s Park was more likely
than not to have been a lioness than to be satisfied to the same standard of
probability that it was an Alsatian [dog]. --------------------- cogent
evidence is generally required to satisfy a civil tribunal that a person has
been fraudulent or behaved in some other reprehensible manner. But the question
is always whether the tribunal thinks it more probable than not.”
112. The
present case before us is not a criminal case and nobody has prayed that
respondent No. 1 or his children may be convicted by this Court of corruption,
corrupt practices or money laundering, etc. The petitioners have called upon
this Court mainly to examine as to whether in the matter of his explanations in
respect of acquisition of the relevant properties and assets respondent No. 1
has been honest to the nation, the National Assembly and this Court or not. A
lot of circumstances have become available on the record which circumstances
have already been discussed in the earlier part of this judgment. Article 2(4)
of the Qanun-e-Shahadat Order, 1984 reproduced above speaks of the “matters”
before the court and not just the “evidence” produced and it visualizes that
there may be cases where a fact may be found by the court to exist and proved
on the basis of the circumstances of the case even if no direct or positive
evidence is available before it. Setting up an offshore company and concealment
of ill-gotten wealth and assets behind its multiple veils of secrecy which may
be extremely difficult to lift or penetrate pose new challenges to
administration of justice worldwide and in the absence of direct or positive
evidence such cases of corruption, corrupt practices and money laundering, etc.
may be solved through strong circumstantial evidence or material. The
circumstances of a given case may also convince a court or tribunal that the
explanations advanced by a person trying to justify his wealth and assets held
in the name of another are not true or correct which factor may impinge upon
his honesty, particularly when he holds a high public office of authority. In
the present case we are only seized of the issue of respondent No. 1’s honesty
in the constitutional context and not the allegations of corruption, corrupt
practices or money laundering, etc. leveled against him and, therefore, the
said aspect of the matter can validly be determined by us on the basis of the
circumstances of the case as made permissible by the provisions of Article 2(4)
of the Qanun-e-Shahadat Order, 1984 reproduced above. Legal sages down the ages
have maintained Jura novit curia (the court determines for itself what the law is) or as Darling
J. put it in Gray
v. Gee (1923)
39 TLR 429,
430: “It used to be said that the common law of England resided in
the breasts of
His Majesty's Judges”. It is by now settled that the jurisdiction of this Court
under Article 184(3) of the Constitution, which has been invoked in the present
case, is inquisitorial and not adversarial. The common law concept of justice,
equity and good conscience now finds translated into a jurisdiction conferred
upon this Court by Article 187(1) of the Constitution according to which in a
case or matter pending before it this Court has the power to issue such
directions, orders or decrees as may be necessary for doing complete justice.
This unique and extraordinary jurisdiction has been conferred by the
Constitution only upon this Court which sits at the apex of judicial
administration and not upon any other court in the country because it could be
visualized that there might be cases wherein the rigours of the codified law or
strict compliance of the same may create a situation which might be unjust or
oppressive in the circumstances of the case. All the other courts in this
country are courts of law whereas this Court is not just a court of law but
also the court of ultimate justice. It is obvious that when it comes to
exercise of the said jurisdiction of this Court to do complete justice a strict
application of the black letter law may not stand between this Court and the
noble cause of justice if the circumstances of the case so warrant.
113. On the basis of the discussion made in the
earlier part of this judgment the explanations advanced by respondent No. 1 in
respect of the four properties in London and even in respect of his and his
family’s businesses and resources have been found by me to be nothing but
evasive and the statements made by him in that regard have appeared to me to be
contradictory to each other. The explanations advanced by him have also been
found by me to have remained utterly unproved through any independent evidence
or material and, hence, the same were quite likely to be untrue. Even the children of respondent No.
1 have not been able to bring anything on the record to show that the
explanations advanced by respondent No. 1 were or could be true and correct.
Respondent No. 1 has categorically distanced himself from the four properties
in
“It is apparent from the record of inquiry that in
preliminary inquiry the appellant has categorically admitted in his statement
that Mr. I. M. Tariq Supr ‘B’ alongwith members of F. S. Team visited his
residence and he also confirmed in his cross-examination that he recognizes Mr.
Imam Tariq. The appellant also admitted his travel in the car of the
representative of the Textile Mills from Cyanide Factory to the Mohajir Camp
Chowk alongwith Mr. Kaleem-uz-Zaman. But in his statement at a later stage the appellant
has totally denied the visit of Mr. I. M. Tariq alongwith the members of F. S.
Team, to his residence as well as his travel in the Mills representative’s car
on 22.2.1982. These contradictory statements on the part of the appellant show
his guilty conscience by his own conduct which clearly makes him responsible
for commission of the alleged offence beyond any doubt.”
In the case of Dr. Aftab Shah v. Pakistan Employees Cooperative Society Limited and 5 others (2006 CLC 342) the High Court of Sindh had observed as follows:
“15. --------------------- When one stand is taken at one point of
time and a different stand at another, and both stands do not reconcile with
each other, then this act by itself leads to the presumption that such person
does not have a genuine cause of action. The conflicting stands amount to
destroying one’s own cause of action and, therefore, the entire foundation of
plaintiff’s claim is to be treated as false.”
In
another case of Asif Mowjee v. Zaheer
Abbas and others (2015 CLC 877) the High Court of Sindh had observed as
under:
“52. The stand taken by learned counsel for the Applicant is not
only self-destructive but also self-clashing. Not only this the applicant is
also guilty of approbation and reprobation by taking inconsistent pleas. Of
course, which leads to the conclusion that the applicant [defendant No. 1 –
judgment debtor] does not have any genuine case.”
I
may, therefore, be justified in raising an adverse inference in the matter. The
fortune amassed by respondent No. 1 is indeed huge and no plausible or
satisfactory explanation has been advanced in that regard. Honoré de Balzac may
after all be right when he had said that behind every great fortune for which
one is at a loss to account there is a crime. In the above mentioned sorry and
unfortunate state of affairs a conclusion has appeared to me to be unavoidable
and inescapable that in the matter of explaining the wealth and assets
respondent No. 1 has not been honest to the nation, to the nation’s representatives
in the National Assembly and even to this Court.
114. It has already been mentioned in the
opening part of this judgment that respondent No. 1 has held the highest public
offices since the year 1981 and such offices include those of the Finance
Minister, Chief Minister and Prime Minister and in one of his interviews he had
stated that he had decided to disassociate himself from the family business in
the year 1997 although no material has been produced before us in support of
such claim. There is no denying the fact that at least between 1981 and 1997
the said respondent was actively engaged with his family business and was
simultaneously enjoying the above mentioned highest public offices. It is also
an admitted fact that the relevant two offshore companies own the four
properties in London from the years 1993/1996 which offshore companies are
statedly owned by respondent No. 1’s son namely Mr. Hussain Nawaz Sharif at
least since the year 2006. The dependent and non-earning children of respondent
No. 1 are admittedly in possession of the said properties in
115. The main relief prayed for by the
petitioners through the present petitions is regarding a declaration that
respondent No. 1 is not ‘honest’ and ‘ameen’ and consequently he is not
qualified to be elected to or remain a member of the Majlis-e-Shoora
(Parliament) and for seeking such relief a wholehearted reliance is placed upon
the provisions of Article 62(1)(f) of the Constitution which are reproduced
below:
“62. (1) A person shall not be qualified to be
elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-
(a) ---------------------
(b) ---------------------
(c) ---------------------
(d) he
is of good character and is not commonly known as one who violates Islamic
Injunctions;
(e) he
has adequate knowledge of Islamic teachings and practices obligatory duties
prescribed by Islam as well as abstains from major sins;
(f) he
is sagacious, righteous, non-profligate, honest and ameen, there being no
declaration to the contrary by a court of law; and
---------------------.”
It appears that while prescribing the said qualifications guidance must have been sought from the Holy Qur’an wherein the qualifications for a domestic servant indicated are “alqavi ul ameen” (physically strong and reliable/trustworthy) [Surah Al-Qasas: verse No. 26] and those for being placed over resources of the land are “hafeez un aleem” (reliable custodian/protector and knowledgeable) [Surah Yusuf: verse No. 55]. It is probably in those contexts that the qualifications of being “honest” and “ameen” prescribed in Article 62(1)(f) of the Constitution are to be understood, interpreted and applied. The reasons why such stringent qualifications for the elected representatives found their way into the Constitution and the difficulties likely to be faced by a court or tribunal in interpreting and applying such abstract qualifications to real cases were commented upon by me in my separate concurring judgment delivered in the case of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). In the said judgment a number of ambiguities and impracticalities were highlighted and observations were made how it was difficult for a court or tribunal to apply the above mentioned requirements of Article 62 of the Constitution. The relevant part of that judgment reads as follows:
“Similarly clause (f) of Article 62 of the Constitution
provides a feast of legal obscurities. It lays down that a person shall not be
qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament)
unless:
"(f) he
is sagacious, righteous and non-profligate and honest and ameen[, there being no
declaration to the contrary by a court of law]."
Whether
a person is ‘sagacious’ or not depends upon a comprehensive study of his mind
which is not possible within the limited scope of election authorities or
courts involved in election disputes. The acumen or sagacity
of a man cannot be fathomed. The same is true of being 'righteous' and
'non-profligate'. These factors relate to a man's state of mind and cannot be
properly encompassed without a detailed and in-depth study of his entire life.
It is proverbial that Devil himself knoweth not the intention of man. So, why
to have such requirements in the law, nay, the Constitution, which cannot even
be defined, not to talk of proof. The other requirement qua being 'honest’ and 'ameen' have a clear
reference towards the Holy Prophet's (p.b.u.h.) attributes as ‘Sadiq' and 'Ameen'. This as well as other
requirements envisaged by the preceding clauses of Article 62, if applied
strictly, are probably incorporated in the Constitution to ensure that only the
pure and pious Muslims (living upto the standard of a prophet of God Almighty)
should be elected to our Assemblies so that, as provided in the Preamble, the
sovereignty of God Almighty could be exercised by them in the State of Pakistan
as a sacred trust. But, instead of being idealistic, the Constitution of a
country should be more practicable. The line of prophethood has long been
discontinued and now we are left with sinful mortals. The political arena in
our country is full of heavyweights whose social and political credentials
outweigh their moral or religious credentials. Even the electorate in our
country has also repeatedly demonstrated their preference for practical wisdom
and utility over religious puritanism. Thus, the inclusion of unrealistic and
ill-defined requirements in the Basic Law of the Land renders the same
impracticable and detracts from the sanctity which the Constitution otherwise
deserves.”
That judgment had concluded with the following remarks made by me which may be of some relevance and interest in the present context:
“4. It is
unfortunate that the nightmares of interpretation and application apprehended
and anticipated by me as a young lawyer more than a quarter of a century ago
are presently gnawing the Returning Officers, Election Tribunals and the
superior courts of the country in the face but those responsible for
rationalizing the troublesome provisions of the Constitution through
appropriate amendments of the Constitution have slept over the matter for so
long and they still demonstrate no sign of waking up. As long as the
highlighted obscurities and impracticalities are not addressed and remedied
nobody should complain that the Returning Officers, Election Tribunals and the
superior courts of the country are generally unsuccessful in catching the
candidates with bad character or antecedents in the net of Articles 62 and 63
of the Constitution, particularly when the electorate is quite happy to elect
such candidates with sweeping majorities while in full knowledge of their
character and antecedents. Let us not shy away from acknowledging the hard
reality that there is a disconnect between our constitutional morality and our
political ethos. There are no qualms of conscience when through a
constitutional and legal process a person is ousted from an elected chamber on
account of his academic degree being fake and forged but he is returned by the
electorate to the same chamber with a bigger majority and he triumphantly
re-enters that chamber while flashing a sign of victory. The sign so shown or
flaunted proclaims victory of political expediency over constitutional values
and such attitudes of our society call for serious reflection and
soul-searching.
5. This
reminds me of George Bernard Shaw who had observed that "Democracy is a
device that ensures we shall be governed no better than we deserve." Abraham Lincoln had once remarked: “Let me not be
understood as saying that there are no bad laws, nor that grievances may not
arise for the redress of which no legal provisions have been made. I mean to
say no such thing. But I do mean to say that although bad laws, if they exist,
should be repealed as soon as possible, still, while they continue in force,
for the sake of example they should be religiously observed.” If the
constitutional provisions discussed above cannot be put to practical use due to
their obscurities or impracticalities then we may pay heed to Baron de Montesquieu
who had declared that “Useless laws weaken necessary laws”. It may be well to
remember that laws and institutions, like clocks, must occasionally be
cleaned, wound up and set to true time. Even the old bard William Shakespeare had written in ‘Measure for
Measure’:
“We must not make a scarecrow of the law,
Setting
it up to fear the birds of prey,
And
let it keep one shape, till custom make it,
Their
perch and not their terror.”
In the end I may observe that insistence upon complete virtue
in an ordinary mortal may be unrealistic and puritanical behaviour of an
ordinary human may have a tendency of making him inhuman. It may be true that
humans are the best of Almighty Allah’s creations but the divine structural
design never intended an ordinary human being to be perfect and free from all
failings, frailties or impurities. There may, thus, be some food for thought in
what Abraham Lincoln had said about ordinary folks when he had observed that
"It has been my experience that folks who have no vices have very few
virtues."”
116. It may be true that the provisions of Article 62(1)(f) and the likes of them had been inserted in the Constitution through an amendment by an unrepresentative regime of a military ruler but at the same time it is equally true that all the subsequent democratic regimes and popularly elected Parliaments did nothing either to delete such obscure provisions from the Constitution or to define them properly so that any court or tribunal required to apply them may be provided some guidance as to how to interpret and apply them. Be that as it may the fact remains that the said provisions are still very much a part of the Constitution and when they are invoked in a given case the courts and tribunals seized of the matter have no other option but to make some practical sense of them and to apply them as best as can be done. Before application of those provisions to real cases it is imperative to understand as to why such provisions were made a part of the Constitution and where do they stand in the larger design of the Constitution.
117. There is no denying the fact that it was in
the name of Islam that
“Whereas sovereignty over the
entire universe belongs to Allah Almighty alone and the authority which He has
delegated to the State of Pakistan, through its people for being exercised
within the limits prescribed by Him is a sacred trust;”
“Wherein the State shall
exercise its powers and authority through the chosen representatives of the
people;”
“Wherein the principles of
democracy, freedom, equality, tolerance and social justice as enunciated by
Islam shall be fully observed;”
“Wherein the Muslims shall be
enabled to order their lives in the individual and collective spheres in
accordance with the teachings and requirements of Islam as set out in the Holy
Quran and the Sunnah;”
In the
successive Constitutions that were adopted by the people of Pakistan from time
to time the principles and provisions of that Objectives Resolution were added
as a Preamble thereto till the year 1985 when, through insertion of Article 2A
in the Constitution of the Islamic Republic of Pakistan, 1973, it was
categorically provided that “The principles and provisions set out in the
Objectives Resolution reproduced in the Annex are hereby made substantive part
of the Constitution and shall have effect accordingly”. There are certain
remarkable Islamic features of the Objectives Resolution, now a substantive
part of our Constitution, which are hard to escape notice. For instance a new
dimension has been given therein to the concept of sovereignty of the
Parliament. Although sovereignty of Almighty Allah over the entire universe has
been acknowledged yet the State has been recognized as the delegatee thereof
which is to exercise that sovereignty through chosen representatives of the
people within the limits prescribed by Almighty Allah as a sacred trust. Thus,
while conceding sovereignty to a democratically elected Parliament the
Constitution simultaneously circumscribes that sovereignty by confining it to
the limits prescribed by Almighty Allah. This is in exact conformity with a
Muslim’s belief that he may be free to make his own choices in life but he may
not overstep the limits prescribed by his Creator. Looked at in this
perspective the Pakistani Constitution, conforming to the Islamic perceptions,
recognizes democracy as the only mode of governance, but a democracy which does
not come in conflict with a Muslim’s faith. To an outsider this may appear to
be enigmatic but we the Muslims of Pakistan have no difficulty in understanding
and applying this concept. It, therefore, fits into the scheme when the
Objectives Resolution refers to “the principles of democracy, freedom,
equality, tolerance and social justice as
enunciated by Islam” and
envisions a State “wherein the Muslims shall be enabled to order their lives in
the individual and collective spheres in
accordance with the teachings and requirements of Islam as set out in the
Holy Quran and the Sunnah”. The scheme, unmistakably, is the establishment of a
modern and democratic Islamic State in fulfillment of the wishes of the Muslims
of this region and the manifestations of this scheme are to be found spread
over the entire Constitution of Pakistan. Article 1(1) of the Constitution of
the Islamic Republic of Pakistan, 1973 provides that “
“(d) he is of good character and is not commonly known as one who
violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and
practices obligatory duties prescribed by Islam as well as abstains from major
sins;
(f) he is sagacious, righteous an non-profligate and honest
and ameen, there being no declaration to the contrary by a court of law;
(g) he has not been convicted for a crime involving moral
turpitude or for giving false evidence;
(h) he has not, after the establishment of
Provided that the disqualifications specified in
paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but
such a person shall have good moral reputation;”
These
qualifications for the Federal and Provincial legislators and high officers of
the State may be quite onerous and hard to meet but, at the same time,
understandable if it is kept in mind that such “chosen representatives of the
people” and officers, while exercising the powers and authority of the State,
are to exercise the sovereignty of Almighty Allah as His delegatees by way of a
“sacred trust”. In the context of the issue of corruption by elected
representatives in the Majlis-e-Shoora (Parliament) or Provincial Assemblies it
may be observed that a faithful adherence to the provisions of Article 62 of
the Constitution provides a recipe for cleansing the fountainhead of authority
of the State so that the trickled down authority may also become unpolluted. If
this is achieved then the legislative and executive limbs of the State are
purified at the top and such purity at the top necessarily trickles down to the
bottom as well. This recipe ensures clean leadership at the top which may legislate
for and administer this "land of the pure" (
118. The courts and tribunals in the country seized of issues regarding interpretation and application of the provisions of Article 62 of the Constitution have generally been quite circumspect and careful but over time jurisprudence on such issues has evolved and the potential and purpose of the said provisions is being grasped and achieved with a realization that notwithstanding many obscurities and impracticalities ingrained in such provisions the same have to be interpreted, applied and enforced as a command and mandate of the Constitution. In some cases persons were held not to be qualified for being candidates or disqualified from being or remaining as members of the Majlis-e-Shoora (Parliament) or Provincial Assemblies where they had claimed to possess educational qualifications which were fake and bogus, where they had practised cheating and fraud in obtaining the requisite educational qualifications or where they had submitted false declarations and had suppressed the information regarding their holding dual nationalities and a reference in this respect may be made to the cases of Muhammad Khan Junejo v. Fida Hussain Dero and others (PLD 2004 SC 452), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan and others (2012 SCMR 1101), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Sadiq Ali Memon v. Returning Officer and others (2013 SCMR 1246), Abdul Ghafoor Lehri v. Returning Officer and others (2013 SCMR 1271), Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/o Law, Justice and Parliamentary Affairs and others (2013 SCMR 1328), General (R.) Pervez Musharraf v. Election Commission of Pakistan and another (2013 CLC 1461), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif (PLD 2014 Lahore 670), Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) and Rai Hassan Nawaz v. Haji Muhammad Ayub & others (PLD 2017 SC 70).
119. In all the above mentioned cases the relevant courts and tribunals were cognizant of the constitutional scheme peculiar to the Islamic Republic of Pakistan wherein the delegated sovereignty of Almighty Allah is to be exercised by the chosen representatives of the people as a sacred trust and, hence, the need to ensure that only those who are ‘honest’ and ‘ameen’ enter into or remain in the highest elected chambers. In the case of Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817) this Court had observed as follows:
“14. The
Parliament of any country is one of its noblest, honourable and important
institutions making not only the policies and the laws for the nation but in
fact shaping and carving its very destiny. And here is a man who being
constitutionally and legally debarred from being its member, managed to sneak
into it by making a false statement on oath and by using bogus, fake and forged
documents polluting the piety of this pious body. His said conduct demonstrates
not only his callous contempt for the basic norms of honesty, integrity and
even for his own oath but also undermines the sanctity, the dignity and the
majesty of the said august House. He is guilty, inter alia, of impersonation
--- posing to be what he was not i.e. a graduate. He is also guilty of having
been a party to the making of false documents and then dishonestly using them
for his benefit knowing them to be false. He is further guilty of cheating ---
cheating not only his own constituents but the nation at large.”
Similarly in the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) this Court had observed as under:
“13. And
it was to preserve the pureness, the piety and the virtuousness of such-like
eminent and exalted institutions that, inter-alia, Articles 62 and 63 of the
Constitution and section 99 of the Representation of the People Act, 1976 had
declared that, amongst others, the persons who were not of good character; who
indulged in commission of major sins; who were not honest; who were removed,
dismissed or compulsorily retired from service of Pakistan; who had obtained
loans from banks and had not re-paid the same or who had indulged in corrupt
practices during the course of elections, would not be allowed to pollute the
clearness of these legislative institutions.”
In the case of Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1) it was held by this Court that on account of his submitting a false declaration about his educational qualification
“the appellant failed the requirements of rectitude
and integrity prescribed in Article 62(1)(f) of the Constitution.”
The case of Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) was no different and this Court had observed therein as follows:
“26. The
loss of qualification under Article 62(1)(f) of the Constitution has been
visited with removal from elected office under the Constitution in a number of
cases including ---------------------. Weighty reasons have been assigned for
adopting and implementing the constitutional mandate as a bar on membership in
Parliament. Firstly, the qualifications of a candidate set out in Article 62 of
the Constitution are a sine qua non for eligibility to be elected as a Member
of Parliament. No time limit for eligibility on this score is given in the
Constitution. A person who is untruthful or dishonest or profligate has no
place in discharging the noble task of law making and administering the affairs
of State in government office. Such faults in character or disposition, if duly
established, cannot be treated as transient for the purpose of reposing trust
and faith of the electorate and the Constitution in the holder of an elected
office under the Constitution. The trusteeship attendant upon the discharge of
every public office under the Constitution, whether Legislative, Executive or
Judicial is a universally recognized norm. However, our Constitution emphasizes
upon it expressly for an elected parliamentary office. The Constitutional norm
must be respected and therefore implemented.”
The latest reported case on the subject is that of Rai Hassan Nawaz v. Haji Muhammad Ayub & others (PLD 2017 SC 70) wherein this Court had held as under:
“7. An
honest and truthful declaration of assets and liabilities by a returned
candidate in his nomination papers furnishes a benchmark for reviewing his integrity
and probity in the discharge of his duties and functions as an elected
legislator. ---------------------
8. ---------------------
Where assets, liabilities, earnings and income of an elected or contesting
candidate are camouflaged or concealed by resort to different legal devices
including benami, trustee, nominee,
etc. arrangements for constituting holders of title, it would be appropriate
for a learned Election Tribunal to probe whether the beneficial interest in
such assets or income resides in the elected or contesting candidate in order
to ascertain if his false or incorrect statement of declaration under Section
12(2) of the ROPA is intentional or otherwise. --------------------- It is to
ensure integrity and probity of contesting candidates and therefore all
legislators. ---------------------
15. The
object of Section 76A ibid is clearly
to promote public interest by ensuring that elected public representatives have
untainted financial credentials of integrity, probity and good faith. ---------------------
16. Indeed,
honesty, integrity, probity and bona fide
dealings of a returned candidate are matters of public interest because these
standards of rectitude and propriety are made the touchstone in the
constitutional qualifications of legislators laid down in Articles 62 and 63 of
the Constitution of Islamic Republic of Pakistan.”
120. There
may possibly be yet another reason why the qualifications regarding being
‘honest’ and ‘ameen’ and the likes of them had to be incorporated in Article 62
of the Constitution of our country through an amendment of the Constitution. In
the parts of the world where democracy is entrenched for a long time the
requirements of honesty, integrity, rectitude and probity in those who aspire
for or hold representative public offices or other positions of high public
authority are well understood and insisted upon. In such parts of the world
public morality is treated differently from private morality and a person in
high public office found or caught indulging in an immoral behaviour or
undesirable conduct is seldom spared and that is why in order to avoid the
ensuing shame and dishonour he/she, more often than not, resigns or withdraws
from the scene on his/her own. Unfortunately that kind of character is
generally not demonstrated in our part of the world as yet and that is why
qualifications like ‘honest’ and ‘ameen’ and the likes of them had been
codified and incorporated in our Constitution and the relevant election laws so
as to provide a constitutional and legal basis and mechanism for getting rid of
such elements. Lack of honesty, suppression of truth and conduct unbecoming of
a gentleman have often been considered in the civilized world as valid grounds
for high public officers or personalities to quit the office or scene
voluntarily and some of such instances are mentioned below:
In Iceland Prime Minister Sigmundur David
Gunnlaugsson resigned on April 05, 2016 when the Panama Papers, published in newspapers around the world, showed
that the 41-year-old premier and his wife had investments placed in the British
Virgin Islands, which included debt in
In
In the
In the United Kingdom Andrew Mitchell, Conservative
government’s Chief Whip resigned after admitting swearing at the police at the
gates of
In
Premier Barry O'Farrell, Minister for
In the Czech Republic Prime Minister Peter Necas
resigned in June 2013
after prosecutors charged his chief of staff with corruption and abuse of
power. The Prime Minister's chief of staff, Jana Nagyova, was suspected of
bribing the former MPs with offers of posts in state-owned firms. It is alleged
that this was in exchange for them giving up their parliamentary seats. Ms.
Nagyova - a close colleague of Mr. Necas for nearly a decade - was also
suspected of illegally ordering military intelligence to spy on three people.
Although President Chen Shui-bian of
When persons in high public offices brazenly and unabashedly cling on to offices or power despite having been involved or implicated in serious scandals of corruption or immoral conduct impairing their high moral authority then the only way to oust or drive them out is to provide for a legal mechanism for their ouster and this is probably why in our country suitable provisions had been introduced in Article 62 of the Constitution and the relevant election laws through appropriate amendments. For a court or tribunal to get involved in such matters may not be the most desirable thing to do but as long as the Constitution and the law command or warrant such intervention there may not be any occasion for them to shy away from performance of such duty.
121. In the above mentioned case of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) I had described the words “honest” and “ameen” appearing in Article 62(1)(f) of the Constitution as obscure and impracticable and had also talked about the nightmares of interpretation and application that they involved. However, as the Majlis-e-Shoora (Parliament) has so far not found any time to consider the said issue, therefore, the courts in the country are under an obligation not only to make some practical sense of those words by suitably interpreting them as clearly as is possible and practicable but also to apply them to real cases without losing their spirit and utility. An appropriate and safe approach towards interpretation of words used in the realm of morality which are not defined is to adopt a limiting and restrictive approach and this is what had been done by a Full Bench of the High Court of Balochistan in the case of Molvi Muhammad Sarwar and others v. Returning Officer PB-15, Musa Khail and others (2013 CLC 1583). Writing for the Full Bench in that case Qazi Faez Isa, CJ (now an Honourable Judge of this Court) had observed as follows:
“12. Section
12(2)(a) of the Representation of the People Act, 1976 ("the Act")
stipulates that every nomination form shall be accompanied by a declaration
made on a solemn affirmation by the person seeking to contest elections, that,
he/she, "fulfils the qualification specified in Article 62 and is not
subject to any of the disqualifications specified in Article 63 or any other
law". Section 99(1)(d) of the Act requires a candidate to be of "good
character" and one who does not violate Islamic Injunctions. Section
99(1)(e) requires a candidate to abstain "from major sins". Section
99(1)(f) requires him to be "sagacious, righteous, non-profligate, honest
and ameen". Section 99(1)(d) of the Act is identical to Article 62(1)(d)
of the Constitution, and section 99(1)(e) of the Act is identical to Article
62(1)(e) of the Constitution, whereas section 99(1)(f) of the Act is similar to
Article 62(1)(f) of the Constitution. Article 62 of the Constitution commences
by stating that, "a person shall not be qualified to be elected or
chosen" as a Member of Parliament unless he complies with the provisions
of Article 62. The framers of the Constitution wanted parliamentarians to
possess high moral integrity and prescribed certain pre-conditions for them.
13. A
person, who is of good character, does not violate Islamic Injunctions,
abstains from major sins, is sagacious, righteous, non-profligate, and honest
and ameen may be too high a qualification-bar to surmount. Moreover, sincere
and practising Muslims in their humility, as slaves of God, may be reluctant to
proclaim their sagacity, righteousness and honesty ever fearful that they fall
short; whilst on the other hand lesser beings boldly swearing theirs. We are also cognizant of the fact that
the language of Articles 62(1)(d), (e) and (f) of the Constitution (which is
identical/similar to the language of sections 99(1)(d), (e) and (f) of the Act)
is very wide and generalized, and may therefore be abused.
14. However,
the present case is not one involving any subjective assessment of the
stipulated criteria in Article 62 of the Constitution. The Hon'ble Supreme
Court has decided that the petitioner was not qualified to contest the 2008
General Elections, but he did so, was elected, and became a Member of the
Balochistan Assembly and a Minister in the Cabinet. The petitioner gained an
advantage which he was not otherwise entitled to. And as a Member of the
Assembly and a Cabinet Minister the petitioner diverted to his personal use
funds from the public exchequer. The petitioner used moneys from the Provincial
Consolidated Fund and such private use of public money was categorized as a
'development scheme'. Needless to state money for the schooling of ones own
children and family members cannot be dressed up as a 'development scheme' and
pocketed.
15. In
view of the above mentioned conduct of the petitioner he cannot be stated to be
of good character or one who does not violate Islamic Injunctions or who is
righteous or honest or ameen. Articles 62(1)(d), (e) and (f) of the
Constitution and sections 99(1)(d), (e) and (f) of the Act forbid such a person
to be elected or chosen as a Member of Parliament. The petitioner however
audaciously stated on oath that he "fulfils the qualifications specified
in Article 62 and is not subject to any of the disqualifications specified in
Article 63 or any other law". Simply put, the petitioner lied.
16. Lies
fall into two different categories, those uttered to deceive and to gain an
advantage, in the present case to be able to contest elections, and innocent
lies without malice or any intended deception and where no benefit or gain
accrues. Almighty Allah states in the Holy Qur'an "... break not the oaths
after you have confirmed them" (Surah 16, An-Nahl, Verse 91). "And be
not like her who undoes the thread which she has spun after it has become
strong, by taking your oaths a means of deception among yourselves..."
(Surah 16, An-Nahl, Verse 92). "And make not your oaths, a means of
deception among yourselves, lest a foot may slip after being firmly planted, and you may have
to taste the evil of having hindered from the Path of Allah and yours will be a
great torment" (Surah 16, An-Nahl, Verse 94). "... Whosoever breaks
his pledge, breaks only to his own harm, and whosoever fulfils what he has
covenanted with Allah, He will bestow on him a great reward" (Surah 48,
Al-Fath, Verse 10). "Allah will not punish you for what is unintentional
in your oaths, but He will punish you for your deliberate oaths" [if
false] (Surah 5, Al-Mai'dah, Verse 89). Whilst liars are castigated the doors
of Heaven open to the truthful. "And those who keep their trusts and
covenants... shall dwell in
17. The cited provisions from the Constitution and the Act may
however be misused for ulterior motives. For instance, a Muslim may not be
saying his/her prayers or fasting and it be alleged that he/she is not
qualified to contest elections. The Creator in His Infinite Wisdom and Mercy
has created the distinction between those matters which do not adversely affect
others and those that do; two separate obligations or huqooq, those that a
person owes to others and those which God demands of man, respectively
Huqooq-ul-lbad and Huqooq-ul-Allah. In the Huqooq-ul-lbad category are
obligations owed to fellow men and women, such as not gaining an advantage on
the basis of fraud. The Huqooq-ul-Allah category includes rituals, such as
fasting, praying and performing Hajj. The non-observance of a ritual of the
Faith is a matter between the created (abd or slave) and the Creator (Allah
Taa'la or Almighty God). Almighty Allah tells us through the Holy Qur'an,
"There is no compulsion in religion" (Surah 2, Al-Bakrah, Verse 256).
The Messengers of Almighty Allah were given the task to simply convey the
Message (Surah 3, Al-Imran, Verse 20 and Surah 5, Al-Mai'dah, Verse 99). Whilst
the people may or may not abide by the prescriptions of the Faith they do not
have the liberty to violate the rights of others. Since, Articles 62(1)(d), (e)
and (f) of the Constitution and sections 99(1)(d), (e) and (f) of the Act refer
to Islam, therefore, these may be interpreted in the light of Shariah. A Muslim
may or may not be saying his/her prayers and may not be fasting in the month of
Ramadan, but these are matters which, in the light of Shariah, cannot be
investigated into either by the State or by any individual. Islam does not
stipulate punishment in this world for non-observance of rituals; these are
matters within the exclusive domain of Almighty Allah. Therefore, by analogy
non-observance of rituals by a man or woman cannot be made a pretext to exclude
him/her from Parliament. To hold otherwise would be in negation of Islam, and
the Constitution. Article 277(1) of the Constitution requires that, "All
existing laws shall be brought in conformity with the Injunctions of
Islam." Consequently, if Articles 62(1)(d), (e) and (f) of the
Constitution and Sections 99 (1) (d), (e) and (f) of the Act are interpreted on
the touchstone of Islamic Shariah there remains no doubt that personal matters
of the Faith remain immune from examination or consequence in this world.
18. However, the provisions of the Constitution and the Act
must be given full effect to when attending to the rights and obligations due
to the people or Huqooq-ul-Ibad. Such an interpretation is in accordance with
the language of the Constitution and the Act, and does not conflict with what
Almighty Allah states in the Holy Qur'an nor the directions/teachings of
Prophet Muhammad (peace and blessings be upon him). The petitioner gained entry
into the Balochistan Assembly deceitfully; by violating the Act and the
Constitution. Islam requires that a person abides by the laws of the place
he/she lives. In addition, Islam does not permit encroachment upon the rights
of others. By putting himself forward as a candidate, when the petitioner was
not qualified, he violated the law, and the rights of those who had abided by
the law. The rights of the voters too were violated as they were deceived into
believing that he had the requisite educational qualifications. The petitioner
also lied on oath, and gained an advantage by his lie, which is yet another
contravention of Islam's stipulated rights of the people or Huqooq-ul-Ibad. The
petitioner also diverted public funds for his personal use, which neither the
law nor Islam permits. The petitioner, therefore, to use the language of the
Constitution, cannot be stated to be qualified to be elected or chosen as a
member of Majlis-e-Shoora (Parliament).
19. The Hon'ble Tribunal held that, "the petitioner, does
not/did not fulfil the qualifications that are provided in Article 62 of the
Constitution of Islamic Republic of Pakistan for a candidate to fulfil while
going to contest the elections." The Hon'ble Tribunal further held that,
"Similarly, the allegation of payment of more than Rs. 2,281,000/- (Rupees
Two Million Two Hundred Eighty One Thousand Only) to his two sons and other
relatives is again adversely affects the bona fides, militates and offends the
claim of respondent No.1 [petitioner herein] being Ameen, sagacious, truthful
an non-profligate." We are in complete agreement with the findings of the
Hon'ble Tribunal and the judgment of the Hon'ble Tribunal does not suffer from
any illegality.”
In an earlier case of Obaidullah v. Senator Mir Muhammad Ali Rind and 2 others (PLD 2012 Balochistan 1) the same Honourable Chief Justice of the High Court of Balochistan had written for a Division Bench as under:
“12. There is also another aspect to consider. In view of the
convictions of Mr. Rind for corruption and embezzling/stealing from the public
exchequer, which allegations he has accepted, the question arises whether,
being a Muslim, he can be categorized to be "of good character" or
someone who "is not commonly known as one who violates Islamic
Injunctions" and thus attract the bar contained in Article 62(1)(d) of the
Constitution. This provision has not been changed by the Eighteenth Amendment.
The disqualification under this provision is not time-related, but perpetual.
Quranic teachings promote an ethical framework for human behaviour. Almighty
Allah describes believers as, "Those who are faithfully true to their
Amanat and to their covenants" (Surah al-Mu'minun, 23:8). The Almighty
directs, "…give full measure and full weight with equity, and defraud not
people of their things and commit not iniquity in the earth, causing
corruption." (Surah Hud, 11.85). Theft or misappropriating or converting
to ones own use property given in trust or amanat is haram and a hadd according
to the Quran and Sunnah. Allah has condemned this action and decreed an
appropriate punishment for it (Surah al-Maa'idah, 5:38). The Prophet (peace and
blessings of Allah be upon him) cursed the thief because he is a corrupt
element in society, and if he is left un-punished, his corruption will spread
and infect the body of the ummah (Bukhari, al-Hudood, 6285). What indicates
that this ruling is definitive is that fact that a Makhzoomi noblewoman stole
at the time of the Prophet (peace and blessings of Allah be upon him), and,
Usamah ibn Zayd wanted to intercede for her. The Prophet (peace and blessings
of Allah be upon him) became angry and said, "Do you intercede concerning
one of the hadd punishments set by Allah? Those who came before you were
destroyed because if a rich man among them stole, they would let him off but if
a lowly person stole, they would carry out the punishment on him. By Allah, if
Fatimah bint Muhammad were to steal, I would cut of her hand," (Bukhaari,
Ahadith al-Anbiya, 3216).
13. In
the Nomination Form submitted by Mr. Rind he suppressed the fact of his two
convictions. The suppression was not something Mr.Rind could have forgotten,
overlooked or was an insignificant matter. Thus his declaration on oath, that,
"I fulfil the qualifications specified in Article 62, of the Constitution
and I am not subject to any of the disqualifications specified in Article 63 of
the Constitution or any other law for the time being in force for being elected
as a member of the Senate" was clearly false. The question arises whether
in making such a blatantly false declaration he "violates Islamic
Injunctions" to attract Article 62(1)(d) of the Constitution.
14. Almighty
Allah states in the Holy Quran, "... break not the oaths after you have
confirmed them" (Surah An-Nahal, 16:91). "And be not like her who
undoes the thread which she has spun after it has become strong, by taking your
oaths a means of deception among yourselves, lest a nation may be more numerous
than another nation. Allah only tests you by this" (Surah An-Nahal,
16:92). "And make not your oaths, a means of deception among yourselves,
lest a foot may slip after being firmly planted, and you may have to taste the
evil of having hindered (men) from the Path of Allah and yours will be a great
torment" (Sarah An-Nahal, 16:94). "... Whosoever breaks his pledge,
breaks only to his own harm and whosoever fulfils what he has covenanted with
Allah, He will bestow on him a great reward" (Surah Al-Fath, 48:10).
"Allah will not punish you for what is unintentional in your oaths, but he
will punish you for your deliberate oaths [if false]" (Surah Al-Maidah,
5:89). "And those who keep their trusts and covenants .... shall dwell in
15. Lies fall into two distinct categories. Those uttered to
deceive and to gain an advantage, in the present case to be able to contest
elections, and innocent lies without malice or any intended deception. In this
case Mr. Rind in reply to the question in the Nomination Form, “Have you ever
been indicted in criminal proceedings or convicted for the violation of any law
(excluding minor traffic violations)?” responded by stating “No” which was an
admittedly false statement and made on “Declaration and Oath. Legal and
Constitutional consequences follow from making such a false declaration on oath
and are clearly not permissible in Islam and thus Mr. Rind would run foul of
Article 62(1)(d) as well.
16. The
Legislature in its wisdom has incorporated Article 62(1)(d) and it is therefore
the duty of the courts to interpret and apply it. We are however cognizant that
the same may be misused for ulterior motives, for instance a Muslim may not be
saying his prayers or fasting and it be alleged that he stands disqualified
under Article 62(1)(d). However, the Creator in His Infinite Wisdom and Mercy
has created a distinction between those disobediences which do not adversely
affect others and those that do, and thus haqooq-ul-Allah and haqooq ul-abad.
The observances of ritual finds favour with our Lord and may also determine
whether an individual gains entry into
17. In
view of the abovementioned two convictions for corruption, embezzlement and
misappropriation of public property and for knowingly making a false
declaration on oath Mr. Rind cannot be stated to be "of good
character" or someone who "is not commonly known as one who violates Islamic
Injunctions" in terms of Article 62(1)(d). Therefore, on this count too he
does not qualify to be elected, chosen or continue as member of Parliament of
the Islamic Republic of Pakistan.
18. Individuals
must take responsibility for their actions. The court has been empowered to
ensure implementation of the Constitution and the weight of its responsibility
if individuals are unable to do so themselves. Mr. Rind manipulated his
position for personal benefit and committed crimes. He did not stay away from
public office, as the law required, but proceeded to file a false Nomination
Form to again acquire it. Ethically, morally and constitutionally he betrayed
himself and the people of
The approach adopted in the above mentioned two cases towards interpretation of the relevant provisions of Article 62 of the Constitution restricting their applicability to public conduct of a person affecting others rather than his private conduct not affecting generality of the populace has been found by me to be quite useful and the same is, therefore, approved as it renders the said provisions more capable of being applied and enforced by a court or tribunal with some degree of clarity and certainty. In the present case respondent No. 1 has been in public life for the last about thirty-six years, he has been holding the highest elected public offices in the country for most of the said period and the allegations leveled against him pertain to corruption, corrupt practices and money laundering, etc. Such allegations leveled against the said respondent, thus, surely attract the provisions of Article 62(1)(f) of the Constitution even when the above mentioned restrictive approach of interpretation is adopted.
122. Concluding the discussion about the
relevant four properties in London I hold that all the varying and ever
changing stories about acquisition of the said properties advanced by the
children of respondent No. 1 have remained unestablished from the flimsy,
sketchy and inadequate record relied upon by them and such stories have even
otherwise been found by me to be fantastic and unbelievable. We had been
informed that Mr. Hussain Nawaz Sharif, respondent No. 7, had studied in
England between the years 1992 and 1996, Mr. Hassan Nawaz Sharif, respondent
No. 8, had studied in that country between the years 1994 and 1999 and the
relevant properties had admittedly come in possession of respondent No. 1 and
his family between the years 1993 and 1996. Two young students in occupation of
four residential properties in one of the most expensive areas of
123. Article 62(1)(f) of the Constitution
provides as under:
“62. (1) A person shall not be qualified to be elected or chosen
as a member of Majlis-e-Shoora (Parliament) unless-
---------------------
(f) he is sagacious, righteous, non-profligate, honest and
ameen, there being no declaration to the contrary by a court of law; and
---------------------”
Article 63 of the Constitution provides as follows:
“63. (1) A
person shall be disqualified from being elected or chosen as, and from being, a
member of the Majlis-e-Shoora (Parliament), if
---------------------
(p) he
is for the time being disqualified from being elected or chosen as a member of
the Majlis-e-Shoora (parliament) or of a Provincial Assembly under any law for
the time being in force.
Explanation.– For the purposes of this
paragraph “law” shall not include an Ordinance promulgated under Article 89 or
Article 128.
---------------------
(2) If
any question arises whether a member of the Majlis-e-Shoora (Parliament) has
become disqualified from being a member, Speaker or, as the case may be, the
Chairman shall, unless he decides that no such question has arisen, refer the
question to the Election Commission within thirty days and if he fails to do so
within the aforesaid period it shall be deemed to have been referred to the
Election Commission.
(3) The
Election Commission shall decide the question within ninety days from its
receipt or deemed to have been received and if it is of the opinion that the
member has become disqualified, he shall cease to be a member and his seat
shall become vacant.”
Section 99(1)(f) of the Representation of the People Act, 1976 provides that
“99. Qualifications
and disqualifications.- (1) A person shall not be qualified to be elected or
chosen as a member of an Assembly unless-
---------------------
(f) he
is sagacious, righteous and non-profligate and honest and ameen;”
If a court of
law declares a person to be otherwise than honest then he is no longer
qualified to be elected or chosen as a member of the Majlis-e-Shoora
(Parliament) and if he has already been elected or chosen as a member of the
Majlis-e-Shoora (Parliament) then through loss of the requisite qualification
he necessarily becomes disqualified from being a member of the Majlis-e-Shoora
(Parliament). Articles 62 and 63 of the Constitution dealing with qualifications
and disqualifications are overlapping in many ways and I find it difficult to
accept the notion that Article 62 deals only with pre-election qualifications
and Article 63 deals with post-election disqualifications only. The negative
terminology used in Article 62(1) [“A person shall not be qualified to be elected or chosen”] and use of the word “disqualifications” in Article 62(2)
besides the words “disqualified from
being elected or chosen” used in Article 63(1) render the distinction
between qualifications and disqualifications contained in Articles 62 and 63
quite illusory. Be that as it may, that issue is not strictly relevant to the
case in hand. The declaration by this Court through the present judgment
regarding lack of honesty of respondent No. 1 cannot by undone or ignored by
the Speaker/Chairman or the Election Commission of Pakistan and such a
declaration has to have an automatic effect. In the case of Muhammad Azhar Siddique and others v.
Federation of
“43. Now
we turn to the argument of the learned counsel for Syed Yousaf Raza Gillani
that every conviction, ipso facto,
does not disqualify a person from being a Member of the Parliament. ---------------------
It is to be seen that the respondent has been found guilty of contempt of Court
---------------------. Exactly, the same word i.e. ‘ridicule’ has been used in
Article 63(1)(g) of the Constitution. Thus, it has attracted the provision of
disqualification. The 7-member Bench seized with the matter could have passed
order of his disqualification at that time, but it seems that judicial
restraint was exercised knowing that the convict had a right of appeal and
review. --------------------- And as now a good number of petitions have been
filed seeking enforcement of Fundamental Rights enshrined in Articles 9, 10A,
14, 17 and 25 of the Constitution as Syed Yousaf Raza Gillani has continued his
position as Prime Minister instead of resorting to the remedy available to him
under the law, it is held that after having been convicted and sentenced for
contempt of Court he has been disqualified, ipso
facto, from being a Member of the Parliament. ---------------------
48. Here,
a word may also be said about the role and functions of the Election Commission
after a question has been referred, or is deemed to have been referred to it,
by the Speaker under Article 63(2). Article 63(3) provides that the Election
Commission shall decide the question within ninety days from its receipt or
deemed to have been received and if it is of the opinion that the member has
become disqualified, he shall cease to be a member and his seat shall become
vacant. Like the Speaker, the Election Commission also cannot sit in appeal over
a concluded judgment of a superior court, and has to decide the question in the
affirmative that the convicted person has become disqualified,
therefore, his seat shall become vacant. As has been noted above, there is a
clear distinction in respect of other disqualifications mentioned in Article
63(1), in respect whereof information is laid before the Speaker involving
determination of controversial facts. Therefore, the Election Commission may,
after a reference from the Speaker, undertake a scrutiny in such matters. But
where there is a conviction recorded by a competent Court against a person, who
is a Member of the Parliament, which has attained finality, the role and
function of the Election Commission is confined to issuing notification of
disqualification of the concerned Member on the basis of verdict of the Court.”
(underlining has
been supplied for emphasis)
The same principle applies with equal force to a declaration made by a court of law regarding lack of honesty on the part of a member of the Majlis-e-Shoora (Parliament) as it is not possible for either the Speaker/Chairman or the Election Commission of Pakistan to override or sit in judgment over a judgment of a court in that regard.
124. The learned counsel for the private
respondents repeatedly urged before us that this Court ought to be slow in
entering into issues which relate to morality as the primary domain of a court
of law is legality of actions rather than their morality. We can appreciate the
concerns voiced in that regard but at the same time we are bound by the oath of
our office which requires us to “preserve, protect and defend the Constitution”
and to discharge our duties “in accordance with the Constitution”. Some
provisions of Article 62 of the Constitution certainly contain strong moral
overtones but those provisions introduced into the Constitution by a military
dictator have not been undone by the popularly elected parliaments in the last
many decades. As long as the said provisions are a part of the Constitution the
courts of the country are obliged not only to decide matters according to the
same but also to enforce them whenever called upon to do so. Apart from that if
honesty in holders of public offices is a moral issue then one need not be
apologetic about enforcing such a constitutional obligation and if the people
at large start ignoring the moral prerequisites in public life then there would
be no better forum than the courts of the country to insist upon the values and
ethos of the Constitution. We must not forget that the so-called moral
provisions of Articles 62 and 63 of the Constitution are meant to be enforced
even against those who claim to have popular support or who have already
demonstrated their popular endorsement and, thus, popular support or endorsement
of the person concerned has absolutely nothing to do with enforcement of those
provisions of the Constitution. The said provisions of the Constitution lay
down the threshold for entering into or retaining an elective public office and
the courts of the country are mandated to apply and enforce the said
thresholds. Sitting at the apex of judicial authority in the country this Court
is the ultimate guardian not only of the letter but also the spirit of the
Constitution even where a section of the society may have some reservations
against some provisions of the Constitution. William O.
Douglas, the longest serving Judge of the United States Supreme Court in the
history of that country, stated in his interview with Time magazine on November
12, 1973 that “The Court’s great power is its ability to educate, to provide
moral leadership”. He was, obviously, not talking of private morality but of
social, political and constitutional morality.
125. It has also been argued
before us by all the learned counsel appearing for the private respondents that
invoking jurisdiction of this Court under Article 184(3) of the Constitution
and issuance of declarations and directions by this Court in exercise of that
jurisdiction in matters of disqualification of elected representatives as a
first and the final resort shall set a dangerous precedent and, therefore, this
Court may not like to open the door to such a perilous course. This argument,
however, conveniently overlooks the fact that, as already observed above, the
present petitions had been entertained by this Court in the backdrop of an unfortunate
refusal/failure on the part of all the relevant institutions in the country
like the National Accountability Bureau, the Federal Investigation Agency, the
State Bank of Pakistan, the Federal Board of Revenue, the Securities and
Exchange Commission of Pakistan and the Speaker of the National Assembly to
inquire into or investigate the matter or to refer the matter to the Election
Commission of Pakistan against respondent No. 1. Under Article 90(1) of
the Constitution by virtue of his being the Prime Minister of the country
respondent No. 1 is the Chief Executive of the Federation and it is practically
he who appoints the heads of all the institutions in the country which could have
inquired into or investigated the allegations leveled against respondent No. 1
and his family on the basis of the Panama Papers. The remedy of filing an Election Petition before an Election Tribunal
under Article 225 of the Constitution is not available at this juncture. The Speaker
of the National Assembly could have referred the matter to the Election
Commission of Pakistan under Article 63(2) of the Constitution but he has
already dismissed various petitions filed before him in that regard by as many
as twenty-two members of the National Assembly. It is proverbial that there is
no wrong without a remedy. It was in the above mentioned unfortunate background
that this Court had entertained these petitions and now this Court cannot turn
around and shy away from deciding the matter simply because it may set a
dangerous precedent. As a matter of fact it shall be a more dangerous precedent
to set if this Court declines to attend to the issue with a message that if a
powerful and experienced Prime Minister of the country/Chief Executive of the
Federation appoints his loyalists as heads of all the relevant institutions in
the country which can inquire into or investigate the allegations of
corruption, etc. against such Prime Minister/Chief Executive of the Federation
then a brazen blocking of such inquiry or investigation by such loyalists would
practically render the Prime Minister/Chief Executive immune from
accountability. The precedent to be set by this Court through the present
petitions shall in fact be dangerous only for those Prime Ministers/Chief
Executives of the Federation who try to capture or render ineffective all the
institutions of accountability in the country in order to protect themselves
leaving no other option with a whistleblower or an aggrieved or interested
person but to approach this Court for interference in the matter as a first,
and the only, resort. The precedent to be set by this Court through the present
petitions should in fact be a warning to all those rulers who try to subjugate
all the organs of power, enslave the institutions of accountability and then in
a false sense of security and invincibility proclaim as Christopher Marlowe’s ‘Tamburlaine’ did by boasting that
“I hold the Fates bound fast in iron chains,
And with my hand turn Fortune's wheel about,
And sooner shall the sun fall from his sphere
Than Tamburlaine be slain or overcome.”
While dwelling on the subject of setting a dangerous precedent by a court of law I am also reminded of the old bard William Shakespeare. The power of literature for commenting upon a reality through the medium of fiction is fascinating and an amazing example of the same is the following part of Shakespeare’s play Merchant of Venice which, though written hundreds of years ago in foreign climes, appears to have been written for nothing but the present case being handled by us in a different millennium and in a different continent. While trying to avoid execution of an oppressive judicial decree regarding payment of money by another Bassanio beseeched the Duke as follows:
“Yes,
here I tender it for him in the court;
Yea, twice the sum: if that will not suffice,
I will be bound to pay it ten times o'er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.”
which imploring was immediately retorted by Portia in the following strong words:
“It
must not be; there is no power in
Can alter a decree established:
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state: it cannot be.”
and then what happened to that decree is another story. The punch lines in the above mentioned excerpt appear to be “Wrest once the law to your authority: To do a great right, do a little wrong”. Fortunately for me, there is no wresting the law to my authority and no little wrong is to be done by me to do a great right in the matter of issuing a declaration against respondent No. 1 because the original jurisdiction of this Court under Article 184(3) of the Constitution has already been exercised by this Court in such matters in the cases of Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 774) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) and, thus, no new or dangerous precedent is being set by me. I may, however, clarify that the jurisdiction of this Court under Article 184(3) of the Constitution has been exercised by me in the present case in the backdrop of the peculiar and extraordinary circumstances of the case mentioned above and that this Court shall continue to be slow and circumspect in this regard where it is satisfied that the normal constitutional or statutory courts/tribunals/fora can conveniently, adequately and efficaciously attend to the relevant issues or where the existing institutions of inquiry, investigation, prosecution and accountability can do the job properly or can satisfactorily be activated for the purpose.
