ISLAMABAD: The record of National Accountability Bureau (NAB) in Hudaibiya Papers Mills case against the Sharif Family reveals that Chairman NAB Qamar Zaman Chaudhary was told by the bureau’s prosecution that it was not a fit case for an appeal because the only thing NAB could ask from the Supreme Court (SC) was a re-investigation and “a reinvestigation would be perceived as witch hunting/victimisation which would only bring a bad name to NAB and damage its credibility”.
Qamar Zaman Chaudhary while deciding not to file an appeal against Sharif Family wrote that the prosecution was unanimous in its opinion that, for various (fatal) illegalities committed during the course of investigation, the quashment was unexceptionable.
The then Prosecutor General Accountability (PGA) NAB in 2015 had told the Chairman in black and white that first a Division Bench of the Lahore High Court had quashed the reference unanimously but one judge had dissented on the issue of re-investigation of the case and later the referee judge had decided that the case cannot be re-investigated after quashment of the reference. The PGA then wrote that on account of quashment of reference all the three judges of LHC were unanimous while only one supported re-investigation of the case which makes a case for an appeal but ‘before the Chairman makes his decision whether to file an appeal or not he should consider what chances of success NAB would have in the case even if NAB was successful on appeal and were allowed to reinvestigate e.g. the fact that the case is approx 15 years old, the elder Shariff is now deceased, whether such a re-investigation would be a good use of NAB time and resources, whether a reinvestigation would be perceived as witch hunting/victimisation which would only bring a bad name to NAB and damage its credibility.’
NAB’s Additional Prosecutor General Accountability M Akbar Tarar had put up the file to the then PGA on 27-05-2014 mentioning that the LHC had decided the matter on legal premise which has to be ultimately prevailed. He supported the opinion that NAB may not assail the impugned judgement before the SC.
Documents reveal that the APGA NAB had penned down that on their (Sharif Family) return to Pakistan the case was revived for trail. However, Mrs Shamim Akhtar filed writ petition No.2619/2011 before LHC praying that all the proceedings, investigation and inquiry leading to the filing of the reference and the impugned reference initiated by the NAB against the members of Sharif family be declared as illegal, mala fide, without lawful authority and without jurisdiction and consequently, the impugned reference be quashed.
The W.P. was filed on 18.10.2011. The LHC granted stay on the same date against the proceedings of the reference. The case was decided by DB in favour of the Sharif Family. However, one of the Judges gave descending note and as such the matter was referred to a Referee Judge who vide order and judgment dated 11.03.2014 decided the case with the following finding:
"I am of the considered opinion that both of my learned brothers have rightly quashed instant reference (No.07/2000). However, observation made by one of my learned brothers Kh. Imtiaz Ahmad J, whereby, it was held that "However, it is clarified that the NAB authorities are competent to proceed against the petitioners if the investigation is again initiated in accordance with law", is hereby set aside and I agree with the opinion and observations of my learned brother Muhammad Farrukh Irfan Khan J, wherein it was held by his lordship that "As a sequel of the above discussion and reasons detailed above, I am of the considered view that after quashing the impugned Reference, the afore-stated clarification/observation would not only amount to give a premium to the prosecution of their own fault but also provide them another opportunity ostensibly to fill up their lacunas and equip them with better tools for combating/victimizing the petitioners at the hands of the NAB authorities which obviously is not the intent and purport of the law. For these reasons, in my humble view the stated observation/clarification is superfluous and uncalled for. It is observed that this petition is not to be referred again to the aforesaid teamed Bench which originally heard the same as the decision would not be that of majority, rather, it would be the opinion of this Court (Referee Judge) which would have decisive effect and would be of binding nature and the judgment will follow such opinion."
Tarar had further written that the ADPGA (KPK/IHC) who was appearing in this case has given his opinion in the matter which may be perused. “He has opined that keeping in view the legal issues decided by the High Court, NAB should not file an appeal. However, on facts and evidence of the Reference, NAB should file an appeal because on facts NAB has a strong case. I have also reviewed the case. In my opinion the learned High Court has decided the matter on legal premise which has to be ultimately prevailed. Thus I support the first option of ADPGA's opinion reproduced above that NAB may not assail the impugned judgment before the Hon'ble Supreme Court”, APGA opinion concludes.
The then Prosecutor General NAB and now learned judge of the Sindh High Court K.K. Agha had submitted his opinion stating that this is the Raiwand estate case which essentially concerns assets beyond known sources of income by certain members of the Sharif family including Nawaz Sharif. “In essence NS by passed the A/C and requested the LHC to quash the reference which had been filed against him. A two member Bench of the LHC unanimously decided to quash the case however the two judges differed on the question of whether the matter could be reinvestigated by NAB after the matter had been quashed. This lead to the question of reinvestigation being referred to a Referee Judge to determine whether the matter could be re investigated after quashment.”
Agha further mentioned, “Although not asked, the Referee Judge held that the reference had rightly been quashed. He also held that no reinvestigation was possible after quashment.”
The PGA’s opinion adds that the question was whether NAB appeals the decision of the LHC to the SC. ‘According to ADPGA (IHC) on legal issues we should not appeal the case however on factual issues we have a strong case. The APGA has opined not to file an appeal. It would seem that with regard to quashment we have three Judges against us so our chances of success on appeal are limited in respect of quashment. With regard to the question of re investigation we have one Judge in our favour. Prima facie in my view this ought to merit filing of an appeal. However before the Chairman makes his decision whether to file an appeal or not he should consider what chances of success NAB would have in the case even if NAB was successful on appeal and were allowed to reinvestigate e.g. the fact that the case is approx 15 years old, the elder Shariff is now deceased, whether such a re-investigation would be a good use of NAB time and resources, whether a reinvestigation would be perceived as witch hunting/victimization which would only bring a bad name to NAB and damage its credibility.’
Upon the Prosecution’s opinion, the chairman NAB Qamar Zaman Chaudhary decided not to file an appeal in the case in the following words: “The Prosecution is unanimous in its opinion that, for various (fatal) illegalities committed during the course of investigation, the quashment is unexceptionable. As regards the possibility of reinvestigation, I agree with the PGA, that it would be an exercise in futility as this being such an old case, operationally it would be impossible to gather any worthwhile information. I, therefore endorse the opinion of the prosecution that this is not a fit case for an appeal.”