ISLAMABAD: The Supreme Court on Thursday directed Attorney General Irfan Qadir to pursue the case against business tycoon Malik Riaz Hussain and the chief justice’s son, Arsalan Chaudhry, in accordance with law.
A two-member bench comprising Justice Jawwad S Khwaja and Justice Khilji Arif Hussain disposed of the suo moto case pertaining to the alleged business deal between Dr Arsalan Iftikhar and Malik Riaz.
“The suo moto action has been brought to an end in view of the material considered. The learned attorney general, who has assisted us in the case, is fully abreast of all aspects of the case,” the court ruled in its 14-page judgment.
The court said it expected that the attorney general would set the machinery of the state in motion so that all those, including Malik Riaz, Dr Arsalan and Salman Ali, son-in-law of Malik Riaz, who might have committed illegal acts, were pursued and brought to book with the full force and rigour of the law.
Attorney General Irfan Qadir, soon after the hearing, told reporters that the matter could be referred to the National Accountability Bureau (NAB) as trial of the case could be conducted under Section 9A of NAB Ordinance 2000.
The court in its judgment ruled that the matters giving rise to the suo moto case might have been seen by some as a dark and sordid affair, but they were confident from the very beginning that only ‘khair’ and the clearest dawn would emerge from the case.
Justice Khilji Arif Hussain in his additional note observed: “We as judges are particularly in the public domain as all persons exercising state functions are in the eyes of the people. Although family members of public functionaries are, properly speaking, not performing state functions, the alleged facts of this case highlight the necessity of extreme caution and discretion in their private and public dealings and conduct”.
The court observed that no affidavit or statement of Salman Ali Khan, whether confirming or denying any transactions between him and Dr Arsalan or their relationship inter se, had been filed by Malik Riaz.
“Nonetheless attempts by individuals to obstruct the course of justice are indeed a matter of serious and grave concern, and imperil the reputation of the justice system at large. This is why such exchange of bribes with the attempt, even a failed one, to influence the course of justice, has been declared illegal and punishable under various laws. If proven guilty by a court of competent jurisdiction, the parties involved are liable to be punished.”
The court also observed said: “It appears that Malik Riaz may not have encountered failure in the past in receiving favours against payments of illegal gratification. He may, therefore, in his own mind, have considered the lack of any relief or favourable orders from the Supreme Court as simply an attempt to extort money from him. With such thinking, it may not have crossed his mind and he may actually have missed the reality that the court was only doing its job in accordance with the law and the constitution, dealing with cases solely on the basis of merit. His logic, perhaps, is not so strange to him”.
The judgment also pointed out that some of the problem stemmed out from lack of due diligence displayed by media.
The court said if there was indeed a conspiracy to damage the reputation of the judiciary, then breaking this news through a public interview uploaded on the internet, was probably not the most constructive way of passing the news on. It also noted that the supposed documentary evidence placed on record related only to around 4.5 percent of the alleged illegal transaction. No documentation had been supplied to the court about the cash transactions, stated to comprise around 95 percent of the alleged amount given in bribes.
Justice Khwaja suggested that the distinction between the conduct of Dr Arsalan and the institutional integrity of the apex court should have been kept in mind from the very beginning.
The court made it clear that such attempts by individuals, even failed ones, are illegal and punishable according to laws. These laws may include s. 163 (illegal gratification using personal influence over public servant), s. 383 (extortion) s. 415 and s. 420 (cheating), of PPC and s. 9 of NAB Ordinance. The court did not, however, delve deeply into the contours of these various legal provisions nor did it determine the manner of their applicability to the present facts. That job, the court opined, was best left to competent investigating agencies and the trial court, who could better judge the matter on the basis of evidence.
The judgment explained that the court had to take suo moto notice of this case only to vindicate the people’s guaranteed right to access to information about a matter of grave public importance. The matter of public importance in this case, the judgment explains, was the aspersion cast on the independence and integrity of the superior judiciary of this country, particularly that of the Supreme Court and the chief justice.
“The ensuing media frenzy had left the people of Pakistan deeply concerned about whether the hard-won gains of their recent struggle for the independence of the judiciary, waged through blood, toil and tears, had been frittered away,” the court ruled.
The court further said to a large extent, this statement was sufficient to settle the question of public importance. When the man who is accusing Dr Arsalan of involvement in wrongdoing, was himself conceding that the court, as an institution, has never been involved in any such act, then the aspersion cast on the judiciary’s reputation stood cleared. The fears of the public could therefore be allayed.
Justice Khawaja opined when even a resourceful person such as Malik Riaz had been forced to concede failure in his attempt to compromise the integrity and independence of the country’s superior judiciary, despite the alleged payment of Rs34 crore, then the public could rest assured that the gains of tier struggle had not yet been frittered away. On this basis, suo moto action was brought to an end.
On the other hand, the judgment also contained observations against the alleged conduct of Dr Arsalan Iftikhar, accused of working in tandem with Malik Riaz and his son-in-law.
With reference to the documents placed on record by Malik Riaz, the court explained that they pertained mainly to money and other valuables, alleged to have given to Dr Arsalan by the son-in-law of Malik Riaz.
The court ruled that if indeed this did happen, and if it was done in exchange for promises of delivering illegal favours, then these individuals must be tried and punished in accordance with law.
“Today, we, as a nation, stand at what is undeniably a fateful crossroads in our history. But at least since 9th March 2007 this court has trod only one path ahead of it - the path of the law and the constitution, which is our only hope of preserving the gains of the ‘unremitting struggle of the people against oppression and tyranny’,” the court observed.
The judgment ruled: “This is the path that we, and indeed all organs of the state are commanded to follow, in the very preamble of the constitution. If we fail in this duty, we risk returning, as we said in the beginning, to the period before March 9, 2007”.
The significance of that watershed in our constitutional history may have been lost upon some, but certainly not upon this court. But for that moment of truth, there would have been no deliverance - for anyone, the court further held.