ISLAMABAD -  The Supreme Court has said that the Sharifs were denied due process in the Hudaibiya Paper Mills case, as the legal process was abused by keeping the NAB reference pending indefinitely without any valid reason.

This was stated on Friday in the detailed judgment of a three-judge bench which earlier, through a short order on December 15, 2017, had dismissed National Accountability Bureau appeal seeking reopening of the Rs1.2 billion Hudaibiya corruption case.

The bench, whose decision brought a new lease of life to the embattled Sharifs, was headed by Justice Mushir Alam and including Justice Qazi Faez Isa and Justice Mazhar Alam Miankhel.

“In this case we have come to the painful conclusion that respondents 1 to 9 were denied due process. The legal process was abused, by keeping the reference pending indefinitely and unreasonably,” said the detailed judgment authored by Justice Isa.

“The respondents were denied the right to vindicate themselves. The reference served no purpose but to oppress them,” it added.

The NAB in its plea had made management of Hudaibiya Mills Ltd, Nawaz Sharif, Shahbaz Sharif, Abbas Sharif, Hussain Nawaz, Humza Shahbaz, Shahmim Akhtar, Sabiha Abbas and Maryam Nawaz respondents. It had made federation, through law secretary, and judge of Rawalpindi Accountability Court No IV, proforma respondents.

In the judgement, the court noted with grave concern the lack of commitment and earnestness on part of NAB at the relevant time.

“NAB did not produce the accused in court; NAB did not seek to have charges framed against them; NAB did not examine a single witness, and tender evidence; NAB sought innumerable adjournments; NAB sought the Reference to be indefinitely (sine die) adjourned,” the judgment read.

It further said that for over four years NAB chairman did not submit an application for the restoration/revival of the reference. And, when the chairman did submit such an application it was not pursued.

“The reference remained moribund. Therefore, the judges of the High Court were justified to quash the reference and once it was quashed the question of reinvestigation did not arise.”

The reason for denying to condoned time barred the judgment said: “Fortuitously for NAB one judge permitted reinvestigation, even though NAB had not requested it; the matter of reinvestigation is mentioned in the very last sentence of his judgment. The judge also gave no reason why he permitted reinvestigation.

“We also agree with the reasons articulated by the learned judge’s learned brethren who did not agree with him on the matter of reinvestigation. Under such circumstances, other than to procrastinate still further the agony of respondent Nos. 1 to 9, no purpose will be served to condone the unreasonable and unjustified delayed filing of the petition.”

Advice to media

The judgment said that whilst most of the media acted maturely and fairly reported the proceedings, there were some who violated the parameters of factual reporting and also broadcasted and printed views of persons who were interested in a particular outcome of this case.

The media should not dilate on a sub judice case, rather should only accurately report the proceedings. However, once a judgment is announced it may be analyzed, evaluated or critiqued.

Justice delayed

The court said that the criminal justice system requires that a person accused of a crime is brought to justice as speedily as possible, so if he is found guilty he is punished and if he is found to be innocent he is discharged and/or acquitted.

The maxim that justice delayed is justice denied comes true when a criminal trial remains pending indefinitely for no reason whatsoever. A procrastinated trial not only adversely affects the prosecution case but may also seriously hamper the defence.

The record reveals that none of the respondents had ever requested that the case be adjourned, let alone, it be adjourned sine die.

NAB was spurred into action when respondent Nos. 1 to 9 filed the writ petition to remove the sword of Damocles from over their heads.

A person should not be penalised for approaching the High Court to secure his fundamental rights. The comments filed before the High Court by NAB did not state that NAB was now ready, able and willing to pursue the application seeking revival/restoration of the References, let alone, to proceed with them.

The said respondents were in Pakistan for over a year before they were exiled and neither then nor when they returned did NAB proceed with the references.

The court observed that the sine die adjournment sought twice when General Musharraf was the Chief Executive of the countries and his nominees were the chairmen of the NAB.

When the Accountability Court did nothing in more than 10 years then on October 17, 2011 the Sharif family filed the writ petition wherein they sought the quashment of the reference.

Panama judgement

The judgment said: “We pointedly asked the [special] prosecutor how NAB would proceed with the reference, even if the Lahore High Court judgment is set aside, because the reference had not been revivied/restored, to which the prosecutor had no answer. The prosecutor however referred the Panama judgment that an investigation into Hudaibiya Mills [case] be conducted by the Joint Investigation Team.”

The court said that no direction was issued in the Panama judgment to reopen the Hudaibiya case. It observed that the matter will be attended to when it is brought before this court.

17 years pendency

The NAB filed appeal on September 20, 2017 which was time barred 1225 days.

The court said that the NAB observation that the JIT had ‘recommended that the NAB may be ordered to file an appeal’ is worrisome. The judgment said that NAB is a statutory body and is expected to act independently and it should not have forgone its independence to act on the behest of the JIT.

The references were filed against respondent Nos. 1 to 9 in the year 2000, and were based on the opening of the alleged benami foreign currency accounts in the year 1992, or earlier. It was alleged that the monies from such accounts were converted into rupees and then invested into the company. The purported offence was, therefore, committed over 25 years ago.

“Though the petitioner seeks the delay of 1,229 days to be condoned, we cannot be unmindful of the preceding seventeen years and the time that the matter was investigated, prosecuted and kept pending by NAB.”

The court noted that ex-prime minister (Nawaz Sharif) and chief minister of Punjab (Shehbaz Sharif) were disposed and taken into custody and remained incarcerated till their exile, and they were not allowed to return to Pakistan. Eventually they managed to get back into the country because of the directions issued by this [apex] court.

Money laundering ‘offence’

JIT’s report refers to “money laundering” that took place in 1991-1992. However, money laundering was made an offence in Pakistan when the Anti-Money Laundering Ordinance, 2007 was enacted on September 7, 2007. Neither in the years 1991-1992 nor when the references were filed, in the year 2000, did money laundering constitute an offence.

A reference filed under the NAB Ordinance should mention the offence and also set out the particulars of the offence allegedly committed; this not only enables the court to frame a charge in terms thereof but also puts the accused on notice with regard to the allegation he is supposed to defend.

Accountability at Attock Fort

There is another matter which is deeply disconcerting. The Accountability Court was set up in Attock Fort, which was under the control of the military and to which there was no public access.

The reason for the unusual choice of venue was mentioned in the Final Reference: “the personalities involved and the ever present danger to the security of all persons involved in the trial of the accused, it is deemed necessary and appropriate in the interest of justice, fair play, and transparency of proceedings that this Reference be filed in the Hon’ble Court Attock Fort”. Section 352 of the Code mandates “courts to be open” to which the public has access.

The location of the Accountability Court in the Attock Fort was determined by the NAB chairman though he had no power to do so. The chairman felt that the “interest of justice, fair play and transparency of proceedings” required the case to be tried in the inaccessible Attock Fort; even though it deprived the accused of an open trial.