126. As far as the issue regarding respondent No. 6 namely Mariam Safdar allegedly being a ‘dependent’ of her father namely Mian Muhammad Nawaz Sharif is concerned I have found that the material produced before us sufficiently established that respondent No. 6 was a married lady having grown up children, she was a part of a joint family living in different houses situated in the same compound, she contributed towards some of the expenses incurred by the joint family, she submitted her independent tax returns, she owned sizeable and valuable property in her own name, she was capable of surviving on her own and, thus, she could not be termed or treated as a ‘dependent’ of her father merely because she periodically received gifts from her father and brothers. In this view of the matter nothing turned on respondent No. 1 not mentioning respondent No. 6 as his dependent in the nomination papers filed by him for election to NA-120 before the general elections held in the country in the year 2013.
127. Through these petitions allegations had
also been leveled against respondent No. 1 regarding evasion of tax on the
proceeds of sale of the factory in Dubai which was sold for about 9 million US
Dollars, regarding late filing of Wealth Statements for the years 2011 and 2012
(which allegation was not pressed during the arguments), regarding the gifts of
Rs. 31,700,000 made by respondent No. 1 in favour of respondent No. 6 and of
Rs. 19,459,440 by respondent No. 1 in favour of respondent No. 8 being sham and
not disclosed, and in respect of the gifts received by respondent No. 1 from
respondent No. 7 not having been treated as income from other sources. The
learned counsel for respondent No. 1 explained before us that the said
allegations attracted the provisions of Article 63(1)(o) of the Constitution
and section 99(1A)(t) of the Representation of the People Act, 1976 but in
terms of the facts of the present case the disqualification mentioned in those
provisions was not relevant. He maintained that the crucial factors for the
said disqualification were “default” and “dues” and it had already been
clarified by this Court in many a case referred to by him that in the absence
of any adjudication there could not be any dues and, hence, no default could be
alleged. According to him no determination had been made and no finding had
been recorded by any tax authority against respondent No. 1 in respect of any
tax due. He also clarified that respondent No. 1 was neither a Director nor a
shareholder of the factory in
128. Adverting to the two FIRs registered by the Federal Investigation Agency and a Reference filed by the National Accountability Bureau against respondent No. 1, respondent No. 10 and others I note that all those criminal proceedings had been quashed by the Lahore High Court, Lahore at a time when respondent No. 1 was serving as the Prime Minister of the country and the manner in which such proceedings were quashed, it is observed with respect, had left much to be desired. To top it all, neither the Federal Investigation Agency nor the National Accountability Bureau challenged such quashing of criminal proceedings before this Court.
129. FIR No. 12 was registered at Police Station
FIA/SIU, Islamabad on November 10, 1994 in respect of offences under sections
419, 420, 468, 471 and 109, PPC read with section 5(2) of the Prevention of
Corruption Act, 1947 and Article 3 of the Holders of Representative Office
(Punishment for Misconduct) Order, 1977 against Mukhtar Hussain and four
Directors of Hudabiya Engineering (Pvt.) Limited. The final Challan was
submitted in that case before a
130. Reference No. 5 of 2000 had been filed
against respondents No. 1 and 10 and some others by the National Accountability
Bureau before an Accountability Court with allegations of money laundering,
etc. to the tune of Rs. 1242.732 million (over Rs. 1.2 billion) and in that
Reference reliance had also been placed upon a judicial confession made by
respondent No. 10 before a Magistrate First Class, Lahore on April 25, 2000. It
was alleged in that Reference that respondent No. 10 was instrumental in
laundering of 14.886 million US Dollars upon the instructions and for the
benefit of respondent No. 1 by opening fake foreign currency accounts in
different banks in the names of others. Writ Petition No. 2617 of 2011 filed
before the Lahore High Court, Lahore in connection with that Reference was
allowed by a learned Division Bench of the said Court on December 03, 2012 and
the said Reference was quashed through a unanimous judgment but the learned
Judges disagreed with each other over permissibility of reinvestigation of the
matter whereupon the matter was referred to a learned Referee Judge who held on
March 11, 2014 that reinvestigation of the case was not permissible [Reference:
Hudabiya Paper
Mills Ltd. v. Federation of Pakistan
(PLD 2016 Lahore 667)]. There was an apparent flaw in the judgment rendered in
that case by the learned Referee Judge because the reference to the learned
Referee Judge was as to whether an observation could be made or not regarding
reinvestigation of the case and the reference was not as to whether
reinvestigation could be carried out or not! Even that judgment of the Lahore
High Court,
131. It may be true that the Challans in the above mentioned two FIRs registered with the Federal Investigation Agency had been quashed and the accused persons therein had been acquitted by the Lahore High Court, Lahore and Reference No. 5 of 2000 filed by the National Accountability Bureau before an Accountability Court had also been quashed by the said Court and thereby the allegations leveled against respondents No. 1 and 10 and some others in those matters had remained without a trial but the fact remains that the evidence collected or the material gathered by the investigating agencies in connection with those cases does not stand vanished and the same remains available and can be usefully utilized if such evidence or material is also relevant to some other allegations leveled against the said respondents or others.
132. From the stands taken and the material
produced by respondent No. 1 and his children before this Court it has emerged
as an admitted position that respondent No. 1 was, and he still is, a holder of
a public office when he and his children came in possession of the relevant
properties in London between the years 1993 and 1996 and they are still in admitted
possession of those assets which are claimed to be owned by one of the children
of respondent No. 1 since the year 2006. It is again an undisputed fact that at
the time of taking over possession of the said properties all the children of
respondent No. 1 were non-earning students and his wife was a household lady
with no independent sources of income of their own and, thus, they were
dependents of respondent No. 1 at that time. No other claimant to those assets
has surfaced anywhere so far. Section 9(a)(v) of the National Accountability
Ordinance, 1999 provides as follows:
“A holder of a public office, or any other person, is
said to commit or to have committed the offence of corruption and corrupt
practices:-
---------------------
(v) if
he or any of his dependents or benamidars owns, possesses, or has acquired
right or title in any assets or holds irrevocable power of attorney in respect
of any assets or pecuniary resources disproportionate to his known sources of
income, which he cannot reasonably account for or maintains a standard of
living beyond that which is commensurate with his sources of income ---”
Section 14(c) of the National Accountability Ordinance, 1999 lays down as under:
“In any trial of an offence punishable under clause
(v) of sub-section (a) of Section 9 of this Ordinance, the fact that the
accused person or any other person on his behalf, is in possession for which
the accused person cannot satisfactorily account, of assets or pecuniary
resources disproportionate to his known sources of income, or that such person
has, at or about the time of the commission of the offence with which he is
charged, obtained an accretion to his pecuniary resources or property for which
he cannot satisfactorily account, the Court shall presume, unless the contrary
is proved, that the accused person is guilty of the offence of corruption and
corrupt practices and his conviction therefor shall not be invalid by reason
only that it is based solely on such presumption.”
The
value of the relevant assets in
133. It is unfortunate that despite a passage of
over one year since surfacing of the Panama Papers the Chairman, Federal Board
of Revenue, respondent No. 5, has taken no serious step and has made no
meaningful effort towards playing his due role in probing into the matter so as
to find out whether any illegality had been committed by anybody in the matter
or not. Except for issuing a few notices and writing a few letters the Federal
Board of Revenue has not pursued the matter at all and such inaction and apathy
can only be attributed to lack of will and dereliction of duty. The same is the
case with respondent No. 2 namely Mr. Qamar Zaman Chaudhry, Chairman, National
Accountability Bureau who appeared before this Court and maintained that the
National Accountability Bureau was cognizant of its duties and responsibilities
in connection with the issues arising out of the Panama Papers but respondent
No. 2 was waiting for the “regulators” to look into the matter first. We
repeatedly asked him to elaborate as to who those “regulators” were and where
did they figure in the National Accountability Ordinance, 1999 but he did not
even bother to respond to those questions and conveniently kept quiet! When his
attention was drawn towards the provisions of section 18 of the National
Accountability Ordinance, 1999 according to which the Chairman, National
Accountability Bureau could take cognizance of such a matter on his own he
simply stated that he would take action in terms of the Ordinance. On that
occasion the Court wondered who the referred to “regulators” could be because
the same word had also been used in the two statements of the gentleman from
“36. ---------------------
In the past not too distant complaints of persecution of the political
opposition in the country by the government of the day through utilization of
the National Accountability Bureau or its predecessor institutions had
unfortunately been too many and willingness of the heads of such institutions
to slavishly carry out and execute the vendetta of the government of the day
against its opponents had also been shamefully rampant. It was in that
background that at a time when there was no Parliament in existence this Court
had recommended in the case of Khan
Asfandyar Wali and others v. Federation of Pakistan and others (PLD 2001 SC
607) that in the matter of appointment of Chairman, National Accountability
Bureau consultation ought to be made by the President with the Chief Justice of
Pakistan and that recommendation had been given effect to through the National
Accountability Bureau (Amendment) Ordinance XXXV of 2001 but subsequently
through the National Accountability Bureau (Amendment) Ordinance CXXXIII of
2002 the Chief Justice of Pakistan had been excluded from the consultees and he
was substituted by the Leader of the House and the Leader of the Opposition in
the National Assembly who were to be consulted by the President before making
an appointment of Chairman, National Accountability Bureau. That deletion had
come about because by that time the Parliament had once again come into
existence and consultation with the Leader of the Opposition in the National
Assembly was expected to go a long way in allaying fears and apprehensions of
the political opposition regarding its possible persecution and victimization
by the government of the day through the National Accountability Bureau and its
Chairman. The spirit of the amended provisions, thus, was that the Leader of
the Opposition in the National Assembly would be taken on board, his opinion
would be given due weight and consideration and he would have an effective say
in the matter of appointment of Chairman, National Accountability Bureau so
that the political opposition in the country may not have an occasion to cry
foul in the matter.
37. As
time progressed another dimension stood added to the issue when, apart from
apprehended persecution of the political opposition, the National
Accountability Bureau, which happens to be a premier and high-profile
anti-corruption institution of the country, started being perceived as an
institution which was possibly being misused for covering up corruption at high
places and such cover up was perceived to be controlled and managed through
appointment of its handpicked Chairman. It was in that backdrop that in the
case of Dr. Mobashir Hassan and others v.
Federation of
(underlining has
been supplied for emphasis)
As neutrality and impartiality of respondent No. 2 in the matter of proceeding against respondent No. 1 for commission of the offence under section 9(a)(v) of the National Accountability Ordinance, 1999 stands visibly and demonstrably compromised, therefore, it would be in the fitness of things if he is restrained from exercising any power, authority or function of the Chairman, National Accountability Bureau in relation to the proceedings to be initiated by the said Bureau against respondent No. 1 and in respect of such proceedings all the powers, authority and functions of the Chairman, National Accountability Bureau may be exercised by an Implementation Bench of this Court to be constituted by the Honourable Chief Justice of Pakistan for which a request is being made through the present judgment.
134. In the case of Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1) a declaration was made by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution to the effect that corruption and corrupt practices had been committed in the holding of a general election in the country and in the judgment passed in that case respondent No. 1’s stated involvement in the matter had been referred to twice in that context and the matter of criminality of respondent No. 1 and others in that connection was required to be investigated by the Federal Investigation Agency. Similarly in the case of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388) the constitutional issue regarding dissolution of the National Assembly by the President of Pakistan had been decided by this Court with reference to different grounds of dissolution including the allegation of rampant corruption but later on it had been clarified by this Court in Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) through a review petition that the constitutional aspects of the case had been decided by this Court only upon a tentative appraisal of the material produced on the issue of corruption, the conclusions arrived at by the Court were restricted only to the constitutional context of dissolution of the National Assembly and, therefore, the observations recorded in the constitutional matter were not to be treated as proof of the charges for any other purpose. I would, therefore, like to clarify in the present case in advance that the declarations and the observations made by me in the constitutional context shall not influence or prejudice the inquiry, investigation or prosecution of any criminal activity or conduct involved in the matter and that the Accountability Court to be seized of the case shall adjudicate upon the criminal aspect of this case without being influenced or prejudiced by anything observed or done by this Court in the present proceedings.
135. For what has been discussed above these petitions are allowed and it is declared by me as follows:
(i) All the versions advanced by respondent No. 1’s children explaining how the relevant four properties in London (Properties No. 16, 16a, 17 and 17a, Avenfield House, Park Lane, London W1K 7AF, United Kingdom) had come in possession of respondent No. 1’s immediate family or how the said properties had been acquired by the family have been found by me to be conflicting and unbelievable and the same are, therefore, rejected.
(ii) Respondent No. 1 namely Mian Muhammad
Nawaz Sharif, Prime Minister of Pakistan/Member of the National Assembly has
not been honest to the nation, to the representatives of the nation in the
National Assembly and to this Court in the matter of explaining possession and
acquisition of the relevant properties in
(iii) As a consequence of the declaration issued regarding lack of honesty on the part of respondent No. 1 the said respondent has become disqualified from being a member of the Majlis-e-Shoora (Parliament) in terms of Article 62(1)(f) of the Constitution and section 99(1)(f) of the Representation of the People Act, 1976 and, therefore, he is liable to be denotified by the Election Commission of Pakistan as a member of the National Assembly forthwith with a consequence that he ceases to be the Prime Minister of Pakistan from the date of denotification.
(iv) Respondent No. 1 was, and he still is, a holder of a public office and his children have admittedly been in possession of the relevant properties in London since the years 1993 and 1996 when they were dependents of respondent No. 1; the value of the relevant assets in London is ostensibly disproportionate to the declared and known sources of respondent No. 1’s income when his tax returns produced before this Court are kept in view; respondent No. 1 has failed/refused to account for the said assets in London and has adopted a mode of complete denial vis-à-vis his connection with those assets which prima facie amounts to failure/refusal to account for those assets; and the matter, therefore, clearly and squarely attracts the provisions of section 9(a)(v) as well as section 14(c) of the National Accountability Ordinance, 1999 necessitating the National Accountability Bureau to proceed against respondent No. 1 and any other person connected with him in that regard.
(v) While proceeding against respondent No. 1
and any other person connected with him in respect of the offence under section
9(a)(v) of the National Accountability Ordinance, 1999 the evidence and
material collected by the Federal Investigation Agency in connection with FIRs
No. 12 and 13 dated November 10, 1994 and November 12, 1994 respectively and by
the National Accountability Bureau in connection with its Reference No. 5 of
2000 can also be utilized by the National Accountability Bureau and the
Accountability Court if any such evidence or material is relevant to possession
or acquisition of the relevant properties in London. Even the report prepared
by Mr. A. Rehman Malik of the Federal Investigation Agency in September 1998
and the evidence and material appended therewith or referred to therein can be
utilized by the National Accountability Bureau and the Accountability Court
while proceeding against respondent No. 1 and any other person connected with
him in respect of the said offence if the said report and the evidence and
material appended therewith or referred to therein has any nexus with possession
or acquisition of the relevant properties in London.
(vi) Similarly, the other assets acquired and
the businesses set up by respondent No. 1’s children in Pakistan and abroad
also need to be probed into by the National Accountability Bureau to find out
whether respondent No. 1’s children have acted as Benamidars of respondent No. 1 in those assets and businesses or
not and if so whether respondent No. 1 can satisfactorily account for those
assets and businesses or not if he is discovered to be their actual owner.
(vii) Respondent No. 10 namely Mr. Muhammad Ishaq
Dar was not arrayed as an accused person in the Final Reference No. 5 of 2000
filed by the National Accountability Bureau and his status in that Reference
was merely that of a prosecution witness when the said Reference was quashed
against the accused persons therein by the Lahore High Court, Lahore and
reinvestigation qua them was barred
and, thus, quashing of that Reference by the High Court did not entail
respondent No. 10’s acquittal or smothering of any possibility of his trial on
the said charges at any subsequent stage. Upon quashing of that Reference and
setting aside of the confessional statement of respondent No. 10 by the High
Court the pardon tendered to respondent No. 10 by the Chairman, National
Accountability Bureau under section 26 of the National Accountability
Ordinance, 1999 ipso facto
disappeared with an automatic revival of the said respondent’s status as an
accused person in that Reference who had never been acquitted and against whom
no Reference had been quashed. It is, therefore, declared that after
restoration of respondent No. 10’s status as an accused person in that case
reinvestigation to his extent and filing of a Reference against him can be
undertaken or resorted to by the National Accountability Bureau.
136. On the basis of the declarations made above the following directions are hereby issued by me:
(i) The Election Commission of Pakistan is directed to issue a notification of disqualification of respondent No. 1 namely Mian Muhammad Nawaz Sharif from being a member of the Majlis-e-Shoora (Parliament) with effect from the date of announcement of the present judgment.
(ii) The President of
(iii) The National Accountability Bureau is directed to proceed against respondent No. 1 and any other person connected with him in respect of the offence of corruption and corrupt practices under section 9(a)(v) of the National Accountability Ordinance, 1999 and during such proceedings the evidence and material collected by the Federal Investigation Agency in connection with FIRs No. 12 and 13 dated November 10, 1994 and November 12, 1994 respectively and by the National Accountability Bureau in connection with its Reference No. 5 of 2000 besides the report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency in September 1998 and the evidence and material appended therewith or referred to therein may also be utilized by the National Accountability Bureau if any such evidence or material is relevant to or has nexus with possession or acquisition of the relevant properties in London.
(iv) The National Accountability Bureau is also directed to probe into the other assets acquired and businesses set up by respondent No. 1’s children in Pakistan and abroad to find out whether respondent No. 1’s children have acted as Benamidars of respondent No. 1 in those assets and businesses or not and if so whether respondent No. 1 can satisfactorily account for those assets and businesses or not if he is discovered to be their actual owner.
(v) As neutrality and impartiality of the incumbent Chairman, National Accountability Bureau Mr. Qamar Zaman Chaudhry has been found by me to be compromised in the matters of respondent No. 1, therefore, he is directed not to exercise any power, authority or function in respect of the matters directed above. The Honourable Chief Justice of Pakistan is requested to constitute an Implementation Bench of this Court in the above mentioned regard and in the interest of doing complete justice it is ordered that all the powers, authority and functions of the Chairman, National Accountability Bureau in the above mentioned matters of respondents No. 1 shall henceforth be exercised by the said Implementation Bench and the relevant officials of the National Accountability Bureau shall seek all the necessary orders in those matters from the Implementation Bench till Mr. Qamar Zaman Chaudhry completes his current non-extendable term of office. The Implementation Bench shall also monitor the progress made by the National Accountability Bureau in the matters referred to above and it shall also supervise the investigation being conducted by it in the matters as and when found necessary and called for besides issuing any order deemed expedient in the interest of justice.
(vi) The National Accountability Bureau is directed to proceed against respondent No. 10 namely Mr. Muhammad Ishaq Dar in connection with its Reference No. 5 of 2000 wherein the said respondent was not an accused person when the said Reference was quashed by the Lahore High Court, Lahore and reinvestigation against the accused persons therein was barred because after quashing of that Reference against the accused persons therein and after setting aside of the confessional statement of respondent No. 10 his status in that Reference stood revived as an accused person against whom no Reference had been quashed and reinvestigation qua him was never ordered to be barred.
(Asif Saeed Khan Khosa)
Judge
EJAZ AFZAL KHAN, J.- Petitioner in Const. P. No. 29 of 2016 seeks: disqualification of respondents No. 1, 9 and 10; recovery of money laundered alongwith properties purchased through the British Virgin Islands Companies and Companies in other safe havens; issuance of a direction against respondent No. 2 to discharge his obligation under Section 9 and 18 of the National Accountability Ordinance, 1999 by taking the investigation in mega corruption cases to their logical end; placement of the name of Mian Nawaz Sharif and his family members named in the Panama Leaks on the Exit Control List (ECL); issuance of an order to initiate claims on behalf of the Government of Pakistan for recovery of properties in question and direction against the Chairman Federal Board of Revenue to scan and scrutinize the tax returns and assets declaration of respondent No. 1 and his family.
2. The case of the petitioner,
so to speak, is that respondent No. 1 in his address to the nation on
05.04.2016 and to the Parliament on 16.05.2016 made false statements which are
not only contradictory but also in conflict with the statements made by his
sons, respondent No. 7 and 8 herein; that he tried to explain the assets of his
family members but omitted to mention what they invested and earned in Dubai;
that a tripartite agreement witnessing the sale of 75% shares in Gulf Steel
Mill at Dubai has been brought on the record but a look at the said agreement
would reveal that the sale did not bring them any cash, as its proceeds
amounting to AED 21 Million were adjusted against the debt liability of BCCI
Bank; that the remaining 25% shares were sold subsequently to the same vendee
but how its proceeds swelled up to AED 12 Million is anybody’s guess; that how
did this money, irrespective of its source, reach Jeddah, Qatar and the U.K. is
again anybody’s guess; that respondent No. 7 pretended to become the owner of flats
No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London in 2006 but
according to the order of the High Court of Justice, Queen’s Bench Division in
the case of Al-Taufeeq Company for
Investment Funds Limited. Vs. Hudaibia Paper Mills Limited and three others,
2nd, 3rd and 4th defendants had a beneficial
interest in the assets specified in the schedule thereto; that respondent No. 1
has consistently evaded income tax on the sums remitted to him as gift by his
son Hussain Nawaz, respondent No. 7 herein, with the connivance of the Chairman
FBR; that frank admission of respondent No. 6 in her interview that she is
still dependent on her father and the fact that she is husbanded by a person
who has neither any source of income nor pays any taxes leave no doubt that she
is a dependent of respondent No. 1 for all legal and practical purposes; that
the correspondence between Mr. Errol George, Director FIA, British Virgin
Islands and Mossack Fonseca & Co. (B.V.I.) Limited shows that respondent
No. 6 is the beneficial owner of the flats in London; that when it has been
established on the record that respondent No. 6 is a dependent of respondent
No. 1 and the correspondence between Mr. Errol George, Director FIA and Mossack
reveals that respondent No. 6 is the beneficial owner of the flats, respondent
No. 1 was duty bound to disclose her assets in his tax returns and that his
failure to do so would expose him to disqualification under Articles 62(1)(f)
and 63(1)(o) of the Constitution of the Islamic Republic of Pakistan; that even
if it is assumed that respondent No. 6 by virtue of owning the flats worth
millions cannot be termed as a dependent of respondent No. 1, the latter cannot
lay his hands off the ownership of the flats as respondent No. 6 had no means
to purchase them in 1993-1994; that it would still be a case of concealment of
assets which would expose respondent No. 1 to disqualification in terms of the
provisions of the Constitution mentioned above; that how did the Sharif family
establish Azizia Steel Mill at Jeddah, where did they get the means of
investment from, how long did it remain functional and when did the Sharif
family dispose it of are the questions shrouded in mystery inasmuch as they
have not been witnessed by anything in black and white; that how did its sale
proceeds reach the U.K. without involving any banking channel is another dark
spot of the story where no light has been shed by respondents No. 1, 7 and 8;
that the other sums running into millions gifted by respondent No. 7 to respondent
No. 1 also raise questions about the legitimacy of their source and
vulnerability of respondent No.1 to tax liability notwithstanding the sums have
been transmitted through banking channels; that the tax and the wealth tax
statements of respondent No. 6 for the years 2011-2012 reflect her shareholding
in six companies without disclosing the source enabling her to acquire them;
that expenses incurred by respondent No. 6 on travelling and acquisition of a
valuable car have not been accounted for; that it has never been the case of
respondent No. 6, nor can it be that her husband catered therefor when he paid
no tax prior to 2013; that where no explanation for her princely extravagance
is coming forth it can safely be deduced that she is still a dependent of
respondent No. 1; that even the purpose of establishing offshore companies in
the British Virgin Islands is no other but to protect the looted and laundered
money which is an offence of the gravest form and that the people indulging in
such activities have no right to hold the highest office of the Prime Minister;
that the document purported to be the trust deed showing respondent No. 7 as
beneficiary and respondent No. 6 as the trustee does not fit in with the story
set up by respondent No.1 when considered in the light of the orders passed by
the High Court of Justice Queen’s Bench Division in the case cited above; that
respondents No. 6, 7 or 8 could not claim the ownership of flats purchased in
1993 when they being 20, 21 and 17 years old respectively at the time had no
independent sources of income; that interview of respondent No. 8 with Tim
Sebastien in November, 1999 belies the story thus set up in the trust deed;
that nothing would turn much on establishment of the Jeddah Steel Mill, its
sale and transmission of its sale proceeds to the U.K. in 2005 when none of the
events has been witnessed by any documentary evidence; that the report of
Mr. A. Rehman Malik, he submitted as
Additional Director General, FIA to the then President of Pakistan is replete
with details as to how the Sharif family laundered money, how it opened foreign
currency accounts in the names of fake persons for converting black money into
white and what was the design behind forming offshore companies in the British
Virgin Islands and Jersey Island; that the confessional statement of Mr. Ishaq
Dar respondent No.10 herein is another piece of evidence giving the details of
the money laundered by the Sharif family; that the case involving respondents
No. 1 and 10 has been quashed by the Lahore High Court on flimsy and fanciful
grounds; that respondent No. 2 despite knowing that the case has been quashed
on flimsy and fanciful grounds did not file an appeal against the judgment of
the Lahore High Court and thus failed to do what he was required by law to do;
that where did the Working Capital Fund provided to Flagship Investments
Limited come from as is indicated in its financial statement for the period
ending on 31st March, 2002 has neither been explained by respondent
No. 1 nor respondent No. 8; that the stance of respondent No. 1 that the money
went to the hands of respondents No. 7 and 8 after the sale of Jeddah Steel
Mills is also belied by the financial statements of the aforesaid company as it
already had sufficient capital in its accounts before the said sale; that even
the bearer share certificates cannot bring respondents No. 1 and 6 out of the
slimy soil unless they are proved to have been registered in conformity with
Section 41 of the BVI Business Companies Act, 2004; that a bearer share in a
company is disabled for a period during which it is held by a person other than
a custodian who is approved by the Commission in terms of Section 50-A(1) and
50-B of the Financial Services Commission Act, 2001; that transfer or purported
transfer of an interest in the bearer share certificate is void if effected
during the period it is disabled as it does not carry any of the entitlement
which it would otherwise carry subject to sub-section 3 of Section 68 of the
Act; that whether the bearer share was transferred to Hussain Nawaz or any
other person in accordance with Section 68 of the BVI Business Companies Act is
for him to prove and that where he fails to prove it, transfer of any interest
in the bearer share certificates shall be void.
3. The case of the petitioner
in Civil Petition No. 30 of 2016 in nutshell is that respondent No. 1 looted
and laundered the money, formed British Virgin Island Companies, purchased as
many as four flats at Avenfield House Park Lane London in the names of his
dependents who at that time had no source of income; that he failed to declare
their assets in his tax returns; that in his speech addressing the nation and
the speech addressing the Parliament he stated many things which being false,
incorrect and in conflict with the statement of respondent No. 7 expose him to
disqualification under Articles 62(1)(f) and 63(1)(o) of the Constitution of
the Islamic Republic of Pakistan; that the letter of Hamad Bin Jassim Bin Jaber
Al-Thani being concocted and based on hearsay cannot come to his rescue nor can
it save him from disqualification in terms of the Articles mentioned above. To
support his contentions the petitioner placed reliance on the cases of Imtiaz Ahmed Lali. Vs. Ghulam Muhammad
Lali (PLD 2007 SC 369), Mian Najeeb-ud-Din Owasi and another. Vs. Amir
Yar Waran and others (PLD 2013 SC 482), Muhammad Rizwan Gill. Vs. Nadia
Aziz and others (PLD 2010 SC 828), Muddasar Qayyum Nahra. Vs. Ch. Bilal
Ijaz and others (2011 SCMR 80), Malik Umar Aslam. Vs. Mrs. Sumaira Malik
and others (2014 SCMR 45) and Sadiq Ali Memon. Vs. Returning Officer,
NA-237, Thatta-I and others (2013 SCMR 1246).
4. Case of respondent No. 1 is
that prayers made in the petition are vague and generalized; that issuance of a
direction is sought against the Chairman NAB to discharge his obligations under
the NAB Ordinance, 1999 but the cases pending investigation in mega corruption
events have not been mentioned; that direction against respondent No. 4 for
placing the name of Mian Nawaz Sharif and his family members named in Panama
Leaks on the ECL is sought but no argument has been addressed in support of
this prayer; that an order is sought to be passed against respondents No. 2 and
3 directing them to initiate claims on behalf of the Government of Pakistan for
recovery of the properties but none of them has been identified; that yet
another direction is sought to be issued against respondent No. 5 to probe and
scrutinize the tax returns and assets declaration of respondent No. 1 and his
entire family but none of its members has been named in the petition; that the
last prayer tends to stretch the gamut of controversy to an extreme which is
unworkable altogether; that with the prayer of this nature nothing can be
pinned on respondent No. 1 when he has no BVI Company or any other company of
the sort; that respondent No. 1 cannot be dragged in the controversy stirred in
the petition stemming from the Panama Leaks when he is neither a director nor a
shareholder nor a beneficial owner nor a guarantor in any of the BVI Companies;
that the speeches addressing the nation and the Parliament respectively giving
broad outlines of the business established and pursued by late Mian Muhammad
Sharif cannot be construed like pleadings nor could they be considered as
item-wise replies to the allegations sworn on an affidavit; that conflict
between the statements of respondent No. 1 and that of respondents No. 7 and 8
cannot be blown out of proportion so long as the latter have not been proved to
be correct; that respondent No. 1 giving the outlines of the business of his
father in his speech may have made errors or omissions, but when there is
nothing on the record to show that intention behind them was suppression of
truth, they cannot be used to his detriment in any proceeding; that after the
amendment in clause 1(f) of Article 62 of the Constitution, every person shall
be deemed to be sagacious, righteous, non-profligate, honest and ameen unless a
declaration to the contrary has been given by a court of law; that since no
such declaration has been given by any court of law it cannot be given by this
Court in exercise of its jurisdiction under Article 184(3) of the Constitution,
that too, when it is sought on the basis of the facts which are seriously
disputed; that no finding about disqualification under Article 62(1)(f) of the
Constitution or Sections 78(1)(d) or 99(1)(f) of the Representation of the
People Act, 1976 could be given unless the facts constituting such
disqualification are proved or admitted; that this is what has been held by
this Court in the judgments rendered in the cases of Muhammad Ijaz Ahmad Chaudhry. Vs. Mumtaz Ahmad Tarar and others (2016
SCMR 1), Malik Iqbal Ahmad Langrial. Vs. Jamshed Alam and others (PLD
2013 SC 179), Muhammad Khan Junejo. Vs. Federation of
5. The case of the petitioner in Const. P. No. 03/2017 is that where respondent No. 4 in the said petition admitted that he and his family members set up Gulf Steel Mill in Dubai, disposed it of, set up Azizia Steel Mill in Jeddah and disposed that of, it is for him to prove the trail of money and legitimacy of means whereby he and his dependents purchased flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London; that where he did not prove either of them nor did he disclose the assets of his dependents, he is liable to be disqualified under Articles 62(1)(f) and 63(1)(o) of the Constitution; that where respondent No. 4 has also violated the Oath of his Office in his capacity as MNA as well as the Prime Minister, he is no more honest and ameen, therefore, he is also liable to be disqualified on this score; that respondent No. 4 in CP. No. 03 of 2017 cannot claim any privilege or even immunity under Articles 66 and 248 of the Constitution respectively when his speech is studded with lies and distortions and related to the matters which are essentially personal; that respondent No.4 while explaining the assets of his family used first person plural in his speeches in and outside the Parliament but while defending himself in the Court he denied to have any nexus with the assets of respondents No. 6, 7 and 8; that where respondents No.6, 7 and 8 have no sources of income, it is for respondent No.4 to explain where did they come from and what was the channel they were taken through for investment abroad; that where no evidence comes forth it shall be presumed that the flats were purchased with the money having spurious origin; that an inquiry in this behalf can be undertaken by this Court even while hearing a petition under Article 184(3) of the Constitution in view of the judgments rendered in the cases of Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817), Muhammad Yasin Vs. Federation of Pakistan through Secretary Establishment Division Islamabad and others (PLD 2012 SC 132), Workers Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others Vs. Federation of Pakistan and two others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others Vs. Federation of Pakistan and others (PLD 2012 SC 774), Watan Party and another Vs. Federation of Pakistan and another (PLD 2011 SC 997) and Muhammad Azhar Siddique and others Vs. Federation of Pakistan and others (PLD 2012 SC 660).
6. The case of respondent No.
6 as set up in her concise statement, supplementary concise statement and yet
another statement is that she, ever since her marriage, has been living on her
own with her husband in one of the houses in Shamim Agri Farms, Raiwind owned
by her grandmother; that whatever she received, purchased, spent gifted or
disposed of has been fully indicated in her tax returns, therefore, nothing
adverse could be fished therefrom to make out a case of disqualification of
respondents No. 1 and 9; that whatever her father gifted to her in any form was
out of his abundant love and affection for her; that she has never been a
beneficial owner of any of the flats at Avenfield House Park Lane London; that
she independently owns assets, pays taxes thereon and holds a National Tax
Number as is fully evident from her tax returns; that respondent No. 1
disclosed in column 12 of his wealth statement for the year 2011, an immovable
property purchased in her name but that could not be construed to make her a
dependent as no other column for mentioning such property was available in the
relevant forms till the issuance of SRO No. 841(1) of 2015 dated Islamabad the
26th August, 2015; that failure of respondent No. 9 to disclose in
his tax returns the gift of Rs.31,700000/- to respondent No. 6 would not entail
anything adverse to him when he annexed the wealth statement of respondent No.
6 with his nomination papers; that no relief whatever has been sought against
respondent No. 6; that when respondent No. 6 is not a dependent of respondent
No. 1, the latter’s failure to disclose her assets in his wealth tax returns
would not entail any liability against him; that her contribution to the Shamim
Agri Farms can well be noticed from the returns for tax years 2013, 2014 and
2015 submitted by Mst. Shamim Akhtar would also go a long way to prove her
status as being independent; that she lent and not borrowed from Chaudhry Sugar
Mills Ltd; that her assets even on 30th June, 2010 were
Rs.73,510431/- and that if the figures mentioned have not been read by the
petitioner in their correct perspective, she could not be blamed for that; that
she paid the amount to respondent No.1 in the tax year, 2012 for the land he
purchased for her in tax year 2011 through a banking channel as is evident from
the entries made at page Nos. 251 and 258 of CMA. No. 7530 of 2016; that if at
all there has been any misstatement or tax evasion it could be inquired into by
the competent forum and not by this Court; that respondent No. 6 in her
interview with Sana Bucha denied to have owned anything in and outside the
country but this statement cannot be treated as an admission or denial aimed at
concealing anything when she has disclosed all of her income and assets in her
tax returns; that the documents filed by the petitioner in CMA. No. 7511 of
2016 appearing to be a company resolution sent through as an email with the
purported signature of respondent No. 6 is forged on the face of it as the signature
thereon does not tally with any of the admitted signatures of respondent No. 6;
that the correspondence between Mr. Errol George, Director FIA, British Virgin
Islands and Mossack Fonseca & Co. (B.V.I.) Limited also appears to be a
fabrication when respondent No. 6 at no stage has been a beneficial owner of
the flats; that in all matters relating to public interest litigation this
Court has to guard against entertainment of a petition on the basis of an
information whose authenticity is open to serious doubt; that since the
expression dependent has not been defined by Income Tax Ordinance,
Representation of People Act or NAB Ordinance recourse could be had to Black’s
Law Dictionary which defines it as ‘one who relies on another for support or is
not able to exist or sustain oneself’ and that respondent No. 6 does not fall
within the definition of the word ‘dependent’ when she lives on her own and has
independent means of sustenance; that if at any rate the question whether she
lives on her own and has independent means of existence is disputed it being
disputed cannot be inquired into in a proceeding under Article 184(3) of the
Constitution of Pakistan; that there is nothing baffling in the gift of a BMW
car by respondent No. 8 to respondent No. 6 costing her Rs.35,000,00/- in the
form of Customs Duty and Taxes and bringing her a profit of Rs.19,664,955/- on
its having been traded in; that where many documents brought on the record to
justify initiation of an inquiry are fake and forged, the petitioner is liable
to be proceeded against under Section 469 of the Cr.P.C.; that when respondent
No. 6 has disputed the document purported to have been signed by her it is
worth nothing unless proved in accordance with law; that even the opinion of
the handwriting expert given on comparison of her disputed and admitted
signatures is worth nothing unless he affirms his opinion on oath in the Court
and faces the test of cross-examination; that where the petitions appear to be
malafide and the purpose behind them is to settle personal score or to gain a
political mileage they cannot be entertained under Article 184(3) of the
Constitution in view of the judgments rendered in the cases of Hafeez-ud-Din. Vs. Abdur Razzak (PLD
2016 SC 79), Janta Dal. Vs. H.S. Chowdary (AIR 1993 SC 829), S.P.
Gupta. Vs. President of
7. The case of respondent No. 10 is that the confessional statement attributed to him is a result of inducement, coercion and torture spread over a period of almost six months; that it is by no stretch of imagination willed and voluntary; that the criminal transaction sought to be reopened through the confessional statement is past and closed as the same matter has been set at rest by the Lahore High Court in its judgment rendered in the case of Hudabiya Engineering (Pvt) Limited. Vs. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and six others (PLD 1998 Lahore 90); that even if the confessional statement is assumed to have been made voluntarily, it cannot be used against respondent No. 10 when it was recorded pursuant to the pardon granted to him by the Chairman NAB under Section 26 of the National Accountability Ordinance, 1999; that his status would remain that of an approver unless the pardon granted is forfeited which is not the case here; that a re-investigation of the case or yet another trial of respondent No. 10 shall be barred by Article 13 of the Constitution of Pakistan and Section 403 of the Cr.P.C.; that no parallel can be drawn between this case and the case of Muhammad Yasin. Vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) as in that case the core issue was not discussed and decided by the High Court; that where this case has been set at rest by a Bench of the Lahore High Court in the case of Messrs Hudaibya Paper Mills Ltd and others. Vs. Federation of Pakistan and others (PLD 2016 Lahore 667) and the Chairman NAB has not filed an appeal against the judgment of the High Court, even in the second round of litigation, it cannot be reopened through a proceeding under Article 184(3) of the Constitution of Pakistan.
8. The case of respondent No.
7 is that neither respondent No. 1 has any nexus with flats No. 16, 16-A, 17
and 17-A at Avenfield House Park Lane London, nor any documentary evidence has
been brought on the record to establish it; that where no such documentary
evidence has been brought on the record to establish his nexus with the
aforesaid flats, the assertion that the statement of respondent No. 1 runs
counter to the statements of respondents No. 7 and 8 would prove nothing; that
there is nothing in the tax returns, wealth statement or even in the nomination
papers of respondent No. 1 to show that he defaulted or delayed the payment of
any taxes or concealed any of his assets, therefore, the prayer of the
petitioner to disqualify respondent No. 1 is just a cry for the Moon; that as
the entire business inside and outside the country was in the hands of late
Mian Muhammad Sharif, it is impossible for respondent No. 7 to trace the trail
of money; that it is all the more impossible when more than three decades have
passed and the record of such transactions has either been lost or taken away
by the mercenaries of General Pervez Musharraf in the wake of October, 1999 coup d’etat; that whatever trail he
could trace to is, that the Gulf Steel Mill was established by late Mian
Muhammad Sharif in early seventies by availing loan from a Bank and land from
the Municipality; that since the Mill hardly proved to be a success, its 75%
shares were sold in 1978 through a tripartite agreement; that the money thus
obtained was adjusted against its outstanding liabilities; that the remaining
25% shares were sold in 1980 against a sum of AED 12 millions; that the money
so received by Tariq Shafi, as per his statement sworn on an affidavit, was
entrusted to Sheikh Fahad Bin Jasim Bin Jabir Al-Thani on the instructions of
late Mian Muhammad Sharif in view of his longstanding business relations with
the Al-Thani family; that Mian Muhammad Sharif, after his exile from Pakistan
in December, 2000, advised Althani family to credit the amount so entrusted
together with its cumulative returns in the account of respondent No. 7; that
eventually the needful was done and pursuant thereto Hamad Bin Jassim Bin Jaber
Al-Thani delivered the bearer shares of Neilsen and Nescoll to respondent No.
7; that the money as per the available record may not have been sent through
the banking channel but there is nothing unusual about it as an amount to the
tune of AED 12 millions could be carried in a small handbag; that the orders
passed by the High Court of Justice Queen’s Bench Division do not tend to
negate the version set forth by respondent No. 7 as the orders bringing the
flats under the charge were passed on the basis of a statement sworn on an
affidavit by Shezi Nackvi as is clear by the tenor of the orders mentioned
above; that the affidavit of the said Mr. Shezi Nackvi dated 13.01.2017 gives
added strength to the version; that the documents relied upon by the petitioner
are disputed and so are the facts averred in the petition, therefore, no
sweeping opinion, one way or the other, could be given unless the documents are
proved in accordance with law and statements of the petitioner and his
witnesses, if any, are recorded on oath and subjected to the test of
cross-examination; that where the petitioner failed to prove the accusation,
failure of respondents No. 7 and 8 to substantiate any of their stances would
not expose them to any liability under any law; that the judgment rendered in
the case of The State. Vs. Muhammad
Hanif and 5 others (1992 SCMR 2047) would be quite relevant to the case
in hand; that this Court in the case of Dr.
Arsalan Iftikhar. Vs. Malik Riaz Hussain and others (PLD 2012 SC 903)
while dealing with a similar situation left determination of the disputed
questions of fact to a competent Court of law; that there is nothing in the
version set up by respondents No. 7 and 8 as could be held to be incapable of
having happened; that the bearer shares remained with Al-Thani and the day they
were delivered to respondent No. 7 he became owner of the flats; that there is
no missing link in the trail of money; that if at all there is any that was
supplied by the letters written by Hamad Bin Jassim Bin Jaber Al-Thani; that
respondents No. 7 and 8 cannot be equated with a person who travelled from rags
to riches overnight as they belong to a family which has been deep in business
ever since late 30s and made fortune in it, therefore, none of the assets acquired
or owned by any member of the Sharif family can be held to be out of proportion
to their known means and resources; that at times respondents No. 6 and 7 may
fall short of the documents witnessing business transactions at different
stages but that is partly due to lapse of time and partly due to loss of the
record in the pandemonium of the coup d’état; that whatever record is available
does not show that respondent No. 6 ever held any proprietary interest in the
property; that the documents showing her to be the beneficial owner are not
worthy of reliance firstly because the signature thereon neither appears to be
of respondent No. 6 nor it tallies with her admitted signature and secondly
because it has not been owned by Minerva; that the letter dated 6.2.2006 of
Arrina Limited addressed to respondent No. 7 shows that the former would liaise
on his behalf with service providers for Nescol Limited and Neilson Enterprises
Limited; that the correspondence between Arrina Limited and Minerva Trust and
Corporate Services Limited shows that the documents projecting respondent No. 6
as beneficial owner of the flats is not believed to be the latter’s authorship;
that there are gaps in the version set up by respondents No. 7 and 8 but they
cannot be used to make up the deficiencies in the case of the petitioner; that
none of the respondents on the basis of the documents produced by the
petitioners could be condemned when they have neither come from proper custody
nor they have been authenticated; that this Court in the cases of Air Marshal (Retd.) Muhammad Asghar
Khan. Vs. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and
others (PLD 2013 SC 1), Watan Party and another. Vs. Federation of
9. The learned Attorney General appearing on behalf of the Federation contended that form of the petition and the forum chosen by the petitioner have to be looked at with reference to the context; that the form of the petition may suggest that it is in the nature of quo warranto but it partakes more of an election petition; that the issues raised in the petitions being interconnected and intertwined with personal political issues take it outside the scope of Article 184(3) of the Constitution; that this Court can entertain a petition under Article 184(3) of the Constitution if it involves a question of public importance with reference to the enforcement of a fundamental rights but in that event it has to be shown that the question raised in fact involves a question of public importance and that one of the fundamental rights guaranteed by the Constitution has been breached; that when it has not been averred in any of the petitions as to what is the question of public importance and where has the breach of any of the fundamental rights taken place, all of them would merit outright dismissal; that it has been settled in the case of Ishaq Khan Khakwani and others Vs. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) that the expression honest and ameen being incapable of being defined in clear terms cannot be left to the determination of a court where except allegations and counter allegations, no undisputed material in oral or documentary form is available; that every person is sagacious, righteous, non-profligate, honest and ameen unless a declaration to the contrary is given by a Court of law; that such declaration can neither be given under Article 199 nor Article 184(3) of the Constitution as was held in the case of Aftab Ahmed Khan. Vs. Muhammad Ajmal (PLD 2010 SC 1066); that where this dispute has already been raised before the Election Commission and could also be raised in terms of Article 63 of the Constitution before an appropriate forum, this Court cannot step in; that even if a Member of Parliament incurs a disqualification on account of his failure to submit a statement of his assets and liabilities or those of his spouse and dependents, he could be proceeded against under Section 42-A and punished under Section 82 of the Representation of the People Act; that where disqualification of a Member of Parliament is sought on the basis of a material which is disputed, this Court as a matter of course leaves it to the determination of a Court of law; that in no situation this Court will act as an investigator or a Trial Court by arrogating to itself a power or jurisdiction which has not been conferred on it by the Constitution or an act of the Parliament.
10. The learned ASC for the petitioner in CP. No. 29 of 2016 while exercising the right of rebuttal reiterated that respondents No. 6, 7 and 8 in view of their tender ages could not acquire the flats nor could they know anything about the trail of money, its growth, tripartite agreement and its implications, therefore, their statements explaining the events culminating in the acquisition of the flats do not deserve any serious consideration; that where respondent No. 1 in his speeches in and outside the Parliament himself undertook to explain the acquisition of the flats he was bound to explain it, and that when he did not, it could well be gathered that he is not honest and ameen, therefore, he is liable to be disqualified.
11. Sheikh Rashid Ahmed,
petitioner in Civil Petition No.30 of 2016 reiterated the same argument by
submitting that Qatri letter being outcome of an afterthought cannot be taken
into account especially when it is based on hearsay; that this Court has ample power
to do complete justice and as such can pass an order even beyond what has been
averred and prayed in the petitions. The petitioner to support his contentions
placed reliance on the judgments rendered in the cases of Ch. Zahur Ilahi, M.N.A. Vs. Mr. Zulfikar Ali Bhutto and 2 others (PLD 1975 SC 383), Syed Masroor Ahsan and
others. Vs. Ardeshir Cowasjee and others (PLD 1998 SC 248), Miss Benazir Bhutto. Vs.
Federation of
12. Learned ASC appearing for the
petitioner in Civil Petition No.3 of 2017 also reiterated the same arguments.
He while defining the expression ‘honest’ referred to the definitions
reproduced in the case of Fazal
Muhammad. Vs. Mst. Chohara and others (1992 SCMR 2182).
13. We have gone through the
record carefully and considered the submissions of learned ASCs for the parties
as well as the learned Attorney General for
14. The controversy urged before us relates to the ownership of flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London acquired under the aegis of offshore entities. It came to the limelight in the wake of the Panama Leaks. The leaks kicked off a storm the world over which also spilled over the shores of this country. The immediate reaction of respondent No. 1 to the leaks was that he delivered a speech inside and another outside the Parliament. He in the said speeches admitted the ownership of the flats and alluded to the means whereby he and his family purchased them. However, in his concise statement he denied to have owned the flats. Respondent No. 7 in his concise statement claimed to have owned them. To explain the trail of money he introduced the letters of Hamad Bin Jassim Bin Jaber Al-Thani. But how did it end up in the ownership of the flats still clamors for an explanation. A bulk of unauthenticated documents brought on the record by the petitioners is pitched against another bulk of unauthenticated documents brought on the record by the respondents. The questions arising out of the petitions, the bulk of documents and the arguments addressed at the bar are summed up as under :-
i) whether respondent No. 6 could be held to be a dependent of respondent No. 1 on 30th June, 2013 and whether respondent No. 1 has failed to disclose his assets and liabilities and those of his spouse and dependents in Form-XXI of the nomination papers as required by Section 12(2)(f) of the Representation of the People Act and as such is liable to be disqualified;
ii) whether respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired any assets or pecuniary resources disproportionate to his known means of income;
iii) what a person is required to do and whether Articles 62, 63 of the Constitution or Section 99 of the Representation of People Act requires any member of Parliament to account for his assets or those of his dependents disproportionate to his known means of income and whether his failure to account for such assets calls for his disqualification;
iv) what would be liability of a holder of public office if he or any of his dependents or benamidars owns, possesses or has acquired right or title in any assets or pecuniary resources disproportionate to his known means of income which he cannot account for;
v) what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1)(f) and 63(2) of the Constitution; and
vi) whether a case for disqualification of respondent No. 1 in terms of Article 62(1)(f) of the Constitution is spelt out by the speeches he delivered in and outside the Parliament and whether such speeches in view of the provision contained in Article 66 of the Constitution could be used to his detriment in any proceeding in any Court of law.
15. We would take
up the first question first. What the petitioners sought to canvass at the bar
is that respondent No. 6 being a dependent of respondent No. 1, is the
beneficial owner of the flats at Avenfield House Park Lane London, that the
latter was bound to disclose her assets and liabilities in his nomination form
submitted on 30th June, 2013 in terms of Section 12(2)(f) of the
ROPA and that when he did not do he is liable to be disqualified. This question
on the face of it is a disputed question of fact. At the very outset, we asked
the learned ASC for the petitioners whether this question could be decided by this
Court under Article 184(3) of the Constitution of Pakistan when no undisputed
evidence has been brought on the record to show that respondent No. 1 or
respondent No. 6 owns the flats mentioned above. The learned ASC to answer the
question cited the judgment rendered in the case of Syed Yousuf Raza Gillani, Prime Minister of
16. The second question in the
seriatim is whether respondent No. 1 or any of his dependents or benamidars
owns, possesses or has acquired any assets or pecuniary resources
disproportionate to his known means of income? The learned ASCs for the
petitioners in their efforts to persuade us to answer this question in
affirmative referred to a number of documents showing the establishment of Gulf
Steel Mill at Dubai, its sale, establishment of Azizia Steel Mill at Jeddah,
its sale and incorporation of Nescol Limited and Neilson Enterprises Limited in
British Virgin Islands. Under the veil of the aforesaid companies, respondent
No. 1 has been alleged to have acquired flats No. 16, 16-A, 17 and 17-A at
Avenfield House Park Lane London. The personal information form dated
14.10.2011 purportedly issued by Minerva Trust and Corporate Services Limited
shows respondent No. 6 as the beneficial owner of the flats. This document has
been purportedly signed by the said respondent, but she disputed its
genuineness and even her signatures thereon. Another document showing
respondent No. 6 as the beneficial owner of the flats is the alleged correspondence
between Mr. Errol George, Director FIA,
17. The third question requiring consideration of this Court is what a person is required to do under the Constitution and the law and whether Articles 62, 63 of the Constitution and Section 99 of the Representation of People Act require any member of Parliament to account for his assets or those of his dependents if they are disproportionate to his known means of income and whether his failure to account for such assets could call for his disqualification. Before we answer this question it is worthwhile to refer to Articles 4, 62 and 63 of the Constitution and Section 99 of the Representation of the People Act which read as under:
“4. To enjoy the protection of law and to be treated in accordance with law
is the inalienable right of every citizen. Wherever he may be, and of every
other person for the time being within
(2) In particular
(a) no action detrimental to
the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law;
(b) no person shall be prevented
from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be
compelled to do that which the law does not required him to do.”
“62. Qualifications for membership of
Majlis-e-Shoora (Parliament).—(l)
A person shall not be qualified to be elected or chosen as a member of
Majlis-e-Shoora (Parliament) unless—
(a) he is a citizen of
(b) he is, in the case of the National
Assembly, not less than twenty- five years of age and is enrolled as a voter in
any -electoral roll in—
(i) any part of
(ii) any area in a Province from which she
seeks membership for election to a seat reserved for women.
