Hudaibiya bench dissolves as Khosa recuses himself
ISLAMABAD – Supreme Court judge Asif Saeed Khan Khosa on Monday recused himself from a bench that was constituted to hear the National Accountability Bureau’s appeal to reopen the Hudaibiya Paper Mills case against the Sharif family.
Justice Khosa, heading a three-judge bench, said he was separating himself from the case as he had already given his ruling on the matter as part of the judgment in the Panama leaks case.
When the NAB special prosecutor general requested the court to fix the case for next week, Justice Khosa said it was the power of the chief justice to [make a new bench and] fix the case.
The legal fraternity hailed both these decisions of the apex court judge.
In pursuant to five-member SC bench directives in the Panama Papers verdict, NAB Prosecutor General in September filed an appeal against Lahore High Court judgment in Hudaibiya case.
The NAB has made the management of Hudaibiya Mills, former prime minister Nawaz Sharif, Punjab Chief Minister Shehbaz Sharif, Abbas Sharif, Hussain Nawaz, Hamza Shahbaz, Shamim Akhtar, Sabiha Abbas and Maryam Nawaz as respondents. It has made the federation, through Law secretary and the judge of Accountability Court-IV Rawalpindi as proforma respondents.
With the onset of the hearing on Monday, Justice Khosa said the Registrar Office might not have read his judgment in the Panama leaks case.
“I have written 14 paragraphs in my verdict on the matter (Hudaibiya case). I have also given direction against Finance Minister Ishaq Dar in my judgment that before becoming approver he was accused in that case. However, after the quashment of reference, his position as approver is no more [existent],” he said.
Justice Khosa said in his April 20 judgment he passed an order to initiate the proceeding against Ishaq Dar. “This case [therefore] should not have been fixed before me.”
Senior advocate Abdul Basit said Justice Khosa has made a right decision by recusing himself from the bench.
Former attorney general Irfan Qadir said Justice Khosa’s decision was commendable as he has given strong observation in his judgment about Hudaibiya Paper Mills and had also snubbed former NAB chairman Qamar Zaman Chaudhry.
He said Justice Khosa’s observation, in fact, was the observation of the apex court against the judgment of the Lahore High Court. He said if the Supreme Court judgment comes against the LHC verdict then how it could hear the appeal.
Irfan Qadir also said it was not possible that without the approval of the chief justice, the registrar office can fix cases of such nature.
“I have over four-decade experience and know that the registrar fixes important case after getting the CJP’s approval. Similarly, the registrar also can’t declare an important case frivolous without permission of the chief justice,” he said.
Justice Khosa’s 192-page note had directed the NAB to proceed against Dar in connection with Hudabiya Paper Mills reference wherein he was not an accused person when the said reference was quashed by the LHC, which also barred the reinvestigation and set aside Dar’s confessional statement.
Justice Khosa said that the NAB did not challenge the LHC verdict before the SC, and incidentally, Nawaz Sharif was prime minister at the time.
The judge also said that the reference was quashed by then LHC because in the investigation, the Sharifs had not been associated and Dar’s confessional statement had been made before a magistrate and not before the trial court.
“I may observe that the soundness of both the said reasons prevailing with the high court for quashing the relevant reference was quite suspect (sic),” Justice Khosa wrote in his judgment in the Panama Papers verdict.
The NAB in its appeal had prayed to set aside the LHC judgment of March 11, 2014, in the Hudaibiya Mills case.
The NAB in 2000 filed a reference against the respondents before Attock Accountability Court that they remained in possession of a huge amount of ill-gotten wealth Rs1242.732 million, which was unexplained and disproportionate to their known sources of income.
The respondents on October 17, 2011, filed a writ petition before the LHC Rawalpindi bench for the quashment of reference, which was quashed by the high court. However, the matter was re-investigated but a division bench of the LHC gave a split decision whether NAB authorities were competent to re-initiate the proceedings against the respondents.
The matter was therefore sent to referee judge, who observed that one member of the division bench of LHC has rightly quashed the reference and set aside the observation of the other member of the bench to re-investigate the matter. The NAB did not file an appeal against the referee judge verdict.
The appeal said that the LHC judgment was not passed in consonance with the dictums laid down by this court.
The referee judge is not competent to set aside the finding of the judge of high court regarding re-investigation as has been done in this case, the NAB has contended.
Hudaibiya bench dissolves as Khosa recuses himself