SC’s praise for JIT against petitioner’s right to fair trial

ISLAMABAD: Former prime minister Nawaz Sharif in his review petition attacked the Joint Investigation Team (JIT) and its members by raising serious questions on their credibility and pointing out biases against the petitioner and his family.

The petition also termed the commendation and appreciation by the five-member bench for the JIT members and their report as an utter violation of the provisions of the Constitution  Constitution guaranteeing fundamental rights to the Petitioner. The legal team of the former premier has raised some serious questions on the findings of the JIT and highlighted shortcomings in it. 

It is also highlighted in the review petition that the JIT members overstepped the authority conferred on them by the three-member bench of the Supreme Court and they acted mala fide against the former prime minister.

“The commendations and appreciations by the Hon’ble 5 member Bench of statedly “hard work” and “efforts” of JIT Members and their subordinate staff “in preparing and filing a comprehensive and detailed Report as per our orders” is again, it is submitted with utmost humility, a gross transgression of the Petitioner’s fundamental right to fair trial and is tantamount to not only foreclosing the Petitioner’s right to challenge both the credibility of each of JIT Members in terms of their bias as much as their proclivities arising from their association with their parent departments/institutions, but also the Petitioner’s right to challenge the gross shortcomings of the JIT Report itself and the so-called “evidence” collected by it, and, as such, those observations of commendation and appreciation as made in Para. 6 of the Final Order of the Court/Judgment too need to be reviewed and expunged, being in utter violation of the provisions of the Constitution guaranteeing fundamental rights to the Petitioner”.

It is further stated that factually too the Bench has misread the record while commending the efforts of the of the JIT, in that the JIT had not prepared any report as per the order of court dated 20.04.2017, inasmuch as the JIT was ordered to file a complete report within 60 days of the order, but its report is not only manifestly and glaringly incomplete, “the investigation itself suffers from deficiencies of a serious nature, is, on the face of it, sub-standard in material particulars, was conducted in gross violation of law, including violation of Section 21 (g) of the National Accountability Ordinance, 1999 (“NAO”), and by, ignoring the Petitioner’s right to be confronted with any incriminating material it may have collected during the course of investigation, is reflective of pre-disposition of the JIT Members to carry out a roving inquiry so as to implicate the Petitioner in some wrong doing or the other, and, as such, did not deserve any commendation and appreciation of its “efforts” by the august 3-Member Bench or the Final Order of the Court as noted respectively in para 7 of the judgment of the learned 3-Member Bench and para 6 of Final Order of the Court signed by hon’ble 5-Member Bench in Para. 6 of the Final Order of the Court/Judgment.”

The former premier’s legal team further prayed that the “appreciation and commendations of the JIT Members, as much as the overseeing of the investigation by the NAB, is tantamount to foreclosing the right of the Petitioner to challenge the quality, fairness, independence and legality of the investigation already carried out by the JIT Members and/or any further investigation that may be conducted by the NAB, or to establish the malafides and gross illegalities committed by the JIT Members and/or the NAB authorities, if any, as no learned Judge of the Accountability Court can dare allow the defence counsel to conduct cross-examination of the Prosecution Witness with respect to the credibility of the Investigating Officers and/or the investigation that already bears the explicit as well as the implicit approval, appreciation and commendations of the apex court of the country, and, even if so allowed, to render any judgment or finding pursuant to such cross-examination that may belie or negate the observations so made by this hon’ble Court.” 

It is also prayed: “The direction given in the Final Order of the Court/Judgment with respect to the members of the JIT that “their tenure of service shall be safeguarded and protected and no adverse actions of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan” is also per incuriam, inter alia, as it is violative of Article 175(2), as also the principle of Separation of Powers that forms the cornerstone of our Constitution.”

“That additionally, the aforesaid direction is also in violation of the Petitioner’s right to fair trial as it carries with it an obvious innuendo that the Petitioner or any of the other Respondents in Constitutional Petition Nos.29 and 30 of 2016 and Constitutional Petition No.3/2017 are planning to effect, or may try to effectuate an order adversely affecting the service of the JIT Members because of the Report submitted by them, and, as such, this direction, carrying an implicitly negative innuendo against the Respondents to these Constitutional Petitions, too shall seriously prejudice the Petitioner in his defence before the learned Accountability Court”, says the petition.

“That furthermore, insofar as the Final Order of the Court/Judgment purports to direct NAB to file References “on the basis of the material collected and referred to by the JIT and such other material as may be available with the FIA and NAB…or that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions”, it said. 

It is submitted that this “direction too is an encroachment upon and is tantamount to assumption of the authority of NAB, which again is not permissible, inter alia, in view of the provisions of Article 175 (2) of the Constitution of the Islamic Republic of Pakistan.”

The former prime minister in his review petition also prayed that the “direction given to NAB as noted above is further tantamount to an implicitly unambiguous approval/endorsement by the apex court of the authenticity, veracity, admissibility and reliability of the so-called “evidence” collected by the JIT, or which may be made available pursuant to the JIT’s requests for Mutual Assistance, hence bound to affect the decision of the Judge, Accountability Court, in admitting such material in evidence, irrespective of its status in the eye of the law, or the objections that may be taken by the defence in this regard at the trial.”

Our Monitoring Desk adds: The petition also apprehended that how subordinate courts could undone what is done by JIT that got praise from the Supreme Court, Geo reported.