(c) he is, in the case of the Senate, not less
than thirty years of age and is enrolled as a voter in any area in a Province
or, as the case may be, the Federal Capital or the Federally Administered
Tribal Areas, from where he seeks membership;
(d) he is of good character and is not
commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic
teachings and practices obligatory duties prescribed by Islam as well as well
abstains from major sins;
(f) he is sagacious, righteous,
non-profligate, honest and ameen, there being no declaration to the contrary by
a court of law; and
(g) he has not, after the establishment of
(2) The disqualifications
specified in paragraphs (d) and (e) shall not apply to a person who is a
non-Muslim, but such a person shall have good moral reputation.]
63.
Disqualifications for membership of Majlis-e-Shoora (Parliament).—
(1) A person shall be
disqualified from being elected or chosen as, and from being, a member of the
Majlis-e-Shoora (Parliament), if—
(a) he is of unsound mind and has been so
declared by a competent court; or
(b) he is an undischarged insolvent; or
(c) he ceases to be a citizen of
(d) he holds an office of profit in the
service of Pakistan other than an office declared by law not to disqualify its
holder; or
(e) he is in the service of any statutory body
or any body which is owned or controlled by the Government or in which the
Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of
section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the
time being disqualified under any law in force in Azad Jammu and Kashmir from
being elected as a member of the Legislative Assembly of Azad Jammu and
Kashmir; or
(g) he has been convicted by a court of
competent jurisdiction for propagating any opinion, or acting in any manner,
prejudicial to the ideology of Pakistan, or the sovereignty, integrity or
security of Pakistan, or the integrity or independence of the judiciary of
Pakistan, or which defames or brings into ridicule the judiciary or the Armed
Forces of Pakistan, unless a period of five years has elapsed since his
release; or
h) he has been, on conviction for
any offence involving moral turpitude, sentenced to imprisonment for a term of
not less than two years, unless a period of five years has elapsed since his
release; or
i) he has been dismissed from the
service of Pakistan or service of a corporation or office set up or,
controlled, by the Federal Government, Provincial Government or a Local
Government on the ground of misconduct, unless a period of five years has
elapsed since his dismissal; or
j) he has been removed or
compulsorily retired from the service of Pakistan or service of a corporation
or office set up or controlled by the Federal Government, Provincial Government
or a Local Government on the ground of misconduct, unless a period of three
years has elapsed since his removal or compulsory retirement; or
k) he has been in the service of
Pakistan or of any statutory body or any body which is owned or controlled by
the Government or in which the Government has a controlling share or interest,
unless a period of two years has elapsed since he ceased to be in such service;
or
(l) he, whether by himself or by any person or
body of persons in trust for him or for his benefit or on his account or as a
member of a Hindu undivided family, has any share or interest in a contract,
not being a contract between a cooperative society and Government, for the
supply of goods to, or for the execution of any contract or for the performance
of any service undertaken by, Government:
Provided that the
disqualification under this paragraph shall not apply to a person—
(i) where the share or interest in the
contract devolves on him by inheritance or succession or as a legatee, executor
or administrator, until the expiration of six months after it has so devolved
on him;
(ii) where the contract has been entered into
by or on behalf of a public company as defined in the Companies Ordinance, 1984
(XL VII of 1984), of which he is a shareholder but is not a director holding an
office of profit under the company; or
(iii) where he is a member of a Hindu
undivided family and the contract has been entered into by any other member of
that family in the course of carrying on a separate business in which he has no
share or interest;
Explanation.–-In
this Article “goods” does not include agricultural produce or commodity grown
or produced by him or such goods as he is, under any directive of Government or
any law for the time being in force, under a duty or obligation supply; or
(m) he holds any office of profit in the
service of
(i) an office which is not whole time office
remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called
by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue
of such office, is liable to be called up for military training or military
service under any law providing for the constitution or raising of a Force; or
(n) he has obtained a loan for an amount of
two million rupees or more, from any bank, financial institution, cooperative
society or cooperative body in his own name or in the name of his spouse or any
of his dependents, which remains unpaid for more than one year from the due
date, or has got such loan written off; or
(o) he or his spouse or any of his dependents
has defaulted in payment of government dues and utility expenses, including
telephone, electricity, gas and water charges in excess of ten thousand rupees,
for over six months, at the time of filing his nomination papers; or
(p) he is for the time being disqualified from
being elected or chosen as a member of a Majlis-e-Shoora (Parliament) or of
Provincial Assembly under any law for the time being inforce.
Explanation.-For
the purposes of this paragraph “law” shall not include an Ordinance promulgated
under Article 89 or Article 128.
(2) If any question arises whether a member of
the Majlis-e-Shoora (Parliament) has become disqualified from being a member,
the Speaker or, as the case may be, the Chairman shall, unless he decides that
no such question has arisen, refer the question to the Election Commission
within thirty days and if he fail to do so within the aforesaid period it shall
be deemed to have been referred to the Election Commission. .
(3) The Election Commission shall
decide the question within ninety days from its receipt or deemed to have been
received and if it is of the opinion that the member has become disqualified,
he shall cease to be a member and his seat shall become vacant.”
AND
“99. Qualifications and
disqualifications.–(1)A person shall not be qualified to be elected or chosen
as a member of an Assembly unless
(a) he is a citizen of
[(b) he is, in the case of National Assembly, not
less than twenty-five years of age and is enrolled as a voter in any electoral
roll:
(i) in any part of
and
(ii) in a Province, from where such person seeks
membership for election to a seat reserved for women];
(c) he is, in the case of Provincial Assembly, not
less than twenty-five years of age and is enrolled as a voter in any electoral
roll [as a voter in any area in a Province from where he seeks membership for ]
that Assembly;
[(cc) xxxxxxx]
(d) he is of good character and is not commonly
known as one who violates Islamic Injunctions ;
(e) he has adequate knowledge of Islamic teachings
and practices obligatory duties prescribed by Islam as well as abstains from
major sins ;
(f) he is sagacious, righteous and non-profligate
and honest and ameen ;
(g) he has not been convicted for a crime involving
moral turpitude or for giving false evidence; and
(h) he has not, after the establishment of
(IA) A person shall be disqualified from being
elected as, and from being, a member of an Assembly, if
(a) he is of unsound mind and has been so declared
by a competent court; or
(b) he is an un-discharged insolvent; or
(c) he ceases to be a citizen of
(d) he holds an office of profit in the service of
Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory body or
any body which is owned or controlled by the Government or in which the
Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of
section 14B of the Pakistan Citizenship Act,1951(11 of 1951),he is for the time
being disqualified under any law in force in Azad Jammu and Kashmir from being
elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he is propagating any opinion, or acting in any
manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity
or security of Pakistan, or morality, or the maintenance of public order, or
the integrity or independence of the judiciary of Pakistan, or which defames or
brings into ridicule the judiciary or the Armed Forces of Pakistan, or
[(h) has been convicted by a court of competent
jurisdiction on a charge of corrupt practice, moral turpitude or misuse of
power or authority under any law for the time being in force; or
(i) has been dismissed from the service of Pakistan
or service of a corporation or office set up or controlled by the Federal
Government, Provincial Government or a local government on grounds of
misconduct or moral turpitude; or
(j) has been removed or compulsorily retired from
the service of Pakistan or service of a corporation or office set up or
controlled by the Federal Government, Provincial Government or a local
government on grounds of misconduct or moral turpitude; or ]
(k) he has been in the service of Pakistan or of
any statutory body or any body which is owned or controlled by the Government
or in which the Government has a controlling share or interest, unless a period
of two years has elapsed since he ceased to be in such service; or
(l) he is found guilty of a corrupt or illegal
practice under any law for the time being in force, unless a period of five
years has elapsed from the date on which that order takes effect; or
[(m) Omitted.
(n) he, whether by himself or by any person or body
of persons in trust for him or for his benefit or on his account or as a member
of a Hindu undivided family has any share or interest in a contract, not being
a contract between a cooperative society and Government, for the supply of
goods to, or for the execution of any contract or for the performance of any
service undertaken by, Government:
Provided that the disqualification under this
clause shall not apply to a person---
(i) where the share or interest in the contract
devolves on him by inheritance or succession or as a legatee, executor or
administrator, until the expiration of six months after it has so devolved on
him;
(ii) where the contract has been entered into by or
on behalf of a public company as defined in the Companies Ordinance,1984 (XLV
II of 1984),of which he is a shareholder but is not a director holding an
office of profit under the company; or
(iii) where he is a member of a Hindu undivided
family and the contract has been entered into by any other member of that
family in the course of carrying on a separate business in which he has no
share or interest; or
Explanation.-In this section “goods ” does not
include agricultural produce or commodity grown or produced by him or such
goods as he is, under any directive of Government or any law for the time being
in force, under a duty or obligation to supply;
(o) he holds any office of profit in the service of
(i) an office which is not whole time office
remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by
this or any other title;.
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of
such office, is liable to be called up for military training or military
service under any law providing for the constitution or raising of a Force; or
(p) having, whether by himself or by any person in
trust for him or for his benefit or on his account, any share or interest in a
contract for
(i) the supply of goods to, or
(ii) the execution of any work, or the performance
of any service, undertaken by, the Government, or a local authority or an
autonomous body in which the Government has a controlling share or interest, he
does not, after his election as a member but within thirty days of his making
oath as such make a declaration in writing to the Commission that he has such
share or interest, unless a period of five years has elapsed since his failure
to do so; or
(q) being a managing agent, manager or secretary
of, or holding any other office carrying the right to remuneration in, any
company or corporation (other than a cooperative society)in the capital of
which the Government has not less than twenty-five per cent share or which is
managed by the Government, he does not, after his election as a member but
within thirty days of his making oath as such, make a declaration in writing to
the Commissioner that he is such managing agent, manager or secretary, or holds
such office, unless a period of five years has elapsed since his failure to do
so; or
[(r) has been convicted and sentenced to
imprisonment for having absconded by a competent court under any law for the
time being in force; or
(s) has obtained a loan for an amount of two
million rupees or more, from any bank, financial institution, cooperative
society or cooperative body in his own name or in the name of his spouse or any
of his dependents, which remains unpaid for more than one year from the due
date, or has had such loan written off; or
(t) he or his spouse or any of his dependents is in
default in payment of government dues or utility expenses, including telephone,
electricity, gas and water charges of an amount in excess of ten thousand
rupees, for over six months, at the time of filing of nomination papers of such
person.]
Explanation l.-In this sub-section, service of
(2) Omitted].”
A reading of Article 4 of the
Constitution would reveal that no person shall be compelled to do that which
the law does not require him to do. While a reading of Articles 62 and 63 of
the Constitution and Section 99 of the ROPA would reveal that none of them
requires any member of Parliament to account for his assets or those of his
dependents even if they are disproportionate to his known means of income.
Section 12(2)(f) of the ROPA requires him to disclose his assets and those of
his spouse and dependents and not the means whereby such assets are acquired.
Where none of the provisions of the Constitution or the Act dealing with
disqualifications requires a member of Parliament to account for his assets and
those of his dependents, even if they are disproportionate to his known means
of income, how could this Court on its own or on a petition of any person under
Article 184(3) of the Constitution require him to do that, and declare that he
is not honest and ameen if he does not account for such assets. Given Section
9(a)(v) of the Ordinance requires him to account for his assets and those of
his dependents and benamidars if they are disproportionate to his known means
of income in a trial before an
18. The fifth question focuses on the liability of a holder of public office if he or any of his dependents or benamidars owns, possesses or has acquired right or title in any assets or pecuniary resources disproportionate to his known means of income which he cannot account for. The answer is provided by Sections 9(a)(v), 10 and 15 of the National Accountability Bureau Ordinance which read as under:-
“S.9... Corruption and Corrupt Practices: (a) A holder of a public office, or any other person, is said to
commit or to have committed the offence of corruption and corrupt practices:
i) ………………
ii) ………………
iii) ………………
iv) ……………….
v) if he or any of his
dependents or benamidars owns, possesses, or has [acquired] right or title in
any [assets or holds irrevocable power of attorney in respect of any assets] or
pecuniary resources disproportionate to his known sources of income, which he
cannot [reasonably] account for [or maintains a standard of living beyond that
which is commensurate with his sources of income].
10. Punishment for corruption
and corrupt practices.--(a) [A holder of public office or any other person]
who commits the offence of corruption and corrupt practices shall be punishable
with [rigorous] imprisonment for a term which may extend to 14 years, [and with
fine] and such of the assets and [pecuniary sources] of such [holder of public
office or person as are] found to be disproportionate to the known sources of
his income or which are acquired by money obtained through corruption and
corrupt practices whether in his name or in the name of any of his dependents,
or benamidars shall be [***] forfeited to the appropriate government, [or the
concerned bank or financial institution as the case maybe].
[(b) The offences specified in the Schedule to this Ordinance shall be
punishable in the manner specified therein.
(c) The Federal Government may, by notification in the official Gazette,
amend the Schedule so as to add any entry thereto or modify or omit any entry
therein.
(d) Notwithstanding anything to the contrary contained in any other law
for the time being in force an accused, convicted by the Courts of an offence
under this Ordinance, shall not be entitled to any remission in his sentence.]
15. Disqualification to
contest elections [or to hold public office]:-- (a) [Where an accused
person is convicted [of an offence under Section 9 of this Ordinance], he shall
forthwith cease to hold public, office, if any, held by him and further he
shall stand disqualified for a period of ten years, to be reckoned from the
date he is released after serving the sentence, for seeking or from being
elected, chosen, appointed or nominated as a member or representative of any
public body or any statutory or local authority or in service of Pakistan or of
any Province :
Provided that any accused person who has availed the benefit of [sub-section
(b) of Section] 25 shall also be deemed to have been convicted for an offence
under this Ordinance, and shall forthwith cease to hold public office, if any,
held by him and further he shall stand disqualified for a period of ten years,
to be reckoned from the date he has discharged his liabilities relating to the
matter or transaction in issue, for seeking or from being elected, chosen,
appointed or nominated as a member or representative of any public body or any
statutory or local authority or in service of Pakistan or of any Province.]
(b) Any person convicted of an offence [under Section 9 of the Ordinance]
shall not be allowed to apply for or be granted or allowed any financial
facilities in the form of any loan or advances [or other financial
accommodation by] any Bank or Financial Institution [owned or controlled by
Government], for a period of 10 years from the date of conviction.”
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
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.
20. The next question emerging
for the consideration of this Court is what are the fora provided by the
Constitution and the law to deal with the questions emerging from Articles
62(1)(f) and 63(2) of the Constitution. To answer this question we will have to
fall back upon Articles 62 and 63 of the Constitution. A careful reading of the
said Articles would reveal that the one deals with qualifications of a person
to be elected or chosen as a member of Parliament while the other deals with
disqualifications of a person not only from being elected or chosen but also
from being a member of Parliament. If a candidate is not qualified or is
disqualified from being elected or chosen as a member of Parliament in terms of
Articles 62 and 63 of the Constitution, his nomination could be rejected by the
Returning Officer or any other forum functioning in the hierarchy. But where
the returned candidate was not, on the nomination day, qualified for or
disqualified from being elected or chosen as a member, his election could be
declared void by the Election Tribunal constituted under Article 225 of the
Constitution. While election of a member whose disqualification was overlooked,
illegally condoned or went unquestioned on the nomination day before the
Returning Officer or before the Election Tribunal, could still be challenged
under Article 199(1)(b)(ii) or Article 184(3) of the Constitution of Pakistan,
1973 as was held in the cases of Lt.
Col. Farzand Ali and others. Vs. Province of West Pakistan through the
Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) and Syed Mehmood Akhtar Naqvi. Vs. Federation of
21. Now we take up the question whether a case for disqualification of respondent No. 1 in terms of Article 62(1)(f) of the Constitution is spelt out by the speeches he delivered inside and outside the Parliament and whether such speeches in view of the provisions contained in Article 66 of the Constitution could be used to his detriment. The case of the petitioners is that speeches delivered by respondent No. 1 inside and outside the Parliament are false because of their being in conflict with the statements of respondents No. 7 and 8 and contradictory to his own stance taken in his concise statement and that the privilege in terms of Article 66 of the Constitution is not available to him when the matter addressed in his speech delivered in the Parliament was essentially personal. But mere contradiction between the speeches of respondent No. 1 and statements of respondents No. 7 and 8 does not prove any of his speeches false or untrue unless it is determined after examining and cross-examining both of them that their statements are correct and true. Where it is not determined that statements of respondents No. 7 and 8 are correct and true, no falsity could be attributed to the speeches of respondent No. 1. If at all, the speeches of respondent No. 1 are sought to be used to incriminate him for declaring that he is not honest and ameen, he has to be confronted therewith. Where no effort was made to prove the statements of respondents No. 7 and 8 to be true and correct, nor was respondent No. 1 confronted with his speeches, it would be against the cannons of law of evidence to use such speeches against him. Once we hold that neither of the speeches of respondent No. 1 could be used against him, the question of availability of privilege under Article 66 of the Constitution shall become irrelevant.
22. Many other arguments have been addressed and many other judgments have been cited at the bar by the learned ASCs for the petitioners as well as the respondents but as we have held above that the allegations leveled against respondent No. 1 require investigation by the investigation agency and determination by an Accountability Court, we need not comment on them at this stage lest it prejudices the case of any of the parties.
23. Having thus considered we sum up the case as under:
no aboveboard or undisputed documentary evidence has been brought on the record to show that respondent No. 1 defaulted in the payment of tax as far as his assets as declared in the tax returns are concerned; nothing significant has come forth against respondents No. 9 and 10 as could justify the issuance of the direction asked for. However, sufficient material, as highlighted in para 16 above, has surfaced on the record which prima facie shows that respondent No. 1, his dependents and benamidars acquired assets in the early nineties and thereafter which being disproportionate to his known means of income call for a thorough investigation. In the normal circumstances this job could well be done by NAB, but when its Chairman, in view of his conduct he has demonstrated in Hudaibya’s case by not filing an appeal against a split verdict of the Lahore High Court, appears to be indifferent and even unwilling to perform his part, we are constrained to constitute a joint investigation team (JIT) which would consist 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.
24. 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.
25. 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 and appropriate orders, in this behalf, be passed, if so required.
26. 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.
JUDGE
|
Gulzar Ahmed, J.— I have read the proposed judgment authored by my learned brother Asif Saeed Khan Khosa, J. and observe that his lordship in his usual way has very elaborately and eloquently dealt with all the matters and points raised during hearing of these Constitution Petitions and has given a very able and well reasoned judgment to which I agree. I, however, wish to add my own note dealing with singular point which in my estimation is the most crucial and much central to all the questions which have been raised during the course of arguments before us. 2. I may, at the outset, clarify and emphasize that this Court under Article 184(3) of the Constitution has all the jurisdiction to give any sort of declaration and to pass any consequential order that may be the need of the case which may arise out of any of the given facts and circumstances. In this regard, this Court has given its judgments time and again in which this matter has specifically been dealt with and answered to which I will be making reference and discussing them herein below. 3. What is the nature of jurisdiction that has been conferred upon this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called “the Constitution”). Such Article is reproduced as follows:- “184(3) Without
prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part
II is involved, have the power to make an order of the nature mentioned in
the said Article.” On reading of this very Article, it is clear that this Court has been conferred with a power to make an order of nature mentioned in Article 199 of the Constitution and such power is without prejudice to the said Article meaning that this Court is not constrained with any of the technicalities or any of the conditions that may have been imposed on the High Court for exercising jurisdiction under Article 199 of the Constitution. This Court has been given free and unbridled powers to make an order of a nature, as mentioned above, if it considers that the question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved. In the case of Shahid Pervaiz & others v Ejaz Ahmad & others [2017 SCMR 206], this Court has held that where any of the provisions of law made by the Parliament or otherwise comes in direct conflict with the Fundamental Rights of the citizen conferred by Chapter 1 Part II of the Constitution, the same can be declared as non-est. In the case of Lahore Bachao Tehrik v Dr. Iqbal Muhammad Chauhan & others [2015 SCMR 1520] this Court has held that the rules of acquiescence, waiver, estoppels and past and closed transaction or any other rule having nexus to such concepts would not at all be relevant when this Court is exercising jurisdiction under Article 184(3) of the Constitution. In the case of Anjum Aqeel Khan & others v National Police Foundation through M.D & others [2015 SCMR 1348], while considering power of the Chairman, National Accountability Bureau, this Court observed that under Article 184(3) of the Constitution it has very wide and vast powers and if the Court considers that a question of public importance with reference to the enforcement of the Fundamental Rights conferred by the Constitution was involved it has jurisdiction to pass appropriate orders. In the case of Ali Azhar Khan Baloch & others v Province of Sindh & others [2015 SCMR 456], this Court has observed that in order to exercise jurisdiction under Article 184(3) of the Constitution, requirement of the Constitution is that this Court has to consider that question of public importance with reference to enforcement of Fundamental Rights conferred by Chapter 1 Part II of the Constitution is involved, it has jurisdiction to pass appropriate orders notwithstanding that there might be an alternate remedy. Observing that the word “consider” being related to the subjective assessment of this Court and this Court is the final authority upon the matter affecting judicial determination on the scope of constitutional provisions thus once the Supreme Court arrived at a conclusion that the question of public importance, having nexus with the Fundamental Rights guaranteed by the Constitution, has been raised the exercise of its jurisdiction under Article 184(3) of the Constitution cannot be objected to either by the Government or by any other party. This Court , in the case of Khalid Iqbal & 2 others v Mirza Khan & others [PLD 2015 Supreme Court 50] has observed that power of the Supreme Court to revisit its earlier decision or depart from it and while dealing with the scope stated that the Constitution did not impose any restriction or bar on the Supreme Court to revisit its earlier decisions or even to depart from them nor the doctrine of stare decisis would come in its way so long as revisiting of the judgment was warranted in view of the significant impact of the Fundamental Rights of the citizen or in the interest of public good. This Court has absolute powers to revisit, review or set aside its earlier judgments and orders by invoking its suo motu jurisdiction under Articles 184(3), 187 or 188 of the Constitution and that for exercising such inherent jurisdiction, the Court is not dependent upon an application being made by a party. In the case of Jamshoro Joint Venture Limitted & others v Khawaja Muhammad Asif & others [2014 SCMR 1858], this Court has held that under Article 184(3) of the Constitution, the scope of powers of the Court is that suit pending before a Court containing a matter raised in the Constitution Petition this Court has held as follows: “This Court while exercising jurisdiction
under Article 184(3) of the Constitution has ample power to adjudicate upon
and consider the question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by the Constitution
and the jurisdiction of this Court will not be fettered or restricted merely
for the reason that some suit is pending on any of the questions involved in
the matter for that would be of subordinate consideration when dealing with
the question of public importance with reference to the enforcement of any of
the Fundamental Rights which are of supreme importance and have a much wider
connotation and implication to the public at large.” In the case of Asaf Fasihuddin Khan Vardag v Government of Pakistan & others [2014 SCMR 676], while dealing with the question of appointments made by the Government without adverting to the merits, this Court has observed that under Article 184(3) of the Constitution it has wide powers to ensure that acts, actions of other organs of the State namely executive, legislature did not breach the Fundamental Rights guaranteed by the Constitution under the principle of trichotomy of powers, the judiciary was entrusted with the responsibility of enforcement of Fundamental Rights which called for independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights were nullified and the rule of law was upheld in the society. In Human Rights case No.14392 of 2013 etc [2014 SCMR 220], this Court exercising jurisdiction under Article 184(3) of the Constitution on newspaper clipping regarding unprecedented load-shedding in the country and increase in electricity prices, lack of availability of gas for production of electricity, gas load management policy of the Government, priority of supply of gas to different sectors, supply of gas to fertilizer companies on subsidized rates in bulk, under Article 184(3) of the Constitution gave directions to the Government for regularizing supply of gas etc. In the case of Abdul Wahab & others v HBL & others [2013 SCMR 1383], this Court has dealt with the scope under Article 184(3) of the Constitution and held that the restraints, constraints and limitations, if any, in Article 199 of the Constitution might not stricto sensu be attracted to the jurisdiction of the Supreme Court under Article 184(3) of the Constitution in view of the expression “without prejudice” appearing at the very opening of Article 184(3) meaning thereby “without any detriment” (i.e. without being harmed or damaged or hurt). However, the Supreme Court has the powers and jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and apply to rules of restraints besides Article 184(3) of the Constitution itself has its own limitations and conditions which are that matter before the Supreme Court should be for the enforcement of any of the Fundamental Rights conferred by Chapter 1 Part-II of the Constitution and the question involved should be of public importance and that they are sine qua non i.e. both conditions must be first established and the case must be established by the petitioner in the case and shown to co-exist before enabling the Court to exercise its jurisdiction in terms of Article 184(3) of the Constitution. In the case of Maulana Abdul Haque Baloch & others v Government of Balochistan through Secretary Industries & Mineral Development & others [PLD 2013 Supreme Court 641], this Court dealt with the matter of Cooper and Gold reserves in Reko Diq area of the Province of Balochistan and examined the Joint Venture Exploration agreement between the Provincial Development Authority and respondent company and highlighted irregularities and illegalities committed in the execution of said agreement and on grounds including non-transparency, violation of law/rules considered as curtailment of the Fundamental Rights of the general public and thus was declared illegal, void and non-est and the very exploration licence was also held to be non-est. In the case of Air Marshal (Retd) Muhammad Asghar Khan v General (Retd) Mirza Aslam Baig, Former Chief of Army Staff & others [PLD 2013 Supreme Court 1], this Court was dealing with a Human Rights case under Article 184(3) of the Constitution concerning creation of an Election Cell in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates or a group of political parties to achieve desired results in the elections held in the year 1990. Looking at the seriousness of the case and its implication affecting the Fundamental Rights of the citizen and question of public importance, it was registered under Article 184(3) of the Constitution. The Court, after elaborate hearing of the case passed its judgment making the following declaration :- (1)
“That citizens of
(2)
The general
election held in the year 1990 was subjected to corruption and corrupt
practices as in view of the overwhelming material produced by the parties
during hearing it has been established that an “Election Cell” had been
created in the Presidency, which was functioning to provide financial
assistance to the favoured candidates, or a group of political parties to
achieve desired result by polluting election process and to deprive the
people of Pakistan from being represented by their chosen representatives. (3)
A President of (4)
The President of
Pakistan, Chief of Army Staff, DG ISI or their subordinates certainly are not
supposed to create an Election Cell or to support a political party/group of
political parties, because if they do so, the citizens would fail to elect
their representatives in an honest, fair and free process of election, and
their actions would negate the constitutional mandate on the subject. (5)
However, in the
instant case it has been established that in the general elections of 1990 an
Election Cell was established in the Presidency to influence the elections
and was aided by General ® Mirza Aslam Beg, who was the Chief of Army Staff
and by General ® Asad Durrani, the then Director General ISI and they
participated in the unlawful activities of the Election Cell in violation of
the responsibilities of the Army and ISI as institution which is an act of
individuals but nor of institutions represented by them respectively, noted
hereinabove. (6)
ISI or MI may
perform their duties as per the laws to safeguard the borders of Pakistan or
to provide civil aid to the Federal Government, but such organizations have
no role to play in the political activities/politics, for formulation or
destabilization of political Governments, nor can they facilitate or show
favour to a political party or group of political parties or politicians individually,
in any manner, which may lead in his or their success. (7)
It has also been
established that the Ghulam Ishaq Khan, the then President of Pakistan with
the support of General ® Aslam Beg, General ® Asad Durrani and others, who
were serving in M.I. and now either have passed away or have retired, were
supporting the functioning of the ‘Election Cell’, established illegally. (8)
Mr. M. Yunus A.
Habib, the then Chief Executive of Habib Bank Ltd. at the direction and
behest of above noted functionaries, arranged/provided Rs.140 million
belonging to public exchequer, out of which an amount of Rs.60 million was
distributed to politicians, whose incomplete details have been furnished by
General ® Asad Durrani, however, without a thorough probe no adverse order
can be passed against them in these proceedings. (9)
The Armed Forces
of Pakistan, under the directions of Federal Government, defend Pakistan
against external aggression or threat of war and, subject to law, are to act
in aid of civil power when called upon to do so under Article 245 of the
Constitution, thus, any extra-constitutional act, calls for action in
accordance with the Constitution of Pakistan and the law against the
officers/officials of Armed Forces without any discrimination. (10)
The Armed Forces
have always sacrificed their lives for the country to defend any external or
internal aggression for which it being an institution is deeply respected by
the nation. (11)
The Armed Forces,
in discharge of their functions, seek intelligence and support from ISI, MI,
etc., and on account of security threats to the country on its frontiers or
to control internal situations in aid of civil power when called upon to do
so. However, ISI, MI or any other
Agency like IB have no role to play in the political affairs of the country
such as formation or destabilization of government, or interfere in the
holding of honest, free and fair elections by Election Commission of
Pakistan. Involvement of the
officer/members of secret agencies i.e. (12)
Any election
Cell/Political Cell in Presidency or ISI or MI or within their formations
shall be abolished immediately and any letter/notification to the extent of
creating any such Cell/Department (by any name whatsoever, explained herein,
shall stand cancelled forthwith. (13)
Late Ghulam Ishaq
Khan, the then President of Pakistan, General ® Aslam Beg and General ® Asad
Durrani acted in violation of the Constitution by facilitating a group of
politicians and political parties, etc., to ensure their success against the
rival candidates in the general election of 1990, for which they secured
funds from Mr. Yunus Habib. Their acts
have brought a bad name to Pakistan and its Armed Forces as well as secret
agencies in the eyes of the nation, therefore, notwithstanding that they may
have retired from service, the Federal Government shall take necessary steps
under the Constitution and Law against them. (14)
Similarly, legal
proceedings shall be initiated against the politicians, who allegedly have
received donations to spend on election campaigns in the general election of
1990, therefore, transparent investigation on the criminal side shall be
initiated by the FIA against all of them and if sufficient evidence is
collected, they shall be sent up to face the trial, according to law. Mr. Yunus Habib shall also be dealt with
in the same manner. (15)
Proceedings shall
also be launched against the persons specified hereinabove for affecting the
recovery of sums received by them with profit thereon by initiating civil
proceedings, according to law. (16) An amount of Rs.80 million, statedly, has been deposited in Account No.313 titled Survey and Construction Group Karachi, maintained by MI, therefore, this amount with profit shall be transferred to Habib Bank Ltd. if the liability of HBL has not been adjusted so far, otherwise, the same may be deposited in the treasury account of Government of Pakistan.” This Court
also exercised jurisdiction in the matter of Law & Order situation in the
4. Having considered the vast variety of subject on which this Court has exercised jurisdiction and gave declarations and directions under Article 184(3) of the Constitution, the facts and circumstances of the present case need to be examined and considered as to whether they are sufficient and comprise of enough material where this Court can proceed to make an order in terms of Article 184(3) of the Constitution. 5. In all the above three Constitution Petitions, Mian Muhammad Nawaz Sharif, sitting Prime Minister of Pakistan who is also an elected Member of the National Assembly of Pakistan has been made respondent. The central allegation made in the three Constitution Petitions relates to four London Flats and it is alleged that these Flats were purchased by incorporating offshore companies by the name of Nescoll Limited and Nielsen Enterprises Limited and in the following manner: ·
Flat No.17, Avenfield House, Park Lane, London was registered
in the name of Nescoll, British Virgin Island Company in June 1992; ·
Flats No.16 & 16A, Avenfield House, Park Lane, London were
registered in the name of Nielsen, a British Virgin Island Company on
31.07.1995; · Flat No.17A, Avenfield House, Park Lane, London was registered in the name of Nescoll, British Virgin Island Company on 23.07.1996. That these companies being in the ownership of Hussain Nawaz Sharif who was a minor at the time of acquiring all these properties by these companies, they belong to Mian Muhammad Nawaz Sharif and he has altogether failed to make a declaration of these properties in his income tax returns, so also in the declaration of assets submitted to the Election Commission of Pakistan. It is further asserted that Mian Muhammad Nawaz Sharif as a Prime Minister of Pakistan has made two speeches; one to the Nation dated 05.04.2016 and the other which was a written speech in the National Assembly on 16.05.2016 and in both these speeches Mian Muhammad Nawaz Sharif did not disown these properties rather in his speech on the floor of the House has categorically admitted the ownership of the four London Flats but altogether failed to disclose the source of funds from which these four London Flats were purchased. It is alleged that in his two speeches Mian Muhammad Nawaz Sharif has lied to the Nation and on the floor of the House in that he has asserted that these four London Flats were purchased from the funds generated out of sale of Gulf Steel Mills, Dubai and Al-Azizia Steel Mills, Jeddah; out of which the Gulf Steel Mills was sold in the year 1980 while Al-Azizia Steel Mills was sold in the year 2005 whereas the four London Flats were purchased during 1992 to 1996. Mian Muhammad Nawaz Sharif, as respondent in the three Constitution Petitions, has filed his own replies. In Constitution Petition No.29 of 2016, he filed concise statement by way of CMA No.7244 of 2016 and has denied ownership (legal or beneficial) of four London Flats No.16, 16A, 17 & 17A and has also denied ownership (legal or beneficial) of any offshore entities and that his name does not appear in the Panama Papers nor any accusation has been made against him in the said Papers. He has asserted that he is a regular tax payer and files his returns as well as wealth tax statements in accordance with the provisions of applicable law and entire income, assets and liabilities of his are declared. He has also stated that the entire income, assets and liabilities of his as well as of his spouse are duly declared in the nomination form of General Elections 2013 as well as in the statement of assets and liabilities filed with the Election Commission of Pakistan (ECP) and none of his children is dependant nor any of them has been declared to be a dependant on him and that he fulfills the requirements of Article 62 and 63 of the Constitution and is fully compliant with his obligation of declaration of assets and liabilities within the provision of ROPA. He has further asserted that for grant of relief prayed in the petition there are pre-conditions that a valid, final and binding declaration has to be made by a competent Court in respect of the allegations leveled in the petition and such determination, declaration requires proof beyond reasonable doubt and no such proceedings before the competent Court has been initiated nor there exist any valid or final binding declaration. He has further asserted that post election qualification in terms of Article 63(2) has to be referred to the ECP by the Speaker of National Assembly and that no such reference has been filed by the petitioner nor any reference to ECP has been made and that reference(s) filed by Member of PTI and others has been rejected by the Speaker of the National Assembly. It was further asserted that pre-election qualification, as provided in Article 62(1)(f) of the Constitution after a Member of Parliament has been elected and notified, such election can only be challenged by way of an Election Petition under Article 225 of the Constitution. The allegations as to the facts stated in the petitions were denied. He has also filed separate concise statements in Constitution Petition No.30 of 2016 by way of CMA No.7245 of 2016 & CMA No.908 of 2017 as well as in Constitution Petition No.3 of 2017 by way of CMA No.433 of 2017, which replies are more or less similar to the one as filed in Constitution Petition No.29 of 2016. 6. The submission of Syed Naeem Bokhari, the learned ASC for the petitioner in Constitution Petition No.29 of 2016 before this Court was that pursuant to the issuance of Panama Papers by the International Consortium of Investigative Journalists (ICIJ) and various interviews given by Mariam Safdar, Hussain Nawaz Sharif and Hassan Nawaz Sharif and the two speeches of Mian Muhammad Nawaz Sharif himself in unequivocal terms establish that the four London Flats were owned, possessed and are being in use of Mian Muhammad Nawaz Sharif and his family members since 1992 but Mian Muhammad Nawaz Sharif himself did not disclose the real facts about the ownership of four London Flats rather has contradicted himself in that in his speech to the Nation dated 05.04.2016 so also on the floor of National Assembly dated 16.05.2016 while admitting the fact of ownership of four London Flats, he still when called upon by this Court to make response to the allegations made against him about such ownership, has merely chosen the path of making a barefaced denial. He contended that such conduct of Mian Muhammad Nawaz Sharif who not only is a Member of the National Assembly of Pakistan but also the sitting Prime Minister of Pakistan is unbecoming for a person holding such high Public Office and it establishes that he is not Honest and Ameen in terms of Article 62(1)(f) of the Constitution and is accordingly required to be adjudged and declared by this Court and removed from office. He contended that the people of Pakistan has the Fundamental Right to know true facts about their Members of National Assembly and also Prime Minister regarding four London Flats which is also question of great public importance with reference to enforcement of Fundamental Rights. 7. Sheikh Rasheed Ahmad appearing for himself in Constitution Petition No.30 of 2016, M/s Taufeeq Asif, learned ASC and Sh. Ahsanuddin, learned ASC for the petitioner in Constitution Petition No.3 of 2017 referred to the material filed before the Court and contended that the material so placed is sufficient to establish that Mian Muhammad Nawaz Sharif is not Honest and Ameen in terms of Article 62(1)(f) of the Constitution and is liable to be removed from office. 8. On the other hand, Mr. Makhdoom Ali Khan, learned Senior ASC for Mian Muhammad Nawaz Sharif in his arguments has confined himself to same line as is adopted in the concise statements of Mian Muhammad Nawaz Sharif that of denial of ownership of four London Flats and offshore companies. Mr. Shahid Hamid, learned Senior ASC and Mr. Salman Akram Raja, learned ASC for the remaining private respondents have in their arguments contended that Mian Muhammad Nawaz Sharif has nothing to do with four London Flats and the two offshore companies. The learned Attorney General for Pakistan appearing for the Federation conceded that the Court has power to make order as sought by the petitioners in the Constitution Petitions but contended that such power be not exercised as it is likely to affect pending proceeding in Tribunal so also the elections of other Parliamentarians. He further contended that no rights of the petitioners have been violated and no case for relief claimed in the three Constitution Petitions is made out. 9. Admitted facts appear on the record are that after the nationalization of the Ittefaq Foundary in the year 1972 it is the case of Mian Muhammad Nawaz Sharif himself that his father Mian Muhammad Sharif had proceeded to Dubai where he has established Gulf Steel Mills and 75% of the shares of Gulf Steel Mills were sold in the year 1978 through tripartite share sale contract in which the first party was Muhammad Abdullah Kaid Ahli, a UAE national as ‘Buyer’; second party Muhammad Tariq Shafi, a Pakistani national as ‘Seller’; and third party Bank of Credit & Commerce International (BCCI), Deira Dubai as a ‘Creditor’ of the second party. Pursuant to this contract Muhammad Tariq Shafi as the owner of Gulf Steel Mills factory sold to the first party 75% share of the factory for a total consideration of Dirhams 21,375,000/- the whole of this amount was paid to the third party i.e. BCCI in payment of liability of Gulf Steel Mills. The remaining liabilities of Gulf Steel Mills towards BCCI Dirhams 6,289,589/-, Dubai Electricity Company Dirhams 2,852,659/- and Dubai Water Supply were taken over exclusively by Muhammad Tariq Shafi, as his own liabilities. The name of Gulf Steel Mills was changed to that of Ahli Steel Mills Company and a partnership agreement was made in the year 1978 where Ahli Steel Mills Company was formed with a capital of Dirham 28,500,000/- of which 75% share was of Muhammad Abdullah Kaid Ahli and the remaining 25% share was of Muhammad Tariq Shafi. The distribution of the capital of Ahli Steel Mills Company, comes as follows: ·
Muhammad Abdullah Kaid Ahli, 75% = Dirhams
21,375,000/- ·
Muhammad Tariq Shafi, 25% = Dirhams 7,125,000/- It is obvious that 75% share reflecting payment of Dirhams 21,375,000/- which Muhammad Abdulllah Kaid Ahli made to BCCI for purchasing of 75% share of Gulf Steel Mills. Thus while Muhammad Tariq Shafi owned 25% share in Ahli Steel Mills Company amounting to Dirhams 7,125,000/- he also had with him the liabilities towards payment of remaining Gulf Steel Mills dues to BCCI, Dubai Electric Company and Dubai Water Supply. Apparently where liabilities of Gulf Steel Mills and the share of Muhammad Tariq Shafi in Ahli Steel Mills Company are put together, the share of Muhammad Tariq Shafi will come to NIL amount. However, on selling of 25% shares of Ahli Steel Mills Company by Muhammad Tariq Shafi to Muhammad Abdullah Kaid Ahli vide agreement dated 14.04.1980 it is alleged that it has generated Dirhams 12 million which are said to have been paid in installments over a period of six months from 15.05.1980. It is really intriguing and almost a mystery as to how in the first place the 25% shares of Dirhams 7,125,000/- in the year 1978 appreciated to Dirhams 12 million. Nothing on the record to show that capital value of Ahli Steel Mills Company had increased and further what happened to the liabilities of Gulf Steel Mills taken over by Muhammad Tariq Shafi. Hussain Nawaz Sharif, in his interview dated 07.03.2016 to Express News in Program ‘Kal Tak’, has said that Mian Muhammad Sharif when he came from Jati Umra was penniless and when Hussain Nawaz Sharif himself went to Saudi Arabia he did not had much treasure with him but had two sources of funds i.e. by way of loan from foreign friends and the loan from Saudi Banks from which a small mill was established for which he himself purchased scrape of Ahli Steel Mills on very low price as the owner of Mills was thinking that this will never be sold as it has become scrape and this scrape was reconditioned at Jeddah and the very fact that Ahli Steel Mills was lying closed and has become scrape negates the fact that its capital value had increased to make 25% shares in the amount of Dirhams 12 million. 10. On termination of the ownership of Gulf
Steel Mills and sale of its remaining 25% shares in 1980 there is lull in
between of almost 21 years, when in 2001 Al-Azizia Steel Mills is said to
have been established in Jeddah. It was
asserted by Hussain Nawaz Sharif in his interview dated 07.03.2016 that he
had no treasure when he came to Saudi Arabia and no funds were available, he
has drawn on two sources; one that of foreign friends from whom loans were
obtained and secondly the loans obtained from Saudi Banks for establishing
Al-Azizia Steel Mills. Now, as the
case has been put up before the Court, there was a treasure trove of Dirhams
12 million available to Mian Muhammad Nawaz Sharif and his family but why
this treasure trove was not tapped, it could be inferred and inferred well
that it did not exist. Be that as it
may, admittedly Al-Azizia Steel Mills was sold in the year 2005 for an amount
of US$17 million. What happened to its own loans and how they were paid,
nothing is said about them. It may be
relevant here to mention as a fact that Hussain Nawaz Sharif, the first son
of Mian Muhammad Nawaz Sharif was born on 01.05.1972 and the daughter Mariam
Safdar on 28.10.1973 while Hassan Nawaz Sharif the other son was born on
21.01.1976. It is obvious from these
dates of their birth that when Gulf Steel Mills was established none of the
above named three children was major.
At the best Hussain Nawaz Sharif the eldest son must be a suckling
child yet again when 75% shares of Gulf Steel Mills were sold and thereafter
in 1980 the remaining 25% shares were sold still all the three above named
children were minors and of tender ages.
It is admitted that Hussain Nawaz Sharif went to ·
Flat No.16,
31.07.1995, Proprietor Nielsen Enterprises Limited; ·
Flat No.16A,
31.07.1995, Proprietor Nielsen Enterprises Limited; ·
Flat No.17,
01.06.1993, Proprietor Nescoll Limited; ·
Flat No.17A,
23.07.996, Proprietor Nescoll Limited. 11. During the course of arguments, it was
contended by Mr. Shahid Hamid, learned Senior ASC so also by Mr. Salman Akram
Raja, learned ASC that both Nescoll and Nielsen have issued one Bearer
Certificate each of US$ 1 each and custodian of these Bearer Share
Certificate was the owner of the two companies and owner of the properties
comprised of four London Flats. In
this respect the Nescoll Limited is issued Bearer Certificate No.1, number of
shares 1 par value of US$1 dated 29.04.1993, a photocopy of which has been
filed at page 69 of CMA No.7531 of 2016 filed by Mr. Muhammad Akram Sheikh,
learned Senior ASC for respondents No.6 to 8.
At page 65 of this very CMA, there is Bearer Certificate No.1, number
of shares 1 par value of US$1 dated 22.11.1994 issued in respect of Nielsen
Enterprises Limited. It was contended
by the learned ASC for the respondents that these were the only Bearer Share
Certificates issued by the two companies and their bearer was the owner of
the two companies so also the owner of four London Flats. In this very CMA it was claimed that both
these Bearer Share Certificates were cancelled and registered shares were
issued i.e. two shares of Nescoll Limited Share Certificate No.2, number of
share 1 of US$1 dated 04.07.2006 issued to Minerva Nominees Limited and Share
Certificate Number 3, number of share 1 of US$1 dated 04.07.2006 to Minerva
Services Limited. Yet again two shares
of Nescoll Limited of US$1 each are issued to Trustees Services Corporation
on 09.06.2014. As regards Nielsen Enterprises
Limited Share Certificate No.2, number of share 1 of US$ 1 was issued to
Minerva Nominees Limited on 04.07.2006 and Certificate No.3, number of share
1 of US$1 was issued to Minerva Services Limited on 04.07.2006. Two shares of Nielsen Enterprises Limited
of US$ 1 each are issued to Trustee Services Corporation on 09.01.2014. It is worth to point out here that there
existed one Bearer Share Certificate each of the two companies, however, in
2006, each of the company is shown to have two share certificates each
registered in the name of companies, noted above. This anomaly of increase in the number of
shares of the two companies is not explained.
Further, I find that the Bearer Share Certificates of the two
companies separately mentioned authorized capital of each of the company to
be US$ 50,000 divided into 50,000 shares of par value US$1 each. No record is made available on the basis of
which it can be ascertained as to what number of shares in each of the
company were issued either bearer or registered. The Bearer Share Certificate of Nescoll
Limited is dated 29.04.1993 while that of Nielsen Enterprises Limited is
dated 22.01.1994 Mian Muhammad Nawaz Sharif and his family does not claim
that these Bearer Share Certificates were in their custody from their
respective dates. Prince Al-Thani of 12. The people of 13. The principle of pleading is that the
written statement must deal specifically with each allegation of fact in the
plaint and when the defendant denies any such fact, he must not do so
evasively but answer the point with substance and in case denial of fact is
not specific but evasive, the fact shall be taken to be admitted. This is the most general and well
entrenched legal principle of pleading in our jurisdiction and the reference
in this regard may be made to the cases of Karachi Metropolitan
Corporation, Karachi & another
v. Raheel Ghayas & 3 others [PLD 2002 Supreme Court 446]; Secretary
to Government (West Pakistan) now NWFP Department of Agriculture and Forests,
Peshawar & 4 others v Kazi
Abdul Kafil [PLD 1978 Supreme Court 242] and Muhammad Akhtar v Mst. Manna & 3 others
[2001 SCMR 1700]. In his speech dated
16.05.2016 Mian Muhammad Nawaz Sharif has claimed that four London Flats were
purchased from the funds made available from sale of Gulf Steel Mills and
Al-Azizia Steel Mills but admitted material placed before us altogether give
a different story regarding the source of funds for the purchase of four
London Flats. Prince Al-Thani of (i) Who formed and got the two companies
i.e. Nescoll Limited and Nielsen Enterprises Limited incorporated is not
known; (ii) Who had the custody of two Bearer
Share Certificates of Nescoll Limited and Nielsen Enterprises Limited from
the date of their incorporation and issue is not known; (iii) There is total vacuum of ownership of
the two companies namely Nescoll Limited and Nielsen Enterprises Limited from
the day they were formed upto the day of their Bearer Share Certificates are
stated to have been given to Hussain Nawaz Sharif in the year 2006; (iv) The Nescoll Limited and Nielsen
Enterprises Limited, the owner of four London Flats, the very ownership of
these London Flats from the period they were acquired by Nescoll Limited and
Nielsen Enterprises Limited upto the years 2006 also remained in vacuum. This scenario, as has unfolded before us, obviously cannot be believed. The central reason for it is that the four London Flats remained in possession and occupation of Mian Muhammad Nawaz Sharif and his family since the year 1992/93 and all this time they have been paying their rent and all other dues and charges so also maintaining them and all such things were being done as the owner does towards his property. While the four London Flats remained in possession and occupation of Mian Muhammad Nawaz Sharif and his family, Managers/Agents of the two companies namely Nescoll Limited and Nielsen Enterprises Limited were changed and successive companies were appointed for maintaining the four London Flats. Who did this, it remained unexplained by Mian Muhammad Nawaz Sharif. 14. Another glaring circumstance that
connects Mian Muhammad Nawaz Sharif and his family with the four London Flats
in the year 1999, is the order dated 05.11.1999 of the High Court of Justice
Queen's Bench Division, London in the Suit filed by Al-Towfeek Company for
Investment Funds Limited against Hudabiya Paper Mills Limited, Mian Muhammad
Shehbaz Sharif, Mian Muhammad Sharif and Mian Muhammad Abbas Sharif by which
to secure the payment of decretal amount of US$34 million, the Court charged
the four London Flats to the extent of the interest in the said asset of Mian
Muhammad Shehbaz Sharif, Mian Muhammad Sharif and Mian Muhammad Abbas
Sharif. It is admitted that the
liability under the decree of Al-Towfeek Company was discharged by the
defendants and the charge on these four London Flats was got vacated but
available record does not show remittance or payment of US$34 million to
Al-Towfeek Company. Further the
defendants never before the High Court of Justice Queen’s Bench Division, 15. The other important circumstance is the conduct of Mian Muhammad Nawaz Sharif himself on the publication of Panama Paper Leaks, he himself felt compelled to come up with his own version about the four London Flats. On close examination of his two speeches first dated 05.04.2016 to the Nation and the other dated 16.05.2016 on the floor of National Assembly, he has not disowned the ownership of the four London Flats by him and his family rather in categorical terms has admitted of having acquired/ purchased the four London Flats albeit from sources of sale of Gulf Steel Mills, Dubai and Al-Azizia Steel Mills, Jeddah. Had he or his family nothing to do with the four London Flats, there would have been no occasion for him to appear and give response to it. Yet another fact that seems to be established on record is the very interview of Hassan Nawaz Sharif to Tim Sebastian in BBC program ‘Hard Talk’ where the interviewer/ anchor asked him a direct question that does he know who owns the flats he is living in, his answer to this question was that it is not the question right now. Again he was asked by the interviewer that does he know who owns the flats he lives in, he again answered by saying I am not the right person to ask that. These were total evasive replies and one can imagine as to why and for what reason and on what account such evasiveness has been displayed. He could not have been so innocent or naive as not to know the owner of the Flats in which he has been continuously living for almost more than six years. The innocence has its limits. He could have named the owner of the four London Flats but he chose not to do so. Even when he was specifically asked that the London Flats are illegally bought by his father, he chose not to deny but again replied evasively. Hussain Nawaz Sharif, in his interview dated 07.03.2016 in Program ‘Kal Tak’ at Express News stated that he has three offshore companies in London and he has also categorically stated that London Flats are his properties; Nescoll and Nielsen companies own those Flats and he is the owner of Nescoll and Nielsen. In this very interview, he has neither given the date on which he become owner of the three companies and the four London Flats nor did he mention about the source of funds from which these properties were acquired by him and how he paid them. No income purported to be generated from businesses of Hussain Nawaz Sharif and Hassan Nawaz Sharif has been brought on record. One document of Aldar Audit Bureau dated 19.01.2017 addressed to Hussain Nawaz Sharif as the owner of Hill Metals Establishment Jeddah has been filed at page 133 of CMA No.432 of 2017 by Mr. Salman Akram Raja, learned ASC. With this letter is attached a summary showing net profit after tax of Hill Metals Establishment in the years 2010 to 2014. Apart from this letter, no other record has been made available to the Court regarding Hill Metals Establishment and it is even not disclosed as to when Hill Metals was established and from what funds and what business it was doing. Even the certificate showing registration of Hill Metals Establishment is not filed. The figures, as per letter has been traced and it is not stated that as to from where and from what sources they have been traced. No bank document showing the financial transactions of Hill Metals Establishment has been placed on record. This very letter, therefore, does not establish anything. Hussain Nawaz Sharif in his interview dated 07.03.2016 in Program ‘Kal Tak’ has specifically stated as follows: "میاں
نواز شریف کا
میری
پراپرٹی کے
ساتھ کوئی
قانونی تعلق
نہیں ہے۔ مگر
شرعی طور پر
میرے جتنے
بھی اثاثے ہیں
چاہے وہ
پاکستان میں
ہیں یا لندن
یا
دوبئی یا
سعودی عرب
میں ہیں
وہ سب ان کے ہیں۔" This statement of Hussain Nawaz Sharif is altogether contradictory as they cannot stand together. If Mian Muhammad Nawaz Sharif is not the owner of properties then in Sharia also he will not own the properties. However, in the second sentence while asserting that in Sharia all his properties belong to his father Mian Muhammad Nawaz Sharif appears to be true fact for that had it not been true he would have not spoken so, more so looking at the background of his education i.e. Barrister from Lincoln’s Inn since 1996 and also having his own family that of two wives and children. It may be noted here that none of the interviews are disputed or denied rather they all are admitted. 16. Mr. Makhdoom Ali Khan, learned Senior ASC for Mian Muhammad Nawaz Sharif has contended that privilege under Article 248 of the Constitution is not claimed by Mian Muhammad Nawaz Sharif as Prime Minister of Pakistan rather he claims privilege of his speech made on floor of the House in terms of Article 66 of the Constitution. He has cited many cases to show that this privilege cannot be abridged or taken away from the Parliamentarians and the only restriction placed on the Parliamentarian is provided under Articles 68 and 204 of the Constitution. To the extent the submission of the learned Senior ASC for Mian Muhammad Nawaz Sharif goes there cannot be any cavil, however, Mian Muhammad Nawaz Sharif time and again stated that he will not claim any privilege in this matter. Even in his concise statement while referring to speech in the Parliament, he himself has relied upon his speech on floor of the House and did not out rightly claim privilege. However, I am not altogether basing my note on mere speech of Mian Muhammad Nawaz Sharif on the floor of the House. 17. Mr. Makhdoom Ali Khan, learned Senior ASC for Mian Muhammad Nawaz Sharif has vociferously argued that standard of proof which was actually required for proving qualifications for membership of Majlis-e-Shoora after 18th amendment was substantially raised and it is not the same as is applicable to ordinary cases. Mr. Taufeeq Asif, learned ASC however contended that standard of proof was not raised but remained ordinary. The provision of Article 62 of the Constitution, prior to 18th amendment was as follows: “62.
