A three-member bench of the Supreme Court of Pakistan has pointed out inordinate delay and malafide intentions as main reasons for not allowing the National Accountability Bureau (NAB) to reopen the Hudaibiya money laundering case against the Sharif family. Ironically, the national graft-busting institution, under its former heads, had sat on the case for 17 years to push the court to reach a conclusion favourable to the longest serving rulers of Pakistan. In this way, the court has unintentionally served the purpose of NAB.
The relief to the Sharif family in the Hudaibiya case could also provide a glimmer of hope to former Prime Minister Nawaz Sharif, who has been disqualified on similar charges. According to legal experts, the Hudaibiya and Panama cases pertained to money laundering, tax evasion, illegal assets and concealment of facts but the five-member and three-member benches of the Supreme Court had ruled differently. Others say a criminal case does not need the permission of a court to reopen when new evidence is found. If an investigation agency starts a probe into a criminal case at any stage, it cannot be stopped. NAB, being an autonomous institution, could not be stopped from investigations, even by the court. It needed the permission of the Supreme Court to reopen the case because the Lahore High Court (LHC) had decided against it. NAB favoured the Sharifs by not appealing against the decision in the Supreme Court. The decision has many grounds on which it could be challenged. First, NAB cannot be stopped from reinvestigating a case if it finds fresh evidence. Then, a five-member bench of the court in the Panama case had ordered NAB to reopen the case after which it filed an appeal half-heartedly. According to legal experts, a three-member bench cannot overturn a decision of a five-member bench.
The case has two parts. One part pertains to a written statement of Finance Minister Ishaq Dar before a magistrate, in which he confessed his role in laundering $14.86 million on behalf of the Sharifs through fake bank accounts. The other part relates to a London High Court verdict against the Sharif family in 1999. The court had proceeded against Punjab Chief Minister Shahbaz Sharif, his brother Abbas Sharif and father Mian Muhammad Sharif for defaulting on a loan obtained from the Al-Towfeek Investment Fund in the name of Hudaibiya Paper Mills and attached four properties of the Sharifs. On the contrary, the Sharif family claimed it had purchased the London flats after selling its business in Saudi Arabia in 2006. It appears the three-member bench of the court has ruled in favour of the Sharif family on the basis of the first part of the case which consists of the confessional statement of Ishaq Dar. The London High Court judgment proves money laundering, tax evasion, illegal assets and concealment of facts, under which former Prime Minister Nawaz Sharif was disqualified in the Panama case and he still faces cases in an accountability court.
In its detailed judgment, the three-member bench observed that NAB had denied justice to the Sharif family by keeping the reference pending indefinitely and unreasonably. “The respondents were denied the right to vindicate themselves. The reference served no purpose but to oppress them. We have also noted with grave concern that lack of commitment and earnestness on part of NAB at the relevant time. NAB did not produce the accused in court, seek to have charges framed against them, examine a single witness (or) tender evidence,” the judgment authored by Justice Justice Qazi Faez Isa said. The three-judge bench, headed by Justice Mushir Alam, (also comprised of Justice Mazhar Alam Khan Miankhel), observed, “We have come to the painful conclusion that the Sharif family members were denied due process. The judges of the high court were justified to quash the reference and once it was quashed the question of reinvestigation did not arise and fortuitously for NAB, one judge permitted reinvestigation, even though it had not requested it.”
The court said that the LHC judge had given no reason why he permitted reinvestigation. “The references also do not mention the ingredients which constitute the offences as they do not allege that the Sharif family had assets disproportionate to their known sources of income which they could not reasonably account for or had misused their authority to gain any benefit or favour for themselves or any other person,” the judgment said and also questioned the findings of the Joint Investigation Team (JIT) in the Panama case that it had detected additional foreign currency accounts of the family. “If this is so, it cannot be categorised as fresh material, because the evidence was already in NAB’s possession. As regards the point the JIT had recommended that NAB may be ordered to file an appeal is worrisome because NAB is a statutory body and is expected to act independently; it should not have foregone its independence to act at the behest of the JIT. With regards to the learned judges’ purported non-serious working, this cryptic allegation is not supported by a single fact. Therefore, to make such an allegation is utterly inappropriate and verges on contempt,” it added. The judgment also noted that the JIT report had referred to “money laundering” that took place in 1991 and 1992. “However, money laundering was not an offence in Pakistan until September 7, 2007. Additionally, a money laundering case is to be tried by a sessions court, and not by an accountability court, under the NAB Ordinance,” it noted.
Legal experts say the Hudaibiya and Panama cases are similar in nature but the court ruling was different. They say if Punjab Chief Minister Shahbaz Sharif could be provided relief in the Hudabiya case, former Prime Minister Nawaz Sharif should also expect reprieve, because there could not be different verdicts in similar cases or the three-member bench will have to review its judgment.