ISLAMABAD -  Justice Asif Saeed Khan Khosa believes that under Article 184(3) of the Constitution questions of fact may be looked into by apex court in the interest of doing “complete justice”.

Justice Asif Saeed Khan Khosa and Justice Gulzar Ahmed, future chief justices of Pakistan, had written dissenting notes in the Panama case verdict given on Thursday.

Justice Khosa had refused to accept the contention of the prime minister and his family’s counsel that the petitions involved disputed and intricate questions of fact, which they could not attend to or adjudicate upon in the proceedings under Article 184(3) of the Constitution.

He stated the ownership and possession of the relevant four properties in London were not denied by the prime minister’s family, therefore the only question relevant to the issue before us was as to whether PM Nawaz Sharif’s denial of any connection with acquisition of those properties was honest or not.

Justice Khosa says; “In order to attend to the core issue, I decided … to take into consideration primarily the explanations offered and the material supplied by [the] PM and his children in order to see whether their explanations vis-à-vis acquisition of the said properties are on the face of it honest or not.”

He said that the prime minister and his family could not claim that their explanations offered on the issue were themselves disputed or intricate and that court could not even look at them.

The judge noted that the Supreme Court jurisdiction under Article 184(3) of the Constitution was still evolving and that no specific procedure for exercise of that jurisdiction had so far been laid down by the court.

The cases dealt with by this court under that jurisdiction thus far had varied vastly in their subject and content and, therefore, this court had consciously avoided to shut the door to any procedural modality, which might be best suited to an effective and proper determination of an issue competently brought to this court under that jurisdiction.

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 was still not definite and precise and how to apply those words and provisions to the facts of a given case was also a question, which had 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.

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”.

He wrote that 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 the prime minister’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 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.

He noted that the whole case was about legitimate acquisition of some properties but no detail of any bank account, any banking transaction or any money trail had been brought on the record of the case by the PM or his children.

Justice Khosa has serious doubts about the prime minister, and his family claim that the relevant properties in London had legitimately and lawfully been acquired by them through the resources and funds stated by them.

The doubts have been compounded by some interviews given by them to the local and international print and electronic media, he added.

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.

He said what the PM had told to the nation, the National Assembly or even this court about how the relevant properties in London had been acquired was not the truth.

Justice Khosa observed that the prime minister in his speeches made before the nation and in the National Assembly 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 London.

The PM, however, in his concise statements submitted before this court asserted and his counsel argued that Nawaz Sharif was neither a director, shareholder or a beneficial owner of the relevant offshore companies nor had he any connection with ownership of the relevant properties.

The speeches spoke of a route of funds, which was Makkah-London or Dubai-Jeddah-London but the Qatari prince letters totally [suggested] different route, i.e. Dubai-Doha-London.

The judge observed not just the resources and the routes of resources, which were being changed from time-to-time but it was the “truth” which was being improved, moulded and sacrificed at the altar of expedience.

Justice Khosa said that if the top court stops short of attending to the issue merely because it involved 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 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 being touched or accountability and surely would be nothing short of a disaster.

In spirit of democracy, accountability and rule of the law the top court would not give 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 levelled 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.