Qualifications for membership of Majlis-e-Shoora (Parliament),- A person
shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora
(Parliament) unless- (a)
…………………………………………………………………. (b)
…………………………………………………………………. (c)
…………………………………………………………………. (d)
…………………………………………………………………. (e)
…………………………………………………………………. (f)
he is sagacious,
righteous and non-profligate and honest and ameen; The provision of Article 62 of the Constitution, after 18th amendment is as follows: 62(1)
A person shall not be qualified to be elected or chosen as a member of
Majlis-e-Shoora (Parliament) unless- (a)
…………………………………………………………………. (b)
…………………………………………………………………. (c)
…………………………………………………………………. (d)
…………………………………………………………………. (e)
…………………………………………………………………. (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law. The difference that has been made in clause (f) of this Article after 18th amendment is the addition of words “there being no declaration to the contrary by a Court of law”. This only means that the qualification of candidate of Majlis-e-Shoora (Parliament) under clause (f) previous to the 18th amendment was capable of being challenged without any hurdle in that the challenger only had to establish that the candidate is not sagacious, righteous, non-profligate and honest and ameen. However, after 18th amendment this open ended provision was circumscribed by addition that ‘there being no declaration to the contrary by a Court of law’. It was conceded by Mr. Makhdoom Ali Khan, learned Senior ASC during the course of arguments that the Supreme Court is the Court of law and also competent to give declaration but contended that there has to be a trial by way of recording evidence before the Court of appropriate jurisdiction. There may not be two views about this submission of the learned Senior ASC but at the same time it is also well established that the question of trial do arise when there are disputed questions about the given facts and yet again the High Court under Article 199 of the Constitution so also this Court under Article 184(3) of the Constitution has ample power to pass declaration where the matter is based on practically admitted facts. Although large number of cases have come before this Court where challenge under Article 62(1)(f) of the Constitution were adjudicated and determined in the lower forums. Incidently, a direct Petition under Article 184(3) of the Constitution was filed before this Court in the case of Syed Mehmood Akhtar Naqvi v Federation of Pakistan through Secretary Law & others [PLD 2012 Supreme Court 1054] where the election of Parliamentarian was challenged on the ground of their having dual citizenship and after elaborate discussion on the issue this Court passed the declaration as follows: “(a) Ch. Zahid
Iqbal, MNA, Ms. Farah Naz Isfahani, MNA, Mr.Farhat Mehmood Khan, MNA, Mr.
Jamil Ahmad Malik, MNA, Mr. Muhammad Akhlaq, MPA (Punjab), Dr. Muhammad
Ashraf Chohan, MPA (Punjab), Ms. Nadia Gabol, MPA (Sindh), Ch. Waseem Qadir,
MPA (Punjab), Ch. Nadeem Khadim, MPA(Punjab), Ms. Amna Buttar, MPA (Punjab),
Dr. Ahmad Ali Shah, MPA (Sindh) have been found disqualified from being
members of Majlis-e-Shoora (Parliament) and Provincial Assemblies because of
their disqualification under Article 63(1)(c) of the Constitution. (b) The
Parliamentarians/Members of Provincial Assemblies, who have been declared to
be disqualified, in view of the established fact that they have acquired the
citizenship of Foreign States, therefore, no question has arisen, which is to
be determined by the Chairman/Speaker. Thus, no reference under Article 63(2)
is being made. (c) The Election
Commission is directed to de-notify the respective memberships of
Parliament/Assemblies of aforesaid persons. (d) All the
Members of the Parliament/Provincial Assemblies noted above had made false
declarations before the Election Commission while filing their nomination
papers and as such appear to be guilty of corrupt practice in terms of
Section 78 of Representation of Peoples Act, 1976, therefore, the Election
Commission is directed to institute legal proceedings against them under
section 82 of the Act read with sections 193, 196, 197, 198 and 199 PPC in
accordance with law. (e) The members
of Parliament/Provincial Assemblies noted hereinabove, being disqualified
persons are directed to refund all monetary benefits drawn by them for the
period during which they occupied the public office and had drawn their
emoluments etc. from the public exchequer including monthly remunerations,
TA/DA, facilities of accommodation along with other perks which shall be
calculated in terms of money by the Secretaries of the Senate, National
Assembly and Provincial Assemblies accordingly. (f) The amount,
so recovered from all of them by respective Secretaries shall be deposited in
the public exchequer within a period of two weeks and compliance report shall
be sent to the Registrar. (g) As regards
the case of Senator A. Rehman Malik, it may be noted that at the time of
filing of nomination papers for election to the Senate held in the year 2008,
he had made a false declaration to the effect that he was not subject to any
of the disqualifications specified in Article 63 of the Constitution or any
other law for the time being in force for being elected as a member of the
Parliament/Provincial Assembly, therefore, reference will be required to be
made to the Chairman Senate under Article 63(2) in view of the provision of
section 99(1)(f) of the Act of 1976, which lays down that a person shall not
be qualified from being elected or chosen as a member of an Assembly unless
he is sagacious, righteous and non-profligate and honest and ameen. Mr. A.
Rahman Malik, in view of the false declaration filed by him at the time of
contesting the election to the Senate held in the year 2008, wherein he was
elected, cannot be considered sagacious, righteous, honest and ameen within
the contemplation of section 99(1)(f) of the Act of 1976. Therefore, for such
purposes Article 63(1)(p) is to be adhered to because the disqualification
incurred by him is envisaged under the law, referred to hereinabove in
view
of his own statement that he had renounced his citizenshipof UK
whereas the fact remains that such renunciation
along with declaration can only be seen as having been made on 29-5-2012. (h) Senator A.
Rehman Malik is directed to refund all monetary benefits drawn by him up to
11-7-2012 for the period during which he occupied the public office in the
same manner as directed in the case of other Parliamentarians noted above. (i) As Mr. A.
Rehman Malik had made false declarations while filing his nomination papers
before the Election Commission in the election held in the year 2008,
therefore, the Election Commission is directed to institute legal proceedings
against him as it has been directed in the case of above said parliamentarians.” 18. I may also observe here that this Court while dealing with Constitution Petition under Article 184(3) of the Constitution neither acts as a Civil Court conducting trial of the case nor does it act as a Criminal Court conducting trial of an accused person in a criminal offence rather the Court purely decide such Constitution Petition on matters and facts stated and brought before this Court purely on the basis of constitutional provision that being a case of public importance with reference to enforcement of Fundamental Rights as conferred in Chapter 1 Part II of the Constitution. 19. This being the legal position, Mian
Muhammad Nawaz Sharif against whom in the very Constitution Petitions before
us allegation was made that he and his family own four London Flats and the
sources of acquiring all these properties have not been declared, to me as is
said earlier, there was a duty cast upon Mian Muhammad Nawaz Sharif as holder
of Public Office to satisfy this Court and the Nation of the country (which being their Fundamental Right)
about the true facts regarding four London Flats, which he miserably failed
to do so and thus what emerges is that he has not been Honest and Ameen in
terms of Article 62(1)(f) of the Constitution. Being faced with this scenario, the Court
cannot be expected to sit as a toothless body and become a mere spectator but
it has to rise above screen of technicalities and to give positive verdict
for meeting the ends of justice and also to safeguard the Fundamental Rights
of the people of JUDGE |
|
SH. AZMAT SAEED, J.- I have had the privilege of reading the judgments of my learned brothers Ejaz Afzal Khan and Ijaz ul Ahsan, JJ. I find myself, in principle, in agreement with the conclusions drawn in the said judgments. However, in order to elaborate the reasons, which have prevailed with me, I have added my following additional note. 2. The
instant matter attracted more public interest and media attention than anyone
expected. Some of such attention unfortunately was contaminated with
factually incorrect opinions, legally fallacious concepts and predicted
decisions, which were bounced around on the airwaves every evening. The
temptation to restrain such media coverage and public comments was resisted.
Freedom of expression and press is a right enshrined in Article 19 of the
Constitution of the Islamic Republic of Pakistan, 1973 and this Court is bound
to defend the same. An open Court is the essence of our Legal System.
Restraining comments on the Court proceedings would perhaps negate the very
concept of an open Court. Being insulted from all criticism, it can do more
harm to an Institution than a little unfair criticism. In the instant cases, strong
emotions were unleashed from both sides of the aisle but this Court cannot
allow itself to succumb to populism and must remain steadfast to its oath. We
cannot be tempted to pronounce a popular decision but must decide all cases
in accordance with law without fear or favour, affection or ill-will.
3. Tragically,
some of such legal fallacies of the often ill-informed and misguided public
debate penetrated into the Courtroom, hence, it has become imperative to
address the same even at the risk of stating the obvious. 4. Constitution Petitions
Nos.29 and 30 of 2016, under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan, 1973, have been variously filed by the two
Members of the National Assembly, who are also the Heads of their respective
Political Parties currently in the Opposition. It has been alleged that in
the first week of April, 2016, documents, purportedly the record of a 5. In pith and substance, it is the case of the Petitioners in Constitution Petitions Nos.29 and 30 of 2016 that, primarily, as per the information in the public domain, purportedly emanating from the aforesaid leaks, commonly referred to as the Panama Papers, various assets, properties and businesses held in the name of Offshore Companies and other entities are, in fact, owned by Respondent No.1 i.e. the Prime Minister of Pakistan and the members of his family, including Respondents Nos.6 to 8. It is alleged that such assets have neither been declared in the Nomination Papers of Respondent No.1 nor the source of funds for the acquisition thereof disclosed. 6. Initially, the Respondents
did not take any objection to the maintainability of the instant petitions
under Article 184(3) of the Constitution. This Court vide its order dated
03.11.2016 passed in Constitution Petition No.29 of 2016 held that the
questions raised were of public importance and involved, the enforcement of
Fundamental Rights. The precedent law on the subject as laid down by this
Court was cited and relied upon. However, during the course of the
proceedings, on behalf of the Attorney General for 7. The
foundation of our Constitutional dispensation as is evident from the
Constitutional provisions, more particularly, the opening lines of its
Preamble is that the Sovereignty vests in Almighty Allah and authority is to
be exercised by the people of “102. Above are the reasons for
our short order of even date whereby the instant petition was disposed of as
under:– “The Constitution of the
Islamic Republic of Pakistan commands that it is the will of the people of
Pakistan to establish an order wherein the State shall exercise its powers
and authority through the chosen representatives of the people, wherein the
principles of democracy, freedom, equality, etc., shall be fully observed, so
that the people of Pakistan may prosper and attain their rightful and
honoured place amongst the nations of the world, and make their full
contribution towards international peace and progress and happiness of
humanity. People of 2. The essence of this
Human Rights case is based on the fundamental right of citizens enshrined in
Article 17 of the Constitution. It raises an important question of public
importance to enforce the fundamental rights, inter alia, noted hereinabove,
therefore, in accordance with the provisions of Article 184(3) of the
Constitution, jurisdiction has been assumed and exercised to declare, for the
reasons to be recorded later, as under:-
8.
If the authority is
exercised by an alien body i.e. other than the chosen representatives of the
people of 9. Thus, to
exercise authority on their behalf by their chosen representatives is the
most foundational of all the Constitutional rights of the people of Pakistan,
if a disqualified person, as alleged, usurps such role and thereafter becomes
the Prime Minister surely such right of the people is effected and is liable
to be enforced by this Court. The contentions of the learned Attorney General
for 10. A close scrutiny of the case of the Petitioners, more particularly, as is obvious from the contents of Constitution Petitions No.29 & 30 of 2016 and the prayers made therein reveals that a two pronged attack has been made. On the one hand, it is the case of the Petitioners that Respondent No.1 Mian Muhammad Nawaz Sharif is disqualified from being a Member of the Majlis-e-Shoora in view of non-disclosure of the properties i.e. Flats. No 16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London owned by him through his dependent daughter Maryam Safdar i.e. Respondent No.6, in his Nomination Papers. It is also prayed that Respondents Nos.9 and 10 are also disqualified from holding such public office and liable to be prosecuted for abetting the other private Respondents. 11. Furthermore, it is alleged that Respondent No.1
and the other private Respondents in their various public statements and
interviews have neither honestly nor successfully explained the source of
funds for the acquisition of the properties in question i.e. Flats No.16, 16-A, 17 and 17-A, Avenfield House,
Park Lane, London, hence, are
guilty of an offence under Section 9(a)(v) of the National Accountability
Bureau Ordinance, 1999, hence, they are liable to be prosecuted and punished
thereunder. 12. Disqualification
from being a Member of the Majlis-e-Shoora on account of non-declaration or
false declaration of assets and prosecution and punishment for inability to
explain the source of funds for acquisition of such assets have their genesis
in two separate sets of Statutes with different principles of law involving
distinct and separate jurisprudence, hence, intermingling the two would be
illogical, patently illegal and may lead to a gross miscarriage of justice. 13. The
elections to the Majlis-e-Shoora, as ordained by the Constitution are
conducted in accordance with the provisions of the Representation of the
People Act, 1976 (ROPA). The scheme of the law, includes financial
disclosures with a declaration of assets and liabilities by each candidate.
Such disclosure is critical and failure, in this behalf, has painful
consequences. 14. Every candidate for the National Assembly is required to file his Nomination Papers in terms of Section 12 of ROPA and the relevant provision of Section 12(2)(f) thereof reads as follows:- “12(2)(f) a statement of his assets
and liabilities and those of his spouse and dependents on the prescribed form
as on the preceding thirtieth day of June;” 15. The
Nomination Papers are subjected to scrutiny in terms of Section 14 of the
ROPA and if the financial disclosures, as made, are found to be false, the
Nomination Papers are rejected and the candidate is not permitted to contest
the election, as is obvious from the provisions of Section 14(3)(c) of ROPA,
which reads as under:- “14. Scrutiny.–(3) The Returning Officer may, either of his own
motion or upon any objection, [either by an elector or] [by any
person referred to in sub–section (1),] conduct such summary enquiry as he may
think fit and may reject nomination paper if he is satisfied that- (a) …………………………………………….; (b)
...………………………………………….; (c)
any provision of section 12 or
section 13 has not been complied with [or submits any false or incorrect
declaration or statement in any material particular] ; or (d)
…......…………………………………….;”. 16. The election of a Returned Candidate can be declared void by the Election Tribunal under Section 68 of ROPA, if the Returned Candidate has not correctly disclosed his own assets and liabilities or that of his spouse or dependants and false statement has been made in this behalf. Such an omission also constitutes an offence of corrupt practices in terms of Section 78(3) of ROPA with an exposure to criminal prosecution. 17. In
the event of an election dispute, more particularly, after the election,
reaching the Election Tribunal strict procedural requirements have been
prescribed, which are rigorously enforced at the cost of the Election
Petitioner. However, an exception has
been made in terms of Section 76A of ROPA, whereby even if the Election
Petitioner is to fail on account of non-fulfillment of the aforesaid
procedural requirements, the Election Tribunal is vested with the inherent
jurisdiction to nullify the election, where, inter alia, a Returned
Candidate has failed to faithfully disclose his assets (or liabilities) of
himself, his spouse or dependents. Section 76A of ROPA is reproduced
hereunder for ease of reference:- “76A. Additional powers of Election Tribunal.-(1) If an Election
Tribunal, on the basis of any material coming to its knowledge from any
source or information laid before it, is of the opinion that a returned
candidate was a defaulter of loan, taxes, government dues or utility charges,
or has submitted a false or incorrect declaration regarding payment of loans,
taxes, government dues or utility charges, or has submitted a false or
incorrect statement of assets and liabilities of his own, his spouse or his
dependents under section 12, it may, on its own motion or otherwise, call
upon such candidate to show cause why his election should not be declared
void and, if it is satisfied that such candidate is a defaulter or has
submitted false or incorrect declaration or statement, as aforesaid, it may,
without prejudice to any order that may be, or has been made on an election
petition, or any other punishment, penalty or liability which such candidate
may have incurred under this Act or under any other law for the time being in
force, make an order— (a)
declaring the election
of the returned candidate to be void; and (b)
declaring any other
contesting candidate to have been duly elected. (2) If on examining the
material or information referred to in sub-section (1), an Election Tribunal
finds that there appear reasonable grounds for believing that a returned
candidate is a defaulter or has submitted a false or incorrect declaration
referred to in subsection (1) it may, pending decision of the motion under
subsection (1), direct that the result of the returned candidate shall not be
published in the official Gazette. (3) No order under
sub-section (1) or sub-section (2) shall be made unless the returned
candidate is provided an opportunity of, being heard.]” 18. A
bare reading of the aforesaid provisions of the Representation of the People
Act, 1976 makes it clear and obvious that if a person fails to disclose any
asset owned by him, his spouse or dependent in his Nomination Papers in terms
of Section 12 of ROPA, he exposes himself not only to disqualification but
also prosecution for corrupt practices under Section 78 of ROPA besides any
other liability prescribed by the law.
19. In
the aforesaid provisions reference to the source of funds for acquisition of
such undisclosed assets is conspicuous by its absence, hence; wholly irrelevant.
Even, if a delinquent person offers a perfect, legally acceptable explanation
for the source of funds for acquiring the undeclared assets, he cannot escape
the penalty of rejection of his Nomination Papers or annulment of his
election. Such is the law of the land and as has been repeatedly and
consistently interpreted by this Court, including in the judgments, reported
as (1) Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC
24), (2) Khaleefa Muhammad
Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others
(2008 SCMR 504) and (3) Muhammad Ahmad
Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763). 20. In
all the above cases, the candidates were de-seated for non-disclosure of
assets belonging to them, their spouses or their dependants. No explanation
as to the source of funds for acquisition of such assets was asked for,
offered, accepted or rejected. 21. On
the other hand, with regard to a criminal offence under Section 9(a)(v) of
the National Accountability Bureau Ordinance, 1999 (NAB Ordinance), the law
is equally settled. The relevant provisions read as under:- 9. Corruption
and corrupt practices. (a) A
holder of a public office, or any other person, is said to commit or to have
committed the offence of corruption and corrupt practices— (i) …….…………………………………… (ii) ……….……………………………… (iii) …….…………………………………… (iv) …..……………………………………… (v) If he or any of his
dependents or benamidars owns, possesses, or has acquired right or title in
any assets or holds irrevocable power of attorney in respect of any assets or
pecuniary resources disproportionate to his known sources of income, which he
cannot reasonably account for or maintains a standard of living beyond that
which is commensurate with his sources of income or;” ………………………………………… ………………………………………… 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. 24. The
explanation of the source of funds for acquiring the property is a
requirement of Section 9(a)(v) of the NAB Ordinance, which cannot ipso
facto migrate into ROPA or the Constitutional provisions pertaining to
elections especially in the absence of any legislation by the Reformers. Any
effort, in this behalf, would not only be without any jurisprudential basis
but be illegal. 25. In
the above backdrop to hold that an MNA, who may (or may not) own an
undeclared property yet his explanation for the source of the funds for
acquiring such property, though legally irrelevant, is not acceptable, hence,
such MNA is disqualified, is a legal absurdity under the laws of the Islamic
Republic of Pakistan. 26. We cannot resort to exceptionalisim by
making a departure from the settled law and inventing a new set of rules
merely because Respondent No.1 holds the Office of the Prime Minister. The
last time in our legal history, when such a course of action was followed, it
had tragic consequences. 27. There is a possibility that the
alleged grounds for disqualification and the allegations constituting an offence
under Section 9(a)(v) of the NAB Ordinance may partially overlap. However, it
is a legal impossibility to disqualify a person merely upon allegations.
Though, such allegations may be sufficient for initiation of criminal
proceedings under the NAB Ordinance. To disqualify a person in such an
eventuality would require turning our entire Legal System on its head and
would constitute an act of jurisprudential heresy. 28.
The Petitioners in an attempt
to advance their case laid great emphasis on Article 62(1)(f) of the
Constitution. It was canvassed at the bar, on their behalf, that the
explanation offered by Respondent No.1 for acquisition of the four Flats in 29. The provisions of Article
62(1)(f) of the Constitution are reproduced herein below for ease of
reference:- “62. (1) A person shall not
be qualified to be elected or chosen as a member of Majlis-e-Shoora
(Parliament) unless— (a) …………….…………………………… (b) …………….…………………………… (c) …………….…………………………… (d) …………….…………………………… (e) …………….…………………………… (f) he is sagacious, righteous,
non-profligate, honest and ameen, there being no declaration to the contrary
by a court of law; and (g) …………………………………………” 30. Before the said provisions can be pressed into service, there must be a declaration by Court of law. At the risk of stating the obvious, it may be clarified that the Courts of law are concerned with the matters of law not morality. There can be no manner of doubt that the term “honest” as employed in Article 62(1)(f) refers to legal honesty, an objective concept and not mere moral or ethical honesty, which is subjective. The Courts have never wandered into the realm of morality, in this behalf. 31. In the instant case, the issue
agitated pertains not to any incorrect statement made by the Respondents but
rather the alleged failure to disclose the entire facts. In the
circumstances, a legal obligation to disclose such facts appears to be a sine qua non to attract the
provisions of Article 62(1)(f) of the Constitution. 32. The election
disputes pertaining to disqualification, including in view of Article
62(1)(f) of the Constitution, may crop up before, after or during the
elections. It may originate at the time of scrutiny of the Nomination Papers
by the Returning Officer, during the course of election and immediately
thereafter in disputes before the Election Commission of Pakistan. But most
often Election Petitions are filed before the Election Tribunal eventually
constituted under ROPA. And occasionally through Constitutional Petitions in
the nature of quo warranto filed before the High Court under Article
199 or before this Court under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan, 1973. Such proceedings may or may not result in
disqualification of a person or annulment of his election or a part thereof.
In some of such matters, which have come up before this Court Article
62(1)(f) of the Constitution required interpretation. 33. The provisions of Article 62(1)(f) of the Constitution in not too dissimilar circumstances were invoked earlier seeking disqualification of Respondent No.1. A Writ Petition was filed in the Lahore High Court wherein it was contended that Respondent No.1 was liable to be disqualified on the allegations that he had made a misstatement before the National Assembly. The Writ Petition was dismissed vide Order dated 02.09.2014. An Intra Court Appeal bearing No.865 of 2014 was also filed, which was also dismissed vide judgment dated 8th September, 2014, reported as Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670). The Appeal was dismissed by, inter alia, holding that a political question was involved, further the allegations of misstatement have not been established on the material available on the record and such statement on the floor of the House was protected by the privilege under Article 66 of the Constitution, as it did not fall within the ambit of any of the exception thereto as set down by this Court in its various judgments. 34. The aforesaid judgment was challenged before this Court through a Civil Petition for Leave to Appeal. Simultaneously, several Constitutional Petitions under Article 184(3) of the Constitution were also filed seeking a similar relief which were heard along with the said Civil Petition for Leave to Appeal. The aforesaid Civil Petition for Leave to Appeal and the Constitutional Petitions were heard by a Larger Bench of this Court and were dismissed vide judgment, reported as Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). This Court held that the question involved before the learned High Court was not of a nature which could not be adjudicated upon, hence, the judgment of the learned High Court only to the extent that the Writ Petitions being not maintainable, were set aside. However, the judgment dismissing the Writ Petition was maintained and the Constitutional Petitions under Article 184(3) of the Constitution were also dismissed. The legal questions, which floated to the surface, were not answered. 35. However, Article 62(1)(f)
of the Constitution also came up in the cases, reported as (1) Ghaznafar Ali Gull v. Ch. Tajammul
Hussain and others (1997 CLC 1628), (2) Nawabzada Iftikhar Ahmed Khan
Bar v. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817), (3) Muhammad
Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (4) Rana Aftab Ahmad Khan v. Muhammad Ajmal
and another (PLD 2010 SC 1066), (5) Muddasar Qayyum Nahra v. Ch. Bilal
Ijaz and others (2011 SCMR 80), (6) Mian Najeeb-ud-Din Owaisi v. Aamir
Yar and 7 others (2011 SCMR 180), (7) Malik Iqbal Ahmad Langrial v.
Jamshed Alam and others (PLD 2013 SC 179), (8) Mian Najeeb-ud-din
Owasi and another v. Amir Yar Waran
and others (PLD 2013 SC 482),
(9) Sadiq Ali Memon v. Returning Officer, NA-237 Thatta-I and
others (2013 SCMR 1246), (10) Abdul Ghafoor Lehari v. Returning
Officer PB-29, Naseerabad-II and others (2013 SCMR 1271), (11) Muhammad
Khan Junejo v. Federation of Pakistan through Secretary, M/o Law, Justice and
Parliamentary Affairs and others (2013 SCMR 1328), (12) Allah Dino
Khan Bhayo v. Election Commission of Pakistan (2013 SCMR 1655), (13) Molvi
Muhammad Sarwar and others v. Returning Officer PB-15 Musa Khail and others
(2013 CLC 1583), (14) Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014
SCMR 45), (15) Muhammad Siddique Baloch v. Jehangir Khan Tareen and others
(PLD 2016 SC 97) and (16) Muhammad
Ijaz Ahmed Chaudhry v. Mumtaz Ahmed Tarar and others (2016 SCMR 1). 36. In all the aforesaid cases, the applicability of Article 62(1)(f) of the Constitution was considered. In no case, any person was disqualified under the said Article in the absence of an established and proved breach of a legal obligation or violation of a law. In no case, the question of Article 62(1)(f) was even seriously considered in the absence of at least specific allegations of breach of a legal obligation or violation of law. No judgment of this Court has been cited at the bar where a person has been disqualified under Article 62(1)(f) for being dishonest where such alleged dishonesty did not offend against the law or involve a breach or non-fulfillment of a legal obligation. 37. Such is the true and
obvious import of Article 62(1)(f) of the Constitution, as has been
consistently without any exception interpreted and applied by this Court.
Article 62(1)(f) of the Constitution cannot be permitted to be used as a tool
for political engineering by this Court nor should this Court arrogation unto itself the power to
vet candidates on moral grounds, like a Council of Elders as is done in a
neighbouring Country. Under our Constitutional dispensation, 38. The Petitioners have laid great emphasis on the
various speeches on the subject in question made by Respondent No.1 as well
as interviews given by him and Respondents Nos.6 to 8 at various points of
time. The learned counsel went to great lengths in an attempt to show
contradictions and improvements in explanations offered by the said
Respondents with regard to the assets attributed to them. The aforesaid
speeches and interviews are, at best, previous statements with which the makers
thereof could be confronted in the event of an evidentiary hearing,
especially as the said Respondents were under no legal obligation to make
such statements or give such interviews. The compulsion was political and so
to its effect. 39. Be
that as it may, there can be no escape from the fact that the statements made
in the speeches and interviews given by Respondents No.1 and 6 to 8 do not
appear to be in sync with each other. 40. At best periodically and
incrementally small pieces of a jigsaw puzzle were made public, which do not
really fit in with each other. Had the explanations been clear, satisfactory
and acceptable, no one would have been allowed to come knocking at our door. 41. Emphasis was laid on behalf of the Petitioners upon the alleged contradictions between the statements/interviews of Respondent No.1 and those of Respondents Nos.6 to 8. The response of the counsel for the Respondents No.7 and 8, in this behalf, was not without force. He contended that there is no basis for the assumption that the statements/interviews of Respondent No.7 are the gospel truth and, therefore, the statements/ interviews of Respondent No.1 in purported deviation thereof are untrue as is alleged by the Petitioners. There is another aspect of the matter that true facts in respect of the title to and the source of funds for the acquisition of the properties in question has not been consecutively established through cogent, undisputed or reliable evidence, therefore, truthfulness or otherwise of the statements/ interviews of Respondents No.1 or 7 cannot be ascertained. 42. It has been noticed that
the learned counsel for the Petitioners had attempted to present their case
for disqualification of Respondent No.1 on the alleged lack of probity in
statements/interviews of Respondent No.7. Vicarious liability has a
precarious existence on the periphery of our Legal System as an extreme
exception to the general principle that a person is responsible for his own
acts and omissions and not that of others. Such vicarious liability must be
specifically set forth in clear-cut terms and cannot be assumed. Such vicarious liability has no place in
our Election Laws, including the Constitutional provisions of Articles 62 and
63 pertaining to the qualification and the disqualification of candidates. A
father cannot be disqualified if his son is of unsound mind [Article
63(1)(a)]. Similarly, a father cannot be disqualified if his son has been
convicted for an offence involving moral turpitude or such son has been
dismissed from the service of 43. To rely upon the statements/interviews of Respondents No.7 and 8, in the above context, would require rewriting the Laws pertains to Elections, including Articles 62 and 63 of the Constitution and the corresponding provisions of ROPA, 1976. In the current legal dispensation attributing vicarious liability to a father for the acts and omissions of his son, more particularly, oral statements would result in a legal farce, which cannot be contemplated. 44. The learned counsel for Respondent
No.1 with his usual professional dexterity pleaded privilege under Article 66
of the Constitution regarding the speech on 16th May, 2016 made on
the floor of the House by Respondent No.1. We are aware of the “speech and
debate” clause and the protection available to the Members of the Parliament
thereunder and also the limitations of such protection and privilege. The
speech dated 16th May, 2016, on its own is not a ground for
culpability, hence, it is not necessary to decide such privilege. 45. In
pith and substance, the case of the Petitioners in Constitution Petitions
Nos.29 & 30 of 2016, was focused on the four flats i.e. Flats Nos.16,
16-A, 17 and 17-A, Avenfield House, Park Lane, London, in respect whereof, it
was contended that the same were in the beneficial ownership of Respondent
No.6 Maryam Safdar, who allegedly was legally dependant of Respondent No.1
Mian Muhammad Nawaz Sharif and the said Respondent No.1 had not disclosed the
ownership of the said flats in his Nomination Papers and in the periodic
statement of assets submitted to the Speaker, hence, was disqualified. The
case of the Petitioners in Constitution Petitions Nos.29 & 30 of 2016
hinged on the allegation that Respondent No.6 Maryam Safdar was a dependant
of Respondent No.1 and, in this behalf, reliance was placed upon the Income
Tax Return of Respondent No.1 for the year 2011, in which Respondent No.6 had
been mentioned in Column No.12 pertaining to the assets held in the name of, inter alia, a dependant. It was also alleged that the said
Respondent No.6 had no independent source of income. Reference, in this
behalf, was made to her Income Tax Returns and that of her husband Muhammad
Safdar, Respondent No.9. 46. The
record reveals that Respondent No.6 was mentioned in the aforesaid terms only
in one Income Tax Return i.e. for the year 2011, while it is not so mentioned
in the preceding or succeeding Financial Years in the Income Tax Returns by
Respondent No.1. 47. The
learned counsels for Respondents Nos.1 & 6 also stated that if property
was held in someone else's name whether a dependant or not, it could only be
mentioned in the said Column at that point of time. Since land had been
purchased by Respondent No.1 in the name of Respondent No.6, hence, her name
was mentioned in respect of the said land in the relevant Column in the
relevant year and upon receipt of consideration subsequently with regard to
the said land from Respondent No.6 Maryam Safdar through Banking Channels,
her name was excluded in the next year from the said Column. 48. The
learned counsel also brought to the notice of this Court a subsequent Notification dated 03.7.2015
issued by the Federal Board of Revenue amending the Income Tax Form wherein
property if held in someone else's name would be specifically mentioned
without showing the said person, as a dependant. 49. It
is also evident from the public record, copies whereof were filed by the
Petitioners that a large number of shares of various companies were owned by
Respondent No.6. 50. It
was also found strange that on one hand, the Petitioners claimed that
Respondent No.6 owned four very valuable flats in 51. In
the above circumstances, it is not possible to determine conclusively on the
basis of the material produced by the Petitioners or which had otherwise become
available that Respondent No.6 was a dependant of Respondent No.1 and the
property, if any, in her name, was required to be disclosed by Respondent
No.1 in his Nomination Papers. 52.
The primary basis of the case of the Petitioners are the series of
documents, which allegedly formed a part of the record of a Panamian Law Firm
Mossack-Fonseca, which was leaked and are commonly referred to as the Panama
Papers. The said documents are, in fact, copies, including of e-mails and are
by and large unsigned. Furthermore, the said documents to the extent that the
same pertains to the private Respondents are, in fact, denied. In the
circumstances, only an innocent simpleton could expect this Court to give a
finding or pronounce judgment based upon the copies of unsigned documents,
which are disputed and have not come from proper custody. This is a legal
impossibility in view of the provisions of Qanun-e-Shahadat Order, 1984. Such
documents cannot form the basis of a judicial pronouncement in any civilized
country with a developed or even a developing Legal System. There is no legal
precedent, in this behalf. 53. The documents in question
are the purported result of the efforts of investigative journalists. Such
efforts should never be underestimated. Exposure by such journalists has
resulted in the crumbling of many an alabaster pedestal and the fall of
political icons. Such is the political not the legal consequence of the
reports of the journalists. We are also witnesses to the fact that such
reports have resulted in initiation of
criminal prosecutions and launch of the proceedings for the disqualification
or impeachment of the high and mighty but mere publication of such reports of
material discovered by investigative journalists on its own, do not ipso
facto result in the convictions or impeachment. 54. The source of incriminating information is usually not official and is fiercely guarded by such journalists with their liberty and occasionally with their lives. The documents usually, as in the instant case, are copies and not duly certified nor in a form acceptable in a Court of law. The whistle blower, who can perhaps prove the documents may or may not be available. Immediate fall out is political. However, for legal purposes, the efforts of such journalists should not be discounted. Their reports are the vital key, which is used by investigators and prosecutors to gather and collect material and evidence in a form acceptable to the Court so that the facts can be ascertained and the law applied thereto. Investigative journalists are not a substitute for investigators and prosecutors. 55. In the instant case, upon release of the Panama Papers, the Opposition Parties and the Civil Society started demanding that the allegations against the Members of the Sharif Family arising from the Panama Papers be inquired into and the facts be ascertained. It was understood between the Government and the Opposition that the allegations emanating the Panama Papers would require to be established. In fact, there was consensus between the lawman and layman alike that no punitive action could be taken against Respondent No.1, any member of his family or any other person without at least some ascertainment of facts through investigation or inquiry perhaps by a Commission. In the above backdrop, a demand was made that a Commission consisting of a Judge of this Court be appointed to conduct an inquiry, gather the evidence and ascertain the facts. The Government, in principle, perhaps reluctantly, accepted the demand. However, a serious dispute arose as to the Terms of Reference (TORs) for such Commission. Despite many a meetings and photo opportunity, the matter of the TORs could not be resolved. The Government accused the Opposition of seeking a Prime Minister centric TOR, while the Opposition claimed that the Government wished to expand the scope on TORs to such an extent that no conclusion would be possible. 56. However,
it appeared to be a common ground between all the parties concerned that the
contents of the Panama Papers raised serious issues forming the basis of a
host of allegations against Respondent No.1 and his family and such
allegations needed to be inquired into and established so that an action in
law, if justified, would be taken against Respondent No.1 be it disqualification
or prosecution for a criminal offence. 57. Such
revelations regardless of the credibility of the journalists responsible
therefor, legally, at best, would form the basis of allegations until proved
through admission or evidence before the Court of Law. In 60 years touching
from 1957 to 2017, the proceedings, seeking disqualification of a candidate
or an elected member, have repeatedly come up before this Court from various
subordinate forums including the cases reported as (1) Muhammad Saeed
and 4 others v. Election Petitions Tribunal, West Pakistan and others
[PLD 1957 SC (Pak.) 91], (2) Muhammad Khan Junejo v. Fida Hussain Dero
(PLD 2004 SC 452), (3) Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD
2007 SC 369), (4) Nawabzada Iftikhar Ahmed Khan v. Chief Election
Commissioner (PLD 2010 SC
817), (5) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (6) Rana
Aftab Ahmed v. Muhammad Ajmal (PLD 2010 SC 1066), (7) Haji Nasir
Mehmood v. Mian Imran Masood
(PLD 2010 SC 1089), (8) Malik Iqbal Ahmad Langrial v. Jamshed Alam
and others (PLD 2013 SC 179), (9) Mian Najeeb-ud-din Owaise v. Amir
Yar Waran (PLD 2013 SC 482), (10) Muhammad Siddique Baloch v. Jehangir
Khan Tareen and others (PLD 2016 SC 97), (11) Muhammad Yousaf Kaselia
v. Peer Ghulam (PLD 2016 SC 689), (12) Rai Hassan Nawaz v. Haji
Muhammad Ayub and others (PLD 2017 SC 70), (13) Muddasar Qayyum
Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), (14) Mian
Najeeb-ud-Din Owaisi v. Aamir Yar and 7 others (2011 SCMR 180), (15) Sadiq
Ali Memon v. Returning Officer, NA-237 Thatta-I and others (2013 SCMR
1246), (16) Abdul Ghafoor Lehari v. Returning Officer PB-29, Naseerabad-II
and others (2013 SCMR 1271), (17) Muhammad
Khan Junejo v. Federation of Pakistan through Secretary, M/o Law, Justice and
Parliamentary Affairs and others (2013 SCMR 1328), (18) Dilawar
Hussain v. The State (2013 SCMR 1582), (19) Allah Dino Khan Bhayo v.
Election Commission of Pakistan (2013 SCMR 1655), (20) Malik Umar
Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), (21) Muhammad
Ijaz Ahmed Chaudhry v. Mumtaz Ahmed Tarar and others (2016 SCMR 1), (22) Muhammad Ahmed Chatta v.
Iftikhar Ahmed Cheema (2016 SCMR 763), (23) Shamuna Badshah Qaisrani
v. Muhammad Dawood (2016 SCMR 1420) and (24) Molvi Muhammad
Sarwar and others v. Returning Officer PB-15 Musa Khail and others (2013
CLC 1583). 58. In
none of the above cases, any person was disqualified or unseated on the basis
of allegations alone without such allegations being duly proved or the
relevant facts duly ascertained before the Competent Legal Forum. 59. It
is in the above perspective that the instant Petitions were filed before this
Court. The parties were initially heard in an effort to narrow down the
controversy and formulate fair and result oriented TORs. Proposed TORs were
filed by all the sides. It
was understood between the parties that a Commission would be appointed, as
is obvious from the order of this Court dated 07.11.2016, which is reproduced
hereunder for ease of reference:- “2. Be that as it may, we deem it appropriate to direct all the
parties to these proceedings to place on record all the documents on which
they intend to rely in support of their respective cases. No further
opportunity in this regard will be available to them during the proceedings
before the Commission. It is all the more necessary for the reason that this
Court may also be able to go through these documents before deciding the
question of appointment of Commission or otherwise. It is, however, clarified
here that in case the Commission is appointed, this order will not prejudice
or curtail its authority to call for any record from any source.” However,
on 09.12.2016 Mr. Naeem Bokhari,
learned counsel for the Petitioner in Constitution Petition No.29 of
2016 on instructions, in a rather belligerent tone, stated that a Commission
by a Judge of this Court was not acceptable and the matter be decided by this
Court on the existing record. The relief of the opposite side could barely be
concealed. One of the unsolved mysteries of the case is this sudden change of
heart by the Petitioners and more importantly what persuaded the Petitioners
to believe that a definitive finding could be given by this Court on the
photocopies of disputed unsigned documents not coming from a proper custody
or Respondent No.1 could be disqualified on mere allegations emanating out of
the Panama Papers. 60. However, in order to
initiate proceedings for an alleged offence under Section 9(a)(v) of the NAB
Ordinance, the allegations seriously leveled may be sufficient. On its
Constitutional jurisdiction being invoked, this Court and the High Court may
direct initiation of such criminal proceedings. Obviously, neither this Court
nor the High Court can directly convict a person, while exercising its Constitutional
original jurisdiction that too without recording any evidence. 61. Adverting
now to the Constitution Petition No.3 of 2017 filed by Senator Siraj-ul-Haq,
Ameer Jamat-e-Islami, who also sought the disqualification of Respondent No.1
Mian Muhammad Nawaz Sharif. The main thrust of the arguments of the learned
counsel for the Petitioner (In Constitution Petition No.3 of 2017) was that
the corruption and holding of assets beyond his known sources of income by
Respondent No.1 had been conclusively established in view of the judgment of
this Court in Syed Zafar Ali Shah’s case, reported as Syed Zafar
Ali Shah and others v. General Pervaiz Musharaf, Chief Executive of Pakistan
and others (2000 SCMR 869). It was
contended that the allegations, in this behalf, were leveled by the State
against Respondent No.1 Mian Muhammad Nawaz Sharif but his counsel Mr. Khalid
Anwar, learned Sr. ASC did not controvert the said allegations. The record of
the said case was summoned and examined and it was discovered that Mr. Khalid
Anwar, learned Sr. ASC was not the counsel of Respondent No.1 Mian Muhammad
Nawaz Sharif in the aforesaid case, hence, the entire contention of the
learned counsel is based on a misunderstanding. 62. Furthermore in the said case, the overthrow
of a Democratic Government through extra-Constitutional means was
unfortunately upheld but no findings of fact with regard to Respondent No.1
Mian Muhammad Nawaz Sharif, were or could have been recorded. A mere mention
that a large number of references are pending against Respondent No.1 Mian
Muhammad Nawaz Sharif cannot form the basis of his disqualification. 63. Thus,
the case, as canvassed by the Petitioners, more particularly, in Constitution
Petition No.29 of 2016 could not succeed as the allegations therein could not
be proved to the satisfaction of this Court. However, in view of the nature
of the jurisdiction invoked i.e. under Article 184(3) of the Constitution of
the Islamic Republic of Pakistan, 1973, which is inquisitorial in nature rather
than merely adversarial the Petitioners cannot be tied down merely to their
pleadings. The entire material available on the record must necessarily be
examined in the context of the applicable law. 64. We are confronted with a matter consisting of rather
interesting legal propositions and complicated facts. We cannot afford the
luxury of over simplification or intellectual lethargy. The questions raised
will need to be analyzed in their true, factual and legal perspective. Even
the question of the source of funds may become relevant but in a totally
different context and perspective. 65.
In order to ascertain the real matter in controversy, which has floated to
the surface, it is necessary to avoid being distracted by the sound and fury
raised by all sides in equal measures both inside and outside of the
Courtroom. Having distanced ourselves from the irrelevant, the
illogical and the non-legal, we must now come to the grips with the real
matter in issue before us, whose seriousness and importance should not be
underestimated. It is an admitted fact
between the parties that the said four Flats are owned by two Offshore
Companies i.e. M/s. Nielsen Enterprises Limited and Nescoll Limited
registered in the British Virgin Islands (BVI). It is
also evident from the record and not disputed between the parties that the
said Flats were acquired by the two aforesaid BVI Companies, between the
years 1993-1995 for a total consideration of US$ 1.9 million. 66.
It is the case of Respondents No.1 and 6 to 8 that the aforesaid two BVI
Companies i.e. M/s. Nielsen Enterprises Limited and Nescoll Limited (hence
the Flats) are owned by Respondent No.7 Hussain Nawaz since June 2006. Prior
to 2006, the two Companies had issued Bearer Share Certificates not in the
name of any particular person and the Companies, (and the Flats) vested in
the person(s), who had possession of such shares. It is the case of
Respondents No.1 and 6 to 8 that Respondent No.7 had acquired the two
Companies in June, 2006 from the Al-Thani Family of 67. Respondent No.7 through CMA
No.7531 of 2016 has made available some of the documents pertaining to the
two BVI Companies i.e. M/s. Nielson Enterprises Limited and Nescoll Limited.
It appears from the record appended with the said CMA that M/s. Nielson
Enterprises Limited was incorporated on 04.8.1994. A Certificate of
Incorporation in this respect was issued by the Registrar of the Companies of
British Virgin Island (BVI). On 22.11.1994, one Bearer Share Certificate was
issued i.e. Bearer Share Certificate No.001 (available at page 65 of CMA
No.7531 of 2016). The said Share Certificate was eventually cancelled as is
noted thereupon. On 04.7.2006 another share Certificate bearing No.0002 was
issued in the name of M/s. Minerva Nominees Limited. Also on 04.7.2006,
another Share Certificate bearing No.0003 was issued in the name of M/s.
Minerva Services Limited. On 09.6.2014, Share Certificate No.4 was issued
pertaining to two Ordinary Shares issued in the name of M/s. Trustee Service
Corporation. 68. With
regard to M/s. Nescoll Limited, the documents appended with CMA No.7531 of
2016 reveal that it was incorporated on 27.01.1993 as is evident from the
Certificate of Incorporation issued by the Registrar of Companies BVI. On
29.4.1993, one Bearer Share Certificate was issued bearing No.1. The said
Certificate was subsequently cancelled. On 04.7.2006, one Share Certificate bearing
No.0002 was issued in the name of M/s. Minerva Nominees Limited. On
04.7.2006, yet another Share Certificate No.0003 was issued in the name of
M/s. Minerva Services Limited. Subsequently, on 09.6.2014, two Ordinary
Shares bearing Certificate No.4 was issued in the name of M/s. Trustee
Service Corporation. 69. A
perusal of the aforesaid record reveals that originally Bearer Shares
Certificates were issued, which vested in the person, who had custody and
possession thereof. Such person owned the Companies, hence the flats.
However, subsequently in 2006 shares were issued in the name of two entities
M/s. Minerva Nominees Limited and Minerva Services Limited. It was obvious
and not disputed by the parties that M/s. Minerva is a service provider. Such
relationship continued till 2014, when M/s. Minerva was replaced by M/s.
Trustee Service Corporation, obviously another service provider for Offshore
Companies. In the circumstances, it is clear and obvious that the person, who
instructed M/s. Minerva Nominees Limited and M/s. Minerva Services Limited in
2006 and M/s. Trustee Service Corporation in June 2014 to provide services
for the two companies M/s. Nielsen Enterprises Limited and Nescoll Limited,
is the real beneficial owner of two companies. The said documents were not
provided. This aspect of the matter was pointed out to the learned counsel
for the Respondents, more particularly, Respondent No.7. 70. In
the above backdrop, CMA No.432 of 2017 was filed on behalf of Respondents
Nos.7 and 8 appended therewith were various letters procured during pendency
of the case originating from M/s. Minerva, Trustee Service Corporation and
JPCA Limited indicating that they were providing services for the two
companies M/s. Nielsen Enterprises Limited and Nescoll Limited. Reference was
also made to some meetings with Respondent Hussain Nawaz Sharif but what was
not filed were the agreements or any other document instructing M/s. Minerva, Trustee Service Corporation
or JPCA Limited to provide the services in respect of the said Offshore
Companies, which should have indentified the real beneficial owner of the
said Companies. 71. During
the course of proceedings, an attempt was also made by Respondent No.7 to
suggest that Respondent No.6 was only an authorized signatory qua of two Companies rather than its beneficial owner
or trustee. The record, in this behalf, was also appended with CMA No.432 of
2017. 72. There
is no document available on the record in favour of Respondent No.7 Hussain
Nawaz to show that he (Respondent No.7) is a shareholder i.e. owner of the
two BVI Companies. The Trust Deed dated 2nd/4th June,
2006 is not the evidence of Respondent No.7’s title. It pre-supposes that the
shares vest in Respondent No.7 Hussain Nawaz Sharif and, at best, is an admission
in one’s own favour, which is legally irrelevant. 73. In
case of dispute or lack of clarity as to the true title, legal, equitable or
beneficial of a property, it may be necessary to identify the source of funds
for acquisition thereof. In the instant case, it has been presented before us
that the father of Respondent No.1, Mian Muhammad Sharif setup Gulf Steel
Mills in 1972 in 74. A
perusal of the aforesaid documents reveals that the Gulf Steel Mills, 75. It
has also been noticed that the entire narrative, in this behalf, was
disclosed incrementally by Respondents No.1 and 7. 76. However,
the most critical aspects of the matter are the documents, which have not
been filed. No agreement of deposit or investment by Mian Muhammad Sharif
with Al-Thani Family of 77. No
receipt for the alleged periodic “withdrawal” by the Respondents is available
on the record. The transactions, as alleged, in the normal course involved
investment, withdrawal and transfer of large amounts from one country to
another country, yet, no banking documents evidencing such transactions have
made available. The failure to underpin even one of the transactions through
banking documents is neither strange. 78. The
narrative, as presented by Respondents, does not seem confidence inspiring in
view of what has been said in the preceding paragraphs. A counter narrative
also surfaced at various points of time and criminal proceedings on the basis
of said counter narrative were initiated, firstly in year 1994, when two FIRs
were registered, which were quashed and the accused therein were acquitted
vide judgment dated 27.5.1997 passed in Writ Petitions Nos.12172 & 12173
of 1997 on the basis of the Economic Reforms Order of 1992 and subsequently,
the proceedings under the NAB Ordinance were initiated through Reference No.5
of 2000. However, the said Reference was quashed on the ground that since
Respondent No.1 and his family were not in 79. In
this day and age, when Offshore Companies and Special Purpose Vehicles are
employed to disguise ownership as in the instant case, the title of a person
in a property is not necessarily in black or white. Such title, legal
equitable and/or beneficial needs to be discovered in the various shades of
grey. This Court in the case, reported as Rai Hasan Nawaz v. Haji Muhammad
Ayub and others (PLD 2017 SC 70) observed as follows:- “… Where
assets, liabilities, earnings and income of an elected or contesting
candidate are camouflaged or concealed by resort to different legal devices
including benami, trustee, nominee, etc. arrangements for constituting
holders of title, it would be appropriate for a learned Election Tribunal to
probe whether the beneficial interest in such assets or income resides in the
elected or contesting candidate in order to ascertain if his false or
incorrect statement of declaration
under Section 12(2) of the ROPA is intentional or otherwise. …” The
instant case involves various properties not only the four Flats in London
owned through two BVI Companies but also Gulf Steel Mills, Dubai and Azizia
Steel Mills near Jeddah and the Hill Metal Establishment, which is currently
functioning in Jeddah. 80. A
clear cut explanation for the title thereof and all the obvious documents in
support thereof should be in the custody of the private Respondent, who
claims to be the owner. Such documents have been deliberately withheld from
this Court. The Flats have been in occupation of the Sharif Family since
early 90s through Respondent No.8, who was a student and was a dependent upon
Respondent No.1 at that point of time. The alleged source of funds through
which the various properties were acquired is shrouded in mystery and no
clear cut transparent transactions have been shown. Respondent No.1 has
admittedly benefitted from such assets, including Hill Metal Establishment
through various “gifts” totaling an amount of Rs.84 corers as is mentioned in
CMA No.432 of 2017. The stand of Respondent No.7, in this behalf, was also
interesting and is reproduced herein below:- “The purpose of these remittances has been to free his
father form any financial constraints given his full time involvement in
politics.” 81. In
the above circumstances, I find myself unable to conclude that the assets in
question, more particularly, the four flats i.e. Flats No.16, 16-A, 17 and
17-A, Avenfield House, Park Lane, London, businesses in London and Hill Metal
Establishment in Kingdom of Saudi Arabia have no nexus with Respondent No.1
and the possibility of his equitable or beneficial interest therein cannot be
ruled out. 82. We
are dealing with the first Family of the country. Respondent No.1 is the
Prime Minister of Pakistan. The questions regarding properties of his family
members outside 83. No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this Court on more than one occasion has undertaken such an exercise. 84. In the case, reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), this Court in order to determine whether the Respondent Parliamentarians held dual nationality, summoned and examined the various official records and reports, in this behalf, and gave a finding of fact that some of such Parliamentarians were foreign nationals, hence, disqualified. In the case, reported as Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), this Court while examining the nature of jurisdiction of this Court under Article 184(3) observed as follows: “20. (vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies.” 85. As far back as in the year 1994, this Court, in the case, reported as General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. the Director Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061) appointed a Commission to determine whether water supply was being polluted, which fact was disputed between the parties. 86. We are aware of the provisions of Article 225 of the Constitution, whereby an election can be called into question only through the Election Tribunals constituted thereunder. Such Election Tribunals can also examine, inter alia, the qualification and disqualification of the candidates if challenged before them. The legal possibility of referring the matter to the Election Commission of Pakistan under Article 63(2) of the Constitution, was also considered. The aforesaid provision reads as under: “63.(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.” A bare reading
of the aforesaid provision makes it clear and obvious that the same is
attracted when a sitting Member by virtue of events subsequent to the
election has become disqualified. It pertains to post-election
disqualification. The said provision has been interpreted by this Court in
the case, reported as Muhammad Azhar Siddiqui and others v. Federation of “40. … If a question of post-election
disqualification arises under any sub-clause of Art. 63(1) the matter must be
referred to the Speaker or Chairman of the House of Parliament under Art.
