ISLAMABAD - Former finance minister Shaukat Tarin yesterday challenged the orders of Islamabad High Court which dismissed his application under Section 265-K of the Criminal Procedure Code, 1898, and maintained the corruption reference in the NAB.

Former finance minister Shaukat Tarin moved the top court, seeking repeal of the National Accountability Ordinance in the light of Article 89 read with Article 270-AA of the Constitution and the Fourth Schedule.

The appellant also requested the top court to declare Section 9 (corruption and corrupt practices) and Section 14 (presumption against accused accepting illegal gratification) of the NAB Ordinance as inconsistent with the provisions of the Constitution and consequently all actions taken illegal, void, without lawful authority and of no legal effect.

The appeal also requested the top court to declare the NAB reference against the former minister, allegedly involved in corruption through contracts in Rental Power Projects (RPPs), as illegal and without jurisdiction.

The appeal filed by Advocate Salman Aslam Butt, counsel for Tarin, also prayed to the top court to stay the operation of all proceedings on the NAB reference against him till the pendency of the case.

According to the corruption reference, the former finance minister, being the ECC chairman on April 13, 2009, approved a summary of the Ministry of Water and Power (MoWP) which carried recommendation of replacement of Standby Letters of Credit (SBLC) clause with GoP guarantee without getting any corresponding benefits, thereby violating PPRA Rules, 2004, and causing post-bid variation.

It was further alleged that in August 2009, while presiding ECC as chairman/minister for finance, Tarin again approved a summary of MoWP which contained misleading facts, including change of SLBC clause with GoP guarantee, increase in payment of advance from 7% to 14%.

The reference stated the issue of SBLC had already been resolved at the previous ECC meeting of April 2009 chaired by the petitioner and that the MoWP summary dated August 17, 2009, to ECC was not formally concurred by the Ministry of Finance, however, Tarin did not object to this at the ECC meeting, misleading other ECC members.

“It is a settled proposition of the administration of justice that cases, especially of a constitutional nature affecting the life and liberty of a citizen, ought to be decided on merit and not on hyper-technicalities of procedure,” the instant appeal stated, adding the jurisprudence laid down by the superior courts envisages that a constitutional petition filed under Article 199 seeking quashment of criminal proceeding were maintainable.

“Islamabad High Court’s dismissal of the writ petition on the ground that the petitioner should have availed himself of the remedy of appeal against the dismissal of his 265-K application is not sustainable in the eyes of law. As such the impugned judgment is liable to be set aside on this score alone,” the appeal stated.

It added the IHC had failed to consider and construe the true nature, scope and import of the immunity enshrined under Article 248 of the Constitution in favour of the appellant, the former minister.

 “It is specifically averred that Article 248 of the Constitution confers immunity upon certain constitutional functionaries, including federal ministers, with respect to acts done in exercise of powers and performance of functions in their official capacity,” it further stated.

The appeal argued the IHC failed to take into account the settled position that the very formation of the opinion of the NAB chairman could not be challenged before the accountability court because it had no jurisdiction to scrutinise, substitute and judicially review the “opinion” of the NAB chairman formed in terms of Section 18 of the NAB Ordinance.

“After formation of the opinion, NAB chairman or an officer of the bureau duly authorised by him may refer the matter for inquiry or investigation as provided under clause (c) of Section 18 of the NAB Ordinance. Similar obligation is thrown upon the NAB chairman, in terms of Section 18 (g) of the NAB Ordinance, to decide, by independent application of his mind, that whether it would be proper and just to proceed further and there is sufficient material to justify filing of a reference against a specific person. However, as is abundantly clear from the record that no such exercise was ever undertaken in the instant case and the jurisdiction in the matter has been assumed without any judicial application of mind,” the appeal held.

Tarin further contended the IHC had failed to appreciate that he had assailed the very formation of the opinion of the NAB chairman by seeking judicial review of the same on account of being illegal, irrational and procedurally improper.

“It is pertinent to mention that no alternate remedy is available to the petitioner for challenging the same as judicial review of the said opinion formation is beyond the purview of Section 265-K of CrPC (and of an appeal arising from it) and the same falls within the exclusive domain of Article 199 of the Constitution,” the appellant said.

 “Accordingly, the impugned reference and the impugned proceedings are void ab initio and the impugned judgment is liable to be set aside. Despite the Supreme Court proceedings (in RPPs case) continuing for two and a half years, the petitioner (Tarin) was neither called nor was he issued a notice to express his point of view. It is reiterated that from a cumulative reading of the SC Judgment as well as the order dated 08-05-2012 passed in the review petition, it is evident that the only action directed by the august court to be undertaken by the respondent No. 1 (NAB) was to investigate the matter in respect of the persons who were involved in originating the RPPs’ scheme for getting financial benefits through corruption and corrupt practices,” the appeal concluded.