By M Akram Sheikh
In the meantime, Zardari held several meetings with Nawaz Sharif and, just to keep the pressure on PCO judges, on March 9, the infamous Murree Accord was signed between Zardari and Nawaz Sharif. The 30-days deadline was thus not a commitment to the nation but, in fact, a deadline to the PCO judges to deliver.
Four days later, on March 12, the SGS Cotecna case was disposed of. It was the same case in which, after the Supreme Court had set aside the conviction by Justice Malik Qayyum on April 6, 2001, the case had gone back for retrial, which was underway. On March 14, 2008, on the application of Zardari's counsel Farooq H Naik and with the consent of the opposite counsel Danishwar Malik, the Accountability Court No. 3 in Rawalpindi proceeded to acquit Ali Zardari in the famous BMW case. The presiding judge was Sagheer Ahmed Qadri who, in his order, expressly stated that as the case fell outside the scope of the NRO, the acquittal was being ordered under general law.
Interestingly, it was the same case in which, after hearing Zardari' counsel Aitzaz Ahsan's lucid arguments, a full bench of the Supreme Court headed by Chief Justice Iftikhar Chaudhry granted bail to Asif Zardari. It was on the basis of that order of the Supreme Court that Asif Zardari was released on bail and left Pakistan.
In the meantime, Zardari's counsel Shahdat Awan filed an application for the acquittal of Zardari in the case of the double murder of Justice Nizam and his son. On March 24, 2008, another Sindh High Court PCO judge, Sofia Lateef, with the consent of special public prosecutor Naimat Ali Randhawa, proceeded to acquit Zardari. Again, this acquittal had nothing to do with the NRO.
On April 8, just a day before the expiry of the 30-days time deadline given in Murree Accord, another PCO judge, Pir Ali Shah of the Sindh High Court, acquitted Zardari in the Murtaza Bhutto murder case. This acquittal too had nothing to do with NRO.
On April 9, as the 30-days deadline expired, Zardari sought another ten days time from Nawaz Sharif for implementation of the agreement. On the other hand, on April 15, Zardari's counsel Yousuf Leghari moved an application before the district and sessions judge of Hyderabad for the acquittal of his client in Alam Baloch's murder case. On April 16, within one day of the application being filed, the court acquitted Zardari.
As the ten days' time expired Nawaz Sharif waited in Islamabad, Asif Zardari invited him to Dubai for talks for restoration of the judiciary. By now, everyone in Pakistan was confused about the real reason for Zardari's excuse and delay. And after marathon sessions in Dubai, on May 9 and 10, Nawaz Sharif and Zardari held further discussions on this matter in London.
On May 13, another PCO judge of Sindh High Court, Binyamin, acquitted Zardari, along with the current Pakistan High Commissioner to the UK, Wajid Shamsul Hassan, from the criminal case involving charges of smuggling out eight crates of artefacts, antiques and other contraband items to Britain, without paying any customs duty or air freight to PIA. This acquittal order was also not based on the NRO.
On May 19, Additional Session Judge Ejaz Hussain Awan in Lahore acquitted Zardari in the drug smuggling case. According to record, when the judge asked the state counsel, Aazar Latif Khan, he replied: "I will have no objection if the court accepts the acquittal plea of the accused." This order, too, was not based on the NRO.
As for the question why Malik Qayyum was retained as attorney general, obviously it would not have looked proper if both the counsel of the accused and the attorney general were from the PPP. After Malik Qayyum and his subordinate, Deputy Attorney General Salman Butt, had done their duty in giving their consent to all the acquittal applications, Malik Qayyum was promptly replaced with Lateef Khosa as the government's new attorney general. By this time, whatever advantage could have been taken on the basis of the NRO, or by pressuring insecure and desperate PCO judges, had been taken and Zardari, now free of all criminal cases, was free to become head of state of Pakistan. The only problem now was that Musharraf was still occupying that office.
On Aug 7, 2008, Zardari entered into another agreement with Nawaz Sharif committing himself to the restoration of the judiciary within 72 hours of the impeachment of General Musharraf. Once again, Nawaz Sharif failed to see that he was being used and he signed the agreement. But on Aug 18, when Musharraf, under tremendous pressure on account of the deadline given by both parties, resigned, Zardari refused to abide by his commitment and instead proceeded to become president of Pakistan. The Muslim League (N), now realising how they had been manipulated and used, did not vote for him.
In its judgment just delivered by the Honourable Supreme Court of Pakistan, the issues that I sought to raise on behalf of Review Petitioner Advocate Nadeem Ahmed stand fully addressed as the Honourable Court has left it in no doubt that the PCO was void ab initio, did not have any legal effect and that the Supreme Court has no authority to exercise any legislative powers by seeking to keep the NRO on the statute books when, by the requirement of Article 89 of the Constitution, it stood repealed on the 120th day of its promulgation.
In the wake of the Supreme Court's judgment, especially paragraphs 179, 184, 185, 186, 187 and 188, the NRO is to be treated as repealed from the 120th day of its promulgation--i.e., Feb 2, 2008, a date by which not a single person had drawn any benefit under that statute. It is incumbent on all the courts of Pakistan now to recall all their acquittal orders, at least those that were based on the NRO.
All the above sordid detail about how the PCO judges were used and pressured into paving the way for Mr Asif Zardari's becoming President of Pakistan also raises serious questions about his eligibility for that most prestigious office in our country.
(Concluded)
The writer is an advocate of the Supreme Court of Pakistan. Email: akramsheikh @asla.pk