Another case that direly needs SC’s attention

ISLAMABAD: The Supreme Court’s keenness to look into the Sharif family’s past transactions and even the closed court cases to reach the truth in the Panama case has raised the hopes that the apex court might re-open yet another case that had caused embarrassment for the judiciary itself.

The case pertains to the Lahore High Court’s inquiry into scandalous judgments of two different accountability court judges in three high profile corruption cases including SGS and Cotecna, which was closed because of the retirement of the concerned judges.

The closure of the inquiry not only helped the concerned judges to go scot free but more seriously it also made the scandalous judgments as “past and closed transaction” because no one has as yet set aside the judgments for retrial.

In a story done by this newspaper last year, the Registrar Lahore High Court had confirmed to The News that as per the rules the inquiry had to be closed owing to the retirement of the accountability court judges, who had authored controversial judgments.

It was The News that had unearthed the scandalous similarities and some other controversies relating to the judgments of the Rawalpindi Accountability Courts. Handed down by the Accountability Court No III of Rawalpindi in 2011, the Cotecna judgment was almost the replica of the SGS case order issued by the Accountability Court No II, Rawalpindi.

Not only both the judgments concluded the same way but surprisingly contained innumerable similar words, expressions and even paras. In the academic term, this may be considered as a perfect case of plagiarism.

Similarities apart, the two judgments on SGS case and Cotecna case were signed by two different judges of two different courts - the SGS judgment was issued by Accountability Court No II and signed by Judge Mian Altaf Hussain Mahar whereas the Cotecna case judgment was issued by Accountability Court No III and signed by Judge Jahandar Khan Banth.

Following The News broke the story the matter was referred to the Lahore High Court. The Lahore High Court initiated an inquiry against the two accountability court judges after the LHC Inspection Team had endorsed The News September 2011 report.

The News report was referred to the Inspection Team of the LHC, which found “impressions of déjà vu” in the two judgments following which the LHC had ordered a formal inquiry against the two judges.

However, during the course of inquiry the two accountability court judges attained the age of retirement, which resulted into the closure of the inquiry.

These retirements though helped the two judges avoid facing possible penalty, more importantly the controversial judgments have not yet been set-aside. Against these judgments, the NAB had also avoided going into appeal.

The SGS case judgment was handed down on July 30, 2011, whereas the Cotecna case order was handed down on September 16, 2011. The similarities between the two judgments were surprising and unbelievable despite the fact that these two references remained separate even from the very beginning.  

For example, the concluding para 51 of the SGS judgement reads: “From the above discussion it is quite clear that implementation of the PSI (pre-shipment inspection) Scheme and contract with the SGS concluded on the presentation of the present accused was not adverse to the interest of the nation, and it was in the benefit of the national exchequer. The accused AR Siddiqui had not kept any matter concealed during the presentation, and he had also not made any mis-representation on the subject of the pre-shipment scheme. There is also sufficient evidence on record to believe that the Pakistan Government was under certain pressures from the International Monitory Institution for implementation of this scheme, and this scheme of pre-shipment was also for the propose of curtailing corruption in the Customs Department. From statement of PW1 to PW17, the facts narrated in the reference have not been proved against the accused beyond any shadow of doubt. Most of the PWs have supported the defence version. Corruption and corrupt practices in conducting the process of this PSI contract by accused AR Siddiqui has not been proved. The accused is present in the Court. He is ordered to be acquitted and is discharged from liability of bail bonds and surety bonds.”

Compare the above with this concluding para 41 of the Cotecna judgment: “From the above discussion, it is quite clear that implementation of this Pre-shipment Scheme and contract with M/s Cotecna entered between the Company and Government of Pakistan. All the presentation of the present accused was not adverse to the interest of the state, and it was in the benefit of National Exchequer. Accused AR Siddiqui had not kept any matter concealed during the presentation, and he had also not made any misrepresentation on the subject of the Pre-shipment Inspection Scheme (PSI). From the evidence it is also clear that this scheme was introduced at the instance of IMF, WTO and World Bank for the purpose of generating more revenue and curtailing corruption in the department. From the statement of the PWs the facts narrated in the reference have not been proved against the accused beyond shadow of doubt. The corruption and corrupt practices in conducting the process of the Pre-shipment Contract (PSI) by the accused AR Siddiqi has not been proved. The accused is present in the Court. He is ordered to be acquitted and is discharged from the liability of bail bonds.”

