Monitoring judge, time bar not to sway trial: SC
ISLAMABAD – The Supreme Court, announcing the detailed verdict on the review petitions filed by the Sharifs, said much higher level of integrity was expected from the holders of the highest elected office of the country, but former prime minister Nawaz Sharif had not been fair and forthright in answering any of the court queries.
A five-member bench, headed by Justice Asif Saeed Khan Khosa on Tuesday, announced the detailed judgment on the review petitions of Nawaz Sharif and his children in Panama leaks case. The short order dismissing judgment review petitions was passed on September 15 this year.
“References against Nawaz Sharif, Hussain Nawaz and Hassan Nawaz are related to 16 companies. We could not shut our eyes when an asset of Nawaz Sharif arising out of Iqama (work permit) surfaced during the investigation of the case and he admitted this fact in certain terms, but did not disclose it in his nomination papers in terms of Section 12(2) (f) of ROPA,” the verdict said.
“We were not supposed to ignore his Iqama (work permit) simply because he was the prime minister of the country. Much higher level of integrity is expected from the holders of the highest elected office of the country. But to our dismay, the ex-PM has not been fair and forthright in answering any of the queries made during the course of hearing,” the verdict stated.
“He never came forth with the whole truth. He tried to fool the people inside and outside the Parliament. He even tried to fool the court without realising that he can fool all the people for some time, some of the people all the time, but cannot fool all the people all the time. Refuge in evasive, equivocal and non-committal reply does not always help. If fortune has throned and crowned him to rule the country, his conduct should have been above board and impeccable,” it stated.
Denying an asset established or defending a trust deed written in 2006 in a font becoming commercial in 2007 is below his dignity and decorum of the office he holds.
Disqualification of Nawaz Sharif: The court said the contention that removal of the former premier from the public office and not his disqualification in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution is devoid of force when he deliberately concealed his assets and wilfully and dishonestly made a false declaration on solemn affirmation in his nomination papers.
“It is not something to be looked at with a casual eye and outlook. It is not only a legal duty, but a qualifying test for the candidates who in the later days rule the people. This duty has to be performed without a taint of misrepresentation. This test has to be qualified without resorting to unfair means. Any concession at this stage or any leniency to the candidates or the persons elected would be a prelude to a catastrophe in politics, which has already had enough of it. Since it is already touching the extreme, extreme measures have to be taken. The culture of passing the candidates by granting grace marks has not delivered the goods. It has not only corrupted the people but also the system,” the court held.
Not to be disqualified without recording of evidence: The contention that the petitioner could not be disqualified under Article 62(1) (f) of the Constitution without recording evidence, a proceeding under Article 184(3) of the Constitution, also runs counter to the settled law of the land as this court. In the case of Syed Mahmood Akhtar Naqvi v Federation of Pakistan (2012 PLD SC 1089), while exercising jurisdiction under Article 184(3) of the Constitution, the court proceeded to disqualify the person elected who, despite being disqualified in terms of Article 63(1)(c) of the Constitution, made a false declaration on solemn affirmation in his nomination papers to the contrary,” the verdict asserted.
Unwithdrawn salary: “Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party, receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm.” the verdict affirmed. The definition reproduced above leaves no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by Respondent No 1 in his nomination papers in terms of Section 12(2) of the ROPA. It has not been denied that Respondent No 1, being chairman of the Board of Capital FZE, was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the unwithdrawn salary from being receivable, hence an asset,” the judgment stated.
“The petitioner’s entitlement to salary stems from a written employment contract. Salary in this case, it may be noted, is not salary of the future which was yet to accrue. It was salary of the past six and a half years which had already accrued and accumulated. There is nothing in oral or written form from July 2006 to January 2013 that could stop the accrual and accumulation of salary or prevent it from becoming an asset,” it pointed out.
The court said that the power to withdraw or waive salary rests exclusively with the petitioner and that he, instead of withdrawing it, waived it in favour of the company. The expression ‘asset’ as defined in Black’s Law Dictionary has rightly been relied upon when it has not been defined in the ROPA and the Constitution.
