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January 6, 2018

SC’s detailed decision: Hudaibiya seemed a tool to pressurise Sharifs

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January 6, 2018

ISLAMABAD: Announcing the detailed verdict in the Rs1.2 billion Hudaibya Paper Mills reference case, the Supreme Court on Friday observed that the confessional statement of Muhammad Ishaq Dar was not according to the spirit of law and the objective was to keep the Sharif family under pressure. The verdict observed that the Sharif family was denied due process and the high court judges were justified in quashing the reference.

A three-member bench, headed by Justice Mushir Alam and comprising Justice Qazi Faiz Isa and Justice Mazhar Alam Khan Miankhel, issued the detailed verdict. Last year on December 15, the said bench had dismissed the National Accountability Bureau’s appeal seeking reopening of the case. The NAB filed an appeal with the Supreme Court on September 20, requesting that the 2014 judgment of Lahore High Court be set aside.

“The learned judges of the High Court in the impugned judgment correctly observed that a Magistrate was not competent to record a statement under Section 26 (e) of the NAB Ordinance. Such a statement could only be recorded before the Chairman NAB or the court. If this statement is to be treated as a statement under Section 164 of the Code and sought to be used against the Sharif family, it should have been recorded in their presence and they should have been given the opportunity to cross-examine Mr. Dar. As this was not done, the law does not permit its use against the Sharif family." The High Court had quashed the case acquitting former prime minister Muhammad Nawaz Sharif and his family.

On Friday, the 36-page detailed verdict authored by Justice Qazi Faiz Isa declared that the Sharif family was denied the right to vindicate themselves. “In this case, we have come to the painful conclusion that respondents 1 to 9 were denied due process,” the court ruled. The verdict said the legal process was abused by keeping the reference pending indefinitely and unreasonably. “The reference served no purpose but to oppress them,” Justice Qazi Faiz Isa ruled.

The court also noted with grave concern a lack of commitment and earnestness on the part of NAB at the relevant time. “NAB did not produce the accused in the court; NAB did not seek to have charges framed against them; NAB did not examine a single witness, and tender evidence; NAB sought innumerable adjournments; NAB sought the reference to be indefinitely (sine die) adjourned”, says the detailed reasoning.

The court further observed that for over four years, the chairman NAB did not submit an application under his signature for restoration, revival of the reference. “And when the chairman did submit such an application, it was not pursued and the reference remained moribund,” the court held. Fortuitously for NAB, one learned judge permitted re-investigation, even though it had not requested it; the matter of re-investigation is mentioned in the very last sentence of his judgment," the court ruled. The detailed judgment noted that the learned judge also gave no reason why he permitted re-investigation.

“We also agree with the reasons articulated by the learned judge’s learned brethren who did not agree with him on the matter of re-investigation”, the detailed judgment ruled. The court held that under such circumstances, other than to procrastinate still further the agony of respondent Nos. 1 to 9, no purpose will be served to condone the unreasonable and unjustified delayed filing of the petition.

The detailed verdict also cited one Derbyshire CJ in the case of Emperor v Md. Ebrahim referred to the policy of the criminal law. The policy of criminal law is to bring persons accused to justice as speedily as possible so that if they are found guilty, they may be punished and if they are found innocent they may be acquitted and discharged.

Likewise, the detailed verdict also referred to Lord Denning, who encapsulated the principle of due or legal process succinctly: “In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."

The detailed verdict ruled that during the course of hearings, it observed that whilst most of the media acted maturely and fairly reported the proceedings, there were some who violated the parameters of factual reporting and also broadcast and printed views of persons who were interested in a particular outcome of this case.

"The media should not dilate on a sub judice case, rather it should only accurately report the proceedings”, the detailed verdict held but ruled that once a judgment is announced, it may be analyzed, evaluated or critiqued. The court in conclusion acknowledged the manner in which Imranul Haq, Special Prosecutor, NAB, conducted the case. “Though the brief entrusted to him was difficult, he remained stoic and tenaciously persevered," the detailed verdict ruled.

Ousted prime minister Muhammad Nawaz Sharif, Punjab Mian Chief Minister Shahbaz Sharif, Mian Muhammad Abbas Sharif (late), Hussain Nawaz, Hamza Shahbaz, Mrs Shamim Akhtar and Mrs Sabiha Abbas, Mrs Mariam Safdar, the Federation of Pakistan and Judge Accountability Court No IV Rawalpindi were made as respondents in the appeal.

The NAB had requested the apex court to examine the legality, propriety and vires of the impugned judgment of March 11, 2014 and hence may be set aside in the interest of justice, fair play and equity, adding that the impugned judgment is not passed in consonance with the dictums laid down by the apex court.