63(2). …” In the instant case, the allegations against Respondent No.1 primarily pertain to the alleged non-declaration of his assets in the Nomination Papers. Even though such allegations surfaced after the elections, the same would not qualify as a post-election disqualification, hence, the matter cannot be referred to the Election Commission of Pakistan through the Speaker or otherwise. However, it is now settled law and
has been so settled through a series of judgments of this Court including Farzand
Ali v. Province of West Pakistan (PLD 1970 SC 98) and Muhammad Azhar
Siddiqui v. Federation of Pakistan and others (PLD 2012 SC 774) that a
Constitution Petition in the nature of a writ of quo warranto is maintainable against a Member of the
Majlis-e-Shoora, if he is disqualified or did not possess or has lost his
qualification, in this behalf. Such Constitutional Petitions can always be
filed before the learned High Court under Article 199 of the Constitution and
before this Court under Article 184(3) of the Constitution, as has been filed
in the instant case. 87. In the instant case, the
allegations against Respondent No.1 were not conclusively established, yet,
sufficient suspicious circumstances, detailed above, have come to light,
which require to be investigated to facilitate the discovery of the true
facts. Such investigation appears to be necessary before we can proceed
further in the matter. Despite the jurisdiction to determine the disputed
questions of facts and the tools, in this behalf, available to this Court
mentioned above, this Court does not have the powers under Article 184(3) of
the Constitution to investigate a matter. Reference, in this behalf, may be
made to the judgment of this Court, reported as Suo Motu Action regarding
allegation of business deal between Malik Riaz Hussain and Dr. Arsalan
Iftikhar attempting to influence the judicial process (PLD 2012 SC 664). 88. When the matter relates to
the persons in high places, special measures need to be taken to ensure an
impartial, fair and effective investigation and inquiry. To achieve such end,
in unexceptional circumstances, the Court keeps a vigilant eye over the
investigation by keeping itself abreast of the progress thereof. The most
significant case in hand is the “Hawala case” of Indian Supreme Court,
reported as Vineet Narain and others v. 89. Since, the primary Anti-Corruption Agency appears to be neither able nor willing to fulfill its legal obligations, we are constrained to look elsewhere. In India, an issue pertaining to foreign accounts of Indian Nationals organizing in Brazil with information in respect thereof available in Germany came up before its Supreme Court in the case, reported as Ram Jethmalani and others v. Union of India and others [(2011) 8 Supreme Court Cases 1]. The Government was allegedly dragging its feet and not even disclosing the names of individuals involved. The Supreme Court of India constituted a Special Investigation Team. The relevant portion of this case is reproduced hereunder for ease of reference: “49. In light of the above we herewith order: (i) That the High Level Committee constituted by the
Union of India, comprising of (i) Secretary, Department of Revenue; (ii)
Deputy Governor, Reserve Bank of India; (iii) Director (IB); (iv) Director,
Enforcement; (v) Director, CBI; (vi) Chairman, CBDT; (vii) DG, Narcotics
Control Bureau; (vii) DG, Revenue Intelligence; (ix) Director, Financial
Intelligence Unit; and (x) JS (FT & TR-I), CBDT be forthwith appointed
with immediate effect as a Special Investigation Team; (ii) That the Special Investigation
Team, so constituted, also include Director, Research and Analysis Wing; (iii) That the above Special
Investigation Team, so constituted, be headed by and include the following
former eminent judges of this Court: (a) Hon'ble Mr. Justice B.P. Jeevan
Reddy as Chairman; and (b) Hon'ble Mr. Justice M.B. Shah as Vice-Chairman;
and that the Special Investigation Team function under their guidance and
direction;”
In the instant
case, in order to ensure that every possible effort is made to discover the
truth and place it before the people of 90. Consequently, it is appropriate that the matter be investigated by a Joint Investigating Team (JIT) headed by a Senior Officer not below the rank of Additional Director General, Federal Investigation Agency (FIA), and consisting of Representatives of Intelligence Bureau (IB), Inter Services Intelligence (ISI), Military Intelligence (MI), State Bank of Pakistan (SBP), Security & Exchange Commission of Pakistan (SECP) and National Accountability Bureau (NAB). The Heads of the aforesaid Institutions shall nominate the Members of the Joint Investigation Team (JIT) and communicate such names to us in Chambers within one week for our information and approval. 91. We
have been constrained to cast a wide net as regard to the institution, the
Offices whereof are to form the Members of the JIT. The attitude of NAB has
gone a long way in pushing us in this direction. Furthermore, it has been
alleged that some of other investigating institutions are also under the
influence of Respondent No.1 and under his direct or indirect control. Such
sweeping allegations may or may not be wholly true but do not appear to be
unfounded. Furthermore, the nature of expertise require in the instant
investigation is not confined to any one institution and the several
institutions may be able to supplement such expertise. 92. The
matter, in issue, in this case requiring investigation and eventually
adjudication is whether Respondent No.1 directly or indirectly owns the
properties and assets, which has not been disclosed in his Nomination Papers,
more particularly, the flats in question i.e. Flats Nos. 16, 16-A, 17 and 17-A, Avenfield House,
Park Lane, London and
the current business known as Hill Metal Establishment, being currently
conducted in the Kingdom of Saudi Arabia. The sources of funds for
acquisition of such properties would also need to be identified as they may
be relevant for identifying the true ownership of the property and assets,
and if such sources are unexplained or beyond the known sources of income of
the owner of such assets, criminal proceedings may follow. 93. The
Joint Investigation Team (JIT) will submit its periodic Reports after every
two weeks to this Court and a final Report will be submitted within sixty
days from its constitution. This Court will examine the matter of
disqualification of Respondent No.1 on the basis of such Reports and if at
any point of time, it is found necessary that Respondent No.1 and Respondents
No.6 to 10 or any one or all of them or any other person may be summoned for
recording of the statement before this Court, appropriate orders may be
passed. 94. If
the conclusions of the investigation by the Joint Investigation Team (JIT),
so justify, appropriate orders may be passed for initiation of criminal
proceedings under Section 9(a)(v) of the NAB Ordinance against the private
Respondents, some of them or any other person, as the case may be. Judge
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IJAZ UL AHSAN, J-. I have had the privilege of going through the scholarly judgments handed down by my learned brothers Ejaz Afzal Khan and Sh. Azmat Saeed, JJ. I agree with the conclusions drawn by them. However, considering the importance of the issues raised in the matter, I have recorded my own opinion. 2. Through
these petitions filed under Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973 (hereinafter
referred to as the Constitution), the Petitioners seek inter alia a declaration from this
Court to the effect that Respondents No.1, 9 and 10 are disqualified to be
Members of the National Assembly. Directions are also sought to Respondents
No.2, 3, 4 & 5 to discharge their legal obligation with reference to the
allegations of involvement of Respondents No.1, 9 & 10 in corruption,
money laundering and owning assets beyond their known means. 3. The
allegations stem from information coming into public domain on the basis of
documents recovered from the database of Mossack Fonseca, a law firm
operating in 4. Additionally,
it has been alleged that Respondent No.1 is involved in tax evasion and has
failed to declare/pay tax on amounts received by way of purported gifts in
foreign exchange from Respondent No.7. It has also been alleged that when the
aforesaid information was highlighted by the local as well as the
international media, Respondent No.1 addressed the Nation on the television
on 05.04.2016 and also delivered a speech in the National Assembly on
16.05.2016 to clear his position. He denied having committed any wrongdoing
and took the stance that his children were doing legitimate businesses with
legitimate funds and that the Mayfair Properties had been acquired with funds
generated from business transactions in Dubai/Saudi Arabia. He also stated
that all requisite information/records were available and will be produced
before the appropriate fora as and
when required. 5. Considering
that ownership of the offshore companies/Mayfair Properties had not been
denied and prima facie questions of
public importance had been raised, we entertained these petitions. 6. Notices
were issued to the Respondents who filed their concise
statements/supplementary concise statements and a large number of documents
during the course of proceedings before us. These have been carefully
examined and considered. The stance taken by Respondents No.1, 6, 7 & 8
with regard to their businesses, 7. Syed Naeem Bukhari,
learned ASC, appearing for the petitioner in Constitution Petition No.29 of
2016 has made the following submissions to support his case:-
i.
That Respondent No.1 (Mian Muhammad Nawaz Sharif) addressed
the Nation on 05.04.2016 in response to the allegations that he and his
family had indulged in money laundering & corruption and had illegally
acquired assets and properties including Mayfair Properties which were the
subject matter of Panama Papers. In the said speech, he had stated that when
he and his family were forcibly exiled, his father (Mian Muhammad Sharif) had set up a Steel Mill in
ii.
That Respondent No.1 thereafter
addressed the National Assembly on 16.05.2016. In this address, he
(Respondent No.1) improved upon his earlier speech and gave further details
regarding the sources of funds allegedly generated from business of his family.
It was stated by Respondent No.1 that in April, 1980 a Steel Mill operating
under the name and style of Gulf Steel Mill which had earlier been
established by his father with funds obtained from Banks in Dubai was sold
for a sum of Rs.33.37 Million Dirhams equivalent to 9 Million US$. Respondent
No.1 stated that funds generated from the sale of Gulf Steel Mill also helped
his family in setting up the factory at
iii.
That it was claimed by Respondent
No.1 that the factory at Jeddah was sold in June, 2005 for a sum of 64
Million Riyals equivalent to 17 Million US$. The Respondent No.1 also claimed
that all records regarding
iv.
That Respondent No.7 in an
interview, transcript whereof has been placed on record through CMA No.7319
of 2016 filed on 07.11.2016, took the stance that the source of funds for
purchase of the Mayfair Properties was the investment made by his late
grandfather (Mian Muhammad Sharif)
in the year 1980 from the sale proceeds of his steel business in Dubai. The
petitioner urges that there is a clear contradiction between the statements
of Respondent No.1 and Respondent No.7 in so far as Respondent No.1 claims
that the funds generated from sale of Gulf Steel Mill were utilized in
setting up of the Steel Mill in Jeddah while Respondent No.7 claims that the
said funds were invested and utilized for purchase of the Mayfair Properties.
v.
Learned ASC has vehemently argued
that neither Respondent No.1 nor Respondents No.6 to 8 have disclosed the
true facts before this Court. He maintains that the documents presented
before this Court including the Tripartite Contract of 1978 for sale of
shares clearly indicate that Gulf Steel Mill was a financial disaster, there
were huge outstanding dues and the entire sale price received from sale of
75% shares in the company was utilized in clearing the amounts owed to the
creditors. He further submits that even after settlement of dues of BCCI,
there were other liabilities in substantial amounts which were required to be
cleared by the family of Respondent No.1. It appears that the said
liabilities may have been cleared, however, the resources which were utilized
for such clearance are shrouded in mystery. The learned counsel maintains
that the only logical explanation for settlement of the dues is that this was
done through undeclared wealth.
vi.
That the Mayfair Properties were
held in the names of two offshore companies namely Nescol Limited and Nielsen
Enterprises Limited. The beneficial owner of the properties in question was
Respondent No.6 who is the daughter of Respondent No.1 and she at all
relevant times was and continues to be a dependent of the latter. As such he
was obliged to declare her beneficial ownership of the Mayfair Properties not
only in his Wealth Statements but also in his Nomination Papers filed with
the Election Commission of Pakistan for contesting the General Election, 2013
and his annual Statement of Assets and Liabilities. Adds that by concealment,
withholding and mis-declaration made by him in his Nomination Papers, the
Respondent No.1 had been proved to be neither “sadiq” nor “Ameen” and
rendered himself liable to be disqualified in terms of Article 62 read with
Article 63 of the Constitution.
vii.
Learned counsel submits that Nescol Limited was incorporated in British
Virgin Islands (BVI) as an International Business Company on 27.01.1993. It
holds Flats No.17 & 17-a, and Nielsen Holdings Limited later
renamed as Nielsen Enterprises Limited was registered on 04.08.1994 and holds
Flats No.16 & 16-a. On 22.11.1994 bearer certificate of Nielsen
Enterprises Limited was issued in the denomination of 1US$ which was
subsequently cancelled. Likewise a bearer certificate was also issued by Nescol Limited which was also cancelled.
Subsequently, in 2006 shares were issued in favour of Minerva
Nominees Limited which became the
shareholder of both BVI Companies. He has argued that holding of shares in
the said companies was changed from time to time in order to hide the real
ownership of the companies beneath layers of shadow companies.
viii.
Learned counsel has vehemently questioned
the letters produced on behalf of Respondents No.6 to 8. The said letters
which were purportedly issued by Sheikh Hamad on 05.11.2016 and 22.12.2016
(Qatari Letters) state that since his father had a business relationship with
the father of Respondent No.1 and grandfather of Respondents No.6 to 8 (Mian
Muhammad Sharif), the funds generated from sale of 25% shares in the Gulf
Steel in the sum of 12 Million Dirhams, were invested in the business of the
Thani family in Qatar which had instructions from Mian Muhammad Sharif that
the beneficiary of these funds will be his grandson namely Respondent No.7.
According to the Qatari letters, in the year 2006 accounts of the business
were settled, and by way of settlement it is claimed that bearer certificates
of Nescol Limited and Nielsen
Enterprises Limited, the two companies which held the Mayfair Properties,
were handed over to the representative of Respondent No.7. He further submits
that the letters of the Sheikh Hamad are fabrications and concoctions, the
same have been produced by way of an afterthought in order to cover up the
illegalities and money laundering. He has been pointed out that even
otherwise, there was no mention of any business in
ix.
The learned ASC submits that the
Mayfair Properties were purchased by the family of Respondent No.1 between
the period from 1993-96 through funds which were not legitimate and were the
result of corrupt and illegal practices including money laundering. He has
also drawn our attention to the Wealth Statements of Respondent No.6 for the
year 2011, in Column No.12 at page 68 of CP#29 of 2016 under title “Assets, if any, standing in the name of
spouse, minor children & other dependents” whereof Respondent No.1
had mentioned that there was land in the name of his daughter Maryam Safdar
(Respondent No.6) valuing Rs.24,851,526/-. He has further pointed out that
Respondent No.1 by way of gift received a sum of Rs.129,836,905/- in the year
2011 from Respondent No.7. Out of the said amount, a sum of Rs.31,700,000/-
was gifted by Respondent No.1 to Respondent No.6 while an amount of
Rs.19,459,440/- was presumably gifted to his son Hasan Nawaz. Further stated
that 13 Crores of Rupees were received by Respondent No.1 from his sons
between 2011 to 2016. He submits that the sources of funds to finance
business of Respondents No.7&8 are also shrouded in mystery. It has
nowhere been explained how Respondents No.7&8 had such large sums of
money available to them which could finance the steel business of Respondent
No.7 in Saudi Arabia and real estate business of Respondent No.8 in the UK.
x.
That neither the Respondent No.6
nor Respondent No.9 who is her husband have any independent source of income
and are solely dependent upon funds made available to them by Respondent No.1
and Respondents No.7 & 8 by way of gifts. He therefore maintains that for
all intents and purposes, Respondent No.6 continues to be a dependent of
Respondent No.1. Adds that having concealed the said facts and failed to
disclose beneficial ownership of the Mayfair Properties, Respondent No.1 has
been guilty of concealment, mis-declaration and dishonesty, and is therefore
liable to be disqualified from being Member of the Parliament and holding the
office of Prime Minister.
xi.
That between the years 2011-15
Respondent No.1 received an aggregated sum of Rs.741,298,44/- by way of gifts
from Respondents No.7 & 8. He argues that the said gifts constituted
income from other sources and were taxable. But he did not pay any taxes on
the said gifts which exposes him to the mischief of Article 63 of the
Constitution. He further maintains that there is no indication regarding the
sources and the accounts from which Respondents No.7 & 8 remitted such
huge amounts to Respondent No.1. In this regard, reference has been made to
Section 39(3) of the Income Tax Ordinance, 2001.
xii.
As far as Respondent No.6 is
concerned, learned counsel has reiterated that neither she nor her husband
have any independent source of income. Her Income Tax Returns/Wealth
Statements show ownership of assets either by way of gifts or loans without
disclosing any other source of income. He therefore relies on the meaning of
word “dependent” as defined in Oxford English Dictionary and submits that a
person who relies on another for support and sustenance falls within the
definition of “dependent”.
xiii.
That since Respondent No.6 is a
dependent of Respondent No.1 he was obliged to disclose her beneficial
ownership of Nescol Limited and Nielsen
Enterprises Limited, BVI Companies which own the Mayfair Properties. He
relies on a letter issued by Errol George dated 12.06.2012 and the replies
sent by Mossack Fonseca which state that the beneficial ownership of both
Companies is with Respondent No.6.
xiv.
Learned counsel has raised
serious doubts about the Trust Deed dated 02.02.2006 signed by Respondent
No.6 on the same date and Respondent No.7 on 04.02.2006 according to which
Respondent No.7 is the beneficial owner of both Companies and hence the
Mayfair Properties are held by Respondent No.6 on trust for Respondent No.7.
Further submits that the said document is fake, fabricated and not worthy of
any reliance.
xv.
Learned ASC has also drawn our
attention to an interview given by Respondent No.8 namely Hassan Nawaz to a
British Journalist in November, 1999. In the said interview, Respondent No.8
allegedly stated that he was residing in one of the Mayfair Properties on
rent; was a student and earning nothing; was not aware who was the real
owner; and rent for the said properties was sent to him by his family from
Pakistan. Submits that Respondent No.8 became a Director of Flagship
Investments Limited on 12.04.2001 much before the sale of Al Azizia Steel
Mills, Jeddah in June 2005 injecting substantial sums of money in his
company.
xvi.
Learned counsel has vehemently
argued that while Respondent No.1 asserts that it was the sale of Saudi
factory in June 2005 which provided funds for his sons to start their
businesses yet the interview given by his son to the British Journalist
completely negates that story. Adds that even otherwise, there is no
explanation of funds becoming available to Respondent No.8 for setting up of
Flagship Investments Limited and availability of funds to undertake real
estate business in the
xvii.
Referring to the Trust Deed
whereby Respondent No.6 has been shown as trustee on behalf of Respondent
No.7, it is argued that the document in question has neither been stamped nor
attested as required by law. Further, creation of the Trust was never
communicated to Mossack Fonseca which on 22.06.2012 confirmed, after making
the requisite inquiries that Respondent No.6 was the beneficial owner of Nescol Limited and Nielsen
Enterprises Limited.
xviii.
Learned ASC has also drawn our
attention to a copy of judgment and decree passed by the London High Court on
18.03.1999 against Hudaibiya Paper Mills Limited (HPML). He submits that
Respondents No.6 to 8 are included in the list of Directors of the said
Company which borrowed funds from Al-Tawfeeq Investment Company in
xix.
That the debacle of HPML also led
to filing of a Reference by the National Accountability Bureau (NAB) against
the family of Respondent No.1 in the
xx.
Learned counsel maintains that
Respondent No.1 has neither been just nor honest to the Nation either in his
speech on the electronic media or on the floor of the National Assembly. That
a series of false statements made by the Prime Minister stand established
which shows that he is neither just nor honest and is disqualified to be a
Member of the Parliament or to hold the office of the Prime Minister. In
support of his contention, the learned counsel relies on Workers’ Party
Pakistan v. Federation of Pakistan (PLD 2012 SC 681), Watan Party v.
Federation of Pakistan (PLD 2011 SC 997) and All Pakistan Newspapers Society
v. Federation of Pakistan (PLD 2012 SC 1).
xxi.
That the Prime Minister has evaded
taxes which were payable on gifts received by him from his sons. He is
therefore hit by the provisions of Article 63 of the Constitution. Further,
that Respondent No.1 has been untruthful in denying that Respondent No.6 was
his dependent and has failed to disclose his beneficial ownership of the
Mayfair Properties. He points out that Respondents No.6 to 8 repeatedly
contradicted Respondent No.1 and have come out with totally contradictory
versions in the matter. He maintains that the letters issued by the Sheikh
Hamad dated 05.11.2016 and 22.12.2016 are desperate attempts to cover up
money laundering and acquisition of assets with such money. Even otherwise,
the document in question is not worthy of reliance.
xxii.
That the Mayfair Properties were
purchased by the Prime Minister and his family in 1993/96, their purchase
could only materialize through money laundering which stands established from
the record. He finally submits that Respondent No.1 has evaded taxes on a sum
of Rs.74 Crores which was admittedly received as gifts from his sons which
renders him ineligible to be Member of the Parliament or to hold the office
of the Prime Minister.
xxiii.
Lastly, he submits that the
Federal Board of Revenue (FBR) as well as the NAB should be directed to
proceed against Respondent No.1 in accordance with law. 8. Mr. Muhammad Taufiq Asif,
learned ASC for the petitioner in Constitution Petition No.3 of 2017, has
submitted that a declaration was being sought to the effect that Respondent
No.1 was not sadiq and ameen in terms of Article 62 read
with Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. In
this regard, he has made the following submissions:-
i.
That the contents of speech of
Respondent No.1 in the National Assembly on 16.05.2016 were misleading and
incorrect. That twice in the said speech it was stated that he (Respondent
No.1) and his family had been sent into forced exile against
their will and that subsequent events had proved that he (Respondent
No.1) had left the country voluntarily as a result of a deal. At
this juncture, it was pointed out to the learned counsel that the question
whether or not Respondent No.1 had been sent into exile against his will had
been dealt with by this Court in a judgment reported as Muhammad Nawaz Sharif
v. State [PLD 2002 SC 814] in which while dealing with the question of
condonation of delay this Court recorded a finding that Respondent No.1 had
been exiled against his will and was not allowed to return. This being the
position, in collateral proceedings, we were not inclined to revisit and
reexamine the aforesaid findings of this Court.
ii.
That Respondent No.1 had made
certain admissions in his speech in so far as he admitted that Gulf Steel was
established in UAE and the same was sold in 1980 for a sum of US $ 9 Million.
He submits that no explanation has been forthcoming regarding source of the
funds which were utilized to set up the said project. He further submits that
there is no money trail showing how the sale proceeds were moved from UAE to
iii.
The learned counsel has pointed
out that Respondent No.1 had made a categoric statement that the funds
generated from sale of Steel Mill in
iv.
The learned ASC has contended
that the Prime Minister in his address had stated that neither he nor his
family would claim any immunity before any forum. However, contrary to his
commitment, he has claimed privilege under Article 66 of the Constitution. In
this regard, he has relied on Zahur Ilahi v. Mr. Zulfikar Ali Bhutto [PLD
1975 SC 383 @ 395] and Masroor Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823]
to argue that immunity/privilege can be claimed in accordance with law and
the Constitution; no one is above the law; and in case, the Respondent No.1
had committed any illegality or made a false statement during his address in
the National Assembly, he can neither claim any immunity nor privilege.
v.
Learned counsel has further
contended that Respondent No.1 had opted to defend himself and his family
against the allegations coming to light on the basis of documents discovered
through the Panama Papers. That
Respondent No.1 had claimed that all transactions including purchase of
Mayfair Properties were legitimate and all requisite record would be produced
which has not been done by him or his family. He maintains that after having
lied to the Parliament he cannot claim immunity or privilege. In addition
privilege can be claimed only in situations where a statement is made while
participating in the parliamentary business. However, in the instant case,
the statement was made by the Prime Minister in his personal capacity to
explain transactions involving his family which had nothing to do with any
matter involving parliamentary business. He, therefore, submits that no
privilege can be claimed by Respondent No.1 for his private actions.
vi.
The learned counsel for the
petitioner has further argued that Respondent No.1 had taken two Oaths. One
as a Member of the National Assembly and the other as Prime Minister of
vii.
Learned ASC has also produced a
copy of the order of the day issued by the Secretariat of National Assembly
for 16.05.2016 to point out that the speech of Respondent No.1 was not on the
agenda of the National Assembly for that day. He has also referred to Rules
31 (1), 50 & 51 of the Rules of Procedure & Conduct of Business in
the National Assembly, 2007 to argue that since the speech of the Prime
Minister was not a part of the order of the day it cannot be termed as
participation in the parliamentary business. Secondly, no privilege can be
claimed for a statement made by Respondent No.1 of his own accord and
volition before the National Assembly. Reliance in this regard has been
placed on Zahur Ilahi v. Mr. Zulfikar Ali Bhutto [PLD 1975 SC 383]; Masroor
Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823] and Iftikhar Ahmad Khan Bar v.
Chief Election Commissioner [PLD 2010 SC 817 @ 826 (para 14)]. He also
submits that it has repeatedly been held by this Court that there is sanctity
attached to the parliamentary proceedings and business but such sanctity does
not extend to personal matters voluntarily discussed in the Assembly chambers
without being part of the parliamentary business.
viii.
Learned counsel has drawn
our attention to Article 119 of the Qanun-e-Shahadat Order, 1984 to argue
that burden of proof as to any particular fact lies on the person who wishes
the Court to believe in its existence, unless it is provided by any law that
the proof of that fact shall lie on any other person. He submits that as a whistleblower
the only responsibility on the shoulders of the petitioner was to bring to
the notice of this Court certain facts of public importance where-after the
burden of proof was on the Respondent No.1 to establish that he had neither
acted dishonestly nor in any other manner that would expose him to the penal
consequences of Article 62 read with Article 63 of the Constitution.
Reference in this regard has been placed on Workers’ Party Pakistan v.
Federation of Pakistan [PLD 2012 SC 681 (para 32)].
ix.
It is
further contended that under Article 184(3) of the Constitution, the
jurisdiction of this Court is in the nature of inquisitorial proceedings and
this Court can delve into the arena of any fact finding so as to promote
public interest. In support of his contention, the learned counsel has relied
on Watan Party v. Federation of Pakistan [PLD 2011 SC 997 @ paras 50 &
52]; Philips Electrical Industries of Pakistan Ltd. V Pakistan [2000 YLR
2724]; People’s Union for Democratic Rights v. Union of India [AIR 1982 SC
1473]; Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681];
Muhammad Azhar Siddiqui v. Federation of Pakistan [PLD 2012 SC 774 @ 806
(paras 14 & 15)]; and Watan Party v. Federation of Pakistan [PLD 2012 SC
292 @ 365].
x.
The
learned ASC has also referred to Articles 53 & 122 of the
Qanun-e-Shahadat Order, 1984 to argue that facts within the special knowledge
of a person need to be proved by him. He maintains that admittedly, the
Mayfair Properties are held by offshore companies which are owned and
controlled by the children of Respondent No.1. Documents and records relating
to the said properties are not and cannot be available to the petitioner.
However, the Respondents have access to such records and documents and are
therefore liable to produce the same before this Court. He further submits
that this Court is neither averse to nor is its jurisdiction restricted in
relation to undertaking factual inquiries or even recording evidence in order
to uncover the truth to do complete justice. Reliance in this regard has been
placed on Pakistan Muslim League (N) v. Federation of Pakistan
[PLD 2007 SC 642].
xi.
The learned counsel for the
petitioner has referred to Zafar Ali Shah v. Pervez Musharraf, Chief
Executive of Pakistan [PLD 2000 SC 869] and read certain portions appearing
at page 1207 thereof to argue that although there were specific allegations
relating to ownership of the Mayfair Properties, Mr. Khalid Anwar, learned
Sr.ASC, who allegedly represented Respondent No.1 in the said matter did not
specifically rebut the said allegations. He submits that failure to rebut the
allegations amounts to admission and necessary legal consequence for the same
should follow. At this stage, the record of the case was summoned and seen by
the Court and it was observed that Respondent No.1 was neither a party to the
said proceedings nor was Mr. Khalid Anwar representing him in the said case.
Although in one of the related matters, Respondent No.1 was a party, however,
the judgment in Zafar Ali Shah’s case (supra)
did not contain any finding recorded by this Court regarding the allegations
involving ownership of the Flats in question. Confronted with this position,
the learned counsel for the petitioner did not further press the point.
xii.
The learned ASC has argued that
it was an admitted position that the London High Court had passed a decree in
the case of HPML as well as Mian Muhammad Sharif, Mian Muhammad Shahbaz
Sharif and Mian Muhammad Abbas Sharif. He further submits that documents
available on record also indicate that the said properties were attached
under orders of the London High Court. However, such attachment was removed
apparently on satisfaction of the decree. He maintains that there is no
evidence on record or money trail explaining how the decree in access of US$
34 Million was satisfied. He further submits that this raises a serious
question which needs to be answered by Respondent No.1. The learned counsel
has also submitted that in his speech in the National Assembly on 16.05.2016,
Respondent No.1 had given certain facts relating to sale of the Gulf Steel at
xiii.
The learned ASC further maintains
that the petitioner has discharged the onus by alleging that the Mayfair
Properties are owned by Respondent No.1 and now the onus is on him to
establish either that the properties in question were not owned by him or
that the same were not procured with funds which were illegally transferred
from Pakistan to other countries. He also maintains that in order to establish
the truth, this Court has the power to record evidence and even summon the
Prime Minister if the need arises in exercise of its powers under Article
184(3) of the Constitution. 9. Mr. Ehsan ud Din Sheikh,
learned ASC was allowed on his request to make certain additional submissions
on behalf of the petitioner. He submitted that the powers being exercised by
this Court were inquisitorial in nature and the Court was expected to act as
Prosecutor, Defender and Judge at the same time. He was, however, reminded
that inquisitorial jurisdiction of this Court was to be understood in the
context of being different from adversarial proceedings and the same was not
necessarily to be equated with the inquest Tribunals set up in different
countries including 10. Sheikh Rashid Ahmed,
petitioner in person in Constitution Petition No.30 of 2016 also addressed
the following arguments:
i.
He referred to the speeches of
Respondent No.1 to submit that he had not disclosed the correct information
either before the people of the country or before this Court. He maintained
that there were contradictions in the statements made by Respondent No.1, his
sons and wife which show that he had been untruthful and was liable to be
disqualified in terms of Article 62(1)(f) of the Constitution. He further
submitted that the privilege claimed by Respondent No.1 in terms of Article
66 of the Constitution was not available to him in view of the fact that he
had raised a private matter on the floor of the house which was neither in
the agenda nor a part of the business of the house. In this context, he
relied upon Chaytor v. House of Lords (2010
ii.
He further submitted that in
terms of Article 184(3) of the Constitution, this Court can mold the relief
and can grant the reliefs which have not even been prayed for. He maintained
that this Court has to be dynamic in rendering a judgment to do complete
justice in the facts and circumstances of this case. He places reliance on
Benazir Bhutto v. Federation of Pakistan [PLD 1988 Supreme Court 416], Nasir
Ali Khan v. Federation of Pakistan [PLD 2013 Supreme Court 568], Muhammad
Ashraf Tiwana v. Pakistan (2013 SCMR 1159), Muhammad Yasin v. Federation of
Pakistan (PLD 2012 Supreme Court 132) and Mehmood Akhtar Naqvi v. Federation
of Pakistan (PLD 2012 Supreme Court 1054).
iii.
Sheikh Rashid Ahmed further
submitted that the letters allegedly issued by Sheikh Hamad are contradictory
and it is apparent that by issuing successive letters an attempt has been
made to fill the gaps and answer the questions raised by this Court. He
pointed out that in an earlier case reported as Muhammad Nawaz Sharif v.
State (PLD 2010 11. Mr. Makhdoom Ali Khan, learned
ASC appearing for Respondent No.1 (Mian Muhammad Nawaz Sharif), made the
following submissions:-
i.
At the very outset, learned
counsel has read the prayer clauses of Constitution Petition No.29 of 2016
and submitted that Respondent No.1 does not and never had any company
registered in the BVI or any other safe heaven. Further, he was not a
Director / Shareholder or beneficial owner of any such company. He submits
that the grounds on which disqualification of Respondent No.1 is sought can
be broadly categorized into following categories: (a)
Address of
Respondent No.1 to the Nation on television on 05.04.2016; (b)
Speech made
by Respondent No.1 on the floor of the National Assembly on 16.05.2016.
ii.
That the petitioner alleges that in the said
speeches Respondent No.1 had lied to the Nation, in consequence of which he
had ceased to be honest and ameen
in terms of Article 62(1)(f) of the Constitution and was therefore liable to
be disqualified.
iii.
That the second ground on which disqualification
has been sought is that Respondent No.1 had received large sums of money as
gifts from Respondent No.7. The said amounts were required to be treated as
other income within the contemplation of Section 39 of the Income Tax
Ordinance. The said amount was neither declared as such nor was the requisite
income tax paid on it. Consequently, he was liable to be disqualified in
terms of Article 63(2)(o) of the Constitution.
iv.
The learned counsel points out that the treatment
of any amount received by way of gift is different depending upon whether or
not the donor has a tax number in terms of Section 39 of the Income Tax
Ordinance, 2001. He submits that the petitioner has incorrectly stated that
Respondent No.7 does not have a tax number. The factual position is that
Respondent No.7 has a tax number and therefore any amount received from him
by Respondent No.1 by way of gift was exempt from payment of income tax. He
further submits that Article 63 (1)(o) of the Constitution is attracted only
where default/non-payment of government dues is determined either by the
competent authorities or by a Court of law and after such determination it
remains unpaid.
v.
The third ground for seeking disqualification is
that Respondent No.6 (Maryam Safdar) is a dependent of Respondent No.1.
Therefore, assets of Respondent No.6 should have been declared by Respondent
No.1 in his nomination papers for election to a seat in the National Assembly
from NA.120. In view of the fact that Respondent No.1 had failed to declare
Respondent No.6 as his dependent and to disclose her assets in his nomination
papers and annual statement of assets, the disqualification clause of Article
62(1)(f) of the Constitution was attracted. He submits that Respondent No.6
has independent sources of income and owns valuable immovable property.
Therefore, she cannot be termed as a dependent of Respondent No.1.
vi.
Learned counsel for the Respondent No.1 while
responding to the aforesaid allegations has read the speech made by
Respondent No.1 to the Nation as well as his speech made on the floor of the
House. He has vehemently denied the allegation that Respondent No.1 had lied
either to the Nation or during his address on the floor of the House. He
submits that the contents of the speeches are factually correct in all
respects including statements relating to setting up of Gulf Steel Mill at
Dubai, its sale, the sale price, setting up of a Steel Mill in Saudi Arabia
in the year 2000, the same having been set up from finances provided by the
Saudi Banks and sale of the same at a price stated by Respondent No.1 in his
address. He has however stated that in both the addresses, Respondent No.1
had given a broad overview of the activities of his family regarding a
business which was set up in the year 1937 prior to his birth on which, as
long as his father Mian Muhammad Sharif was alive, he was Incharge and solely
running the business. He has further submitted that the speeches made by
Respondent No.1 were not in the nature of an item wise response or an
affidavit of facts setting out in detail, in a chronological order generation
and use of the funds as they were utilized and invested in the lifetime of
his father. The learned counsel has also referred to the affidavit of Mian
Muhammad Tariq Shafi which has been placed on record through CMA No.735 of 2016
narrating substantially the same facts. He submits that Mian Muhammad Tariq
Shafi has in his affidavit stated that the business in
vii.
It is further submitted that in the case of Al
Azizia Steel Mill in
viii.
Learned counsel submits that in case an elected
Prime Minister is to be removed from office, the Constitution and the law
provide a procedure for doing so namely a ‘vote of no confidence’ or a
declaration by a Court of competent jurisdiction in terms of Article 62(1)(f)
of the Constitution or on a judgment/order to that effect being passed by the
relevant fora under the provisions
of the RoPA. He further submits that in terms of Article 63(2) of the
Constitution where a question arises whether a Member of the Majlis-e-Shoora
(Parliament) has become disqualified from being a member, the Speaker may
refer the question to the Election Commission by way of a Reference within 30
days, where after the Election Commission has the jurisdiction to decide
whether or not the Member has become disqualified to be a Member of the
Parliament. He submits that an application in this regard relating to Respondent
No.1 was moved before the Speaker of the National Assembly which was rejected
on 02.09.2016. The ruling of the Speaker has been challenged before the
Lahore High Court by way of Writ Petition No.31193 of 2016 which is being
heard by the said High Court.
ix.
The learned counsel has further stated that in
terms of Article 62(1)(f) of the Constitution read with various provisions of
the RoPA, a declaration issued by a Court of competent jurisdiction is
required to the effect that a holder of public office is not sagacious,
righteous, non-profligate, honest or ameen.
He submits that there is no declaration against Respondent No.1 in the field
therefore, he cannot be disqualified. He further submits that in a large
number of cases this Court has upheld the decisions of Election Tribunals and
/ or other Courts which have issued declarations but has seldom entertained
matters in exercise of its powers under Article 184(3) of the Constitution
and proceeded to issue declarations and then disqualified the holder of public
office.
x.
The learned counsel has relied upon Muhammad Ijaz
Ahmad Chaudhry v. Mumtaz Ahmad Tarar (2016 SCMR 1); D.G. Customs Valuation v.
Trade International Lahore (2014 SCMR 15); Iqbal Ahmad Landrail v. Jamshed
Alam (PLD 2013 SC 179); Muhammad Khan Junejo v. Federation of Pakistan (2013
SCMR 1328); 2013 SCMR 1279; Allah Dino Khan Bhayo v. Election Commission of
Pakistan (2013 SCMR 1655); PLD 2013 SC 282; Mudassar Qayyum Nahra v. Bilal
Ijaz (2011 SCMR 80); Nasir Mehmood v. Imran Masood (PLD 2010 SC 1089);
Iftikhar Ahmad Khan Bar v. Chief Election Commissioner (PLD 2010 SC 817);
Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828); Muhammad Khan Junejo v.
Fida Hussain Junejo (PLD 2004 SC 452) and Aftab Ahmad Khan v. Muhammad Ajmal
(PLD 2010 SC 1066).
xi.
On the basis of the afore-noted judgments, the
learned counsel has vehemently argued that a prior declaration /
determination is required before the holder of a public office can be
disqualified by this Court in exercise of its powers under the Constitution.
Referring to the case of Mr. Yousuf Raza Gillani, Former Prime Minister, he
submits that the said case originated from the NRO case reported as Mobashir
Hassan v. Federation of Pakistan (PLD 2010 Supreme Court 265) in which a
direction was issued to the Federal Government to write a letter to certain
Swiss authorities which was not complied with. A five member Bench of this
Court therefore issued a notice to Mr. Gillani for contempt of this Court
where after, he was convicted and sentenced to imprisonment till rising of
the Court vide order dated 02.02.2012. However, in view of the fact that the
Speaker of the National Assembly refused to send the matter to the Election
Commission for denotification of Mr. Gillani, he was disqualified by this
Court. He therefore submits that the said case is distinguishable on facts as
well as the law and cannot be used as a precedent in the instant case.
xii.
The learned counsel further submits that another
set of cases arose out of dual nationality held by certain holders of public
offices, Tassaduq Hussain Jillani, J as he then was in his judgment reported
as Umar Ahmad Ghumman v. Government of Pakistan (PLD 2002
xiii.
Making his submission with reference to powers of
this Court under Article 184(3) of the Constitution, the learned counsel submits
that bulk of authorities and previous judgments of this Court point towards
prior declaration by a Court of competent jurisdiction before this Court can
proceed to disqualify the holder of a public office. He further submits that
in the limited number of cases where such powers have been exercised
directly, the said course was adopted either because there were admitted
facts / documents or there was no need to go into an exercise of recording
voluminous evidence.
xiv.
Learned counsel for Respondent No.1 submits that
the petitioner seeks disqualification of Respondent No.1 on the basis of
speeches made on the television and on the floor of the House. He maintains
that in the first place it has not been established that Respondent No.1 had
lied in either of the two speeches or had made a false statement. If at all
there was any omission, the same cannot be termed as a misstatement. He
further submits that if a comparison is to be made between the facts narrated
by Respondent No.1 in his speeches and those disclosed by other members of
his family in their interviews which have appeared on the Electronic and
Print Media, the said exercise cannot be undertaken by this Court in exercise
of its jurisdiction under Article 184 of the Constitution because the same would
require examination of voluminous record and an opportunity being provided to
all concerned to meet the allegations against them.
xv.
Without prejudice to the fact that Respondent
No.1 did not lie or make any false statement in his speeches, the learned
counsel submits that the speech made by him before the National Assembly is
covered by the privilege available to members of Parliament provided under
Article 66 of the Constitution. He submits that the Constitution provides for
freedom of speech in the Parliament and protects speeches made on the floor
of the House against liability in any proceedings in any Court in respect of
anything said by such Member. Learned counsel maintains that parliamentary
privilege is a concept recognized all over the world and it is an accepted
norm all over the world that speeches made in the Parliament cannot be used
as evidence before any Court, authority or Tribunal against the maker of such
speeches. In this regard, the learned ASC has referred to Halsbury's Laws of
England, Wade & Bradley on Constitution and Administrative Law; and case
of
xvi.
The learned counsel has also referred to various
judgments of the Indian Courts to stress that parliamentary privilege
protects speeches made on the floor of the House which cannot be used against
the maker of such speeches as evidence in any Court or Tribunal. He further
maintains that parliamentary privilege is equally available to all members of
the Parliament and no exception applies to the Prime Minister by reason of
his office.
xvii.
The learned ASC for Respondent No.1 has next
taken up the allegation of tax evasion. He submits that disqualification of
Respondent No.1 is sought on the basis of provisions of Article 63(1)(o) of
the Constitution read with Section 99 (1)(a)(d) of the RoPA. In this regard,
he submits that the petitioners have leveled the following allegations
against Respondent No.1:- a)
That a sum
of US$ 9 Million had been received from sale of Gulf Steel Mill. Respondent
No.1 should have declared the said sum in his Wealth Tax Statement and paid
wealth tax on the same. b)
The Wealth
Tax Statements for the years 2011-15 were filed late by Respondent No.1. The
said act is an offence which must lead to his disqualification. c)
Respondent
No.1 had given gifts in the sum of Rs.31,700,000/- to Respondent No.6 and
Rs.19,459,400/- to Respondent No.8 which were sham transactions and were not
given through normal banking channels. d)
That the
gifts received by Respondent No.1 from Respondent No.7 should have been
treated as income from other sources and tax should have been paid on the
same.
xviii.
As far as late filing of Wealth Tax Statements is
concerned, the learned counsel for Respondent No.1 submits that the
allegation was utterly baseless in view of the fact that the Wealth Tax
Statements were filed on 29.11.2011 & 09.12.2012 which were well within
time. Even otherwise, he submits that the said grounds were not pressed by
the learned counsel for the petitioner in his arguments and had abandoned the
same. As far as the question of disqualification in terms of Article 63(1)(o)
of the Constitution is concerned, the learned counsel submits that it is
settled law that such disqualification cannot be pressed into services unless
there is a finding by a Court of competent jurisdiction that the holder of a
public office had defaulted in payment of government dues. He maintains that
there is nothing on record nor a finding handed down by any Court, Tribunal
or authority that Respondent No.1 had committed default of any nature
involving payment of government dues. In support of his contentions, the
learned counsel has relied on National Bank of Pakistan v. SAF Textile Mills
Ltd (PLD 2014 SC 283); Summit Bank Limited v. Qasim and Co. (2015 SCMR 1341)
and Agril D. B. of Pak v. Sanaullah Khan (PLD 1988 SC 67).
xix.
The learned counsel has further submitted that
the petitioner seeks disqualification of Respondent No.1 in terms of clause 1
of his prayer. However, in clause 6 of the prayer, he seeks a direction to
the FBR to reopen the Tax Returns of Respondent No.6 and scrutinize the same.
On the basis of prayer clause 1 and prayer clause 6, the learned counsel for
Respondent No.1 submits that if prayer clause 6 of the petitioner is granted,
prayer No.1 cannot be granted. Likewise, he maintains that prayer clause 6
itself shows that no determination of government dues has been undertaken by
any competent Court, authority or Tribunal. Further, if prayer clause 6 is
denied, the prayer clause 1 cannot be granted either.
xx.
As far as payment of wealth tax is concerned, the
learned counsel has argued that the Wealth Tax Act, 1963 was repealed in
2003. In terms of Sections 17 & 17A of the Wealth Tax Act, a limitation
of 4 to 5 years has been provided within which Wealth Tax Officer can reopen
the Returns and make a determination regarding short payment / default, if
any. The learned counsel submits that the period of limitation has since
expired and no officer or machinery is available for implementation of the
Act. Even otherwise, relying on Section 6(a) of the General Clauses Act, the
learned counsel maintains that once a statute has been repealed and during
its subsistence no liability has been determined, no such liability can now
be determined especially so where a period of limitation as provided in the
Act itself has expired. He further maintains that Respondent No.1 is to be
judged on the same standards as other citizens of the country and he cannot
be judged on any higher standard by reason of the fact that he is the Prime
Minister of the country.
xxi.
Learned counsel further submits that it is an
admitted fact that Gulf Steel was set up from funds generated through loans
obtained from Banks. The Respondent No.1 was not a Shareholder or Director or
Guarantor of the said business. Even otherwise, according to the case of the
petitioner himself, the sale of said business did not generate any profits
which could have necessitated disclosure of the same by the Respondent in any
of his Returns. He maintains that this is without prejudice to the stance of
Respondent No.1 that he had no nexus or connection with the said businesses.
xxii.
The learned counsel for Respondent No.1 refers to
paragraph No.18 (xxi) of Constitution Petition No.29 of 2016 and submits that
there were assertions in the said paragraph, that a sum of Rs.31,700,000/-
had been gifted by Respondent No.1 to Maryam Safdar (Respondent No.6) and a
sum of Rs.19,459,400/- had been gifted by him to his son Hassan Nawaz
(Respondent No.8). He further submits that Respondent No.1 admits the said
transactions and the same have duly been reflected in the Return filed by him
for the financial year 2011. He also submits that corresponding entries in
the accounts statement have been made which are being placed on record. The
said transactions were undertaken through banking channels and the allegation
that the transactions were merely devices to evade payment of income tax is
patently incorrect. He also submits that various sums of money including a
sum of US$1,914,054/- received by Respondent No.1 from his son Hussain Nawaz
which was duly reflected in the Tax Returns of Respondent No.1 for the year
2011. He submits that the argument of the learned counsel for the petitioner
that amounts received by Respondent No.1 by way of gift should have been treated
as income from other sources and were therefore, liable to be taxed is not
supported by the law. In this regard the learned counsel has drawn our
attention to Section 39(3) and (4) of the Income Tax Ordinance, 2001 which
provides that where a person receives a gift through banking channels from a
person who has a National Tax Number (NTN), he is not required to pay tax on
the amount received. He states that Mr. Hussain Nawaz, despite being a
non-resident, possesses an NTN, therefore, the said gift from him to
Respondent No.1 is neither liable to be treated as ‘Income from Other
Sources’ nor is it taxable. Explaining the transaction, the learned counsel
submits that the funds originated from Saudi Arabia which were sent through
banking channels to the account of Respondent No.1 who encashed the same at
the official exchange rate of the State Bank of Pakistan and the concerned
Bank duly issued a certificate of encashment to claim the benefit of Section
111 of the Income Tax Ordinance, 2001 (the Ordinance). He has also referred
to Section 111(4) of the Ordinance to argue that no tax is payable on foreign
remittances received through banking channels. Referring to the Tax Returns
filed by Respondent No.1, the learned counsel submits that under the new tax regime
under the Ordinance a scheme of self-assessment was introduced. An assessee
can file his Return on the basis of self-assessment with the Taxation Officer
under Section 114 of the Ordinance. On expiry of the statutory period, the
Return so filed is treated as a Final Assessment Order of the Commissioner by
operation of law. He submits that although the Taxation Officer has the
jurisdiction on receipt of definite information regarding tax evasion to
reopen the matter, no such, “definite information” was provided to the
Taxation Officer that may have furnished justification to reopen, reexamine
or re-scrutinize the Returns filed by Respondent No.1. In support of his
contention, the learned counsel has relied on the cases of Commissioner of
Income-Tax v. Sindh Engineering (Pvt.) Ltd. [2002 SCMR 527 at 535(F)], Income-tax Officer v. Chappal
Builders [1993 SCMR 1108 at 1112 and
1113]; and Commissioner of Income-Tax v. Sindh Engineering (Pvt.) Ltd.
[2002 SCMR 527].
xxiii.
The learned counsel further submits that according
to the law laid down by this Court, tax evasion has to be specifically
alleged and proved, whereas the same cannot be presumed. Reliance has been
placed on the case Federation of Pakistan v. Sindh High Court Bar Association
[PLD 2012 SC 1067 at 1071, 1072 and
1074]. He further submits that the law discourages fishing and roving
inquiries and insists upon definite information regarding tax evasion before
the tax record of an assessee can be reopened. Reference has been made to the
cases of Assistant Director, Intelligence and Investigation v. M/s. B.R.
Herman [PLD 1992 SC 485 at 491 (C)] and
Re State of Norway’s Application (No. 1) [1989 1-AER 661 at 684, 685 and 691].
xxiv.
The learned counsel for Respondent No.1 further
submits that the following amounts were received by Respondent No.1 from Mr.
Hussain Nawaz from 2011 to 2014: - i) Rs.129,836,905/-
(Tax Year 2011); ii) Rs.26,610,800/- (Tax
Year 2012); iii)
Rs.190,445,024/-
(Tax Year 2013); and iv) Rs.197,499,348/- (Tax
Year 2014)
xxv.
He submits that all the aforesaid gifts were sent
and received through banking channels, were duly declared to the authorities
by filing the requisite Returns and were not liable to any tax in view of the
fact that the same had been sent by holder of a National Tax Number.
Consequently, there was neither concealment nor tax evasion on the part of
Respondent No.1.
xxvi.
Concluding
his arguments on the question of tax evasion, the learned counsel submits
that disqualification of Respondent No.1 is being sought inter alia on the basis of Article 63(1)(o) of the Constitution
read with relevant provisions of the RoPA. Both the said provisions require
liability of a person being determined by a competent forum and such
determined liability remaining unpaid. He submits that it is neither alleged
nor established from the record that any determination of tax liability of
Respondent No.1 has been made by a competent forum and that the same has
remained unpaid. The learned counsel submits that even otherwise in prayer
clause 6, the petitioner he has admitted that no determination has so far
been made by the competent authorities against Respondent No.1. As a
necessary corollary, it can safely be said that in the absence of
determination of liability regarding payment of Government dues the
provisions of Article 63(1)(o) of the Constitution cannot be invoked.
xxvii.
The
learned ASC for Respondent No.1 has read paragraph 18 (ix) and (xxiii) of the
petition to point out that it has been asserted in the said paragraphs that,
“admittedly” Ms. Maryam Nawaz is a dependent of Respondent No.1. By alleging
that Respondent No.1 had failed to disclose the said fact in his nomination
papers for the General Election, 2013, Respondent No.1 was guilty of
concealment and signing a false declaration and was therefore, liable to be
disqualified. The learned counsel submits that in the first place it is not
admitted that Respondent No.6 was / is a dependent of Respondent No.1. He has
taken us through the Wealth Statement filed by Respondent No.1 for the tax
year 2011 which shows that land worth Rs.24,851,526/- was shown to be held in
the name of Ms. Maryam Safdar, Respondent No.6 in the column for spouse,
minor children and other dependents. He submits that the land in question was
owned by Respondent No.1 and was held in the name of Respondent No.6. In the
absence of any specific column to disclose Benami transactions, the
name of Respondent No.6 was mentioned in Column No.12 which deals with assets
owned by spouse, minor children and other dependents. He however, maintains that merely by reason of the name
of Respondent No.6 being mentioned in Column No.12 would not make her a
dependent especially so where the property was clearly mentioned as being
held “in the name of” Respondent No.6. In order to substantiate his
contention, the learned counsel has drawn our attention to Notification dated
26.8.2015 issued by the Federal Board of Revenue through which the anomaly in
the Wealth Statement Form was removed by inserting a column for assets held
in the name of others. He has also referred to an opinion rendered by A.F.
