Five-judge bench leaves courtroom as PM’s lawyer objects to ‘observations’

| CJP says Article-248 of Constitution does not exempt ministers from criminal proceedings

 

ISLAMABAD   –   The Supreme Court of Pakistan on Friday directed the federal government to submit details of cabinet members who had benefitted from the amendments made in rules of the Exit Control List (ECL). A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar conducted hearing of the sou motu notice regarding the apprehension of undermining the criminal justice system by persons in authority.

 The chief justice had taken the sou motu notice on the recommendations of a judge of the Supreme Court of perceived interference in independence of prosecution branch in performance of its powers and duties for the investigation and prosecution of pending criminal matter involving persons in authority in the government.

During the hearing, the court noted that the amendment in the Exit Control List (ECL) was made on 22nd April, 2022 and the subjects like misuse of authority, corruption and embezzlement were removed, and names of those involved in corruption and tax theft of Rs10 million were removed from the list.

Ashtar Ausaf submitted that the amendment in the ECL Rules was made after the cabinet approval.

Justice Munib Akhtar noted that when was no mention of the word ‘retrospective’ in the notification of the Cabinet Division then how applied to the names added in the past. He cited the Supreme Court judgment in Sugar Mills case, saying the word ‘retrospective’ was mentioned in the verdict. He remarked that the persons who have been facing the case could give approval to change the rules and to benefit. He questioned is it not the conflict of interest. This is serious violation of the code of conduct. He asked for details of cabinet members who had benefitted from the move.

Justice Ijaz ul Ahsan inquired that whether the referring agency was consulted before the removal of their names from the ECL. He added that the NAB report said it was not consulted. He further said that according to the rules each and every case had to be examined before removing the name from the ECL.

Justice Ijaz said that general amnesty was granted to those who were not eligible. He observed that a (cabinet) member who was facing charges could have “disassociated” himself from the changes.

Justice Ahsan asked that whether names would automatically be removed from the ECL after 120 days, to which the attorney general replied in the affirmative.

Justice Naqvi observed that cabinet members had also benefitted from the rules. He said that how can they introduce amendments for their personal benefit?”

The Chief Justice noted that the moment after the issuance of the notification over 100 people went abroad. He then asked the attorney general to hold an inquiry and provide the list of persons, who benefited. He said that at the moment they are not nullifying the cabinet decision.

Justice Bandial said that the matter before the court is the enforcement of law and not to interfere in the executive domain, but they (ministers) were part of the cabinet, which gave approval for amending the ECL Rules.

The Chief Justice said that it seemed the FIA team was transferred in order to stop case proceedings. He said that Article 248 of the Constitution did not exempt ministers from criminal proceedings. The criminal proceedings against federal ministers should continue to be investigated, he added. He said that the criminal system should be the same for all. Later, hearing of the case was adjourned till date in office.

Regarding the transfer of the prosecutor and the investigation officer, who were associated the cases of the Sharif family, the Chief Justice noted that there is an impression that FIA DG has removed the prosecutor not for any absence prior to the hearings of the case before the trial court, but due to the subsequent development. He stated that impression is that the prosecutor was changed in order to benefit and to stop further proceeding against certain important persons in the government.

The Court directed the attorney general to present Investigation Officer (IO) who was appearing before the Central Judge, Lahore, in the PM Shehbaz Sharif cases regarding money laundering, on the next date. He also directed to bring the record of the case (of Shehbaz Sharif).

Advocate Hassan Akbar, appearing on behalf of NAB Chairman, said that 174 persons were removed from the ECL after amending the rules. He informed that the NAB chairman was not consulted before removing their names. He further told that every region of the NAB has reported that the record of investigation/inquiry and prosecution is secured and protected.

Additional Attorney General Amir Rehman said that FIA record is in safe custody. There is only high profile case in FIA. Justice Ijaz said that head of FIA would have to give certificate that the record is safe, so if any record goes missing then he will be held responsible.

Attorney General Ashtar Ausaf informed that team of the prosecution was de-notified due to absence on two subsequent dates, while the IO has not been changed, but was hospitalised, as two stents were implanted in his heart.

Justice Ijaz said that according to the application which IO had given to the Central Judge, Lahore, the IO was changed. The DG FIA conveyed the IO not to appear before the court. He said that on April 11 he told the trial court that he will be changed, and on next two hearings no one appeared. The AGP informed that prosecutor team was changed as they did not appear on two subsequent dates. He said that while IO could not appear due to implantation of two stents.

Justice Ijaz said that the facts were twisted to create the justification that two stents were implanted to the IO.

At the end of the proceeding, former attorney general Irfan Qadir while representing Prime Minister Shehbaz Sharif, came on the rostrum and said that he would like to submit a few law points. Justice Bandial told him that they would listen but whatever he wanted to give us in writing. At that Irfan Qadir asked the court to also provide the questions in writing.

He then said that as at the moment rivalry between the two political parties is going on. He suggested the bench not to drag in politics. He added that the impression is being gathered that the court has tilt towards one party. The bench instead of affording him to make submission, left the courtroom, without announcing the next date for hearing.

While talking to the media outside the apex court, PM Shehbaz Sharif’s lawyer said that he informed the court that two political parties are encountering each other. He said that any observation of the court would drag it into politics. Qadir said that he wants the court to be seen as unbiased. He said that CJP Bandial asked him to present his arguments in writing.

“I and the CJP agree that written statements lead to the right conclusion in the judiciary,” the lawyer said.

Qadir went on to say that the court should keep the entire system in view. He said that he would request the court not to look into anything if it considers one thing and disregards the rest.

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