Earlier in the week, as reported, the honorable Supreme Court of Pakistan referred the JIT Report (regarding money laundering by Asif Zardari and his cohorts) to the National Accountability Bureau, for further investigation and filing of references, wherever deemed necessary. Also, the honorable Court made scathing observations about the government’s placement of Bilawal Bhutto Zardari and Murad Ali Shah on the Exit Control List, with instruction to the Cabinet to review the matter, in accordance with law.

While a written order of the honorable court is still not available, the supporters of Asif Zardari are hailing this as a victory for their leader and his (business) associates. Ostensibly, their celebration stems from the fact that Asif Zardari was neither arrested (immediately) by the honorable Court, nor disqualified from his seat in the National Assembly. Under the lip, the supporters of Asif Zardari are also hopeful that some long drawn-out process of NAB will result in the eventual acquittal of their leader, clearing his name from all allegations of corruption and money laundering.

On the other end of the isle, there are those who see this celebration as premature and naïve. They argue that the JIT Report, coupled with NAB’s investigation, will (eventually) seal the political fate of Asif Zardari, conclusively establishing his guilt and conviction in cases pertaining to money laundering.

For a deeper analysis of whether there is any reason for Asif Zardari & Co. to celebrate this turn of events, a brief overview of the JIT Report is required.

By way of background, as recounted in the JIT Report itself, an “Enquiry No. 70/2015 was initiated on 06.10.2015 by Anti-Corruption Circle of FIA, Karachi on a source report alleging massive suspicious inter and intra bank transaction in… 04 ‘Fake Accounts’ of 2 branches of Summit Bank, which apparently did not match with the profile of the account holders”. Importantly, this inquiry was authorized during the Nawaz Sharif government, with Ch. Nisar as the Interior Minister. During pendency of the said inquiry, a ‘Suspicious Transactions Report (STR)’ was received by the FIA, regarding 29 suspicious accounts, including 16 accounts at Summit Bank, 8 accounts at Sindh Bank and 5 accounts at UBL. The JIT Report alleged that “in total, Rs. 35 Billion were transacted in these accounts and used for money laundering.” Consequently, another inquiry, dated 26.01.2018, was registered by the FIA; and a probe under this inquiry reveled that these accounts transacted huge financial amounts with “Omni Group, Bahria Town, Zardari Grouip, Parthenon Pvt. Ltd., Zain Malik (son-in-law of Malik RiazHussain) Arif Habib and a group of contractors/builders” who worked on various projects in Sindh.

During pendency of these investigations, on 29.06.2018, the honorable Supreme Court of Pakistan took cognizance of the matter (in a Human Rights application concerning “slackness in the progress of pending inquiries relating to fake bank accounts”). Subsequently, on 05.09.2018, the honorable Supreme Court constituted its own JIT “for the purpose of conducting a thorough, in depth and incisive investigation and probe into the matter of fake bank accounts”, in order “to get to the truth, uncover the persons involved and collect all material evidence for the purpose of ensuring that in case an offence is made out, the persons involved therein are properly prosecuted.”

Pursuant to these broad TORs, “the JIT summoned 885 persons, and examined in detail 767 individuals/witnesses” along with “11,500 bank accounts of 924 individuals and companies”. Findings of the JIT Report reveal that the first ‘fake account’ was opened in January 2010, and over the next few years “Omni Group created eleven ‘Fake Entities’ which had no assets or business of their own but were created to act as vehicles to launder proceeds of crime.” Three of these entities were created in the name of Omni Group employees (including an “Office Boy”), whereas others were created in the name of random individuals, including: a ‘House Wife’, a ‘computer technician’, a ‘Falooda wala’, a ‘Rikshaw wala’, a ‘Desi Quilt seller’, and one in the name of a sanitary worker who had died in 2014.

Importantly, some of these fake accounts were expressly “referred by Hussain Lawai” (the then President of Summit Bank); and each of these accounts were operated under the authority of “Aslam Masood, Chief Financial Officer of Omni Group (Absconder) and M. Arif Khan, Accountant Omni Group”, with a collective transaction volume of Rs. 42.3 Billion.

Per the JIT report, payments from these accounts (along with others, belonging to Omni Group) were used for construction of “Z House Nawabshah”. Furthermore, during investigation of accounts concerning Khoski Sugar Mill, it was discovered that billions of Rupees of payments, from accounts of Omni Group, were made to Mrs. Feryal Talpur and “Barai Sahab”, which were further divided “into sub heads ZH (ZardariHouse), BH (Bilawal House) and Abu Bakr Farms etc.”

To this end, despite a complicated web of (alleged) money laundering activities, the JIT claims that it has been able to “establish end-to-end money trail.”

In regards to Murad Ali Shah, the JIT Report alleges, inter alia, that (as Finance Minister) he approved, “a very low bid for Thatta Sugar Mill (only 18% of the asset value)”, in favor of Omni Group, against the express advice of Secretary Finance. Also, the Report claims that “imprudent lending”, by Sindh Bank to Omni Group, “was taking place right under the control of Murad Ali Shah”, and that retrospective subsidies were given to Omni Group, in violation of relevant legislations, by Murad Ali Shah, who steered these through the Cabinet, in a “mala fide” manner. Furthermore, it has been alleged that Murad Ali Shah, in his capacity as the then Finance Minister, passed legislation and policies “specifically tailored for Omni Group, which not only has established beneficial interests with Mr. Asif Ali Zardari, but from the evidence available on record has emerged as the front of Mr. Asif Ali Zardari.”

In the circumstances, with such damning allegations on the record, along with corresponding banking transactions, there seems little reason for Zardari supporters to celebrate a referral of this matter to NAB.

In terms of analogy, this order of the honorable Supreme Court seems to be similar to the one passed on 20th April, 2017, in the Panama Case. Back then, the PML(N) supporters also made the mistake of celebrating without cause, only to (later) realize that the Sharif family had fallen into a much deeper pit (eventually resulting in the conviction of Nawaz Sharif and Maryam Safdar).

The twisted conclusion that the honorable Supreme Court has given some ‘relief’ to Asif Zardari, in comparison with Nawaz Sharif’s case, is entirely incorrect. In the Panama case decision, the honorable Supreme Court did not arrest Nawaz Sharif, as it did not arrest Asif Zardari in the instant case. Nawaz Sharif was convicted (and arrested) as a result of the NAB trial, which may also happen with Asif Zardari. The only difference between the two cases is that Panama petitions had specifically prayed for ‘disqualification’ of Nawaz Sharif (on the bases of Article 62(1)(f) of the Constitution), in light of admitted ownership of assets and off-shore companies by the Sharif family. However, in Asif Zardari’s case, there are two distinctions: 1) there is no petition/prayer for disqualification of Asif Zardari, and thus no order in this regard; and 2) Asif Zardari has not admitted to the ownership of any of the (benami) assets alleged by the JIT, and this ‘question of fact’ can only be resolved through a trial of due-process.

Our polity has a way of jumping to erroneous conclusions, without giving much thought to the underlying legal issues involved. Serious thinking minds should refrain from this futile exercise of momentary elation. And in the process, also warn against the (eventual) embarrassment of celebrating without cause.

 

The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School.

 saad@post.harvard.edu

@SaadRasooll