Ferguson & Company, Chartered Accountants which supports the aforesaid
contentions.
xxviii. He further submits that the price / value of the land in question
(Rs.24,851,526/-) was subsequently paid by Respondent No.6 to Respondent No.1
through banking channels and the said transaction was duly reflected in the
wealth statement of Respondent No.6 for the tax years 2011-13. Likewise since
the agricultural property in question had been purchased by Respondent No.6
on payment of sale consideration, the said property was not mentioned in the
wealth statement of Respondent No.1 for the years 2012-13. However, the cash
received in lieu of transfer of the property was duly reflected in the
accounts statement of Respondent No.1.
xxix. On the question whether or not Respondent No.6 is a dependent of
Respondent No.1, learned counsel submits that Respondent No.6 has independent
sources of income and notwithstanding gifts made by Respondent No.1 in favour
of Respondent No.6 involving cash and immovable properties, status of
Respondent No.6 as an independent adult has remained unchanged. In this
regard, he has placed reliance on M. A. Faheemuddin Farhum v. Managing
Director/Member (Water) [2001 SCMR 1955], in which the definition of
dependent as given in the Black’s Law Dictionary was cited with approval. The
learned counsel also refers to Ball, Decd., In re. Hand v. Ball [1947 1 Chancery 228] and In re
xxx. As far as legal value of the Trust Deed produced by Respondent No.6 is
concerned, the learned counsel submits that the said document was governed by
the English Law. He maintains that it is settled law that questions arising
out of foreign law are to be treated as questions of fact which need to be
proved through the various modes provided in law including production of
expert witnesses. In this regard, he refers to Articles 52, 94 & 112 of
the Qanun-e-Shahadat Order, 1984. Reference was also made to Order VII Rule
1(e) of the Code of Civil Procedure, 1908. The learned counsel also relies
upon Atlantic Steamer’s Supply Co. v. M.V. Titisee [PLD 1993 SC 88 @ 94(B)
and 97].
xxxi. The learned ASC submits that this Court has, over time set standards
and criteria which may be applied by it while dealing with questions of
disqualification of elected holders of public offices in exercise of powers
under Article 184(3) of the Constitution. In this regard, he made the
following submissions:- i) In
most cases where elected Parliamentarians were disqualified in exercise of powers
under Article 184(3) of the Constitution, this Court relied on material which
was either admitted or not denied or decisions of Courts / Tribunals were not
appealed against. In some cases, involving fake degrees and dual nationality,
the material/documents available before this Court were either undisputed or
undisputable, therefore, this Court relied on such material and recorded its
findings on the same; ii) Where
there were disputed questions of fact requiring recording of evidence, or
there was voluminous record that needed to be proved, involving intricate
questions of law and facts this Court declined to interfere. In support of
his contention, the learned counsel has placed reliance on Farzand Ali v.
Province of West Pak [PLD 1970 SC 98 @ 113]; Khuda Bakhsh v. Zafarullah Khan
Jamali [1997 SCMR 561]; Mehmood Akhtar Naqvi v. Federation of Pakistan [PLD
2012 SC 1089].
xxxii.
Referring to the material placed by the
petitioner on the record, the learned counsel submits that the petitioner has
relied upon certain passages of a book titled Capitalism's Achilles Heel authored by Raymond W. Booker. He submits that at best the text of
the book represents an opinion of the author and unless the said author
appears before this Court, is examined and subjected to cross-examination,
his opinion cannot be read in evidence or taken as gospel truth. In this
regard, reference has been made to Article 78 of the Qanun-e-Shahadat Order,
1984 to argue that unless the author/ signatory of a document appears as a
witness and is subjected to cross-examination, such document cannot be read
in evidence. He further stated that in a few exceptional cases where this
Court has recorded findings on the basis of unproved documents, such
documents had been admitted by both sides on the basis whereof the Court
recorded its findings. In this regard, reference has been made to Muhammad
Asif v. Federation of Pakistan [PLD 2014 SC 206 @ 227].
xxxiii. As far as the use of newspaper clippings and articles are concerned,
the learned counsel submits that the general law on the subject is that such
cuttings, reports and news items cannot be read as evidence. He has referred
to Aftab Shaban Mirani v. President of Pakistan [1998 SCMR 1863 @ 1874(E)]
and Muhammad Azam v. Khalid Javed Gillan [1981 SCMR 734 @ 736(B)] and
Pakistan Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642 @
668(H) and 669]. He maintains that although in some cases, this Court relied
upon newspaper clippings and articles, such cases were exceptions to the
general rule in so far as in such cases, this Court was called upon to
examine the validity of executive actions to see whether there was any
material available before the executive authority to take executive action
and whether such executive actions had not been taken arbitrarily and without
any justifiable basis. In such case, this Court had held that it was not
sitting in appeal against exercise of powers by the executive authority but
was examining the validity of such exercise to see whether or not there was
any material before the executive authority which furnished basis for
exercise of such authority. He further maintains that most of these cases
related to exercise of executive powers by the President of Pakistan under
the erstwhile Article 58(2)(b) of the Constitution. In this regard, he
referred to Islamic Republic of Pakistan v. Abdul Wali Khan [PLD 1976 SC 57 @
112 (LL)]; Begum Nusrat Bhutto v. Chief of Army Staff [PLD 1977 SC 657]; and
Wattan Party v. Federation of Pakistan [PLD 2006 SC 697].
xxxiv. He further maintains that the general policy of law as well as the view
of this Court has been that efforts should be made to uphold executive
actions. Unless it is shown that such actions were taken maliciously,
arbitrarily and without sufficient and adequate material, this Court has
desisted from interference in such cases. Reference has been made to
Chairman, Railways Board v. Abdul Majid Sardar [PLD 1966 SC 725 @ 730];
Lahore Improvement Trust v. Custodian of Evacuee Property [PLD 1971 SC 811 @
837(J)]; Saghir Ahmed v. Province of Punjab [PLD 2004 SC 261 @ 267(B)]; and
Benazir Bhutto v. President of Pakistan [PLD 2000 SC 77 @ 84].
xxxv. In the case of Benazir Bhutto v. President of Pakistan [PLD 2000 SC
77], the matter arose out of dismissal of the Government of Mohtarma Benazir
Bhutto by the then President of Pakistan in exercise of powers conferred on
him under Article 58(2)(b) of the Constitution. This Court dismissed the
petitions challenging the executive action taken by the President of Pakistan
in which inter alia allegations of
corruption were also leveled. However, on an application moved by the
petitioner in the said case, this Court clarified that the material and
evidence examined and findings recorded by it were limited to the legality
and validity of an executive action under Article 58(2)(b) of the
Constitution and the same would not be used against the petitioner in any
other proceedings initiated against her on charges of corruption.
xxxvi. The learned counsel for Respondent No.1 specifically stated that he did
not challenge the maintainability of the petition or the powers of this Court
in terms of Article 184(3) of the Constitution to entertain the same. Relying
on the cases of Murree Brewery Co. Ltd v. Pakistan [PLD 1972 Supreme Court
279] as well as CIT v. Eli Lilly Pakistan (Pvt) Ltd [2009 SCMR 1279], the
learned counsel submits that by now it is settled law that even if an
alternate remedy is available this Court may in exercise of its
constitutional jurisdiction entertain the matter. He, however, pointed out
that it has also been held by this Court that where a party has chosen to
avail an alternate remedy, and is in the process of doing so, this Court will
exercise powers (despite availability of alternate remedy and the fact that
it is being availed) only in cases where the matter involves fundamental
rights and has been pending in the High Court for a number of years without
any effective order having been passed. He further submits that on the
doctrine of “effective pendency”
mere pendency would not preclude this Court from exercising its jurisdiction
under Article 184(3) of the Constitution. Reference in this regard has been
made to Benazir Bhutto v. Federation of Pakistan [PLD 1988 SC 416]. He,
however, maintains that the aforesaid preconditions for exercise of jurisdiction
by this Court are not present in the instant case.
xxxvii. In the above context, the learned counsel has referred to CMA#320 of
2017 which provides details of a number of References filed by the Members of
Political Parties headed by the petitioners and others which are presently
pending before the Election Commission. It is also pointed out that a
constitutional petition (Writ Petition No.31193 of 2015) filed by a Member of
the Political Party headed by the petitioner is also pending before the Lahore
High Court which raises identical questions of law and fact. Other References
have been filed before the Speaker of the National Assembly which are
presently pending before him.
xxxviii. The learned counsel for Respondent No.1 submits that in matters
involving disqualification, this Court has set standards of evidence which
are required to be met in order to disqualify an elected Member of the
Parliament. He maintains that one such standard is that the evidence must
meet the requirements of a criminal trial and the benefit of any doubt that
may arise must go to the accused. In this regard, he has referred to Muhammad
Saeed v. Election Tribunal,
xxxix. The learned counsel submits that in order to disqualify a holder of
public office under Article 62(1)(f) of the Constitution a declaration of a
Court of law is required. Although, this Court is a Court of law, the
declaration visualized under Article 62 of the Constitution has to be given
effect by complying with the requirements of Articles 10A, 17 & 25 of the
Constitution. He maintains that unless provisions of Article 10A of the
Constitution are adhered to, the requirements of justice and equality before
the law would not be met. He therefore maintains that the allegations against
Respondent No.1 must be judged on the same standards as set by this Court for
disqualification of ordinary Members of the Parliament as there are no separate
and / or special rules for disqualification of the Prime Minister of the
country. 12. Mr.
Shahid Hamid, learned Sr.ASC, appearing on behalf of Respondents No.6, 9
& 10 made the following submissions:- i.
At the very outset, the learned counsel stated
that he adopts the arguments of Mr. Makhdoom Ali Khan, learned Sr.ASC for
Respondent No.1. He has also placed on record a statement of Respondent No.6
which was duly signed by him on her behalf. He submitted that the petitioners
had alleged that the Respondents had not submitted any documents in order to
substantiate their defence. He pointed out that Respondents No.6 to 8 had
submitted a number of documents and if necessary more documents would be
submitted on behalf of Respondents No.7 & 8. In this regard, he gave a
list of documents that had been submitted on behalf of Respondents No.6 to 8
in view of the fact that at the relevant time all three Respondents were
being represented by one learned counsel (Mr. Muhammad Akram Sheikh).
However, on a subsequent stage the team of Lawyers representing the said
Respondents was changed and now Respondents No.6, 9 & 10 were being
represented by him (Mr. Shahid Hamid, Sr.ASC) while Respondents No.7 & 8
were being represented by Mr. Salman Akram Raja, ASC. The list of documents
is as follows:- i) Concise statement on behalf of Respondents No.6 to 8 (CMA#7391 of 2016); ii) Supplementary concise statement
(CMA#7531 of 2016); iii)
Letter issued by Sheikh Hamad (CMA#7638 of 2016); iv)
Response to
CMA#7511 of 2016 filed by the petitioner (CMA#7646 of 2016); v)
Trust Deed
dated 02.02.2006 relating to vi)
Copies of
land record Registry relating to vii)
Tax
Returns of Respondent No.6 from 2011-16; viii)
Tax
Returns of Mst. Shamim Akhtar, grandmother of Respondent No.6 (CMA#8116 of
2016); ix)
Wealth
Tax Statements of the father of Respondent No.6, Bank Statements and related
documents (CMA#2519 of 2017); x)
Copies
of five References pending before the Election Commission of Pakistan and a
Constitutional Petition pending before the Lahore High Court (CMA#320 of
2017); and xi)
Documents
in support of establishing that Respondent No.6 was not beneficial owner of
the ii. The learned counsel submits that
there were mainly three allegations against Respondent No.6 as spelt out in
paragraph 18(ix), (xi) & (xiii) of Constitution Petition No.29 of 2016.
He further submits that the first allegation is that Respondent No.1 did not
declare the assets of Respondent No.6 in his Nomination Form filed for NA-120
during General Election, 2013. The second allegation is that the amounts
gifted by Respondent No.1 to Respondent No.6 were not through a crossed
cheque. And the third allegation (xiii) is that Respondent No.1 had declared
Respondent No.6 as his dependent in his Wealth Tax Statements for the year
2011. iii. The learned counsel submits that
there is no prayer against Respondent No.6 made in the petition. He further
points out that neither in Constitution Petition No.30 of 2016 filed by
Sheikh Rashid Ahmed nor in Constitution Petition No.3 of 2017 filed by Ameer,
Jamaat-e-Islami, Respondents No.6 to 10 have been impleaded. iv. As far as Respondent No.9 is
concerned, the learned counsel states that in paragraph 18(xii) of
Constitution Petition No.29 of 2016, it has been alleged that he had not
disclosed the gift of Rs.31,700,000/- received by his wife (Respondent No.6)
in his Tax Returns and on this basis alone disqualification of the said
Respondent was being sought as a Member of the National Assembly. v.
Giving an outline of his submissions, the learned
counsel for Respondents No.6, 9 & 10 has submitted that he would focus
his arguments on the following aspects:- i)
That on the
basis of pleadings before the Court, no case is made out against Respondent
No.6. Further no relief is sought against her; ii)
That he
would submit arguments with reference to the Income Tax Ordinance, 2001 (the
Ordinance); Representation of People Act, 1977 (the RoPA); and Section 5(e)
of the Prevention of Corruption Act, 1947 (the Act); iii)
That he
would make submissions relating to the concept of dependent / dependency with
reference to the provisions of the RoPA and the Ordinance; iv)
That
arguments would be addressed by him with reference to CMA No.2519 of 2017 to
establish that neither in fact nor in law was Respondent No.6 a dependent of
Respondent No.1; v)
That he
would discuss and analyze the interview of Respondent No.6 with vi)
That the
concept of beneficial ownership would be discussed and arguments would be
addressed to establish that Respondent No.6
is and never was a beneficial owner of the Mayfair Properties (CMA#394 of 2017); and vii)
That
arguments would be addressed relating to the scope and extent of jurisdiction
of this Court under Article 184(3) of the Constitution and exercise of such
powers against private parties. vi. The learned counsel submits that
during the course of his arguments, he would also rely on the following
documents:- i)
Income Tax
Returns of Respondent No.6 from
2011-12 (CMA#7319 of 2016); ii)
Income Tax
Returns of Respondent No.6 for the
year 2011-12; and iii) An opinion rendered by A.F. Ferguson &
Company, Chartered Accountants CMA#7531 of 2016. vii.
He states that the following documents have been
placed on record with the aforesaid CMA which would be relied upon:- a)
License
issued in favour of Gulf Steel by the b)
Lease
Agreement in favour of Gulf Steel; c)
Land Rent
Agreement with Gulf Steel; d)
Contract for
sale of 75% share of Gulf Steel in favour of Al-Ahli; e)
Agreement to
Sell for transfer of remaining 25% share in Gulf Steel; f)
Photographs
showing inauguration of Gulf Steel by the Ruler of g)
Affidavits
of Mian Muhammad Tariq Shafi; h)
Incorporation
Certificates of Nescol Limited
and Nielsen Enterprises
Limited; i)
Shares
Certificate issued from time to time regarding ownership of Nescol Limited and Nielsen Enterprises
Limited (pages 65 to 70); j)
Trust Deed
dated 02.02.2006 relating to Coomber Enterprises; k)
Income Tax Returns
of Respondent No.6 from 2011-16 [CMA#8116 of 2016 (pages 2 to 100)]; l)
Income Tax
Returns of Mst. Shamim Akhtar, grandmother of Respondent No.6 for the years
2011-16 (pages 100 to 177); m)
Wealth Tax
Statements of Respondent No.1 and that of Mst. Shamim Akhtar for the year
2010 (CMA#2519 of 2016); and n)
Accounts
Statements of Respondent No.1 relating to his accounts with Standard
Chartered Bank and Habib Bank Limited showing entries dated 15.02.2011
indicating debit and credit entries to reflect payment by Respondent No.6 to
Respondent No.1 for price of land held in the name of Respondent No.6. viii.
Learned counsel appearing on behalf of
Respondents No.6, 9 & 10 has submitted that the allegation that
Respondent No.9 had not disclosed the gift of Rs.31,700,000/- received by his
wife (Respondents No.6) in his Tax Returns is misconceived. He has stated
that in the first place, Respondent No.9 did not file his Tax Returns during
the period between 2011-14, in view of the fact that he did not have an NTN
till 28.01.2014 and tax payable by him was deducted at source. However, the
gift received by Respondent No.6 from her father was disclosed in her Returns
and copies of her Returns were filed with the nomination papers of Respondent
No.9. This being the situation, there was no question of any concealment on
the part of Respondent No.9 or violation of any laws on his part, attracting
the penalty of disqualification. He submits that even if for the sake of
argument it is admitted that for the years 2011-14, Respondent No.9 was
required to file Income Tax Returns and having failed to do so was liable to
pay penalties in terms of Section 114(2) read with Section 82 of the
Ordinance, neither a show cause notice was issued to him by the Income Tax
authorities nor were any penalties imposed on him which may have remained
unpaid. Therefore, Respondent No.9 cannot by any stretch of language be
termed as a defaulter. ix.
Learned counsel has also informed us that a
number of References on the same subject as this petition are pending before
the Election Commission of Pakistan. In one case where the Speaker of the
National Assembly had declined to forward a Reference to the Election
Commission, the order of the Speaker is under challenge before the Lahore
High Court under Article 199 of the Constitution. He submits that although he
does not challenge the maintainability of these petitions, this fact needs to
be kept in mind while adjudicating these petitions. x.
The learned counsel has formulated the following
questions with reference to the scope of jurisdiction of this Court under
Article 184(3) of the Constitution:- a)
Enforcement
of which Fundamental Rights requires a declaration that Respondent No.6, who
is a private citizen, is a dependent of her father and the owner of a
property in a foreign country; b)
How a
question whether Respondent No.6 is a dependent of her father is a matter of
public importance; c)
Can disputed
questions of fact i.e. whether Respondent No.6, a private citizen, is a
dependent of Respondent No.1 and whether she is the owner of a foreign
property, be determined by this Court in exercise of its powers under Article
184(3) of the Constitution without recording evidence; and d)
Whether the
petition is bona fide or based upon political animosity and forged documents.
If it is found that the petition is based upon forged documents, what is the
effect? xi.
Learned counsel has drawn our attention to the
document produced by the petitioner and appended with CMA#7511 of 2016 which
is a board resolution purportedly passed on 07.02.2016 bearing the signatures
of Respondent No.6 (Mrs. Maryam Safdar). He submits that the document in
question is patently a forged document as the signatures appearing on the
said document are not those of Respondent No.6. He refers to the admitted
signatures of Respondent No.6 (Mrs. Maryam Safdar) on the documents available
on page 244 of CMA#7530 of 2016 and page 5 of CMA No.7661 of 2016. He submits
that even to a naked eye, it is apparent that the admitted signatures of
Respondent No.6 differ in material aspects from the signatures appearing on
the afore-noted board resolution. Likewise, he has referred to the personal
information form produced by the petitioner appended with CMA#4 of 2016 at
page 17 and submitted that the said signatures are ex facie not those of the Respondent No.6 as the same are clearly
different from her admitted signatures. In this context, the learned counsel
has relied on Hafeezuddin v. Abdul Razzaq [PLD 2016 SC 79 @ 95]. He has also referred to, “the law
relating to handwriting, signatures etc by Dr. B. R. Sharma”. xii.
He further submits that the document in question
is a forged document, as there was neither reason nor occasion for Respondent
No.6 to appoint LZ Nominee Limited as a Nominee Director of Nescol Limited
retrospectively with effect from 13.05.2004. xiii. At this stage, the learned
counsel read the concise statement filed on behalf of Respondent No.6. It was
noticed that the said concise statement was filed on 07.11.2016. It may be
noted that the letter sent by Sheikh Hamad was dated 05.11.2016, while the
concise statement was filed two days later, yet there was no mention in the
concise statement filed on behalf of Respondents No.6 to 8 that a part of the
funds generated from sale of Gulf Steel was invested in the real estate business
of Thani Family in Qatar (as has been
stated in the letter of Sheikh Hamad). No explanation has been offered by
the learned counsel for Respondent No.6 for the said omission. xiv. It also appears that in
paragraph 5(c) at page 6 of the concise statement, Respondent No.6 has stated
that she is only a Trustee for Respondent No.7 in relation to Nescol Limited.
Learned counsel was asked to explain why there is no mention of Nielsen
Enterprises despite the fact that Respondent No.6 also claims to be a Trustee
for the said company. The learned counsel attempted to argue that the lapse
was on account of bona fide
error/lapse in view of the fact that Trust Deed dated 02.02.2006 clearly
indicates that Respondent No.6 is a Trustee for both companies. xv.
The learned counsel for Respondents No.6, 9 &
10 while addressing arguments on the question of dependency of Respondent
No.6 on Respondent No.1 submitted that she had indeed received gifts from
Respondent No.1 i.e. her father from time to time in various amounts and in
the form of immovable property, but there was nothing unusual about it. In
our society, it is a common practice for fathers to give gifts to their
married daughters. The said fact does not make her dependent on Respondent
No.1. He maintained that the term ‘dependency’ is not defined in the
Ordinance. In this context, he referred to Section 2(33) which defines a
minor child; Section 19(8)(b) which states that a minor child shall not
include a married daughter; and Section 116(1)(b) of the Ordinance, which
refers to other dependents. He submitted that in the absence of any specific
definition of dependent one would have to rely on the ordinary meaning of the
said word. In this regard, he referred to Black’s Law Dictionary as well as a
judgment of this Court reported as M. A. Faheemuddin Farhum v. Managing
Director/Member (Water) [2001 SCMR 1955] in which the definition of dependent
as given in Black’s Law Dictionary have been relied upon. xvi. The learned counsel further
referred to Section 116(2) of the Ordinance read with Rule 36 of the Income
Tax Rules and the form of Wealth Tax Statement as given in part 4 of the 2nd
Schedule of the Income Tax Rules which provide for filing of Wealth
Statements and Wealth Reconciliation Statements. He submitted that Item#12 of
the said form requires a disclosure of assets held in the name of spouse,
minor children and other dependents. In view of the fact that immovable
property was purchased by Respondent No.1 in the name of Respondent No.6 and
there was no separate column to disclose the same, it was mentioned in the
only available column provided in the form. He, however, emphasized the fact
that mere mentioning of Respondent No.6 in the said column did not mean that
she was a dependent of Respondent No.1. In fact it was bona fide disclosure of a property held by Respondent No.1 in the
name of Respondent No.6. He has substantiated his argument by referring to
SRO No.184/2015 through which a new column was added to the aforesaid form by
substituting Column#12 with Column#14 which provides for disclosure of assets
held in, “others names”. He further maintains that in view of the fact that
price of the said property was paid by Respondent No.6 to Respondent No.1
through banking channels, the said property was not mentioned in the Wealth
Tax Returns or the nomination papers of Respondent No.1 in the year 2013. He
has further pointed out that copies of the accounts statements of Respondent
No.6 as well as Respondent No.1 indicate that a sum of Rs.24,851,526/- was
debited from the account of Respondent No.6 and credited to the account of
Respondent No.1 during the tax year 2012. He therefore submits that there is
no substance in the argument of the learned counsel for the petitioner that
Respondent No.6 was a dependent of Respondent No.1. xvii. Learned counsel submits that the
word ‘dependency’ has different connotations in different laws and the
definition used in one law cannot be transposed / transferred to another law.
He maintains that the question of dependency along with its extent is to be
determined keeping in view the facts and circumstances of each case. xviii. Learned counsel has referred to
the Wealth Statements filed by Respondent No.1 and Respondent No.6 to show
that as of 31st March 2013 when Respondent No.1 filed his
nomination papers, Respondent No.6 had sufficient income and assets of her
own, generated from various sources including agricultural income, sale of
assets and receipt of gifts from various sources and therefore she could not
be termed as a dependent of Respondent No.1. The learned counsel also took us
through four sale deeds on the basis of which agricultural land was purchased
by Respondent No.1 in the name of Respondent No.6. He emphasized the fact
that at the relevant time, consideration for said sale deed was paid by
Respondent No.1 while ostensible owner was Respondent No.6. However,
subsequently the entire sale consideration of Rs.24,851,526/- was paid by
Respondent No.6 to Respondent No.1 through banking channels where-after she
became real owner of the said assets which were duly reflected in her Wealth
Statements and Wealth Reconciliation Statements. xix.
The learned counsel also drew our attention to
various documents indicating that she and her family had been contributing
their due shares in the pool of household expenses maintained by Mst. Shamim
Akhtar, the grandmother of Respondents No.6, 7 & 8 who owns all five
properties in the compound in which Respondent No.6 resides along with her
family. xx.
While rebutting the allegation of the petitioner
that the gifts received by Respondent No.1 and thereafter partly transferred
to his children including Respondent No.6 constituted income from other
sources and was therefore taxable, the learned counsel for the Respondents
pointed out that the funds were sent by Respondent No.7 who holds an NTN, in
favour of Respondent No.1 who also holds a Tax Number therefore the same did
not constitute income from other sources and was not liable to be taxed. He
further pointed out that the amounts given by Respondent No.1 to Respondent
No.6 were transferred through banking channels and were not liable to be
taxed. He further maintains that according to Wealth Statements of Respondent
No.6, she owned assets in access of 200 Million Rupees between 2013-16
therefore by no stretch of the language she could be termed as a ‘dependent’. xxi.
Learned counsel maintained that while exercising
jurisdiction under Article 184(3) of the Constitution, this Court must
establish the bona fides of the
petitioners. He argued that the present petitions were the result of
political differences and rivalries, the petitioners had approached this
Court with unclean hands and were therefore not entitled to any relief in the
present proceedings. In this context, he also referred to T. N. Godavarman
Thirumulpad v. Union of India (AIR 2006 SC 1774); Janata Dal v. H. S.
Chowdhry (AIR 1993 SC 892); and S.P. Gupta and others v. President of India
and others (AIR 1982 SC 149). xxii. Learned counsel also made
submissions regarding the case against Respondent No.10. Referring to
paragraph 18(xvi) of Constitution Petition No.29 of 2016, he submitted that
the allegation against Respondent No.10 is that he had admitted to the charge
of money laundering to the tune of US$ 14.886 Million in a confessional
statement made by him before the Judicial Magistrate on 25.04.2000. Further,
that Respondent No.1 and his brother, the current Chief Minister of the xxiii. Subsequently, a Reference was
filed by the NAB on the same facts which were narrated in the FIRs in the
year 2000. However, the proceedings in the Reference were adjourned sine
die in view of the fact that the
accused had in the meantime left the country and were not available to face
the Reference. However, pursuant to a Writ Petition filed before the Lahore
High Court, a learned Division Bench of the High Court quashed the Reference.
There was disagreement between Members of the Bench on the question whether
or not the matter could be reinvestigated by the NAB. One learned Member of
the Bench held that despite quashment of the Reference, NAB was not barred
from reinvestigating the matter and proceeding further in accordance with the
law. However, the other learned Member of the Bench held that the matter
could not be reinvestigated. In order to resolve the difference of opinion,
the matter was referred to a Referee Judge who agreed that the matter could
not be reinvestigated. The learned counsel pointed out that since the said
judgment of the High Court was never challenged before this Court, the same
had attained finality and the confessional statement on which the Reference
was based had lost its legal value. He maintained that even otherwise, the
confession of Respondent No.10 had been procured under coercion and was not
worthy of any reliance. xxiv. The learned counsel was asked
whether this Court could pass an appropriate order to interfere in the
judgment of the Lahore High Court whereby the Reference against Respondent
No.10 and others was quashed and the NAB was restrained from reinvestigating
the matter on the principles laid down in Tauqeer Sadiq’s case (PLD 2012 SC
132), the learned counsel submitted that the allegation against Respondent
No.10 had withstood scrutiny before various superior Courts of the country
and it would be unjust and unfair to reopen the matter after a lapse of more
than 16 years. xxv. The learned counsel further
pointed out that when Respondent No.10 was elected as a Senator in 2014, his
election was challenged by way of a constitutional petition before the
Islamabad High Court raising the same allegations as earlier leveled in the
FIRs and the References. The Islamabad High Court dismissed the Writ Petition
No.4818 of 2014 and the Intra Court Appeal filed against the judgment of the
learned Single Judge was also dismissed. The matter was never agitated before
this Court, which therefore also attained finality. xxvi. As
far as the questions of money laundering and fake foreign currency accounts
are concerned, the learned counsel also drew our attention to a judgment of
Full Bench of the Lahore High Court reported as Hudabiya Engg. (Pvt) Ltd. v.
Pakistan [PLD 1998 Lahore 90 (paragraph 30)] in which relying on the Economic
Reforms Ordinance, 1992 the Full Bench had held that foreign currency
accounts and transactions undertaken by the petitioner therein enjoyed
complete immunity and protection in terms of the said Ordinance. He,
therefore, maintained that the relief sought against Respondent No.10 could
not be granted. xxvii. The learned counsel further
submitted that disqualification of Respondent No.10 is sought on grounds
which have already been repelled by the Islamabad High Court as well as the
Lahore High Court where a learned Division Bench unanimously quashed the
Reference and one of the grounds which prevailed with the learned Division
Bench was that the alleged confession of Respondent No.10 was not admissible
having been made before the wrong forum. He contended that although there was
disagreement amongst the learned Judges of the Division Bench on the question
whether or not NAB could reinvestigate the matter and proceed thereafter,
such disagreement was resolved by the learned Referee Judge who held that the
matter could not be reinvestigated for reasons recorded by one of the Members
of the Division Bench. He, therefore, submitted that the matter stood settled
and could not be reopened at this stage, especially so, where the judgment of
the Lahore High Court was not challenged before this Court. He further
submitted that the prayer of the petitioner that NAB be directed to file an appeal
against the judgment of the Lahore High Court and the order of the Referee
Judge in Writ Petition No.2617 of 2011 could not be granted because the same
was barred by time. xxviii. The learned counsel for
Respondent No.10 summarized his formulations as follows:- i)
The
disqualification of Respondent No.10 is being sought on the basis of
allegations leveled in 1992 i.e. over 25 years ago. It would, therefore,
neither be just nor proper to reopen the matter at this stage. ii)
The
allegations against Respondent No.10 pertain to a period of time when he did
not hold a public office. In 1992, Respondent No.10 was the Chief Executive
of First Hajveri Modaraba which was a non-banking financial institution. He
further submits that he held a public office for the first time with effect
from 15.09.1992 when he was appointed as iii)
Over the
past 25 years many superior Courts adjudicated upon the matters directly or
indirectly involving Respondent No.10. He was not convicted of any
wrongdoing.. xxix. On our query, the learned
counsel conceded that the acquittal order passed by a learned Division Bench
of the Lahore High Court and the order passed by a five Members Bench of the
Lahore High Court were passed in proceedings in which Respondent No.10 was
not a party. He, however, submitted that both judgments emerged from the same
set of facts and a five Members Bench of the Lahore High Court held that FIA
had no jurisdiction to investigate transactions and foreign currency accounts
which were protected by the Economic Reforms Ordinance, 2002. xxx.
Making his submissions regarding validity of the
confessional statement allegedly made by Respondent No.10, the learned
counsel submitted that it had repeatedly been held by different Courts that
the confessional statement of Respondent No.10 had no evidentiary value,
firstly because it was not made before the competent forum and secondly,
because he was not an accused in the Reference filed against Directors/Shareholders
of Hudaibiya Paper and Board Mills Limited. The record indicates that
Respondent No.10 was granted pardon under Section 26 of the National
Accountability Bureau Ordinance, 1999 (NAB Ordinance) on 21.04.2000
where-after his confessional statement was recorded under the NAB Ordinance.
The learned ASC submits that in terms of Section 26(b) of the NAB Ordinance
in its original form an accused was required to be examined as a witness. He,
however, submits that the said Section of the NAB Ordinance was subsequently
amended to incorporate a provision that the accused was required to be
produced before a Magistrate to make a confessional statement. He submits
that it is settled law as was held by a learned Division Bench of the Lahore
High Court that amendment in the law could not be given retrospective effect.
Therefore, the confessional statement allegedly made by Respondent No.10
before a Magistrate had no legal value. He further submits that since after
the grant of pardon Respondent No.10, was no longer an accused and was not
named as an accused in the Reference, as such, his confessional statement can
neither be used against him nor any 3rd party. He also submits
that the confessional statement can only be used as a statement of a witness
if he appears as a witness in the trial of others. He submits that since no
trial was conducted, there is no question of confessional statement being
used against the Respondent No.10 or any 3rd party. xxxi. The learned counsel contended
that Respondent No.10 was arrested on 15.10.1999 and his confessional
statement was recorded while he was in custody in Attock Fort in April, 2000.
It is clear and obvious from the surrounding circumstances that the
confession had not been made freely, was obtained while Respondent No.10 was
under duress, and as such, it cannot constitute basis for any conviction. He
further points out that no Court has so far assigned any value to the said
alleged confession. He has referred to the provisions of Article 13 of the
Constitution, Section 403 of the Code of Criminal Procedure (Cr.PC) and
Section 26 of the General Clauses Act to argue that said provisions provide
protection against double jeopardy. The learned counsel however did not press
this point any further. xxxii. The attention of the learned
counsel was drawn to a judgment reported as Muhammad Yasin v. Federation of
Pakistan (PLD 2012 Supreme Court 132) in which this Court had held that even
if a judgment of a High Court is not challenged before this Court, it can in
exercise of its jurisdiction under Article 184(3) of the Constitution
interfere in the matter in public interest and for enforcement of Fundamental
Rights. The learned counsel referred to paragraph 8 of the judgment to argue
that the judgment in question was distinguishable in so far as this Court has
held that the Islamabad High Court had only examined transfer orders passed
by the Chairman, OGRA and had not examined the validity of his appointment
which is not the case before this Court. He emphasized the fact that the
judgment was distinguishable and this was not a fit case for this Court to
exercise its jurisdiction under Article 184(3) of the Constitution to
resurrect a matter which had been laid to rest in 2014 by a judgment of the
Lahore High Court. 13. Respondents No.7 & 8
are represented by Mr. Salman Akram Raja, learned ASC. He made the following
submissions:-
i.
The case against Respondents No.7
& 8 has three broad aspects. Firstly, the speeches and interviews given
by Respondent No.1 and members of his family including Respondents No.7 &
8 and the inconsistencies which are being attempted to be shown. He submits
that statements of Respondents No.7 & 8 are being taken as a standard
against which correctness of statements and speeches made by Respondent No.1
are sought to be judged. Secondly, the official records, Income Tax Returns
and Nomination Papers filed by Respondent No.1 are being used to build a case
of default / nonpayment of government dues / evasion of taxes on the part of
Respondent No.1. He submits that an attempt is being made to show that
Respondent No.7 had made gifts to Respondent No.1 which should have been
treated as, “income from other sources” and tax was required to be paid on
such income. He stated that it was being argued by petitioners’ learned
counsel that since neither the gifts were disclosed as income from other
sources nor was tax paid on the same, Respondent No.1 was liable to be
disqualified.
ii.
Thirdly, this Court is being
called upon to determine facts, compare the speeches, statements and
interviews of Respondent No.1 with such facts and on the basis thereof
disqualification of Respondent No.1 is being sought under Articles 62 &
63 of the Constitution.
iii.
He further submits that status of
Respondents No.6 & 7 is being canvassed as that of beneficiaries holding
assets acquired through illegal means by Respondent No.1. He further submits
that this requires a detailed factual inquiry which cannot be undertaken by
this Court in exercise of its powers under Article 184(3) of the
Constitution. He also submits that even if for the sake of argument,
Respondents No.7 & 8 are beneficiaries in terms of Section 9(a)(v) of the
NAB Ordinance or Section 5 of the Prevention of Corruption Act, 1947, the
said exercise requires a full trial before a Court of competent jurisdiction
and is beyond the scope of Article 184(3) of the Constitution.
iv.
The learned counsel has read
prayer clause 2 of Constitution Petition No.29 of 2016 to point out that it
seeks direction for recovery of looted/laundered money along with properties
purchased through BVI Companies. He submits that since Respondent No.7 is the
beneficial owner of the Mayfair Properties through offshore companies, the
prayer can be interpreted to be against him. He further submits that the
prayer as well as the averments made in the Constitution Petition are vague
and without an evidentiary hearing, the said prayer cannot be granted. He
maintains that it would have to be established through cogent and reliable
evidence that the properties in question have been acquired through looted
money which was then laundered and utilized to purchase the said properties.
He contends that grant of such prayer inherently requires investigation and
trial which cannot be undertaken under Article 184(3) of the Constitution. He
further submits that prayer clauses 1 & 6 are self-contradictory as on
the one hand disqualification of Respondents No.1, 9 & 10 is sought while
on the other a direction to probe and minutely scrutinize the Tax Returns and
Assets Declarations of Respondent No.1 and his entire family is prayed for.
He, therefore, submits that prayer clause 1 cannot be granted unless the
process sought in prayer clause 6 is completed.
v.
He further submits that the
offence of money laundering is covered under the Prevention
of Money Laundering Act, 2002 which
provides a mechanism for its investigation and trial. He maintains that
although the jurisdiction of this Court under Article 184(3) of the
Constitution is vast, it does not take away the jurisdiction of the statutory
authorities to exercise their functions. He further maintains that hearing
before this Court cannot be termed as an evidentiary hearing, as such, no
convictions / declarations can be recorded in the facts and circumstances of
the present case. He also refers to Article 19A of the Constitution to argue
that the right to have access to information is defined and structured. Since
Respondents No.7 & 8 are not public servants nor do they hold public
offices their private affairs are not subject to scrutiny under the provisions
of Article 19A of the Constitution.
vi.
As far as the question of burden
of proof is concerned, the learned ASC has relied upon a judgment of this
Court reported as Khalid Aziz v. State [2011 SCMR 136]. He argued that in
cases where a departure is made from the general rule (i.e. the onus of proof
lies upon the prosecution) and the onus is placed on the accused (by
legislative instrument), the standard of proof is considerably reduced and if
he provides a plausible explanation, the same is deemed to be sufficient. In
such situations, he submits that an accused is not required to prove his
innocence beyond reasonable doubt. He further maintains that where a person
is accused of holding properties beyond his means or holding properties
through “ostensible owners/Benami”, the initial onus is on the prosecution to
prove that the properties are being held Benami and the same have been
purchased with funds which are in excess of known means of the accused and
the said factors have to be established beyond reasonable doubt. The onus
then shifts to the accused who is required to provide a plausible explanation
and if he succeeds in doing so, the onus of proof stands discharged. He has
emphasized the fact that benchmark of onus of proof is much higher on the
prosecution which is beyond reasonable doubt while the benchmark of onus of
proof on the accused is much lower and is confined to provision of plausible
explanation. He maintains that the explanation being provided by Respondents
No.7 & 8 regarding Mayfair Properties and the funds utilized to purchase
the said properties constitutes a plausible explanation within the realm of
possibilities, therefore, this Court should hold that they have successfully
discharged the onus of proof placed on them.
vii.
Learned counsel also read paragraphs
2 and 11 of the petition which contain allegations against Respondents No.7
& 8. As far as paragraph 2 is concerned, the learned counsel submits that
the said paragraph consists of general allegations as there is no specific
allegation leveled against Respondents No.7 & 8. As regards paragraph 11,
he submits that the same consists of an interview of Respondent No.7 in which
he allegedly stated the properties in
viii.
The learned ASC further referred
to paragraph 18 (vii & viii) of the Petition to point out that
generalized allegations had been made regarding setting up of Gulf Steel
Mills in 1980, the amounts received on sale of the same and the alleged
non-disclosure of the sum US $ 9 Million which was allegedly received from
such sale. The learned counsel further pointed out that the said assertion is
self-contradictory in view of the fact that according to the petitioners the
entire sale price of Gulf Steel was utilized towards settlement of
liabilities of BCCI and as such, no disclosure in the Wealth Tax Statements
was required. He further submits that even if any disclosure was required to
be made, the same had to be made by the father of Respondent No.1 and not
Respondent No.1 or his family. Likewise it was being alleged without any
proof that the Mayfair Properties were purchased between 1993-96 and Respondent
No.1 did not disclose the source of such funds.
ix.
Learned counsel submits that in
first place, the properties were not purchased by any of the present
Respondents during the period 1993-96 and secondly, the same were received by
Respondent No.7 by way of a business settlement with Thani Family of
x.
Going to the factual narration of
his case, the learned counsel submitted that Gulf Steel was established in
1973 in the backdrop of losses suffered by the family of Mian Muhammad Sharif
after the fall of
xi.
The learned ASC has pointed out
that in 1978 Mian Muhammad Sharif decided to sell 75% of his shareholdings in
the company in favour of Muhammad Abdallah Kaid Ahli (Ahli Family) for a
consideration of AED 21,375,000. In this regard, a Tripartite Sale Agreement
was executed which has been placed on record. He submits that it is an
admitted position that the entire sale price was paid directly to BCCI which
was the main creditor of the company to settle its outstanding dues. He
further submits that subsequently a partnership agreement was executed
between the Ahli Family and Mian Muhammad Tariq Shafi through which a new set
up called Ahli Steel Mills Company was established having 25% shareholding of
Mian Muhammad Tariq Shafi who was acting on behalf of Mian Muhammad Sharif.
The said 25% shareholdings were subsequently sold on 14.04.1980 by Mian
Muhammad Tariq Shafi to Ahli Family for an aggregated sum of AED 12 Million
which was to be paid over a period of 6 months in installments. In this
regard, he referred to the affidavits filed by Mian Muhammad Tariq Shafi, the
first of which was sworn on 12.11.2016 stating the facts and mentioning that
AED 12 Million received by way of sale price of 25% shareholdings was used by
him as per instructions of Mian Muhammad Sharif. He further submits that in a
subsequently filed affidavit before this Court with CMA No.434 of 2017 on
20.1.2017, Mr. Tariq Shafi stated that he had handed over various
installments to Sheikh Fahad Bin Jassim bin Jaber (Sheikh Fahad), who was
the brother of Hamad bin Jassim bin Jaber, for investment in
the real estate business of the Thani Family in Qatar. It was further stated
that he delivered the funds in cash on instructions of Mian Muhammad Sharif
and that such amounts were handed over to Sheikh Fahad in
xii.
The learned ASC for Respondents
No.7 & 8 submitted that admittedly, the sale price of 75% share in Gulf
Steel was AED 21,375,000 while it owed AED 27,664,584 to BCCI. There was an
obvious shortfall. He also admits that other than the amounts owed to BCCI
there were amounts owed to Dubai Electric Company and others. He further
submits that he is unaware of the source of funds from where the above
liabilities may have been settled. He, however, submits that there is nothing
on record to suggest that the amount of AED 12 Million which was received by
Mian Muhammad Tariq Shafi in 1980 from sale of the remaining 25%
shareholdings in Ahli Steel Mills was used for the purpose of settlement of
the aforesaid liabilities. He has frankly admitted that he can offer no
definitive information as to how the above liabilities were settled.
xiii.
The learned counsel also
submits that in 1980 Ittefaq Foundries were returned to the Sharif Family. He
points out that not only Ittefaq Foundries once again became profitable earning
huge profits between the period 1981-90 but during this period the Sharif
Family became one of the most established business groups in the country
having multiple Units involving Textiles, Sugar and Steel Manufacturing. He
further submits that in 1990 Sharif Family was victimized by the new
government which disallowed a ship containing scrap meant to be used in Steel
Factories of Sharif Family. To offload its cargo at the
xiv.
The
learned counsel referred to the report prepared by Mr. Abdul Rahman Malik in
1998 and pointed out that according to the said report a company titled
Ansbacher & Company was managing Nescol
Limited and Nielsen
Enterprises Limited in
1993-96 when the properties appeared to have been purchased by Thani Family
through two offshore companies namely Nescol Limited and Nielsen
Enterprises Limited. He
further submits that Respondents No.7 & 8 had nothing to do with Ansbacher
& Company, Nescol Limited or Nielsen
Enterprises Limited at the
relevant time and were merely occupying the properties in question as
students.
xv.
The learned counsel further
submits that one of the pillars of the case built by the petitioners is that
the Mayfair Properties were placed under a charge by the High Court of London
in the year 2000. He maintains that in the first place, the said properties
were never mortgaged with Al-Tawfeeq Investment Company. The
said company had managed to obtain an ex
parte decree against members of Sharif Family who were Directors /
Guarantors of HPML and were at the relevant time incarcerated in
xvi.
The learned counsel also referred
to the financial statements of HPML (attached
at pages 80, 84, 93 and 98 of CMA No.432 of 2017) which indicated the
liability of the company towards Al-Tawfeeq Investment Company and its
settlement through payment of US $ 8 Million. He further submits that the
decree of the London High Court has wrongly been considered to mean that the
decree was for a sum of US $ 34 Million which figure has been arrived at by
aggregating the amounts appearing against the name each of the defendants in
the suit. He states that the decree was in the sum of around US $ 16 Million
and the defendants No.3, 4 and 5 were required in their respective capacities
as guarantors to pay the said sums in accordance with the Guarantees executed
by them in favour of Al-Tawfeeq Investment Company.
However, in view of the fact that the principal liability was that of the
company which discharged the said liability through a settlement sum of US $
8 Million, there was no personal liability enforceable against the
guarantors. Learned counsel further submits that there is nothing on record
to show that prior to 2006 there was any ownership/proprietary links of
Respondents No.6 or 8 with the Mayfair Properties.
xvii.
Learned ASC next made submissions
regarding the nature of fact finding proceedings under Article 184(3) of the
Constitution. He submitted that a substantial body of jurisprudence had
developed in the past few years in which this Court had delivered various
judgments in exercise of powers under Article 184(3) of the Constitution. He
further submits that although in some cases factual inquiries were undertaken
but such exercise was limited to reliance on admitted facts or admitted
documents. He also submits that the jurisdiction of this Court under Article
184(3) read with Article 187 is subject to Article 175 of the Constitution
and the jurisdiction of other Courts or Government Agencies charged with
performance of certain functions cannot be taken away in exercise of such
powers. In support of his contention, the learned counsel has placed reliance
on Suo Motu Case No.5 of 2012 (PLD 2012 Supreme Court 664); Mehmood Akhtar Naqvi v. Federation
of Pakistan (PLD 2013 Supreme Court 195); Contempt of Court against General
(Retd) Mirza Aslam Beg (PLD 1994 Supreme Court 574); and Pakistan Muslim
League (N) v. Federation of Pakistan (PLD 2007 Supreme Court 642) in which it
was held that evidence could be recorded provided it did not involve
voluminous record and intricate questions of law.
xviii.
Learned counsel submitted that in
the facts and circumstances of the present case a trial cannot be conducted
and a conviction cannot be recorded either against Respondents No.1, 7 or 8
without proper investigation. In this regard, he referred to Arslan Iftikhar
case to point out that even in that case the matter was referred to NAB for
investigation which shows that investigative machinery of the State cannot be
ignored to proceed in a matter where an exercise of investigation and
collection of evidence is required. He further submits that the doctrine of
continuous mandamus can also be resorted to where State functionaries/
investigative machinery can be adverted to for investigation and collection
of evidence while remaining under the continuous supervision of this Court.
xix.
Learned counsel for Respondents
No.7 & 8 submits that on the material available on record, this Court has
to determine whether there are irreconcilable differences between the
speeches made by Respondent No.1 and the material on record and on that basis
decide the question whether or not the difference are fatal/irreconcilable
and what would be consequences of the same. He further submits that there is
no undisputed record available against Respondents No.6 & 7 on the basis
of which such decision could be taken or a conclusion arrived at.
xx.
Learned counsel further submits
that in the worst case scenario the speeches of Respondent No.1 can be
treated at par with a statement under Section 342 Cr.P.C in a situation where
the prosecution has failed to produce any evidence to convict the accused. He
further submits that it is settled law that if the prosecution evidence is
rejected, the defence evidence cannot be relied upon to convict an accused.
Another principle in this regard is that the defence evidence is to be
accepted or rejected as a whole. He therefore maintains that in the absence
of any positive evidence produced by the petitioners to establish any
wrongdoing on the part of the Respondents their defence ought to be accepted.
He further maintains that unless the defence set up by Respondents No.1 or 7
and 8 is inherently defective and beyond the realm of probabilities or possibilities,
their version cannot out rightly be rejected.
xxi.
Mr. Salman Akram Raja, learned
ASC, appearing on behalf of Respondents No.6, 7 & 8 submitted that there
are three main aspects of the case set up by the petitioners namely, (i)
verbal aspects which include speeches and interviews of Respondent No.1 and
Respondents No.6, 7 & 8 in which
an effort has been made to show that contradictions exist with relation to
ownership of the properties, source of funds and identity of the person who
owns such properties; (ii) official records including Tax Returns, Nomination
Forms etc. Although an effort has been made to show that there is tax evasion
or mis-declaration in Nomination Forms, the petitioners have not been able to
make out a case either for disqualification of Respondent No.1 or any
wrongdoing on the part of Respondents No.6, 7 & 8; and (iii) discovery of
acts or omissions on the part of Respondent No.1 which could lead to legal
consequences including disqualification in terms of Articles 62 & 63 of
the Constitution.
xxii.
He submitted that during the
course of hearing of these petitions, the focus of this Court has been on the
following eight questions: - 1)
How was the
outstanding debt liability of Gulf Steel settled? 2)
Why did
Tariq Shafi not state in his affidavit that he received 12 Million Dirhams in
cash from Mr. Ahli? 3)
Why did Mian
Muhammad Sharif cause cash deposits to be made with the Al Thani Family when
he used bank accounts to obtain business loans? 4)
Where is the
record of the communications between Mian Muhammad Sharif and Shaikh Jassim
bin Jaber (father of Sheikh Fahad and Sheikh Hamad) over the period 1980 to
1999? Was the family aware of the entrustment/deposit by Mian Muhammad
Sharif? 5)
Is there any
record of the ownership of the shares of Nielsen and Nescol that could have
been made available to the 6)
What is the
basis of Respondent No.7’s beneficial ownership of the shares of Nielsen and
Nescol? What was the role of Respondent No.6? What is nature of beneficial ownership,
as opposed to legal title, under English law? What are the requirements for a
valid trust? 7)
Why was the
balance amount that was payable by the Al Thani Family to Mian Muhammad
Sharif not made a part of the estate of Mian Sharif for distribution amongst
his heirs? 8)
If the Mayfair Properties were purchased by the Al Thani Family
from the proceeds of the real estate business in which Mian Muhammad Sharif
had invested, could Mian Sharif be said to have acquired a proprietary
interest in these flats at the time of the purchases by Nielsen and Nescol in
1993, 1995 and 1996? xxiii. Learned
counsel submits that although an effort has been made to answer all
questions, it has to be understood that the Respondents are being asked to
account for a period of more than forty years, and every act and transaction
undertaken by their grandfather cannot be established through documentation.
He frankly conceded that there are records which are missing and there are
gaps in the narration of facts and events which are on account of lapse of
time and death of grandfather of the Respondents who was the patriarch of the
family and sole Incharge of its businesses as well. Further, he was at the
helm of affairs when misfortunes befell the family of the Respondents including
nationalization of family business in 1972 and the military takeover of 1999
when Respondent No.1 as well as Respondent No.7 and various other members of
their family were incarcerated, their houses and offices taken over and all
relevant records taken away. He further submits that nevertheless every
possible effort has been made to produce before this Court the relevant
records which do not establish any wrongdoing either on the part of
Respondents No.6, 7 & 8 or Respondent No.1. He maintains that no relief
has been sought against the Respondents No.6, 7 & 8 and even otherwise,
Respondent No.1 cannot be penalized for any alleged wrongdoing on the part of
Respondents No.1, 7 or 8. He further maintains that even if Respondents No.6,
7 & 8 are charged with the offence of having assets beyond their known
means in terms of Section 9 (v) of the National Accountability Ordinance,
1999 read with Section 45 of the Prevention of Corruption Act, 1945, they
cannot be held liable on the basis of evidence and material available on
record. Further, even if, for the sake of argument the Respondents were held
liable such liability cannot be used against Respondent No.1.
xxiv.
