SC refuses to reopen Hudaibiya case
ISLAMABAD – The Sharif family and Ishaq Dar got a great relief yesterday when the Supreme Court rejected NAB appeal for the reopening of Hudaibiya Paper Mills scam.
“The reasons to be recorded later the NAB [National Accountability Bureau] application for condonation is dismissed,” the court said in its short order, rejecting the appeal of the anti-graft body against a 2014 decision of the Lahore High Court that quashed the case for lack of evidence.
The apex court earlier in the day had reserved its judgement on the maintainability of NAB appeal in the Rs1.2 billion money laundering scam after Bureau’s special prosecutor Imranul Haq concluded his arguments.
The verdict, which is expected to boost the morale of the ruling PML-N, was delivered by a three-judge bench headed by Justice Mushir Alam and including Justice Qazi Faez Isa and Justice Mazhar Alam Miankhel.
The apex court bench – seeking new evidence – had asked the NAB not to “parrot” the Panama Papers judgement and rather articulate its own reasons to convince the bench why the reference originally filed against the Sharifs in the year 2000 during Musharraf regime should be resurrected.
“You have to satisfy the court on the reasons for the delay in filing the appeal,” Justice Alam had told NAB’s lawyer as the hearing began. The lawyer had told the court that there are holes in the high court’s decision and the appeal must be reopened for the sake of justice.
But the NAB failed to convince the court why it took so long to challenge the high court verdict. The court after several days of hearing the case issued a short order and rejected the NAB’s appeal to reopen the case.
Legal experts believe that the judgement in Hudabiya case would not only save Sharifs from further trouble but also indirectly bolster their defence in the corruption references being heard by the accountability court of Islamabad. Importantly, the decision has allayed ruling family’s fears that after Nawaz’s disqualification, his younger brother Shehbaz could also face the similar fate if the case was reopened.
Political observers said Ishaq Dar – a central character in the Hudaibiya case who has been declared a fugitive for avoiding NAB court hearings – could also decide to return to the country now and face the NAB case.
Dar, an old confidante and relative of Nawaz Sharif, is the finance minister of the country but is on leave. As per his lawyer, he is ill and receiving treatment in London.
Hudaibiya case was based on a confessional statement of Dar who on April 25, 2000 admitted playing role in laundering money to the tune of $14.86 million on behalf of the Sharifs through fictitious accounts.
Dar later said that he was forced to record the statement while he was in custody after Sharif’s government was sent packing by former military ruler Musharraf.
According to the NAB documents, Nawaz Sharif, his children Maryam and Hussain, his father late Mian Muhammad Sharif, brothers Shehbaz and Abbas Sharif, Abbas’s wife Sabiha, and Shehbaz’s son Hamza had been accused of receiving the alleged “ill-gotten money” in the case.
During Friday’s proceedings, the court criticised media for airing talk shows despite the apex court order. Justice Faez said they had passed an order in that regard but it seemed Pemra was sleeping. If things went on like this, a time would come when the decision would be made on the roads, he added.
Justice Mushir told NAB special prosecutor Imranul Haq that the apex court will not venture into the merit of the case unless he crossed the hurdle of ‘limitation’.
He inquired from the prosecutor when the charges were framed? The NAB lawyer replied that charges were never framed.
Upon that Justice Faez remarked that then there is no case as the charges were not framed against the respondents for the last 17 years. The judge said that the NAB was suggesting that it could frame charges against someone as and when it pleases.
Justice Mushir then inquired whether the reference was dismissed. Imran replied the reference was never dismissed, but the proceedings of the case were adjourned sine die twice. He said in 17-10-2011 the respondents filed writ petition before the Lahore High Court regarding the Hudaibiya case. He further informed that the NAB filed the application for restoration of their application on 18-10-2012.
Justice Faez said it was quite clear in the NAB’s mind that there were no stay orders. He inquired what the NAB did for the revival of case when it was finally quashed on 11-3-2014.
Justice Mushir questioned what happened in the last proceeding of the Accountability Court. The prosecutor replied he did not have order-sheet. He, however, said there was no proceeding because of the LHC stay.
Justice Mazhar Alam remarked that “due diligence of the NAB reflected what you have done before the Accountability Court”.
Justice Faez observed that the reference was filed when Musharraf was in-charge of the country and his appointee (NAB chairman) was in-charge of the Bureau.
He asked when the PPP government appointed NAB chairman then why the bureau did not file any application for restoration of the case on time. The prosecutor replied that the Accountability Court had asked the NAB to file the application with the signature of the chairman.
The court noted that the NAB filed the application after two years for restoration of the case. It was done when the respondents filed the writ petition in the Lahore High Court.
Justice Faez said when the reference was quashed the NAB decided rightly or wrongly not to file the appeal. The prosecutor told at that time the decision was made not to file the appeal and they had filed this order in the Panama leaks case and not in the present one.
Justice Faez said when the court has to decide about the condoning then they could not lose sight that the NAB has wasted time. Imran said the chief executives of the country do the pick and choose.
Justice Faez said, “So, you mean that General (r) Musharraf spoiled the reference”. He said they could not lose sight of the fact that the constitutional order in the country was disrupted and army general was ruling the country, and he was not in compulsion and had a love lost for the person (Nawaz Sharif) he had disposed of.
He said the NAB could not say that both Musharraf and Nawaz Sharif were in hand in glove to delay the reference.
“You could have prosecuted the person (Nawaz) as there was no hindrance in the NAB’s way. You had all the reins of the government as there was no legislature.” Imran argued that the reins were not with the NAB but with Pervez Musharraf.
Justice Faez asked him to read Article 13 and 37 of Constitution. He said whether the NAB was sleeping, as it did nothing in the last 17 years. The LHC order clearly says that there was no stay against the proceedings of Accountability Court.
Imran contended that chairman office was not functional as litigations were going on against the then chairman. Justice Faez said but the litigation does not absolve the NAB unless there was any restraining order.
NAB prosecutor earlier argued that it was not necessary that the accused statement be recorded by NAB chairman or Accountability Bureau. He read section 26 of National Accountability Ordinance and said it is related to tender of pardon, release of the accused and resile of earlier discourse.
Justice Faez said: “I don’t see any relevance of this pardon because Dar was never arraigned as respondent.
Justice Mushir said: “We are not hearing the reference, may be the trial court will hear it”.