“Had there been no admission, we would not have stepped in as we did not step in when the document issued by Mossack Fonseca showing Respondent No 6 in CP No 29 of 2016 as the beneficial owner of the Avenfield apartments, was disputed by her. We also did not step in when many other documents disclosing several other assets purportedly owned by the children of the petitioner were disputed,” the court held.
Vindicating position: “We not only gave him a fair chance to vindicate his position before this court, heard him at length for almost two days and also accepted whatever he stated about work permit, his employment contract with Capital FZE Jabal Ali, his position as the chairman of the board and his entitlement to salary which, according to him, was not withdrawn.”
Direction to NAB: The court said the contention that the apex court assumed the functions of the NAB chairman and the judge of the accountability court, which is not only against the law but also repugnant to trichotomy of powers is not correct when both of them on their own have been left to proceed in accordance with the law. The contention that direction to the NAB to file references on the basis of the material collected and referred to by the JIT and such other material which may be available with the FIA and NAB or the one which may come before it pursuant to the mutual legal assistance requests sent by the JIT to different jurisdictions is an encroachment on the authority of the NAB and violation of Article 175 (2) of the Constitution could have been given some weight had there been no institutional capture, seizure and subjugation of all the important institutions of the State, including NAB, SECP, FBR, State Bank of Pakistan, National Bank of Pakistan and Intelligence Bureau, through the cronies and collaborators of the person at the peak as has been evidenced during the course of hearing. “We thus with our eyes open and minds awake would not let everything go into the hands of the cronies and collaborators for being taken to a dead end. Once things have been streamlined, they have to be taken to their logical conclusion.”
Volume X of JIT report: “The revelation by Volume X and the outcome of the MLA requests in respect of huge sums which have prima facie been dealt with by and on behalf of the petitioner, his sons and daughter through Montmarte Holdings SA, LZ Nominees B.V.I, Fidex Registrar B.V.I., Berryvale Limited B.V.I. & E.M.S.I. (S.A.) in Luxemburg, Shamrock Consulting Corporation and Ansbacher A.G. acting through Hans Rodulf Wegmuller and Urs Specker in Switzerland would be thrown overboard,” the court held.
“The argument that this direction implies unambiguous approval of the material collected by the JIT whose probative worth is yet to be established is also misconceived as none of our observations projects any such impression. The trial court in any case would be at liberty to appraise evidence, including the material collected by the JIT according to the principles of the law of evidence without being influenced by any of our observations,” it stated.
SC observation not binding: Even otherwise, all the observations made in the judgment, being tentative, would not bind nor would they restrain the trial court from drawing its own conclusions from the evidence recorded before it in accordance with the principles and provisions of the law of evidence, it maintained.
Direction to conclude trial in six months: “The argument that the direction to the trial court for deciding the references within six months from the date of filing them also tends to prejudice the fair trial of the petitioner is also misconceived as the purpose behind such direction is not to prejudice the trial, but to ensure expeditious conclusion of the case which more often than not has been extended even in the past by this court, if the trial was delayed by any hardship or anything imponderable,” the bench added.
Monitoring judge: “The argument that the power to superintend the proceedings of the accountability court has not been conferred on the Supreme Court, therefore, nomination of one of the judges of this court to superintend them would be violative of Article 175(2) and (3) of the Constitution is also misconceived as this practice has been in vogue since long and the purpose behind it is to guard against intrusion of casualness in the proceedings before the trial court,” it further affirmed.
JIT report: “The argument that where the material collected by the JIT is not worthy of reliance and the report submitted by it is full of infirmities, commendation of the JIT and its report reflected in the concluding parts of the judgments under review would tend to prejudice the case of the petitioner, therefore, it needs to be qualified, is again based on misunderstanding when the commendation or any other observation being tentative would not restrict the trial court to discard it if and when any infirmity therein becomes palpable on the record.”
Capt (retd) Safdar: The argument that when no material has come on the record to show any nexus between Respondent No 10 in CP No.29 of 2016 and the Avenfield apartments the direction to the NAB authorities to file a reference against him is not sustainable is not correct when he is the spouse of Respondent No 6 in the Civil Petition No 29 of 2016, who prima facie happens to be the beneficial owner of the Avenfield apartments.
Monitoring judge, time bar not to sway trial: SC