Elaborating the above arguments, the learned ASC
submits that any culpability of the Respondents would have to be examined in
light of the following circumstances:- i) Even if the Respondents were charged
under Section 9 (a)(v) of the Ordinance, they are not required to prove
without reasonable doubt that the assets owned by them are not beyond their
known sources of income. Even if they offer a plausible and reasonable
explanation regarding the source of funds from where such assets were
acquired, the onus then shifts on the petitioners to establish a case of
possession of assets beyond known sources of income. In this context, he
relied upon Khalid Aziz v. State (2011 SCMR 136). ii) Secondly, the learned ASC submits that
even if the Respondents were treated as accused in a criminal trial and their
statements were to be treated as statements under Section 342 Cr. P.C, it is
settled law that such statements are to be taken as a whole including the
inculpatory and exculpatory portions. On the basis of such criteria, the
learned counsel submits that there is no evidence to record a conviction
against Respondent No.1 or Respondents No.6, 7 & 8. Reliance in this
regard has been placed on State v. Muhammad Hanif (1992 SCMR 2047). iii) Thirdly, the learned counsel submits
that jurisdiction of this Court in terms of Article 184(3) and Article 187 of
the Constitution is inquisitorial in nature. However, this Court has desisted
from recording findings of guilt or innocence on its own accord and has
traditionally left the matters of investigation and inquiry to appropriate
State organs and trial Courts which may record their findings after hearing
all sides and fulfilling the requirements of a fair trial as enshrined in
Article 10A of the Constitution. He maintains that there is precedent to
follow such course of action by directing State functionaries to undertake inquiry
and investigation under the direct supervision of this Court. In this regard,
he referred to the cases of NICL (Suo Motu Case No.18 of 2010) and Hajj
Corruption (Corruption in Hajj Arrangements in 2010). He, however, maintains
that even a commission cannot undertake the job of investigator and
thereafter record findings of guilt or innocence. The right of a fair trial
and requirements of Article 10A of the Constitution would be violated if a
commission is empowered to conduct an investigation and record a conviction.
xxv.
The learned counsel submits that the first
question on the factual aspect of the case is whether the Mayfair Properties
were acquired by Respondent No.7. He submits that in the first place it has
to be kept in mind that the Respondent No.7 belongs to a family which has a
long history of being in the Steel business. Father/grandfather of
Respondents was running a big and successful business even prior to partition
and the entire family had substantial financial resources. He further submits
that the Mayfair Properties were acquired by Respondent No.7 by way of a
settlement in 2005/2006 and prior to that the same were held by Al-Thani
Family through bearer certificates in two offshore companies namely, Nescol Limited and Nielsen Enterprises. He pointed out that the
only document relied upon by the petitioners to establish that the properties
in question were owned by Respondent No.7 in 1999 is the judgment of the
London High Court on the basis of which the said properties were attached. He
further pointed out that it is evident that the order of the London High
Court was based upon an affidavit of Mr. Shezi Nackvi in which it had categorically
been stated that according to his information certain members of the Sharif
Family had proprietary interests in the said properties. He further submits
that the affidavit was based upon the information contained in a report
prepared by Mr. Rehman A. Malik in his personal capacity. He maintains that
the report contained baseless and unsubstantiated allegations and even
otherwise it was not an official report prepared under any authorization from
any quarter. In this regard, he referred to paragraphs 12 and 26 of the
affidavit of Mr. Nackvi. The learned counsel further submitted that other
than the affidavit there was nothing on record to show that any member of the
Sharif Family owned the said flats prior to 2006. He further maintains that
the case set up against the Sharif Family on the basis of allegations of
money laundering and acquisition of assets in London was quashed in 1999 by
the Lahore High Court in a case reported as Hamza Shahbaz Sharif v.
Federation of Pakistan (1999 P. Cr. L. J 1584).
xxvi.
The learned counsel further
submits that the Mayfair Properties were originally acquired by Al-Thani
Family through two offshore companies namely Nescol Limited
and Nielsen
Enterprises Limited. The said family was in possession of
bearer certificates of the said companies which were subsequently handed over
to a representative of Respondent No.7 pursuant to settlement of accounts of
the investment of AED 12 Million made by the grandfather of the Respondents
in 1980 in the business of Al-Thani family in
xxvii.
The said bearer certificates were
surrendered and registered in June 2006 in accordance with the changed law in
the name of Minerva Holdings and Minerva Officers, which were service
providers appointed by Respondent No. 7. He stated that earlier, by virtue of
Trust Deed dated 02.02.2006 Respondent No.7 appointed Respondent No.6 as a
trustee/authorized signatory on behalf of Respondent No.7 who remained
beneficial owner of the properties.
xxviii.
The learned counsel submits that
the only question regarding the status of Respondent No.6 with reference to
the Mayfair Properties that has any relevance to Respondent No.1 is whether
Respondent No.6 is a dependent of Respondent No.1. He maintains the entire
case of the petitioners hinges on the argument that Respondent No.6 is a
dependent of Respondent No.1, she holds beneficial interest in the Mayfair
Properties, and that Respondent No.1 failed to disclose the assets held by
his dependent in his Nomination Papers, and had been guilty of
mis-declaration of assets. He was therefore liable to be disqualified in
terms of Articles 62 & 63 of the Constitution. The learned counsel
submits that there is not an iota of evidence available on the record to show
that Respondent No.6 is the beneficial owner of the Mayfair Properties or is
a dependent of Respondent No.1. He therefore maintains that the Income Tax
Returns filed by Respondent No.6 in 2012 would indicate that she had
agricultural income of Rupees 2.2 Million, her husband earned Rupees 1.8
Million by way of salary as a Member of the National Assembly and she owned
assets worth more than Rupees 50 Million. He argues that with this income and
assets, she could have independently lived with her husband and the fact that
she was, by choice living in a compound owned by her grandmother is not
enough to establish that she was a dependent of Respondent No.1. The learned
counsel therefore submits that the question whether the Respondent No.6 is a
trustee, authorized signatory or beneficial owner of the Mayfair Properties
is of no significance in so far as it relates to the case against Respondent
No.1 on account of the fact that she was not his dependent at the relevant
time i.e. when he filed his Nomination Papers or at any time thereafter.
xxix.
The learned ASC further submits
that two letters issued by Sheikh Hamad establish a number of things
including the fact that the grandfather of Respondent No.7 had invested AED
12 Million in the real estate business of Thani Family in 1980, there was a
settlement of accounts in 2005/2006 and as a part of the settlement, the
bearer certificates of two companies which held the Mayfair Properties were
delivered to a representative of Respondent No.6 namely Waqar Ahmad by a
representative of the Sheikh Hamad namely Nasir Khamis.
xxx.
He further submits that version
of facts and circumstances given by the Respondents is possible and
plausible, cannot be discarded out rightly and despite gaps for obvious
reasons of lapse of time and death of various people involved, the material
available on record supports the stance taken by the Respondents. The learned
counsel referred to various assertions made and documents appended with CMA No.432
of 2017 to point out that for the first time, the shares in Nescol Limited and Nielsen
Enterprises Limited were registered in favour of Minerva Holdings/Minerva
Officers in 2006 on the instructions of Respondent No.7 who is the beneficial
owner of the two companies as well as the properties held by them.
Subsequently in 2014, Minerva Holdings / Minerva Officers were replaced by
Trustee Services Corporation Limited which is an in-house corporate Trust
company of JPCA Limited on instructions of Respondent No.7.
xxxi.
The learned counsel submits that
although it has been admitted at various stages in their interviews by
Respondents No.7 & 8 that were in possession of the Mayfair Properties
since 1993, such possession was not in the capacity of owners. The real
owners i.e. Royal Family of Qatar, had on account of their businesses and
personal association with the grandfather of the Respondents, permitted them
to use the said properties as a courtesy because at the relevant time the
said Respondents were studying in London and required the accommodation to
stay there to pursue their education.
xxxii.
The learned counsel took us
through the provisions of International Business Companies Act, 1984 to
submit that in terms of Section 28 of the said Act, the companies could issue
bearer certificates which were not required to be registered anywhere. He
pointed out that in terms of Section 31(a) of the Act, the bearer
certificates could be transferred by delivery. He maintains that although the
law was reenacted in 2004, requiring the holders of bearer certificates to
register such certificates, the deadline for registration of the certificates
was 31st December, 2009. The learned counsel submits that the two
offshore companies namely Nescol
Limited and Nielsen Enterprises Limited were voluntarily
re-registered in July 2006, under the new law, the bearer share certificates
initially held by the Thani Family, delivered to the representative of
Respondent No.7 in 2006 were cancelled and on his instructions the same were
registered in the names of Minerva Holdings / Minerva Officers, the service
providers appointed by Respondent No.7.
xxxiii.
The learned counsel further
submitted that the only documents that establish the alleged beneficial
ownership of Respondent No.6 of the two companies are two letters purportedly
written by Mossack Fonseca to the Financial Investigation Agency of BVI which
indicate that Respondent No.6 was the beneficial owner of the two companies.
Such information appears to be based upon correspondence conducted between
Mossack Fonseca and Minerva Holdings / Minerva Officers which was apparently
based upon the information available with Minerva Holdings / Minerva Officers
at the relevant time. He submits that neither the records of Minerva Holdings
/ Minerva Officers are presently available nor is he presently in a position
to explain on what basis Minerva Holdings / Minerva Officers took the
position that Respondent No.6 was the beneficial owner of the two companies.
He submits that the said information is incorrect and contrary to the record.
He, however, drew our attention to CMA No.432 of 2017 to submit that the
alleged Board Resolution dated 7.2.2006 signed by Respondent No.6 whereby LZ
Nominee Limited was reappointed as Nominee Director of Nescol Limited with
effect from 13.05.2004 has been disowned by Minerva Holdings / Minerva
Officers. He further submits that the document in question is fake and
Minerva Holdings / Minerva Officers has specifically stated that the same was
not prepared by it. He vehemently argued that Respondent No.6 had
specifically denied her signatures on the said document. As such, he
maintains that any attempt on the part of the petitioners to connect
Respondent No.6 with the two companies in her capacity as a beneficial owner
is a futile exercise not supported by any record.
xxxiv.
The learned ASC for Respondents
No.6, 7 & 8 took us through fresh documents filed through CMA No.856 of
2017 to show that Respondent No.7 had appointed Arrina Limited to provide
full management services with reference to the Mayfair Properties. Further,
the Arrina Limited had undertaken to liaise on his behalf with the service
providers for Nescol Limited and
Nielsen Enterprises Limited to provide such services. He drew our
attention to some sample receipts issued by Barclays Bank confirming that
Arrina Limited had paid certain amounts to Minerva Trust and Corporate
Services Limited for their professional services. He also drew our attention
to letters containing terms of engagement issued by JPCA Limited Chartered
Accountants dated 01.08.2014 whereby an agreement for provision of
secretarial services regarding
Nescol Limited and Nielsen Enterprises Limited was put in place.
xxxv.
Turning to his legal submissions,
the learned ASC submitted that the trust document on the basis of which
Respondent No.6 was appointed as a Trustee of Respondent No.7 is a valid
document and there is nothing available on record to show that she had any
beneficial interest either in the two companies or the Mayfair Properties
owned by the said companies. In this regard, he pointed out that a legal
opinion provided by Mr. Stephen Moverley Smith QC dated 12.01.2017 has
already been placed on record.
xxxvi.
The learned ASC further submits
that powers of this Court under Article 184(3) of the Constitution have been
subject matter of a large number of judgments rendered by it in the past five
years. He further submits that the settled principle of law is that where
intricate questions requiring recording of voluminous evidence is required,
this Court has refrained from taking up such exercise and left the matter for
the statutory authorities to undertake such exercise. Learned counsel relies
on the case of Muhammad Ashgar Khan v. Mirza Aslam Baig (PLD 2013 SC 1) to
argue that the Court called upon the parties to file affidavits, no oral
statements were recorded and decision was given on the basis of facts
admitted by the parties. He has vehemently argued that no evidence was
recorded in the said case.
xxxvii.
The learned counsel has
emphasized the fact that this Court has on various occasions examined the
scope of inquisitorial proceedings and came to the conclusion that in such
proceedings, the Court cannot record any findings of fact, as such an
exercise would prejudice the trial of the case before a Court of competent jurisdiction
and thereby violate the due process right of a party as guaranteed under
Article 10A of the Constitution. In this regard, learned counsel relied upon
Watan Party v. Federation of Pakistan [PLD 2011 SC 997 (@ 1053 to 1055, 1060
& 1088)]. He has also referred to 2013 SCMR 683 (@1687).
xxxviii.
Referring to General Secretary v.
Director, Industries (1994 SCMR 2061), Zulfiqar Ali Babu v. Government of the
Punjab (PLD 1997 SC 11) and Watan
Party v. Federation of Pakistan (PLD 2012 SC 292), it was
argued that a detailed inquiry cannot be undertaken in exercise of powers
under Article 184(3) of the Constitution, the only exception being limited to
findings of constitutional violations recorded on the basis of admitted
facts. He maintains that there is a distinction between a declaration and
conviction and submitted that while a declaration can be given by this Court
under limited circumstances on the basis of admitted or uncontroverted facts,
a conviction cannot be recorded by this Court in exercise of its constitutional
jurisdiction. He maintains that such exercise would be violative of the
foundational principles of independence of investigation and independence of
Courts which are two mutually exclusive domains and cannot be intermingled.
Reference in this regard has been made to Emperor v. Nazir Ahmed [AIR 1945 PC
18] and Shaukat Ali Dogar v. Ghulam Qasim [PLD 1994 SC 281].
xxxix.
The learned counsel next
contended that a right to due process and fair trial is enshrined in the
Constitution and any finding recorded or declaration given by this Court
under Article 184(3) of the Constitution or by any Commission appointed by
this Court for the said purpose would seriously violate such right. He
maintains that in the limited number of cases where declarations have been issued
in exercise of powers under Article 184(3) of the Constitution, such
declarations have invariably been issued on the basis of admitted facts and
or documents.
xl.
The learned ASC has referred to
various judgments rendered by US Courts to argue that even in foreign
jurisdictions, while commissions have been appointed to record findings of
fact, such jurisdiction has been termed as an accusatory jurisdiction which
does not extend to recording convictions or issuing declarations.
xli.
The learned counsel has further
maintained that this Court has repeatedly held in a number of cases that this
Court would not embark upon fishing and roving inquiries in exercise of its
jurisdiction under Article 184(3) of the Constitution. In support of his
arguments, the learned counsel has relied upon Jam Madad Ali v. Asghar Ali
Junejo [2016 SCMR 251] and Akhtar Hassan Khan v. Federation of Pakistan [2012
SCMR 455].
xlii.
The learned ASC has summed up his
submissions by stating that even if the entire stance of the Respondents is
disbelieved by this Court, the matter requires a factual inquiry which has to
be undertaken by the statutory bodies set up under the law and the
Constitution for the said purpose. Once the facts have been uncovered and
evidence has been collected, the matters need to be placed before a Court of
competent jurisdiction for trial in accordance with the law and in line with
the rights guaranteed under Article 10A of the Constitution. It is only after
such an exercise has been undertaken that a person found guilty can be
convicted and visited with various penalties and punishments provided by the
law and the Constitution. 14. On conclusion of the
arguments of learned counsel representing Respondents No.1 & 6 to 10, the
Prosecutor General, NAB was directed to inform this Court as to why the
aforesaid judgment of the High Court was not challenged before this Court.
Tracing the sequence of events, the learned Prosecutor General informed us
that Respondent No.10 had moved an application for grant of pardon on
20.04.2000. The Chairman, NAB granted full pardon to him vide letter dated
21.04.2000 in exercise of powers under Section 26 of the National
Accountability Bureau Ordinance, 1999 (NAB Ordinance). He further pointed out
that although an interim Reference was filed on 27.03.2004 wherein Respondent
No.10 was arrayed as accused No.7, since he was granted pardon on his request
on 21.04.2000 and his confessional statement was recorded on 25.04.2000 by a
Magistrate under Section 164, Cr.PC he was shown as a witness and not as an
accused in the final Reference. He points out that the final Reference was
filed on 16.11.2000 which was quashed by the Lahore High Court on a Writ
Petition filed by HPML and its Directors. He submits that the judgment of the
Lahore High Court was not challenged before this Court because the competent
authorities in the NAB had decided that since the Lahore High Court had
unanimously quashed the Reference, it would be a futile exercise to approach
this Court by way of an appeal. 15. On being summoned by us,
the Chairman, National Accountability Bureau, (NAB) also appeared before us
along with the Prosecutor General, NAB. We asked him whether NAB had taken
any action or conducted any inquiry or investigation on the basis of the
information that had come in the public domain indicating a number of
citizens including Respondents No.6, 7 & 8 held offshore companies and
properties worth Millions of Dollars for which there were no verifiable
sources of income and there were serious allegations of corruption and money
laundering had been levelled against Respondent No.1. The Chairman, NAB
informed us that the NAB was awaiting initial inquiry and investigation by
the “Regulators”, before proceeding with the matter. He submitted that the
same stance was taken by him before the Public Accounts Committee of the
National Assembly. He further submitted that in terms of Section 18 read with
Section 20 of the NAB Ordinance, the NAB could only initiate investigations
on receipt of a complaint from State functionaries including Securities &
Exchange Commission of Pakistan and State Bank of 16. It is interesting to note
that NAB had initiated a Reference bearing No.5 of 2000 involving HPML and
its Directors which included some of the Respondents and other members of
their families. The said Reference and other proceedings initiated by NAB as
well as the confessional statement made by Respondent No.10 contained
information which was found sufficient by NAB to initiate the Reference.
However, despite the fact that information available with NAB had direct
nexus with the issues raised in these proceedings, no steps were taken by NAB
to investigate and inquire into the allegations that the offshore companies
and properties/businesses owned by Respondents No.7 & 8 were acquired through
laundered funds or ill-gotten gains and could have a connection with
Respondent No.1. He was further asked to explain why a judgment of the 17. The Chairman, Federal Board
of Revenue, (FBR) also appeared in accordance with the directions issued by us.
He was assisted by Mr. Muhammad Waqar Rana, Additional Attorney General for 18. The complete and utter
apathy shown by the State functionaries / Departments including the FBR in
this matter besides being shocking has raised many questions and the constant
foot dragging on their part shows complete and utter lack of interest and a
desire to sweep the matters under carpet. This is obviously at the behest of those
likely to be affected by deeper probe and investigation into the matter. The
Chairman, FBR informed us that since a large number of persons named in the
Panama Papers were either non-filers or non-residents, information and data
regarding the said persons was not available in the database of FBR. However,
the matter had to be coordinated with NADRA and other State agencies charged
with the responsibility of maintaining the records of citizens to collect the
requisite information in order to have access to such persons. Further, since
the record and information relating to offshore companies was beyond the
territorial jurisdiction of 19. With reference to the
Respondents in these Constitution Petitions, the Chairman, FBR pointed out
that Respondents No.7 & 8 are non-residents and therefore not amenable to
the jurisdiction of the tax authorities in Pakistan. He submits that although
the said persons were issued notices, they filed their replies on 21.11.2016
in which the position taken by them was that since they were non-resident
Pakistanis, they were under no obligation to file Returns or pay taxes on
income generated outside 20. The Chairman, FBR was asked
to explain how Respondent No.7 claimed to have an NTN when the same was
issued in 1995 and according to a Circular issued by the FBR itself, all Tax
Numbers issued upto 1998 stood cancelled and fresh tax numbers could be
obtained by filing appropriate applications before the competent authorities
which had apparently not been done. His response was that he had no specific
information in this regard. However, the learned Additional Attorney General
submitted that according to the records of FBR, Respondent No.7 was the
holder of an NTN which appeared in the Database of FBR. He later confirmed
that the earlier had subsequently withdrawn and all tax numbers initially
issued by the FBR had been restored/revived. 21. As far as Respondent No.6
is concerned, the Chairman, FBR submitted that she had also filed her
response on 21.11.2016 in which she had categorically denied ownership of any
foreign property or offshore company. According to her stance, her brother
(Respondent No.7) had authorized her to deal with offshore companies owned by
him on his behalf. 22. After hearing the Chairman,
FBR we are constrained to express our dissatisfaction and extreme
disappointment on the mode and manner in which the premier taxation authority
of the country has dealt with the matter. 23. The learned Attorney
General for
i.
There are three main cases
pending before this Court filed by
ii.
This is a unique case in
many respects including the forum chosen and the form of proceedings
initiated. He argues that by way of these proceedings, the petitioners seek a
writ of quo warranto and also
reliefs which are generally prayed for in election petitions. He maintains
that these are not proceedings in the normal course and it is neither the
function nor practice of this Court to entertain and proceed in matters of
such nature in exercise of its powers under Article 184(3) of the
Constitution. He further maintains that in pith and substance, the matter
relates to a challenge to the election of a Member of the National Assembly and
a declaration is being sought in terms of Article 62(1)(f) of the
Constitution. He also maintains that it has to be kept in mind that any
declaration granted by this Court will be binding on all Courts and Tribunals
which would get guidance from how this Court proceeds in the matter. He
states that the law laid down by this Court would be applicable to about 1045
MNAs & MPAs who would henceforth be governed by the same.
iii.
The
Attorney General for (a)
What
is the scope of Article 184(3) of the Constitution with reference to the
facts and circumstances of the present case; and (b)
Should
this Court exercise jurisdiction even if the case falls within the purview of
Article 184(3) of the Constitution. In
this regard, the learned Attorney General submits that jurisdiction of this
Court can be inquisitorial or adversarial.
However, where the inquisitorial jurisdiction is to be exercised, it has to
be established that a matter of public importance requiring enforcement of
fundamental rights is involved. He maintains that generally this jurisdiction
is exercised where relief is to be granted for benefit of the society and or
to protect under privileged classes.
iv.
He further states that although in Farzand Ali v.
Province of West Pakistan (PLD 1970 Supreme Court 98) and Muhammad Nawaz
Sharif v. President of Pakistan (PLD 1993 Supreme Court 473), this Court had
held that jurisdiction under Article 184(3) of the Constitution can be
exercised to issue orders in the nature of quo warranto, the person seeking such disqualification must prove
the same in adversarial proceedings. In this context, he has also referred to
the cases reported as Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD
2015 Supreme Court 275) as well as Mahmood Akhtar Naqvi v. Government of
Sindh (2015 SCMR 810) wherein this Court has exercised its powers under
Article 184(3) of the Constitution.
v.
The learned Law Officer questioned whether this
Court is an appropriate forum to issue a declaration under Article 62(1)(f)
of the Constitution considering that in making such declaration, provisions
of Article 10A of the Constitution would also be applicable. He further
submits that this Court must also consider the fact that a declaration issued
by this Court under Article 62(1)(f) of the Constitution, the mode and manner
in which such declaration is issued will be binding on all Courts and
Tribunals which would be called upon to issue such declarations in future.
vi.
Elaborating his first formulation, the learned
Attorney General submitted that it has to be determined which fundamental
rights are under threat or have actually been breached, who is the
complainant of the alleged breach and in this regard which facts need to be
proved. He further submits that the burden of proof that a fundamental right
has been breached is on the person complaining of such breach and once such
breach has been proved to the satisfaction of this Court, an appropriate
order can be passed for enforcement of such right. He, however, maintains
that the person complaining of a breach of fundamental right must first
establish a legal obligation which if not performed has led to the alleged
breach of a Fundamental Right.
vii.
In the context of this case, the learned Attorney
General submitted that in the first place the petitioners have not shown
which of their Fundamental Rights have been breached by Respondent No.1. He
further submits that the petitioners have neither alleged nor established
that Respondent No.1 was under any obligation to disclose certain facts which
obligation, the latter has failed to fulfill which has led to breach of some
Fundamental Right available to the petitioners.
viii.
The learned Attorney General for
ix.
Referring to the case of Farzand Ali v. Province
of West Pakistan (PLD 1970 Supreme Court 98), the learned Law Officer
submitted that the same was no longer good law in view of the fact that the
judgment was rendered under the provisions of Constitution of Pakistan, 1962
without mentioning that the High Courts had power to issue a writ of quo warranto against the holder of
public office as defined in Article 242 of the said Constitution. The said
definition included Members of the National Assembly and Provincial
Assemblies. He maintains that under the Constitution of Pakistan, 1973 a writ
in the nature of quo warranto
cannot be issued against Members of the National or Provincial Assemblies in
view of the fact that such persons are not included in the definition of
holder of public office. He submits that since the Parliamentarians hold
elected offices, the mechanisms provided in Articles 62 and 63 of the
Constitution and provisions of the Representation of People Act, 1976 (RoPA)
have to be resorted to. The argument of the learned Attorney General is
farfetched, self-contradictory and contrary to our judicial precedents and
has not impressed us.
x.
The learned Attorney General further submitted
that a declaration as visualized in Article 62 of the Constitution cannot be
issued by this Court in view of the fact that such declaration requires an
evidentiary hearing. He pointed out that in a few cases where such
declarations were issued by this Court, the same were issued on the basis of
admitted facts or undisputed material available on record. In this context,
he referred to the cases reported as Ishaq Khan Khakwani v. Mian Muhammad
Nawaz Sharif (PLD 2015 Supreme Court 275) and Mahmood Akhtar Naqvi v.
Government of Sindh (2015 SCMR 810).
xi.
The learned Law Officer also submitted that in
the event of an allegation of corrupt or illegal practices, Sections 42A and
82 of the RoPA provide a procedure of filing a complaint and its trial by a
District & Sessions Judge. He further submits that matters being agitated
before this Court are already pending before the Election Commission of
Pakistan. As such, exercise of jurisdiction by this Court under Article
184(3) of the Constitution in the facts and circumstances of the case is not
called for. He maintains that there are factual controversies involved which
require evidentiary hearings and the law provides the mode, manner and forum
for such hearings. He, therefore, concluded by submitting that special care
is to be taken in exercise of jurisdiction. He maintains that a declaration
issued by this Court would have serious and far-reaching consequences and a
stigma will be attached to the name of Respondent No.1 who is the head of the
largest political party of the country. To support his contentions, he relied
upon the cases of Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) and
Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court
275). 24. In rebuttal, Mr. Naeem
Bukhari, learned ASC for the petitioner in Constitution Petition No.29 of
2016, submitted that:-
i.
Date of Birth of Respondent No.7 is 01.05.1972.
According to the documents produced on behalf of Respondents No.6, 7 & 8
through CMA No.7531 of 2016, the land for Gulf Steel was allotted on
12.04.1974 and the Rent Agreement was signed on 12.06.1974. On the said
dates, Respondent No.7 was two years old; and
ii.
When Tripartite Agreement for sale of 75% shares
in Gulf Steel was executed in 1978, Respondent No.7 was six years old. The
outstanding liabilities of the Gulf Steel in 1978 were as follows:- a)
Approximately
27 Million Dirhams owed to BCCI; b)
Approximately
36 Million Dirhams owed to others; c)
Aggregated
liability at the relevant time was in excess of 63 Million Dirhams.
iii. The learned ASC for the
Petitioner pointed out that sale of 75% shares in Gulf Steel fetched about 21
Million Dirhams. Admittedly, the entire amount was paid to
BCCI. This left an outstanding liability of 6 Million Dirhams to BCCI and 36 Million Dirhams to others. Therefore, when the balance 25%
shareholding in the Gulf Steel was sold in 1980 for 12 Million Dirhams (when Respondent No.7 was eight years
old), there was nothing which could possibly be invested in Qatar in view
of the fact that an outstanding liability of 42 Million Dirhams still existed. He further submits that in
the first affidavit of Mian Muhammad Tariq Shafi, it was merely stated that
12 Million Dirhams received from sale of 25% shares in Gulf
Steel were, “applied as per instructions of Mian Muhammad Sharif”. However,
in the second affidavit, an improvement was made and it was claimed that the
said amount was given to the elder brother of Hamad bin Jassim bin Jaber in
Dubai for investment in the real estate business of Al Thani Family. This
improvement was obviously an afterthought and an attempt to lend credence to
an otherwise baseless and concocted tale.
iv. The learned counsel also
maintains that there is a stark and noticeable difference between the stance
taken by Respondent No.1 and Respondent No.7 before this Court. While
Respondent No.1 has constantly taken the position that the funds generated
from the sale of Gulf Steel and Azizia Steel Mills at Jeddah were used for
purchasing the London Properties and the investment in Qatar was neither
mentioned in his various speeches nor in the concise statement filed before
this Court, the stance taken by Respondent No.7 is that the said properties
were received by way of a settlement with the Al Thani Family.
v. The learned ASC submits that
this Court should believe the word of the Prime Minister of the country and
ignore the statement of his children who at the relevant time were minors. In
the said scenario, both letters issued by Hamad bin Jassim bin Jaber lose
their significance and the story built on the same falls to the ground. In
that case, it can safely be concluded that the real owner of the Mayfair
Properties is Respondent No.1. Further, there is no explanation whatsoever
available on the record showing the source of funds for acquiring the
properties in
vi. He maintained that despite being
asked neither learned counsel for Respondent No.1 nor for Respondents No.6, 7
& 8 submitted any documents showing real owner of the Mayfair Properties,
the source of funds or the money trail.
vii. He further submits that
Respondent No.6 has denied the document as well as her signatures thereon
through which LZ Nominee Limited was reappointed as Nominee Director with
effect from 13.05.2004. He maintains that in the first place, the said
document was not made or forged by the Petitioners. It appeared in the Daily
Guardian and was obtained from the correspondent of the said Newspaper but
more importantly the document in question was acted upon. In this context, he
drew our attention to a document appearing on page 12 of CMA No.895 of 17
which is a photocopy of the record of the Nescol Limited showing names of
Directors of the said Company from time to time. It shows that LZ Nominee
Limited was reappointed as Nominee Director on 13.05.2004 and resigned on
26.01.2006. He maintained that 13.05.2004 is the exact date which was
mentioned in the aforesaid resolution containing the signatures of Respondent
No.6 (Maryam Safdar). This unmistakably establishes that Respondent No.6 was,
at all relevant times, the beneficial owner of Nescol Limited and the Mayfair
Properties held in its name.
viii. The learned counsel further
maintained that a declaration is liable to be issued against Respondent No.1
to the effect that he is neither truthful nor honest in view of the fact that
he failed to disclose the correct facts and source of funds for purchase of
London Properties. He referred to his address to the nation as well as the
speech made on the floor of the house in which there was no mention of the
investment made in 25. Mr. Muhammad Taufiq Asif,
learned ASC for the petitioner in Constitution Petition No.3 of 2017 in his
rebuttal arguments submitted that Respondent No.1 had misstated / withheld
the material facts in his speech on the floor of the house. Therefore, the
privilege claimed under Article 66 of the Constitution was not available to
him as the said Article is subject to the Constitution. He further maintained
that Respondent No.1 had violated his oath by putting his personal interest
over and above the national interest and had made an effort to secure the
same by making false statements on the floor of the house as well as before
this Court. He was therefore not truthful and ameen. He further maintained that despite having categorically
stated that all relevant records regarding acquisition of assets in London
will be produced, Respondent No.1 has consistently failed to do so which has
rendered him liable to be disqualified. He referred to Nasir Mehmood v. Imran
Masood [PLD 2010 SC 1089 @ 1117] to submit that Respondent No.1 did not meet
the criteria of being truthful and
ameen as provided in Article
62(1)(f) of the Constitution. 26. Mr. Imran Ahmad Khan Niazi,
petitioner in Constitution Petition No.29 of 2016 sought permission of the
Court to make a few submissions, which was granted by us. He submitted that
the Prime Minister amongst other capacities is the custodian of the treasury
of the country. A person who is not truthful, dishonest or corrupt cannot be
expected to enjoy the trust of the people. He maintained that this is one
reason why people of 27. Senator Siraj ul Haq,
petitioner in Constitution Petition No.3 of 2017 was also granted an
opportunity to address the Court. He submitted that Respondent No.1 had failed
to explain or justify the sources of funds which were used to acquire assets
in 28. We have heard the learned
counsel of the parties at length and examined the record submitted by the
parties before us at various stages of the hearings. To our mind, inter alia, the following questions
need to be answered on the basis of submissions made by learned counsel for
the parties, the assertions made in the petitions and the stance adopted by
the Respondents in their respective concise statements. We have also
considered additional documents filed by the parties through numerous Civil
Miscellaneous Applications filed at various stages of hearing of these
petitions:
i.
What was the source of funds for acquisition of
the Mayfair Properties in
ii.
Whether Respondents No.7 & 8, owing to their
tender ages had the financial resources in early nineties to possess,
purchase or acquire the
iii.
Who is the real and beneficial owner of Nescol
Limited and Nielsen Enterprises Limited?
iv.
Whether sufficient material has been placed on
record to explain the source of funds used for acquisition of the
v.
Whether Respondent No.1 has any direct or
indirect, legal or beneficial right, title or interest in the
vi.
Whether enough documentary evidence comprising of
account statements and banking documents etc has been produced before us to
establish generation of funds through legitimate sources and movement of such
funds through banking channels for acquisition of the
vii.
Whether the two letters dated 05.11.2016 and
22.12.2016 submitted on behalf of Respondent No.7 allegedly written by Sheikh
Hamad can be taken into consideration for the purpose of substantiating the
stance taken by Respondent No.7
viii.
Whether the business transactions allegedly
occurring in 1974, 1978 and 1980 in Dubai and the documentation produced on
behalf of Respondent No.7 in this regard show legitimate business activity
generating sufficient funds to have supported subsequent transactions claimed
to have been undertaken in Qatar, Saudi Arabia and UK?
ix.
Whether there is sufficient material to support
the claim of Respondent No.7 that a sum of 12 million Dirhams was invested in the real estate
business of the Thani family in Qatar which multiplied manifold between 1980
to 2000 and consequently led to availability of requisite funds for
settlement of dues of Hudaibiya Paper Mills Limited (HPML), provision of
funds to Respondents No.7 & 8 in Saudi Arabia and the UK respectively and
transfer of Mayfair Properties in favor of Respondent No.7 by way of a final
settlement of accounts?
x.
Whether Respondent No.1 failed to provide a
satisfactory explanation regarding the ownership of the Mayfair Properties
and whether he was able to satisfy this Court that he has no nexus or
connection with the
xi.
Whether Respondent No.6 was/is the beneficial
owner of the
xii.
Whether Respondent No.6 is/was at the relevant
time a dependent of Respondent No.1 and if so, whether Respondent No.1 had
rendered himself liable to disqualification by making a misstatement in his
Nomination Papers for the general elections of 2013 and concealing the same
from the tax authorities?
xiii.
Whether Respondent No.1 had been guilty of tax
evasion in consequence of which he was liable to be disqualified in terms of
Article 62 (1) (o) of the Constitution of Islamic Republic of Pakistan, 1973?
xiv.
Whether the affidavits submitted on behalf of Mr.
Tariq Shafi can be relied upon and believed in order to establish generation
and transmission of funds in the manner claimed by Respondents No.1 & 7?
xv.
Whether sufficient material has been placed on
record explaining the source of funds for establishing Azizia Steel Mills in
xvi.
What were the sources of funds utilized by
Respondent No.8 to set up Flagship Investments Limited and a number of other
companies, set up/taken over by Respondent No.8?
xvii.
Whether Respondent No.7 adequately explained the
mode and manner and the financial resources utilized for setting up Hill
Metal Establishment in
xviii.
Does Respondent No.1 have any direct, indirect,
legal, beneficial or equitable right, title or interest in Hill Metals
Establishment, considering that he has regularly received amounts ostensibly
by way of gifts for amounts in excess of US $ 7,612,350 from Respondent No.7?
In the year 2015-16 alone a sum of approximately US $ 2.3 Million were
received from the account of Hill Metals Establishment.
xix.
Whether regular and consistent receipt of huge
amounts of money from/on account of Hill Metals Establishment shows a
financial/ ownership interest and stake of Respondent No.1 in the said
business.
xx.
Whether there are contradictions and
discrepancies in the speeches, press interviews and statements made by
Respondent No.1 and other members of his family at different times before
different fora explaining ownership of Mayfair Properties and the sources of
funds for purchase of the Mayfair Properties and other businesses of
Respondents No.7 & 8. Further, whether there are irreconcilable
discrepancies in the stance taken by Respondent No.1 and the statements,
interviews and plea taken by Respondent No.7 and other members of his family
before this Court?
xxi.
Whether there is enough evidence available before
this Court furnishing basis for disqualification of Respondent No.1 or to
issue a declaration under Article 62(1)(f) of the Constitution and disqualify
them from being member of the Parliament? 29. In
order to answer the afore-noted amongst a host of other questions which have
arisen during these proceedings (all of which need not necessarily be dealt
with by us), we consider it appropriate to examine the respective pleas taken
by Respondents Nos.1, 6 to 8, 9 & 10 in the respective concise statements
filed by them and submissions made by their learned counsel before us. It may
also be noted that during the course of proceedings in these matters which
were spread over 26 full day hearings before this Bench, additional documents
were filed at regular intervals presumably to substantiate what was being
asserted and to answer various queries raised by the Court regarding matters
considered relevant in order to understand and resolve the controversy before
us. 30. These
cases arose out of documents recovered from the database of Mossack Fonseca,
a 31. In
addition to the above, allegations of money laundering, corruption and use of
corrupt practices on the part of Respondent No.1 were levelled. Questions
were raised regarding the businesses being run by Respondents No.7 & 8 in
32. Faced
with the disclosures that the Mayfair Properties were owned by the children
of Respondent No.1 and the allegations that he is the real owner of these
properties, Respondent No.1 who is the Prime Minister of Pakistan, addressed
the Nation on 05.04.2016 on national television. This address was also
televised by private media networks. He took the stance that on being sent
into exile in the year 2000, he and his family had set up a Steel Mill in 33. Referring
to the source of funds for the Mayfair Properties he stated that pursuant to
nationalization of the family businesses in 1972 his late father Mian
Muhammad Sharif went to 34. It
appears that even the second speech failed to settle the storm of criticism
caused by the sudden and unexpected disclosures coming in the public domain
through Panama Leaks. Therefore, initially efforts were made by/and on behalf
of Respondent No.1 to refer the matter to an Inquiry Commission. A letter was
accordingly written by the Government of Pakistan through Secretary, Ministry
of Law & Justice, to the Honorable Chief Justice of Pakistan requesting
him to appoint a Commission of Inquiry. However, such request was declined
for reasons mentioned in the letter issued by the Registrar of this Court in
response to the said letter. The matter was also referred to a Parliamentary
Committee with the consent of the ruling party which is headed by Respondent
No.1 as well as most of the opposition parties, to agree on a modus operandi and possibly pass
legislation for appointing a Commission of Inquiry to conduct an
inquiry/investigation into the matter. It is therefore clear that there was
consensus across the board amongst all parties that there was a need for
inquiry and investigation to ascertain the true facts. However, unfortunately
no consensus could be reached amongst the Parliamentarians regarding the
mode, manner, scope and Terms of References (ToRs) of such Commission of
Inquiry. This led to the present petitions being filed before this Court on
behalf of Mr. Imran Ahmed Khan Niazi, Chairman, Pakistan Tehreek-e-Insaf
(PTI), Sheikh Rashid Ahmed, Head of Awami Muslim League Pakistan and Senator
Siraj ul Haq, the Ameer of Jamaat-e-Islami. The petitioners are leaders of
Political Parties which have representation in the National Assembly of
Pakistan. They seek inter alia,
disqualification of Respondents No.1, 9 & 10 as Members of the National
Assembly; a direction that looted / laundered money along with properties
purchased through offshore companies should be recovered; a direction to
Chairman NAB to discharge his obligations under Section 18 read with Section
9 of the National Accountability Ordinance, 1999 (NAO) and an order directing
Respondents No.2 & 3 to initiate claims on behalf of the Government of
Pakistan for recovery of the properties subject matter of these petitions
(Mayfair Properties, etc), and also a direction to Respondent No.5, Federal
Board of Revenue to probe and scrutinize
tax returns and asset declarations of Respondent No.1 and his family. 35. During
the course of hearings, transcripts of various television interviews given by
Respondents No.6, 7 & 8 were also produced before us. These have not been
denied. It appears that Respondent No.7 Hussain Nawaz in an interview with
the anchor of a television channel stated that the Mayfair Properties had
been purchased from profits on investments made by his late grandfather Mian
Muhammad Sharif in 36. Nevertheless,
coming back to the sequence of events set out by Respondents No.7 & 8 in
their pleadings and submissions of their learned counsel, in order to
substantiate the transactions of sale of Gulf Steel in Dubai, photocopy of a
Tripartite Agreement between Gulf Steel acting through Mian Muhammad Tariq
Shafi who was allegedly acting on instructions and on behalf of Mian Muhammad
Sharif, Mr. Abdallah Kaid Al Ahli and BCCI was placed on record. This
agreement shows sale of 75% shares in Gulf Steel in favour of Al Ahli family
in 1978. This document indicates that a sum of 21,375,000 Dirhams was paid by
the Ahli Family as purchase price of 75% shares owned by Mian Muhammad Sharif
in Gulf Steel. The agreement also shows that at the time of sale of 75%
shares of Mian Muhammad Sharif, Gulf Steel owed about 27,664,589 Dirhams to
BCCI alone. The total liability of Gulf Steel was about 36,023,899.31
Dirhams. According to the terms of the agreement, the entire sale price for
the 75% shareholding was received by BCCI towards part payment of amounts
owed to it by Gulf Steel. There is no explanation available on record and
none has been offered despite repeated queries by us as to whether the
balance outstanding amounts which were admittedly owed by Gulf Steel or its
shareholders/partners to BCCI and other creditors were paid and if so by whom
and from what source(s). There has either been complete silence or evasive
responses on the part of the Respondents claiming lack of
information/documentation/record to answer this question or fill these material
gaps in the information. 37. It
has been claimed on the basis of photocopy of another document that two years
later the remaining 25% shareholding in the business which was held by Mian
Muhammad Sharif through Mr. Tariq Shafi was also sold for an aggregate amount
of 12 Million Dirhams. This amount was allegedly received in installments
over a period of six months. In this context, it may be noted that Mr. Tariq
Shafi initially submitted an affidavit dated 12.11.2016 stating that being a
member of the Sharif Family he was acting on behalf of late Mian Muhammad
Sharif and had sold the 75% shareholding in Gulf Steel. He also submitted
that he sold the balance 25% shareholding on the directions of his uncle and
utilized the proceeds as instructed by him. At that stage, we note that he
did not disclose what those instructions (regarding utilization of proceeds)
were. It has been asserted by the learned counsel for the Petitioners that
Gulf Steel/Mian Muhammad Sharif owed amounts much in excess of 12 Million
Dirhams when the 25% stake was sold. Therefore, the entire amount was
utilized to pay off the outstanding liabilities. This assertion appeals to
reason and logic considering the contents of the documents showing sale of
Gulf Steel in favour of Mr. Abdallah Kaid Al Ahli and the figures showing
liabilities of Gulf Steel/Mian Muhammad Sharif. 38. In
an apparent effort to fill the gaps and provide answers to various questions
raised and reservations expressed by us an improved version of the previous
affidavit was submitted by Mr. Tariq Shafi. This affidavit was executed on
20.01.2017. This time it was stated that the sum of 12 Million Dirhams was
received in six different installments, spread over a period of about six
months. Such installments were received from Mr. Abdallah Kaid Al Ahli in
cash and were delivered in cash for investment in the real estate business of
Thani Family to Sheikh Fahad who was the older brother of Sheikh Hamad who
has allegedly passed away. He received the amounts on behalf of the Thani
Family in 39. We
have found it strange that while all other transactions including setting up
of Gulf Steel, obtaining financing for it, repayment of dues of BCCI,
furnishing of guarantees stipulated in the Tripartite Agreement, etc. were
undertaken by involvement of Banks / Financial Institutions, the entire
alleged transaction related to investment of 12 Million Dirhams in Qatar is
claimed to have been undertaken through cash transactions without
documentation of any nature being executed by the parties evidencing such
transaction(s). There is not a shred of evidence showing the terms and
conditions on the basis of which this sum of 12 Million Dirhams was invested
in the real estate business of the Thani Family. Late Mian Muhammad Sharif
was a seasoned businessman of long standing. We find it hard to believe that
he instructed Mr. Tariq Shafi to handover 12 Million Dirhams in cash to
Sheikh Fahad for investment in his father’s business without any
documentation whatsoever. The learned counsel for the Respondents have also
failed to explain to us the terms and conditions on the basis of which the
alleged business arrangement between Mian Muhammad Sharif and the Thani
Family took place. No evidence or material of any nature whatsoever has been
produced to show that any relationship being claimed by the Respondents
actually existed, what part the late Mian Muhammad Sharif played in this
business relationship, whether or not any accounts were maintained and if at
all there was any interaction in person or otherwise between late Mian
Muhammad Sharif and the Thani Family. The entire story has been woven around
two letters and two affidavits, the contents of which we have found to be
dubious and hard to believe. 40. Notwithstanding
what has been stated above, the story was stretched further by stating that
for the next about 20 years the funds were left alone, apparently forgotten
or intentionally kept untouched and unaccounted for by late Mian Muhammad
Sharif. During this time, apparently the funds continued to multiply
expotentially at a very healthy rate. However, between 2001 to 2004 various
sums aggregating US $ 4,207,925 which allegedly constituted a part of the
return on the initial investment of 12 Million Dirhams were allegedly
transmitted to the account of Respondent No.8 to help him set up his business
in the 41. It
has further been claimed on behalf of Respondents No.7 & 8 (without
proof) that late Mian Muhammad Sharif had instructed the Thani Family that
the beneficiary of the proceeds of his investment will be his oldest grandson
namely Hussain Nawaz (Respondent No.7). Late Mian Muhammad Sharif breathed
his last in October, 2004 where-after it was claimed that in 2006, the Thani
Family settled the accounts of investment made by him. In terms of the said
settlement, it was claimed on behalf of Respondent No.7 that in addition to
other amounts paid earlier and as part of the settlement, in lieu of balance
payable amount of US $ 8,039,753, bearer certificates of the two offshore
companies namely Nescol Limited and Nielsen Enterprises Limited which owned
the Mayfair Properties were handed over by a representative of the Thani
Family to a representative of Respondent No.7 in Qatar as the bearer
certificates in question were being held in Qatar. 42. It
is important at this stage to point out that the Respondents have all along
admitted that they were in physical possession and using Mayfair Properties
since 1993/1996 when the same appear to have been acquired by two
offshore/BVI registered companies namely Nescol Limited and Nielsen
Enterprises Limited. However, it has been claimed that the Thani Family owned
the said offshore companies and the Mayfair Properties. On account of their
family relations with the late Mian Muhammad Sharif, the Thani Family had
allowed Respondents No.7 and 8 to occupy and use the said properties while
they were studying in 43. The
above claim appears to be in contradiction to an interview of Respondent No.8
with Tim Sebastian of BBC London (neither the interview nor its contents have
been denied by Respondent No.8). Respondent No.8 was specifically asked by
Mr. Sebastian if the Flats he was living in had been acquired by his father
through various offshore companies. He responded by saying that he was living
on rental basis and rent for the same came from Pakistan, every quarter, from
the family business in Pakistan. He also stated that he was a student at that
time and was not earning. It is therefore clear that at least three different
versions about ownership of the Mayfair Properties, and purchase of the same
are available on the record not to speak of yet another version in which the
first lady allegedly stated in an interview that the properties in question
were purchased in the year 2000 for use of their children who were studying
in London. 44. In order to substantiate
the claim of a settlement with Thani Family, a photocopy of an
unauthenticated handwritten note has been produced. It has some random
figures/calculations on it. Nobody has even tried to explain to us, who made
these calculations and on what basis. Further, a print out of a computerized
spread sheet which too is unsigned and unauthenticated has also been
produced. Besides other calculations, it gives details of the aforesaid
amounts paid to Respondents No.7 & 8 as well as Al-Tawfeeq Investment
Company, which for ease of understanding are given in the following table:- i.
8
million – Year 2000 – Al Tawfeeq ii.
1st
payment to Respondent No.7 ( Azizia Steel) – US$ 650,000 – Year 2001 iii.
2nd
payment to Respondent No.7 ( Azizia Steel) – US$ 3,160,000 – Year 2002 iv.
3rd
payment to Respondent No.7 ( Azizia Steel) – US$ 1,600,000 – Year 2003 v.
Final
payment to Respondent No.7 (Mayfair Properties) – US$ 8,039,753 – Year 2006 ·
Total
= US$ 13,449,753 (including Mayfair Properties) vi.
1st
payment to Respondent No.8 – US $ 1,038,569 – Year 2001 vii.
2nd
payment to Respondent No.8 – US $ 461,333 – Year 2002 viii. 3rd payment to Respondent No.8 – US $
1,771,257 – Year 2003 ix.
4th
payment to Respondent No.8 – US $ 936,766 – Year 2004 ·
Total
= US $ 4,207,925 The
spread sheet shows that interest was paid on the so called initial investment
of 12 Million Dirhams calculated at the London Interbank Offered Rate (LIBOR)
from 1980 onwards till the alleged final settlement. This document is an
obvious but amateurish exercise in reverse accounting in order to show
accrual of money and then its alleged payment/distribution under various
heads of account, to create a semblance of availability and utilization of
legitimate funds. No effort has been made to explain why, if at all funds
were invested in Qatar in Dirhams (of which there is no evidence), for the
purpose of investment in the real estate business of the Thani Family (of
which there is not an iota of evidence either) the returns mysteriously accruing
and multiplying over the next twenty years were calculated in US Dollars.
Further, the alleged investment was admittedly not made by placement of the
same in a Bank or financial institution or some investment company. Why, how
and on the basis of what understanding or arrangement could returns on the
alleged investment be linked to and calculated on the basis of LIBOR? In our
opinion, the document is bogus, has no legal or evidentiary value and we have
no hesitation in out rightly rejecting it.
45. It
may be pointed out that in the year 2000, the London High Court had issued an
ex parte decree against HPML, Mian
Muhammad Sharif, Mian Muhammad Shahbaz Sharif and Mian Muhammad Abbas Sharif
in a recovery suit filed by Al Tawfeeq Investment Company. On an application
accompanied by an affidavit for execution of the decree, the London High
Court passed a conditional attachment order creating a charge on the Mayfair
Properties. The petitioners have heavily relied upon the attachment order of
the London High Court to allege that the properties were owned by the Sharif
Family in the year 2000, which led to attachment of the same in execution of
the decree passed against HPML and the aforesaid members of the Sharif Family
who were presumably arrayed as defendants in their capacity as directors of
the Company and guarantors of the loan. It, however, appears that the
attachment was based on an affidavit filed by Mr. Shezi Nackvi, an officer of
Al Tawfeeq Investment Company, stating that the said members of the Sharif
Family had proprietary rights/interest in the said properties. The
Respondents have, during the course of proceedings before this Court procured
and produced an affidavit of Mr. Nackvi stating that he had submitted the
affidavit before the London High Court in the year 2000 on the basis of
information available in a Report prepared by Mr. Abdul Rehman Malik, who was
then working in the Federal Investigation Agency (FIA) stating that the
Sharif Family owned these properties. Mr. Nackvi has further stated in his
affidavit that other than the afore-noted information he had no independent
information or knowledge about the identity of the persons who owned the
Mayfair Properties. We have various reservations about the contents,
reliability and admissibility of the affidavit. However, nothing turns either
on the affidavit or the decree, because in neither, Respondents No.1, 6, 7 or
8 find any mention. The affidavit of
Mr. Nackvi does however raise a number of questions and issues relating to
the family businesses of Respondent No.1, including HPML etc for which no
answers have been found nor has any attempt been made to furnish any answers
backed by evidence and documentation. It has however, been claimed that the
attachment order/charge was removed by the Court on being informed by the
decree holder that the Judgment Debtors (members of the Sharif Family) had
satisfied the decree which was apparently for a sum of approximately US $ 16
Million, by payment of a claimed settlement amount of US $ 8 Million. No proof
or documentation has been produced to show the terms of settlement (if any).
Additionally, it has been claimed that this settlement amount of US $ 8
Million was also paid by the Thani Family to Al Tawfeeq Investment Company. 46. No
documentation, paper trail, money transactions, remittances records etc or
any other record / material has been placed before us to back this claim. We,
therefore, have no reason to believe that this amount was indeed paid by the
Thani Family. The question as to who satisfied the decree of the London High
Court against HPML and its Directors has remained unanswered. It has further
been claimed that out of the settlement amount, a few Million Dollars were
also given to Respondent No.7 for the purposes of his businesses in 47. With
regard to the Mayfair Properties, it has been claimed on behalf of Respondent
No.7 that on receipt of bearer certificates of Nescol Limited and Nielsen
Enterprises Limited, he became the beneficial owner of the two companies as
well as the properties owned by the said companies in 2006. However, in view
of the fact that he has two families and various children, in order to
safeguard the rights of both families, he appointed his sister (Respondent
No.6) as a Trustee to hold the shares in trust for him. In this regard, a so
called Trust Deed has also been produced which appears to have been signed on
2nd of February, 2006 in Saudi Arabia by Respondent No.6 and in
London, UK on 04.02.2006 by Respondent No.7. Admittedly, this is a private
document, was never registered or authenticated by any competent authority
and strangely enough was never placed in any official record or disclosed to
any authority that had anything to do with the two offshore companies or the
Mayfair Properties held by the said companies. Apparently, it saw the light
of the day for the first time in these proceedings before us. It has not been
established as to who is the real owner of the Mayfair Properties. However,
the facts and circumstances narrated herein raise a suspicion that Respondent
No.1 may be the real owner of these properties. Such ownership may be direct,
indirect, beneficial or equitable. This requires probe and investigation. 48. It
is also important to highlight that in response to letters written by the
Financial Investigation Agency of British Virgin Islands (FIA-BVI), Mossack
Fonseca after having collected information from Nescol Limited and Nielsen
Enterprises Limited confirmed to it that Mrs. Maryam Safdar, Respondent No.6
whose address was mentioned in the records of the two companies as Saroor
Palace, Jeddah, Saudi Arabia was the beneficial owner of the two offshore
companies which owned the Mayfair Properties. It is pertinent to note that
Respondent No.6 was at that time living in exile in 49. It
appears that in the background of events of 9/11 and the consequent
international efforts to curb money laundering, holding assets through
offshore companies by masking identity of real owners and tracing illegal
money etc, the law relating to offshore companies in BVI namely International
Business Companies Act, 1984 was reenacted in 2006. The earlier law provided
for issuance of bearer certificates without disclosing the name of the holder
which could be issued under Section 28 of the Act without requiring any
registration and could be transferred by delivery under Section 31 thereof.
