SC hints at sending Panama case to trial court

ISLAMABAD – The Supreme Court said the data collected by the joint investigation team is not conclusive, hinting at sending the case to a trial court.

While heading a three-member bench that heard arguments on the JIT report, Justice Ejaz Afzal Khan asked the prime minister’s counsel whether the Supreme Court or an accountability court would decide the matter.

Justice Ijazul Ahsan said: “We have not closed the doors yet. Whatever the JIT has recommended is not order of the Supreme Court.”

The court made it clear that there is no ongoing investigation. “We have given the JIT two weeks to wrap up its setup from the Federal Judicial Academy,” Justice Afzal said. He further said no further document from the JIT except the replies of the requests made under mutual legal assistance would be acceptable, but they would be opened in the court in front of everyone. “We don’t want to keep anything secret,” Justice Ejaz said.

PPP leaders Khurshid Shah, Qamar Zaman Kaira, Nadeem Afzal, Chan and Faisal Karim Kundi, JI leader Liaquat Baloch, AML President Sheikh Rashid and PML-N leaders were present during the proceedings.

Justice Ahsan observed the idea of constituting the JIT was to give an opportunity to the respondents, the Sharif family, to clear and vindicate their position.

However, Khawaja Haris, representing Prime Minister Nawaz Sharif, said the opportunity was denied to his client.

Justice Sheikh Azmat Saeed said the whole matter revolves around the four London flats. “Hussain Nawaz says flats are his property, but no documents except ownership of flats and the service agreement of Minerva Services Limited were produced.” He said the ownership of the London flats had been proven beyond doubt.

Justice Saeed said to the PM’s counsel: “You own the property and you have to prove it. It is not the finding but the material.”

Justice Ahsan said Prime Minister Nawaz Sharif made categorical statements in the National Assembly and in his address to the nation that they had all documents related to the Gulf Steel Mills and the flats and they would be produced, but the requisite documents were not given to the Supreme Court or JIT. He said the respondents concealed and withheld the documents.

Justice Ahsan said they would see the material in totality and examine it under articles 187 and 190 of the Constitution.

The prime minister’s counsel argued that the JIT had overstepped its mandate and given findings, which was not its job. He maintained it was not mandate of the JIT to recommend reopening of the cases which were closed transactions. It was assigned the task to examine the material available with the FIA and the NAB, he said. The JIT was given 13 questions to find their answers, but it added two more questions on its own, Haris said, adding it also asked the NAB chairman to reopen cases against the Sharif family.

Justice Afzal observed that one of the prayers of the petitioner was to direct the NAB chairman to reopen Hudaibiya case. “However, we did not pass the order,” the judge said.

Justice Saeed said one of the investigations was regarding the Avenfield Apartments. This case has been pending for the last 17 years and the NAB chairman has been sitting on it.

The court noted the UK flats are the subject matter of the earlier cases as well and Al-Taufeeq case has an aspect regarding the flats.

Justice Ahsan said all the things were inter-connected, adding Ishaq Dar in his affidavits had also mentioned it.

The judge said those issues could not be separated and they had to see them in totality. “Investigation is not complete if it is not seen in totality.”

Haris contended the JIT had no mandate to recommend reopening of the cases already closed.

Justice Saeed said the JIT could recommend anything what they liked, but if they had not passed any order in this regard, there should be no retrial or fresh trial. He said under Article 13 of the Constitution, a person is to be tried once.

“If a matter is decided, it can’t be tried again. If at the end of the day reopening is decided, you can invoke Article 13 of the Constitution by filing a petition,” the judge told Haris.

Justice Afzal said they have given verdicts in cases where there was an undisputed fact like that in dual nationality case, adding no undisputed document has come up in this case.

Justice Ahsan said an ample opportunity was given to the respondents to vindicate their position and produce the documents, but they did not do so. He said: “It was their attitude and approach before the JIT that they didn’t recall. There was total denial and non-cooperation.”

Haris contended the JIT did not confront any document to the respondents when they appeared before the JIT.

He said the JIT asked his client about Muhammad Hussain who had died 40 years ago.

Justice Azmat Saeed said, “Your client had the opportunity to rebut the allegations, but he did not do so.” Haris contended it can’t be a fair trial if the apex court sends the reference to the accountability court.

Under mutual legal assistance, Haris said the JIT hired the services of a law firm for collection of documents, which is contrary to Section 21 (g) of the National Accountability Ordinance, 1999. Section 21 of the NAO does not allow engagement of private persons for collection of documents from a foreign state, he added. He contended the documents obtained even through the mutual legal assistance had to qualify the test of Qanoon-e-Shahadat.

Justice Afzal questioned whether the court can refuse to accept a document that comes under the mutual legal assistance only for the reason that it did not come through the foreign office. “Should we discard the document because it did not come through proper channel?” he said.

Justice Azmat Saeed noted the mutual legal assistance was a bilateral treaty between two states. Mutual legal assistance treaty would have to be looked at, he added.

Haris contended any document that comes from abroad should come through the foreign office. He said Quist law firm was engaged by the JIT in violation of Section 21 (g) of the NAO.

Monitoring Desk adds: According to a TV channel, PM’s counsel accepted before the court the his client was the chairman of the board of Capital FZE, an offshore firm in UAE.

“Hassan Nawaz was the owner of Capital FZE and PM Nawaz was only designated as chairman of the doard of this offshore company but he did not receive any salary,” Haris told the apex court’s three-judge bench in response to a query during the ongoing hearing of the Panamagate case.

The case was adjourned till today (Wednesday).

Source: The Nation