The above two paras of two different judgements are almost the same and also contain some language mistakes. Similarly there are shocking similarities between para 40 of Cotecna order and para 49 of SGS judgment.

Para 49 of the SGS judgment reads: “In view of the evidence available on the record, it appears that most of the prosecution witnesses have narrated and corroborated the defence plea of the accused, facing the trial such as PW16 and PW17. Similar is the position of IO PW8 who has admitted many suggestions of the accused during cross-examination. None of the prosecution witnesses has deposed any incriminating matter directly against the accused facing the trial, and in this background of the matter, it can safely be held that the reference filed against the accused is full of contradictions and doubts. A financial scheme beneficial for the government exchequer has been made the subject of this reference in spite of the fact that there is an audit report of international audit organisation that in 18 months of its operational period the scheme had earned Rs27 billions for the nation...”

Now read the para 40 of the Cotecna judgment: “From the evidence available on record, it appears that most of the prosecution witnesses have narrated and corroborated the defence plea of the accused facing the trial. Even IO Muhammad Jamil Awaisi has admitted many suggestions of the accused during cross examination. None of the prosecution witnesses has deposed any incriminating material directly against the accused facing the trial and in this background it can safely be held that the reference filed against the accused is full of contradictions and doubts. A financial scheme duly approved by ECC of Cabinet Committee beneficial for the Government Exchequer has been made the subject of this reference in spite of this fact that there is an audit report of M/s Farguson which shows that from the scheme government received Rs27 billion during 18 months of its operational period.”

Now see what the two judgments say about President Asif Ali Zardari. In para 46 of the SGS judgment, the judge of AC No II ruled, “From statement of PW8, PW16 and PW17, it is quite clear that prosecution has failed to bring on record any evidence to prove that Mr Asif Ali Zardari accused had abused their authority as holder of public office and from statement of these witnesses, it has also been proved that all these three accused had no collusion with M/s SGS. It has also been proved that all these three accused had not received any illegal gratification and under pecuniary advantage in the form of kickbacks/commission, and they have not caused any loss to public exchequer. Throughout evidence produced by the prosecution, including oral statement of PW1 and PW17, documentary evidence available on record not an iota of reliable and admissible evidence had come on record to prove allegation that M/s SGS had given kickbacks/commission to Mr. Asif Ali Zardari and PW13 the IO has also admitted that Mr Asif Ali Zardari had no concern with bank account in Geneva relating to the offshore companies. Alleged relationship of jens Scliglimilch with Asif Ali Zardari as his agent has not been proved and relationship of Asif Ali Zardari with offshore companies as claimed by the prosecution has also not been proved...”

Compare this to para 37 of Cotecna judgement: “From the statements of PW-13 Hafiz Muhammad Jamil Awaisi, PW-10 Khalid Ahmed and PW-14 Javed Talat, it is quite clear that the prosecution has failed to bring on record any evidence to prove that Mr Asif Ali Zardari and AR Siddiqui, accused in collusion with each other, had abused their authority as holder of public office and from the statement of these witnesses, it has also been proved that all these four accused had no collusion with M/s Cotecna. It is also been proved that all these 4 accused had not received any illegal gratification undue pecuniary benefit in the form of kickback/commissions and they have not caused any loss to the public exchequer. Throughout evidence produced by the prosecution on record, there is not an iota of trustworthy and admissible evidence has come on record to prove the allegation that M/s Cotenca had given kickbacks/commissions to Asif Ali Zardari, and IO PW-13 has also admitted that Asif Ali Zardari had no concern with bank account... offshore company Mariston Securities Inc and Nassam Overseas Inc. The alleged relationship of Jens Schlegelmilch with Asif Ali Zardari as their agent has also not been proved and relationship of Asif Ali Zardari with offshore companies as claimed by the prosecution has also not been proved...”

Meanwhile a study of the ARY Gold reference and SGS reference cases’ judgments authored by Mian Altaf Hussain Mahar, Judge Accountability Court No II Rawalpindi and announced on July 30, 2011 had exposed some strange anomalies. The most conspicuous of these was the acceptance of former secretary finance and the then executive director World Bank Javed Talat’s as prosecution witness in SGS case while the same individual was declared by the same court in the ARY Gold reference as proclaimed offender.