In terms of its political implications, the Panamagate case has s become the most crucial case in the legal history of Pakistan. It essentially involves the political future of two major political parties- the PML-N and the PTI. At the same time, now it is also the extensively covered and most commented case in the media. Presently, besides the legal experts and prominent lawyers, some media-persons, political analysts and other participants of various TV talk shows are actively and openly discussing the nitty-gritty and legal technicalities of this case, ranging from the onus of proof to the evidentiary value, relevancy and admissibility of the evidence produced by the either side in the Supreme Court of Pakistan. Nevertheless, the 5-member larger bench of the apex court is supposed to eventually decide this case after conclusively determining the underlying legal and factual questions involved in this case.

Strangely, the ‘Panama-leaks’ have instantly gone missing in the Panamagate case since the apex court formally took up this case at the beginning of this month. The PTI’s legal team has deliberately shifted the focus of this case from the Panama Papers revelations to the four luxurious apartments in London admittedly owned by the family members of PM Nawaz Sharif. Now this case is just revolving around these London apartments. This already-tortuous case experienced another twist when an affidavit from the Qatari prince Hamid Bin Jasim was submitted before the apex court by the defense side during the last hearing, explaining the missing links in the purchase transactions of these London apartments.

In order to determine the guilt or innocence of a person in any trial, a judges generally adopts one of the two primarily legal procedures or approaches i.e. the adversarial or the inquisitorial ones. In the former case, the opposing sides are required to bring pertinent and relevant information or evidence to the court while the judge primary acts an impartial referee between the prosecution and the defense. And in the latter case, the court or a part of the court actively investigates the facts and other aspects of the case, whether favourable or unfavourable to either prosecution or defense. In Pakistan, like other Common Law countries, the courts generally adhere to the adversarial system. However, any trial under this system in the country is usually preceded by a reasonable inquiry or investigation.

In fact, the inquiry and investigation are the primary legal tools to discover real facts in any case. The purpose of an inquiry is to determine the truth or falsehood of a specific charge. On the other hand, an investigation is primarily conducted to collect evidence to support a trial. And in a trial, the court of law formally adjudicates on a matter after thoroughly examining the evidence available. Therefore, an inquiry or investigation is a prerequisite for any trial under the adversarial system. As a matter of fact, be it an adversarial or inquisitorial system, the court cannot efficiently draw legal conclusions to decide a case without conducting a substantial investigation, whether by itself or through other agencies.

The Supreme Court of Pakistan is empowered under Article 184(3) of the Constitution to take cognisance of a matter of public importance involving the fundamental rights of the citizens. However, this constitutional clause does not exhaustively provide the procedure for the apex court to exercise this extra-ordinary jurisdiction. Over a period of time, the apex court has itself evolved a procedure to exercise this jurisdiction. So the apex court has usually been observed adopting the typical inquisitorial approach while dealing with the cases under this constitutional clause. At times, it has formed a number of inquiry commissions after framing their TOR’s to investigate certain facts in various cases e.g. the Memogate case, the Arslan Iftikhar case.

In fact, the apex court has also initially hinted at forming a single-member inquiry commission to probe Panamagate scandal. However, so far, it has only resorted to typical adversarial legal tools to arrive at a conclusion by requiring the both sides to produce evidence in favour of their contentions. Consequently, this issue has now become even more complex and complicated. PTI’s counsels in this case have apparently produced a plethora of irrelevant and inadmissible evidence before the apex court irking some of the judges of honourable court. On the other hand, the defense side has taken a surprising defensive position in the court by producing an affidavit before the apex court executed by a Qatari prince, ultimately making this case more suspicious.

Technically, the aforementioned affidavit produced by the defense side in the Panamagate case is by no means documentary evidence. Instead, it is only an oral statement reduced to writing. In fact, under Order 19 of Civil Procedure Code, the court may allow any party to produce the statement of a witness in the form of an affidavit. However, this permission is generally granted subject to the condition that such party would produce its witness before the court, affording the adverse party an opportunity to test the veracity of the statement made by him through the cross-examination. Moreover, it is also an established principle of the law of evidence that a statement made by a witness in the court is not read as evidence unless he is cross-examined. Therefore, this affidavit has no evidentiary or probative value in this case unless the Qatari prince appears before the apex court in person and explain the contents of his letter to the satisfaction of the court. Certainly, there will be a deadlock in this case if the Qatari prince doesn’t voluntarily appear before the apex court as the territorial jurisdiction of the apex court does not extend to compulsorily summon the Qatari prince who is a foreign national.

Observably the adversarial approach adopted by the apex court in the Panamagate case has somehow confused and complicated this issue instead of resolving this legal cum political conundrum in the country. Therefore, at this stage, it would be quite appropriate to opt for an inquisitorial procedure to determine the complex questions involved in this case by forthwith forming an independent inquiry commission. A full-fledged and high-powered inquiry commission is advisable since this case directly relates to the chief executive of the country and his family members. There is hardly need to appoint a serving judge of the apex court to head the proposed inquiry commission as the 5-member bench is already overseeing the entire proceedings of this case. However, the proposed inquiry commission should necessarily comprise at least three members- the individuals known for their expertise in investigating corporate scams and white-collar crimes. They should also be well-aware of the off-shore jurisdiction and corporate structure.

The proposed inquiry commission should focus on the off-shore companies and accounts allegedly owned by PM’s family members instead of their London apartments only. It should thoroughly probe the formation of these offshore accounts/ shell companies, the monetary transactions carried out through these accounts/companies, the money trails and the source of these funds, any impropriety or irregularity committed while establishing these accounts/companies etc. In fact, without thoroughly probing the fundamental aspects of the Panamagate case through an efficient probe commission, the apex court could not conclusively determine the substantial questions involved in this complex as well as sensitive case.

Reportedly, the ruling political party is also endeavouring to introduce a tailor-made amendment in the constitution to enable the ‘aggrieved party’ to prefer an appeal against the decision made by the apex court under Article 184(3) of the constitution. It is very probable that the major political party would easily do this with help of its political allies and the ‘friendly-opposition’ in the Parliament. However, this constitutional amendment would only prolong the current Panamagate case which is already in the middle of nowhere. As the apex court has actively taken up the Panamagate case, therefore it is being widely expected that this case would be concluded soon. I also hope the apex court, in addition to its current adversarial approach, would effectively employ some inquisitorial legal instruments to solve this complex riddle expeditiously and more transparently.