In other words a person could hold a share in an offshore company which owned
immovable property in 50. Respondent
No.7 claims that pursuant to the aforesaid requirements, the bearer certificates
of Nescol Limited and Nielsen Enterprises were surrendered with the said
companies and bearer certificates were issued/registered in the names of two
management companies namely Minerva Holdings and Minerva Services. This
arrangement continued till 2014 when the shares issued in favour of Minerva
Holding and Minerva Services were cancelled and fresh shares were issued in
favour of Trustee Services Corporation. Thereafter, it appears that Arrina
Limited was appointed to provide management services for the Mayfair
Properties and liaise with service providers of Nescol Limited and Nielsen
Enterprises Limited. Respondent No.7 has attempted to show that he was in
effective control of and instructing the management companies as well as
service companies. He has thus tried to establish that the beneficial owner
of the Mayfair Properties is and always was Respondent No.7 and that
Respondent No.6 had no direct or indirect right, title or interest of any
nature in the Mayfair Properties other than in her capacity as a Trustee
(authorized signatory, etc) for and on behalf of Respondent No.7. However,
not a single document showing real ownership of Nescol Limited, Nelson
Enterprises Limited, Minerva Holdings, Minerva Services, Trustee Services
Corporation, etc or control of Respondent No.7 over the said entities has
been produced. The real ownership and control of the companies/properties and
more importantly the sources of funds used to acquire these properties
remains shrouded in mystery. Another material factor that has to be kept in
mind is that admittedly the Mayfair Properties were in possession/occupation
of the family of Respondent No.1 since 1993/1996 when these are alleged
(without proof) to have been acquired by the Thani Family through Nescol
Limited and Nielson Enterprises Limited. At that time neither Respondent No.7
nor Respondent No.8 had any sources to purchase/acquire these assets.
Respondent No.1 was at the relevant time (1993/1996) and still is holder of a
public office. His children have since then been in possession of the Mayfair
Properties, when they were admittedly dependents of Respondent No.1 and had
no sources of income. The value of the Mayfair Properties was ostensibly
disproportionate to the declared and known sources of income of Respondent
No.1 (if his income tax returns are kept in mind). In his concise statement
as well as his two speeches, Respondent No.1 has totally denied his
connection with these assets. This prima
facie amounts to failure to account for these assets. The matter clearly
attracts the provisions of Section 9(a)(v) read with Section 14(c) of NAO
authorizing NAB to proceed against Respondent No.1 and any other person
connected with him in this regard. We cannot help but conclude that this
matter has intentionally and deliberately been kept vague, undocumented and
unexplained to hide and conceal the real facts, which if disclosed would be
damaging for the case of Respondents No.1, 6, 7 & 8. 51. Having
examined the transactions leading to acquisition of the Mayfair Properties
and having made earnest, and at times, highly frustrating and fruitless
efforts to find a verifiable trail of transactions showing legitimate funds
being transmitted through legitimate sources and verifiable banking channels
for acquisition of the Mayfair Properties, we have been left in a lurch. This
was despite tall and unequivocal claims on the part of Respondents No.1, 6,
7, other members of the Sharif Family and their political spokespersons who
took to every available television channel and availed every possible
opportunity to assert and claim that all relevant documents/evidence showing
legitimate sources, money trails and banking transactions were available, in
possession of the Respondents and will be produced before the legal fora. Regrettably, there has been
complete utter and total failure to do so. It was repeatedly promised that
all record will be produced before the concerned fora in order to show that
there was no wrongdoing and the acquisition of the properties was through
legitimate sources which were transparent and above board. On the contrary,
we note with regret and disappointment that every possible effort was made
and every conceivable device was adopted to withhold and conceal information
and documents which were necessary to answer the numerous questions which
have been raised regarding probity, transparency and legitimacy of the
transactions in question by the highest Court of the country. We have valid
reasons and lawful justification to believe and hold that most of the material
questions have either not been answered or where any answers have been
attempted, the same have been found by us to be most unsatisfactory,
farfetched and unbelievable. It has candidly been admitted by the learned
counsel for Respondents No.7 & 8 that there are holes and gaps in the
stance adopted by the Respondents which have neither been filled nor
explained by supplying acceptable explanations, evidence and documentation.
There is a host of material, crucial and critical questions which have remained
unaddressed, unresolved and unanswered. It has been argued that the
explanation offered by Respondents No.7 & 8 meets the threshold of “realm
of possibilities”, and this is what the Respondents were required to do. We
are unfortunately unable to agree with the said argument in the facts and
circumstances of the present case. We may observe that the contradictory,
discrepant and divergent explanations offered to us by the Respondents,
including Respondent No.1 have been found by us to be absurd, fanciful and
ludicrous. Owing to the missing pieces and gaps we have found it impossible
to make any reasonable sense out of a convoluted, contradictory and
deliberately jumbled up set of facts to come to a conclusion on a number of matters including the fact
that the Mayfair Properties were purchased/acquired with legitimate funds and
verifiable sources. 52. The
most material question that arises from the above discussion is whether the
findings recorded above are enough for us to declare that Respondent No.1 is not
truthful and ameen and then proceed to disqualify him from being a member of
the National Assembly. In
order to answer these questions, it would have to be seen if there is any
provision of the Constitution which may require a Parliamentarian to disclose
assets of his adult and independent children and the sources of funds with
which such assets were acquired and in the event of such non-disclosure or
inability to explain the sources, empowers this Court to disqualify such
Parliamentarian, in exercise of powers under Article 184(3) of the
Constitution. Articles 62 & 63 of the Constitution deal with the issue of
qualification and disqualification of the Parliamentarians. Interpretation of
the said constitutional provisions, being pivotal to the question in issue,
the said Articles are reproduced below, for ease of reference:- “62(1). A person shall
not be qualified to be elected or chosen as a member of Majlis-e-Shoora
(Parliament) unless— (a)
he is a citizen
of (b)
he is, in the
case of the National Assembly, not less than twenty-five years of age and is
enrolled as a voter in any electoral roll in— (i) any
part of (ii) any
area in a Province from which she seeks membership for election to a seat
reserved for women. (c)
he is, in the
case of Senate, not less than thirty years of age and is enrolled as a voter
in any area in a Province or, as the case may be, the Federal Capital or the
Federally Administered Tribal Areas, from where he seeks membership; (d)
he is of good
character and is not commonly known as one who violates Islamic Injunctions; (e)
he has adequate
knowledge of Islamic teachings and practices obligatory duties prescribed by
Islam as well as abstains from major sins; (f)
he is sagacious,
righteous, non-profligate, honest and ameen, there being no declaration to
the contrary by a court of law; and (g)
he has not, after
the establishment of (2) The disqualifications specified in
paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but
such a person shall have good moral reputation. 63 (1). A person shall
be disqualified from being elected or chosen as, and from being, a member of
the Majlis-e-Shoora (Parliament), if— (a)
he is of unsound
mind and has been so declared by a competent court; or (b)
he is an
undischarged insolvent; or (c)
he ceases to be a
citizen of (d)
he holds an
office of profit in the service of (e)
he is in the
service of any statutory body or any body which is owned or controlled by the
Government or in which the Government has a controlling share or interest; or (f)
being a citizen
of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951
(II of 1951), he is for the time being disqualified under any law in force in
Azad Jammu and Kashmir from being elected as a member of the Legislative
Assembly of Azad Jammu and Kashmir; or (g)
he has been
convicted by a court of competent jurisdiction for propagating any opinion,
or acting in any manner, prejudicial to the ideology of Pakistan, or the
sovereignty, integrity or security of Pakistan, or the integrity, or
independence of the judiciary of Pakistan, or which defames or brings into
ridicule the judiciary or the Armed Forces of Pakistan, unless a period of
five years has elapsed since his release; or (h)
he has been, on
conviction for any offence involving moral turpitude, sentenced to
imprisonment for a term of not less than two years, unless a period of five
years has elapsed since his release; or (i)
he has been
dismissed from the service of Pakistan or service of a corporation or office
set up or, controlled by the Federal Government, Provincial Government or a
Local Government on the grounds of misconduct, unless a period of five years
has elapsed since his dismissal; or (j)
he has been
removed or compulsorily retired from the service of Pakistan or service of a
corporation or office set up or controlled by the Federal Government,
Provincial Government or a Local Government on the grounds of misconduct,
unless a period of three years has elapsed since his removal or compulsory retirement;
or (k)
he has been in
the service of Pakistan or of any statutory body or any body which is owned
or controlled by the Government or in which the Government has a controlling
share or interest, unless a period of two years has elapsed since he ceased
to be in such service; or (l)
he, whether by
himself or by any person or body of persons in trust for him or for his
benefit or on his account or as a member of a Hindu undivided family, has any
share or interest in a contract, not being a contract between a cooperative
society and Government, for the supply of goods to, or for the execution of
any contract or for the performance of any service undertaken by, Government: Provided that the disqualification
under this paragraph shall not apply to a person— (i) where
the share or interest in the contract devolves on him by inheritance or
succession or as a legatee, executor or administrator, until the expiration
of six months after it has so devolved on him; (ii) Where
the contract has been entered into by or on behalf of a public company as
defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a
shareholder but is not a director holding an office of profit under the
company; or (iii) Where
he is a member of a Hindu undivided family and the contract has been entered
into by any other member of that family in the course of carrying on a
separate business in which he has no share or interest; or Explanation.—In this Article
“goods” does not include agricultural produce or commodity grown or produced
by him or such goods as he is, under any directive of Government or any law
for the time being in force, under a duty or obligation to supply; or (m) he
holds any office of profit in the service of (i) an
office which is not whole time office remunerated either by salary or by fee; (ii) the
office of Lumbardar, whether called by this or any other title; (iii) the
Qaumi Razakars, (iv) any
office the holder whereof, by virtue of such office, is liable to be called
up for military training or military service under any law providing for the
constitution or raising of a Force; or (n) he
has obtained a loan for an amount of two million rupees or more, from any
bank, financial institution, cooperative society or cooperative body in his
own name or in the name of his spouse or any of his dependents, which remains
unpaid for more than one year from the due date, or has got such loan written
off; or (o) he
or his spouse or any of his dependents has defaulted in payment of government
dues and utility expenses, including telephone, electricity, gas and water
charges in excess of ten thousand rupees, for over six months, at the time of
filing his nomination papers; or (p) he
is for the time being disqualified from being elected or chosen as a member
of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law
for the time being in force. Explanation.—For the purposes of
this paragraph “law” shall not include an Ordinance promulgated under Article
89 or Article 128. (2) If any question arises whether a
member of the Majlis-e-Shoora (Parliament) has become disqualified from being
a member, the Speaker or, as the case may be, the Chairman shall, unless he
decides that no such question has arisen, refer the question to the Election
Commission within thirty days and if he fails to do so within the aforesaid
period it shall be deemed to have been referred to the Election Commission. (3) The Election Commission shall decide
the question within ninety days from its receipt or deemed to have been
received and if it is of the opinion that the member has become disqualified,
he shall cease to be a member and his seat shall become vacant.” 53. Perusal of the afore-noted
constitutional provisions would reveal that the said Articles of the
Constitution do not impose an obligation on a Parliamentarian to disclose his
own assets or those of his spouse, dependent or independent children.
Likewise, there is no corresponding provision in the Constitution providing a
penal consequence for non-disclosure of such assets or failure to explain the
source(s) of funds with which such assets may have been acquired. In the
absence of any constitutional requirement, the same cannot be read into the
language of Articles 62 or 63 of the Constitution. For the said purpose, one
has to look towards other laws which create such obligations, violation
whereof attracts the provisions of Articles 62 and /or 63 of the
Constitution. 54. One such law relating to
the conduct of elections to the National and the Provincial Assemblies is the
Representation of People Act, 1976 (RoPA). It provides for the conduct of
elections and to guard against corrupt and illegal practices and other
offences at or in connection with such elections. Article 218 of the
Constitution provides for establishment of an Election Commission to organize
and conduct elections and to make such arrangements as may be necessary to
ensure that the election is conducted honestly, justly, fairly and in accordance
with law and that corrupt practices are guarded against. 55. Section 12 of RoPA deals
inter alia with nomination papers, sub-section (f) thereof requires a
candidate to file with his nomination papers, on solemn affirmation, a
statement of his assets and liabilities and those of his spouse and
dependents on the prescribed form as on the preceding thirtieth day of June.
Section 107 of the RoPA empowers the Election Commission of Pakistan to make
Rules for carrying out the purposes of the Act. In exercise of such powers,
the Representation of People (Conduct of Election) Rules, 1977 (the Rules)
have been promulgated. In terms of Rule 3 thereof, Nomination Forms have been
prescribed. The standard Nomination Form, in addition to other particulars of
the candidate, requires him to make and sign a number of declarations. The
declaration relating to assets and liabilities reads as under:- “STATEMENT OF ASSETS AND LIABILITIES I, ……………………. A candidate for election to general seat from
constituency No………… hereby declare on solemn affirmation that no immovable
and movable property, including bonds, shares, certificates, securities,
insurance policies and jewellery, other than specified herein below, is held
by me, my spouse(s) and dependents on the 30th day of June,
……………….. ASSETS
LIABILITIES
VERIFICATION I,…………………… S/o, W/o, D/o
……………………. Do hereby solemnly declare
that, to the best of my knowledge and belief, the above statement of assets
and liabilities of myself, my spouse(s), dependents as on 30th
June, …….. is correct and complete and nothing has been concealed therefrom. Dated……………. Signature
of Candidate” 56. The said declaration is
also required to be verified under Oath. Section 42-A of the RoPA also
requires every member to submit a statement of assets and liabilities of his
own, his spouse and dependents annually to the Commission by the thirteenth
day of September each year. Rule 28-A of the Rules requires such statement to
be submitted in Form XXI, the format whereof is provided therein. In terms of
Section 42-A(4) of the RoPA if a member submits the statement of assets and
liabilities which is found to be false in material particulars, he may be
proceeded against under Section 82 of the RoPA for committing an offence of
corrupt practice. If found guilty by a Sessions Judge under Section 94 of the
RoPA, such member is punishable with imprisonment for a term which may extend
to three years or with fine which may extend to Five Thousand Rupees or with
both. In case, it is established in a Court or Tribunal of competent
jurisdiction that a candidate has concealed any of the assets required to be
disclosed under the statement of assets and liabilities in his Nomination
Papers or his Annual Statement of Assets and Liabilities, the same may
constitute basis for his disqualification inter
alia under the provisions of Articles 62 and/or 63 of the Constitution. 57. However, it needs to be
emphasized that where such declaration is properly made there is neither any
requirement nor power vesting in the hierarchy provided under the Election
Laws to require the candidate to explain the source of funds used to acquire
such assets. Does this mean that a candidate or holder of a public office,
who acquires assets through unlawful means goes scot-free as long as he
declares the same in his Nomination Papers? The answer is obviously in the
negative. However, the mechanism provided by the law in order to make such a
person answerable and accountable for disclosure of sources for acquisition
of assets is incorporated in the NAO under which a person, holding assets
directly or indirectly, which are disproportionate to his known sources of
income can be called upon to explain and disclose the sources with which such
assets were acquired and on his failure to do so to the satisfaction of the
Court, he can be visited with penal consequences provided in the said law. A
conviction under NAO or any other law for the time being in force can also
trigger the disqualification mechanism provided in the Constitution. Section
9(a)(v) read with Section 14(c) and Section 15 of the NAO provide as
follows:- “9(a)(v). if he or any of his dependents or
benamidars owns, possesses, or has http://www.nab.gov.pk/Downloads/nao.asp - 12-4[acquired] right or title in any [assets
or holds irrevocable power of attorney in respect of any assets] or pecuniary resources
disproportionate to his known sources of income, which he cannot [reasonably] account for; [or maintains a
standard of living beyond that which is commensurate with his sources of
income] 14(c)
In any trial of an offence punishable under clause (iv) of sub-section (a) of
section 9 of this Ordinance, the fact that the accused person or any other
person on his behalf, is in possession, for which the accused person cannot
satisfactorily account, of [assets] or pecuniary resources disproportionate
to his known sources of income, or that such person has, at or about the time
of the commission of the offence with which he is charged, obtained an
accretion to his pecuniary resources or property for which he cannot
satisfactorily account, the Court shall presume, unless the contrary is
proved, that the accused person is guilty of the offence of corruption and
corrupt practices and his conviction therefore shall not be invalid by reason
only that it is based solely on such a presumption. 15. Disqualification to
contest elections [or to hold to public office].
(a) Where an accused person is convicted [of an
offence under section 9 of this Ordinance], he shall forthwith cease to hold
public office, if any, held by him and further he shall stand disqualified
for a period of ten years, to be reckoned from the date he is released after
serving the sentence, for seeking or from being elected, chosen, appointed or
nominated as a member or representative of any public body or any statutory
or local authority or in service of Pakistan or of any Province: Provided that any accused person
who has availed the benefit of [sub-section (b)
of section 25] shall also be deemed to have been convicted for an offence under
this Ordinance, and shall forthwith cease to hold public office, if any, held
by him and further he shall stand disqualified for a period of ten years, to
be reckoned from the date he has discharged his liabilities relating to the
matter or transaction in issue, for seeking or from being elected, chosen,
appointed or nominated as a member or representative of any public body or
any statutory or local authority or in service of Pakistan or of any
Province. (b)
Any person convicted of an offence [under
section 9 of this Ordinance] shall not
be allowed to apply for or be granted or allowed any financial facilities in
the form of any loan or advances [or
other financial accommodation by] any bank or financial institution [owned or controlled by the Government]
for a period of 10 years from the date of conviction.” 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 59. Perusal
of Article 62 (1) of the Constitution would indicate that, prima facie it relates to pre-election
qualification as is evident from the words, “a person shall not be qualified
to be elected …..” The provisions of Article 62 of the Constitution which
have also been replicated in Section 99 of the RoPA are initially enforceable
through the hierarchy established under the RoPA starting from the Returning
Officer and culminating in the Election Tribunal/Election Commission in terms
of Articles 218 & 225 of the Constitution. For instance, if it is
established before the Returning Officer, Election Tribunal or the Election
Commission that a Court of law has issued a declaration that a candidate is
not sagacious, righteous, non-profligate, honest and ameen, any of the fora
provided in the RoPA (depending on the time, the stage and the proceedings in
which such information is placed before the concerned forum) can hold that he
is not qualified to contest the election. It must also be kept in mind that
various provisions of RoPA prescribe a period of limitation for filing
objections to the candidature of an intending candidate or to challenge his
election after notification of the result is published in the official
gazette. The question that arises is what remedy is provided under the law
and the Constitution if certain facts or circumstances as enumerated in
Articles 62 or 63 of the Constitution are discovered after a person has been
elected and the stage or the period of limitation to challenge his election
on any of the grounds provided in the said Articles before the competent fora
provided in RoPA has passed/expired. Does this mean that a person once
elected cannot be disqualified on the said grounds by any mode or manner
despite the fact that he suffers from any of the disqualifications mentioned
in Articles 62 and/or 63 or any provision of RoPA? The answer is obviously in
the negative. Where there is a wrong there is a remedy. The Constitution and
the law clearly cater for situations like these. 60. It
may be noticed that Article 63 of the Constitution inter alia deals with the issue of post-election disqualification
and also provides a forum for the same. Therefore, if a question is raised by
a member as to whether or not another member of the Majlis-e-Shoora
(Parliament) has become disqualified from being a member on any ground
available under the Constitution or any law for the time being in force
including RoPA, the Speaker or the Chairman, as the case may be, is obliged
to examine the material placed before him and if he comes to the conclusion
that such question has arisen, he is required to refer the same to the
Election Commission within 30 days. If he fails to do so within the said
period such question is deemed to have been referred to the Election
Commission. 61. Before
referring the matter to the Election Commission, the Speaker / Chairman has
30 days to decide whether or not such question has arisen and if he decides
that no such question has arisen he has the power to refuse to refer the
question to the Election Commission for decision. However, the decision of the Speaker has to be made on
the basis of lawful, valid and cogent reasons showing due application of mind
to the facts, circumstances and material placed before the Speaker/Chairman,
as the case may be. Such decision is justiciable before Courts of competent
jurisdiction. If a Court of competent jurisdiction on being approached by any
of the parties finds that the decision of the Speaker/Chairman is legally or
factually incorrect it can set aside such decision, and pass appropriate
orders in accordance with the law and the Constitution to refer the matter to
the Election Commission of Pakistan. 62. On
receipt of such question, the Election Commission has the power to
decide the same within 90 days and if it is of the opinion that the member
has become disqualified, such member ceases to be a member and his seat
becomes vacant. In these proceedings, the Election Commission of Pakistan has
the power to issue such directions or orders as may be necessary for the
performance of its functions and duties, including any order for doing
complete justice and an order for the purpose of securing attendance of any
person or the discovery and production of any document. Any of the parties
aggrieved of a decision of the Election Commission can approach a Court of
competent jurisdiction to challenge such order. 63. Another
constitutional remedy in situations of this nature is available under Article
199 of the Constitution before the High Court and in appropriate cases before
this Court in terms of Article 184(3) of the Constitution. As noted above
jurisprudence in this regard has developed in the past few years. However, in
an earlier case reported as Farzand Ali v. “I
regret my inability to accept this contention for more than one reason.
Firstly, because this would be allowing a person to continue to remain a
member of an Assembly even though Article 103 of the Constitution says that
he cannot. Secondly, because, the dispute raised after an election is not, a
dispute relating to or arising in connection with an election but a dispute
regarding the right of the person concerned from being a Member of an
Assembly. An election dispute is a dispute raised by a voter or a defeated
candidate in his individual capacity under the Statute. It determines the
private rights of two persons to the same office but a proceeding for an
information in the nature of quo warranto is invoked in the public interest.
The latter seeks to determine the title to the office and not the validity of
the election. These are two distinct and independent remedies for enforcing
independent rights, and the mere fact the disqualification has been
overlooked or what is worse, illegally condoned by the authorities who were
responsible for properly scrutinizing a person’s right to be enrolled as a
voter or his right to be validly nominated for election would not prevent a
person from challenging in the public interest his right to sit in the house
even after his election if that disqualification is still continuing. Indeed
a writ of quo warranto or a proceeding in the nature of an information for a
quo warranto, unless expressly barred by some statute, is available precisely
for such a purpose” 64. The
principles laid down in the said judgment were subsequently followed in a
number of cases including Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD
2012 SC 1089). However, this power can be exercised only when there are
admitted facts and/or irrefutable direct evidence available on record to
justify disqualification. In the instant case, admitted facts or direct and
irrefutable evidence is not presently available on record to justify and
support a declaration of disqualification. However, sufficient material is
available to raise valid suspicions which furnish legitimate basis to order
probe and investigation to ascertain the true facts and collect evidence. If
such facts/evidence are/is placed before this Court, appropriate orders
including orders for disqualification can be passed in exercise of powers
under Article 184(3) read with Article 187 of the Constitution. 65. We
have been informed that a number of Members of the National Assembly
belonging to the political party of the petitioner as well as Sheikh Rashid
Ahmed, one of the petitioners before us, had filed Petitions before the
Speaker, National Assembly under Article 63(2) of the Constitution seeking
disqualification of Respondent No.1. However, vide an identical order dated 2nd
September, 2016, the Speaker refused to refer the Petitions to the Election
Commission holding that in his opinion no question had arisen regarding
disqualification of Respondent No.1 as a member of the Majlis-e-Shoora
(Parliament). The afore-noted order passed by the Speaker of the National
Assembly has been challenged before the Lahore High Court, by way of a
constitutional petition which is pending. We would, therefore, not like to
comment on the order of the Speaker lest such comment should prejudice the
case of either party. The High Court shall therefore proceed with the
matter(s) before it and decide the same in accordance with law. Article 63(2)
of the Constitution provides one of the remedies to cater for a situation
where a validly elected member becomes disqualified during the tenure
of his membership on the basis of any of the grounds mentioned in Articles 62
and/or 63(1) of the Constitution. That is to say the ground of
disqualification occurs after he has validly been elected and was not in existence
(whether known to anybody or not) at the time when he filed his nomination
papers and was elected. In such a situation, any other member can approach
the Speaker/Chairman seeking disqualification of the member who has incurred
the alleged disqualification whereupon the Speaker/Chairman and the Election
Commission can exercise powers provided in Article 63(2) and (3) of the
Constitution, respectively. This means that where the ground for seeking
disqualification is that a member did not qualify at the time of filing his
nomination papers, but this fact (ground seeking disqualification) was
discovered subsequently (which is the case of the petitioners), the matter
cannot be referred to the Election Commission of Pakistan. In order for the
Election Commission to disqualify a member on a reference sent by the
Speaker, it must be shown that the disqualifying fact or event occurred after
a member had validly been elected, which (ground) was nonexistent at the time
of filing of nomination papers. The words “if any question arises, whether a
member of Majlis-e-Shoora (Parliament) has become disqualified from
being a member ….” supports this interpretation. This view is fortified by
the law laid down by this Court in Muhammad
Azhar Siddiqui v. Federation of Pakistan (PLD 2012 SC 774). 66. As
noted above, the power to disqualify a member in cases where for some reason
he escaped disqualification at the time of filing his/her nomination papers,
but such fact/event was discovered subsequently (as is the case set up by the
petitioners) can, in appropriate cases and subject to availability of
admitted facts or irrefutable evidence be exercised by the High Court under
Article 199 and by this Court under Article 184(3) of the Constitution on the
principles laid down in Farzand Ali’s case ibid, which has been followed by
this Court in a number of recent judgements, including Mehmood Akhtar Naqvi’s
case ibid. This power can also be
exercised where facts can be determined if the exercise does not require
voluminous evidence and intricate and disputed questions of fact are not
involved. The instant case, however, does not presently meet the said
criteria. 67. We
have already dealt with the ground urged by the Petitioners seeking
disqualification of Respondent No.1 by issuing a declaration that he is not
“honest” within the meaning of Article 62(1)(f) of the Constitution in the
earlier part of the judgment. 68. We
now proceed to take up other grounds urged by the Petitioners in their
petitions seeking disqualification of Respondents No.1, 9 & 10. It has been alleged by the Petitioners that
Respondent No.1 did not declare the Mayfair Properties in the declaration
filed with his nomination papers. The Respondents maintain that the
beneficial owner of the said properties is Mrs. Maryam Safdar, who is a
dependent of Respondent No.1. As such, he was required to disclose the said
assets in his nomination papers. Such failure on his part shows that he is
not truthful within the contemplation of Article 62(1)(f) of the Constitution
and is therefore, liable to be declared as such, leading to his
disqualification from being a member of the National Assembly. The defence of
Respondent No.1 is that he neither owns the offshore companies (Nescol
Limited and Nelson Enterprises Limited) nor the Mayfair Properties. However,
in our view a mere denial is not enough for the reason that admittedly
Respondents No.6 to 8 were minors when the Steel Mill at Dubai was
established, Respondent No.1 being the oldest son of Mian Muhammad Sharif was
with him in the said business (as is evident from the photographs produced by
him) and the family was together when Ittefaq Foundry was returned and a
number of other Units were set up. It is hard to believe that he had no
information regarding the mode and manner in which the shares in Gulf Steel
were sold in two different transactions and the funds generated through the
said sales were used. We are also unable to believe that if at all an
investment was made in Qatar, Respondent No.1 was totally unaware of it till
the time that he addressed the Nation in 2016 and even after that till the
time that he filed his concise statement before this Court, on none of which
occasions did he mention investments in Qatar and the Mayfair Properties
being given to Respondent No.7 by way of a settlement through transfer of
bearer certificates. Further, the stance of different members of the Sharif
Family including Respondents No.1 and 7 for many years has been that the
Mayfair Properties were “purchased”. However, their accounts differ quite
materially on the mode of acquisition, source of funds and timing of
acquisition. The position was bad enough, as it was when letters allegedly
written by Sheikh Hamad were introduced to add a new dimension to the already
confused state of affairs to complicate it further. This was obviously an
afterthought. Therefore, if the story of the Qatar investment and settlement
was to be disbelieved (which at this stage and on the basis of material
before us, we have no reason to believe), many questions have arisen on the
basis of the admitted position that the Mayfair Properties have been in
possession and occupation of the sons of Respondent No.1 since 1993/1995 when
admittedly Respondents No.7 & 8 were dependents and had no independent
sources of income. These questions include questions like who is the real
owner of the Mayfair Properties, whether Respondent No.1 has legal or
beneficial title or ownership of the said properties, whether he is holding
these properties through Benamidars,
whether the properties were acquired through legitimate sources etc, whether
by his failure to declare his ownership in his Nomination Papers/Tax
Returns/Wealth Statements etc he has concealed his property and is therefore
liable to be visited with the penal consequences of Articles 62 & 63 read
with Section 99 of the RoPA. Further, Respondent No.1 is a holder of public
office and his children have been in possession of the Mayfair Properties
since 1993/1996 which were disproportionate to the known sources of income of
Respondent No.1 and his children. Therefore, the provisions of Section
9(a)(v) read with Section 14(c) of the NAO may be attracted. However, it is
clear and obvious that answers to these questions cannot be found without a
thorough probe and investigation. On the basis of the outcome of such
exercise, we would be in a better position to decide if there is sufficient
material available before us to exercise jurisdiction under Article 184(3) of
the Constitution to disqualify Respondent No.1 and/or refer the matter to an 69. As
far as recording a finding that Respondent No.1 is hit by the provisions of
the Article 62(1)(f) of the Constitution because he did not declare an asset
(Mayfair Properties) beneficially owned by his dependent daughter (Maryam
Safdar) in his nomination papers is concerned, there are two stumbling blocks in our way
to grant such declaration. In the first place, we are not convinced at this
stage and on the basis of material before us to hold conclusively that
Respondent No.6 was a dependent of Respondent No.1. In addition, and
notwithstanding the fact whether or not Respondent No.6 was a dependent of
Respondent No.1, it cannot at this stage, on the basis of material before us
conclusively be held that Respondent No.6 is the beneficial owner of the
Mayfair Properties. Both these facts need to be established before Article
62(1)(f) of the Constitution gets attracted in this case. As a necessary
corollary, it is not possible for us to hold, at this stage on available
record, that Respondent No.1 has failed to disclose an asset owned by his
dependent daughter in the declaration given in his Nomination Papers, and
return a finding that he is not honest in
terms of Article 62(1)(f) of the Constitution. 70. Another
aspect of the case set up by the petitioner against Respondent No.1 with
reference to his disqualification is that he had declared Respondent No.6 as
his dependent in his wealth statement for the tax year 2011. It has been
submitted that despite such admitted dependency, Respondent No.6 was not
shown as a dependent and the Mayfair Properties and other assets owned/held
by her were not declared in the nomination papers submitted by Respondent
No.1 for his election for a seat in the National Assembly in 2013. 71. The
basic question that arises from the assertions made on behalf of the
petitioners is whether Respondent No.6 was a dependent of Respondent No.1 in
2011. The learned counsel for Respondent No.1 has argued that mere mention of
Respondent No.6 in the tax returns of Respondent No.1 in the column provided
for dependents is not enough to make her a dependent of Respondent No.1 in
the legal sense. He has elaborated by pointing out that agricultural property
owned by Respondent No.1 was held in the name of Respondent No.6 and
was so disclosed in the Wealth Tax Returns. This disclosure perforce had to
be made in the column for dependents owing to lack of space in the
computerized form for disclosure of properties held by the filer in the name
of any other person. He further points out that it was clearly stated that
the property was, “held in the name of Respondent No.6” which shows that the
property was owned by Respondent No.1 for all intents and purposes but was bona fide declared to be held in the
name of Respondent No.6. The property in question was subsequently purchased
by Respondent No.6 from Respondent No.1 through validly registered sale deeds
and payment of consideration. This
fact is established by the documents showing transfer of approximately Rs.254
million from the accounts of Respondent No.6 to the account of Respondent
No.1 through banking channels which shows that she paid the price of the
agricultural land in question to Respondent No.1 and became the real owner of
the property in question. She declared the said property as her own in her
Tax Returns. The consideration received by Respondent No.1 was also shown in
his Tax Returns. In the subsequent Wealth Tax Statements, filed by Respondent
No.1, the said property was therefore not declared by Respondent No.1 as his
property in his returns/declarations filed after 2012. The learned counsel
for Respondent No.1 has further drawn our attention to a notification dated
26.08.2015 issued by the FBR creating another column in the Wealth Tax Return
to provide space for disclosure of properties held by the filer in the names
of others. This according to the learned counsel shows that the deficiency in
the earlier form was noticed by the FBR which necessitated the issuance of the
notification in question by way of rectification of the omission/deficiency
in the Form. We have considered the argument of the learned counsel for
Respondent No.6 and find it plausible. In our opinion, it explains the
transaction in question adequately and the same is also verifiable from the
record. Further, the transaction has not been questioned by the Income Tax
Authorities either before us or even in exercise of their own powers under
the Income Tax Ordinance, 2001. 72. We
also find that although Respondent No.6 has received cash gifts from her
father in substantial amounts on various occasions, the same have been
declared where such declaration was required. Even otherwise, receipt of
gifts from the father does not necessarily make Respondent No.6 his dependent
in the legal sense of the world. We also notice that Respondent No.6 owns
substantial agricultural property, receives income from the same, holds
shares in limited companies worth more than Rs.200 million and her husband
also receives a fair amount of money by way of pension as a retired military
officer. He also receives salary / allowances in his capacity as a member of
the National Assembly. The mere fact that she has chosen to live in a
compound owned by her grandmother does not ipso facto make her a dependent of Respondent No.1 either. She
has asserted and such assertion has not been challenged by the learned
counsel for the petitioner that she contributes a substantial sum of money
towards her share in the joint expenses incurred by her grandmother on behalf
of other members of the Sharif Family residing in the compound. In this
context, whether or not Respondent No.6 is the beneficial owner of the
Mayfair Properties becomes irrelevant at this stage, seen from the point of
view of seeking disqualification of Respondent No.1 on the ground that he has
failed to disclose the assets of a dependent. Even otherwise, the issue of
dependency is a question of fact to be determined on case to case basis after
recording evidence. We are not persuaded to undertake the said exercise, for
this purpose, while exercising jurisdiction under Article 184(3) of the
Constitution. 73. Having
come to the conclusion that in these proceedings sufficient material is not
available on the record to establish that Respondent No.6 is a dependent of
Respondent No.1, in a legal sense, we do not feel the necessity to discuss
this aspect of the case any further, lest it should prejudice the case of
either party before a competent forum if and when this issue is agitated. 74. It
has strenuously been argued by the learned counsel for the petitioner that
Respondent No.1 and other members of his family have been involved in tax
evasion. By way of illustration, it has been pointed out that in the wealth
reconciliation statements for the tax year 2011, Respondent No.1 has
disclosed receipt of a sum of US$ 1,914,054 which translates into about 20
Crore Pak Rupees. In subsequent years, similar amounts were received by
Respondent No.1 as gifts. These amounts were allegedly sent by Respondent
No.7 to Respondent No.1 by way of gifts. It is argued that the amounts
received by Respondent No.1 did not qualify as gifts. These were to be
treated as income in the hands of Respondent No.1 through other sources on
which tax was required to be paid by him. It was also pointed out that
despite tall claims made by Respondent No.1 regarding payment of huge amounts
of money as tax by the industrial establishments of his family, his personal
tax payments between 1981 to 1999 were not more than a few thousand rupees. 75. It
is therefore argued that the tax payment history of Respondent No.1 clearly
points towards tax evasion on his part for years on end. On considering the
arguments of both sides on the issue, we find that the Returns filed by Respondent
No.1 from time to time were accepted by the Tax Department. The Returns were
neither challenged nor reopened in exercise of powers available to the
concerned functionaries of the tax department and may have become past and
closed transactions owing to afflux of time considering the period of
limitation provided by the Tax laws. Representatives of the Federal Board of
Revenue (FBR) and their counsel categorically stated before us that no
definitive information was placed before the competent authorities either by
the petitioners or any other person that may have furnished basis for
reopening and scrutiny of the Returns of Respondent No.1. It was therefore
stated that there was no valid reason or lawful basis available to the tax
department to reopen the returns of Respondent No.1 for past years. 76. Further,
even if for the sake of argument, the allegations of tax evasion were to be
given any credence, the same would not automatically attract the penal
consequences of Article 63(1)(o) of the Constitution. This is in view of the
fact that the said Article is attracted only where liability has finally been
determined by the competent forum and default has been committed in payment
of such determined liability. In the present case, the said prerequisites are
missing. As a result, on a mere allegation of tax evasion, it cannot be held
that provisions of Article 63(1)(o) of the Constitution are attracted and
Respondent No.1 is liable to be disqualified on that score from being a
member of the Parliament. 77. As
far as the question of default in payment of tax on the afore-noted gifts is
concerned, the learned counsel for Respondent No.1 has drawn our attention to
the exemption provided under Section 39(3) of the Income Tax Ordinance, 2001.
For ease of reference, the said provision is reproduced below:- “(3) Subject
to sub-section (4), any amount received as a loan, advance, deposit [for
issuance of shares] or gift by a person in [a tax year]from another person
(not being a banking company or financial institution) otherwise than by a
crossed cheque drawn on a bank or through a banking channel from a person
holding a National Tax Number shall be treated as income chargeable to tax
under the head “Income from Other Sources” for the tax year in which it was received.” 78. We
have been informed that Respondent No.7 held a National Tax Number (NTN) at
the time when the gifts were made and continues to do so. The said assertion
has not seriously been contested by the Petitioners. As such, the amounts
sent by him by way of gifts to Respondent No.1 enjoyed exemption from payment
of income tax and were not required to be treated as income from other
sources as visualized in Section 39(3) ibid.
Further, the amounts received by Respondent No.1 from Respondent No.7 were
transmitted through banking channels and were duly declared to the tax
authorities. Some Tax Returns and Account Statements reflecting the above
position have been filed and examined by us. Prima facie, the amounts received as gifts appear to be covered by
the exemption provided in Section 39(3) ibid.
Likewise, the cash gifts given by Respondent No.1 to Respondents No.6 & 8
were also given through banking channels/crossed cheques and were duly
declared by the donor/donee in his/her Returns where required. As such, these
transactions have not been found by the tax department to be in violation of
provisions of the tax laws. We are therefore not inclined to arrogate to
ourselves the role of the tax department, and / or tax auditors, reopen the
tax history of the Respondents and record findings of our own. In case, the
petitioners have any definite information regarding tax evasion, they are at
liberty to approach the competent authorities who will proceed in the matter
in accordance with law. 79. While
on the subject of gifts, we may observe that between the years 2011 to 2015,
Respondent No.1 had received amounts in excess of Rs.840 million by way of
gifts from Respondent No.7. On being directed by us, the learned counsel for
Respondent No.7 filed documents showing how and from where the funds
originated and were routed to the account of Respondent No.1. The documents
have been examined by us. We have noticed that most of the funds were sent
from the accounts of an entity operating in 80. During
the course of hearing of these petitions, it has also come to our notice that
Respondent No.1 and his family were the subject matter of a number of
investigations in the past. There were serious charges of corruption and
money laundering in which context two FIRs were lodged and a Reference was
also filed by the National Accountability Bureau (NAB) which inter alia relied upon a confessional
statement made by Respondent No.10 giving details of the mode and manner,
persons and entities involved in activities ranging from money laundering to
trans-border movement of allegedly tainted money and real estate investments
in other countries. Respondent No.10 was granted pardon by the Chairman, NAB
presumably in return for his offering to cooperate and providing the
requisite information. Respondent No.10 subsequently resiled from his
confessional statement. The Reference filed by NAB did not proceed for many
years for various reasons including absence of Respondent No.1 and his family
from the country, having been sent into exile after the events of 1999.
Subsequently, the Reference was quashed by a Division Bench of the Lahore
High Court on technical grounds in exercise of its constitutional
jurisdiction in a case reported as Hudaibiya Paper Mills Ltd. v. Federation
of Pakistan (PLD 2016 81. Owing
to the importance of the issue and considering the consistent practice of NAB
that most verdicts of the High Court which had any adverse impact on
investigations and prosecutions being conducted by the NAB were challenged
before this Court, we were surprised why this judgment was not challenged and
whether failure to challenge was based upon the fact that the parties
involved were influential and prominent in the corridors of power. In order
to clarify the position, we summoned the current Chairman, NAB as well as the
Prosecutor General, NAB along with the record to explain the position. On
being questioned lame, feeble and unconvincing excuses were put forth to the
effect that an internal opinion was sought from in-house counsel who opined
that in view of the fact that two Honorable Judges of the Lahore High Court
had recorded findings against NAB on the question of reinvestigation, there
were slim chances of success of an appeal before this Court. The then
Chairman, NAB who, not unsurprisingly is also the current Chairman appears to
have readily agreed with such opinion and decided to shelf the matter by not
filing an appeal before this Court. Despite our serious misgivings regarding
the motivation, merit and impartiality of such decision, the Chairman, NAB
blatantly and unapologetically defended his action and stated that he would
stick to his earlier decision despite discovery of new material and evidence. 82. The
fate of the afore-noted FIRs was no different which were also quashed by a
Bench of the Lahore High Court in a case reported as Hamza Shahbaz Sharif v. Federation of Pakistan
(1999 P. Cr. L. J 1584). The
accused were acquitted and the chapter of investigation and trial for allegations
of corruption and money laundering was unceremoniously, prematurely and
abruptly closed. 83. In
our quest to judge, analyze and examine the inclination, disposition and
ability of the State institutions and functionaries created and charged with
the responsibility to probe, investigate, inquire into matters of this nature
and to safeguard and protect the interest of the State and the people of
Pakistan, in case any wrongdoing was found, we also summoned Representatives
of FIA, FBR and Ministry of Interior to appear before us. They were required
to inform us about the steps taken by them in the wake of Panama Leaks and
information becoming available about possible tax evasion, money laundering
and other offences committed inter alia
through offshore companies and accounts. The Ministry of Interior pleaded
lack of jurisdiction so did the FIA which stated that nobody had approached
it in this regard. It also pleaded lack of jurisdiction. The FBR took the
stance that it had taken immediate cognizance of the matter and issued
notices to all those whose names had appeared in the Panama Papers. This,
“immediate cognizance” translated into halfhearted issuance of some notices
six months after the information came into public domain which speaks volumes
about the lethargy, carelessness and inefficiency displayed by the premium
tax and financial watchdog of the country. On behalf of the NAB, it was
stated by a person no less than its Chairman himself that it was waiting to
be approached by the “regulators”, like SECP, FBR, State Bank of 84. The
learned counsel for the Respondents have laid much stress on the powers of
this Court under Article 184(3) of the Constitution and passing orders in
terms of Articles 62 & 63 of the Constitution. In this context, the
learned counsel for Respondent No.1 as well as Respondent Nos.6, 7 & 8
have emphasized that this Court has traditionally refrained from delving into
situations/cases which involve factual controversies requiring recording of
evidence. The only exceptions being cases where irrefutable or unrebutted
evidence is available or necessary facts are admitted by the parties. It may,
however, be noted that new jurisprudence of this Court has evolved in the
past few years in matters involving fake degrees and dual citizenship held by
the Parliamentarians. The principles regarding exercise of powers under
Article 184(3) of the Constitution are undergoing a process of evolution and
fresh ground is being broken. The argument made by the learned counsel for
the Respondents that evidence cannot be recorded or factual inquires cannot
be conducted in exercise of powers under Article 184(3) of the Constitution
may be based on some precedent but we find that this is not a hard and fast,
inflexible and rigid principle of law. It has only been followed by way of
practice and expediency with exceptions being created and jurisdiction being
extended from time to time where the facts and circumstances so required. By
way of illustration, the case of Pakistan
Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642] may be cited. In this case, this Court held
that that there was no bar on the power of this Court under article 184(3) of
the Constitution to record evidence provided voluminous record and
complicated questions of fact and law were not involved. This Court is not a
slave of the doctrine of stare decisis. We are not shackled by the chains of
precedents where the interests of the people of 85. There
are serious allegations of money laundering, corruption and possession of
assets beyond known means and or acquiring assets, the sources of which have
not been explained. It is also important to note that Respondent No.1 has
repeatedly admitted that the Mayfair Properties were purchased by his family
with the funds generated from sale of Steel Mills in 86. It
is also an admitted fact that Respondent No.7 owns and operates Hill Metals
Establishment in 87. It
is also an admitted position that Respondent No.8 set up a company under the
name and style of Flagship Investments Limited which received substantial
sums of money in the year 2001 when the said Respondent had no source of
income. Over the course of the next few years, a number of other companies
were set up/taken over by Respondent No.8 allegedly for the purpose of his
real estate business. The sources from which the said companies/businesses
were funded are also shrouded in mystery. There is yet another company under
the name and style of Capital FZE, 88. In
our opinion, considering the high public office that Respondent No.1 holds
and the requirement of honesty, transparency, clean reputation,
unquestionable integrity, financial probity and accountability for a person
who holds the highest elected office of the land, it was necessary and
incumbent upon Respondent No.1 to place all information, documents and record
before this Court to clear his own position and that of the members of his
family. Very serious and damaging questions were raised and grave allegations
levelled by the Petitioners and the local as well as international Print and
Electronic Media regarding money laundering, tax evasion, corruption and
misuse of authority on the part of Respondent No.1 and members of his family.
Although lofty claims were made by and on behalf of Respondent No.1 regarding
readiness and willingness to face accountability and clearing his name, the
claims remained hollow rhetoric. Regrettably, no effort was made either on
the part of Respondent No.1 or that of Respondents No.7 & 8 who are his
sons before this Court, to come clean, to clear their names, place the true
facts and relevant record before us and the people of Pakistan by producing
all documentary evidence which was either in their possession, control or
accessible to them which could have answered all unanswered questions,
removed all doubts and put all allegations to rest and cleared their names
once and for all. This was not done and an opportunity squandered for reasons
best known to the Respondents. Instead refuge was taken behind vague,
ambiguous, fuzzy and hyper technical pleas. 89. Regrettably,
most material questions have remained unanswered or answered insufficiently
by Respondent No.1 and his children. I am also constrained to hold that I am
not satisfied with the explanation offered by Respondent No.1 (Mian Muhammad
Nawaz Sharif, the Prime Minister of Pakistan) and his children regarding the
mode and manner in which the said properties came in their possession and
what were the sources of funds utilized for acquisition of the same. Further,
the source(s) of funding for Azizia Steel Mills and Hill Metals Establishment
in Saudi Arabia, Flagship Investments Limited and a number of other companies
set up/taken over by Respondent No.8 also need to be established. In addition
to the affairs of Capital FZE, 90. In
the afore-noted circumstances, I would order as follows:- i) A Joint Investigation Team (JIT)
shall be constituted, which shall investigate the matter, collect all
relevant record and material in order to determine and establish the real
title and ownership of the Mayfair Properties, the source(s) of funds
utilized for purchase of the said properties and the mode, manner and time
when such funds were transmitted to the United Kingdom for purchase of the
Mayfair Properties; ii) Likewise, the JIT shall also collect
evidence to determine the source(s) of funds for establishing Hill Metals
Establishment in Saudi Arabia as well as the mode, manner and source(s) of
funding for Flagship Investments Limited and all other companies owned and
controlled by Respondent No.8 from time to time; iii) Evidence
shall also be collected by the JIT regarding source(s) of funding of Capital
FZE, Dubai; its business activities and role in transfer of funds to
different entities owned or controlled by Respondents No.7 & 8; iv) The
JIT is also directed to investigate and find out if Respondent No.1 (Mian
Muhammad Nawaz Sharif, the Prime Minister of Pakistan) directly or indirectly
or through benamidars or authorized
agents owns any other properties/assets/financial resources of any nature
including but not limited to shares through offshore companies/bank accounts,
which have not been disclosed to the concerned authorities. v) The
JIT shall consist of the following members:- a) A senior Officer of the Federal
Investigation Agency (FIA) not below the rank of Additional Director General
heading the Team. He shall have firsthand experience of investigation of
white collar crime and related matters; b) A representative of the National
Accountability Bureau (NAB); c) A nominee of the Securities and
Exchange Commission of d) A nominee of the State Bank of
Pakistan familiar with international banking transactions involving money
laundering and matters relevant to the investigation; e) A senior Officer nominated by the
Director General, ISI; and f) A senior Officer appointed by the
Director General, MI. vi) Heads of the aforesaid Departments/
Agencies/ Institutions shall communicate the names of their nominees within
seven (07) days hereof which shall be placed before the Special Bench for
perusal/approval. vii) Respondents No.1, 7 & 8 are directed
to associate and render full cooperation to the JIT, provide any and all
record(s), document(s) and material(s) sought by it and appear before the
JIT, if and when required. viii) The JIT may also examine the evidence and
material available with the FIA and NAB, if any, relating to or having any
nexus with the possession or acquisition of the Mayfair Properties and the
source(s) of funding for the same. ix) The JIT shall submit its periodical
report(s) before the Special Bench of this Court every fortnight. The JIT
shall complete and submit its final report before such Bench within a period
of sixty (60) days from the date of receipt of a copy of this judgment. x) I would request the Honourable Chief
Justice of Pakistan to constitute a Special Bench to ensure implementation of
this judgment in letter and spirit. 91. On
receipt of report of the JIT, the Bench shall pass appropriate orders in
exercise of powers under Article 184(3) read with Articles 187 & 190 of
the Constitution relating to disqualification of Mian Muhammad Nawaz Sharif,
the Prime Minister of Pakistan, Respondent No.1 as a member of
Majlis-e-Shoora (Parliament), if necessary. In this regard, it may, if
considered necessary or expedient, summon Respondents No.1 (Mian Muhammad
Nawaz Sharif), 7 (Hussain Nawaz) and 8 (Hassan Nawaz) or any of the said
Respondents and any other person having any direct or indirect connection
with or having knowledge about the matters relevant to these proceedings, to
appear before it for being examined. Further, if so justified by law and on
the basis of material placed before the Bench, orders may also be passed for
filing of a Reference before the 92. During
hearings of these matters and while examining the various pleas raised by the
parties and the documents and other material placed before us, I have found
it imperative to pass orders and take steps to ensure that the true facts
should come before the people of Pakistan who have a fundamental right to be
governed in accordance with law, by those who fulfill the requirements of the
Constitution and the law and whose financial dealings, earnings and
expenditures are open to public scrutiny to show that they meet the test of
honesty, integrity, financial probity and bona
fide dealings. It is high time that standards were set and systems were
put in place to develop a culture of accountability at all levels in order to
cleanse our system and institutions from the evils of corruption, money
laundering, loot and plunder of national resources by a few, irrespective of
their rank or status in the system. 93. As
a Nation, we need to heed the words of the great poet and philosopher Dr.
Allama Muhammad Iqbal, if we aspire to reach our true potential and hold our
heads high amongst the comity of Nations:-
94. Before
parting with this judgment, I would acknowledge and appreciate Syed Naeem
Bukhari, learned ASC; Mr. Taufiq Asif, learned ASC; Sh. Rashid Ahmed,
petitioner in person; Mr. Makhdoom Ali Khan, learned ASC for Respondent No.1;
Mr. Shahid Hamid, learned Sr.ASC for Respondents No.6, 9 & 10; Mr. Ashtar
Ausaf Ali, learned Attorney General for Pakistan; Mr. Muhammad Waqar Rana,
ASC; and Mr. Waqas Qadeer Dar, Prosecutor General, NAB and their respective
teams for rendering valuable assistance in the matter. Judge |
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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 : ii)
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. JUDGE JUDGE JUDGE JUDGE JUDGE Announced on _____________ at _______________________. JUDGE
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