Hudaibiya judgment goes against Panama verdict

ISLAMABAD: The detailed judgment of a three-member bench of the Supreme Court in the Hudaibiya Papers Mills case negates almost every point raised by honorable Justice Asif Saeed Khan Khosa in Panama Papers case verdict regarding Hudaibya reference.

In the Panama Papers case judgment dated 20.04.2017, Justice Asif Saeed Khan Khosa believed that there was an apparent flaw in LHC judgment regarding Hudaibya Papers Mills Case and that soundness of reasons prevailing with the High Court for quashing the relevant Reference was quite suspect.

On the other hand, the three-member bench of Hudaibya Papers Mills case believes that the reference was used as a tool against Sharif family. Justice Khosa in Panama case judgment highlighted that there was an apparent flaw in the judgment rendered in that case by the learned Referee Judge because the reference to the learned Referee Judge was as to whether an observation could be made or not regarding reinvestigation of the case and the reference was not as to whether reinvestigation could be carried out or not!

On the same point, Hudaibya Papers Mills judgment says, “The learned Judges of the High Court were justified to quash the Reference and once it was quashed the question of reinvestigation did not arise. Fortuitously for NAB one learned judge permitted reinvestigation, even though NAB had not requested it; the matter of reinvestigation is mentioned in the very last sentence of his judgment. The learned judge also gave no reason why he permitted reinvestigation. We also agree with the reasons articulated by the learned judge’s learned brethren who did not agree with him on the matter of reinvestigation. 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”.

Similarly, the SC bench on Hudaibya Papers Mills Case in its judgment totally discredits the confessional statement of Ishaq Dar and termed that it has no legal weightage against Sharif family.

It said, “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 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 Hudabiya Papers Mills judgment says, “In this case we have come to the painful conclusion that respondents 1 to 9 were denied due process. The legal process was abused, by keeping the Reference pending indefinitely and unreasonably. The said respondents were denied the right to vindicate themselves. The Reference served no purpose but to oppress them. We have also noted with grave concern the lack of commitment and earnestness on part of NAB at the relevant time….”

Justice Khosa in Panama Judgment said, “Be that as it may the fact remains that in the Final Reference which was quashed by the High Court respondent No. 10 was not arrayed as an accused person and his status in that Reference was that of merely a prosecution witness and, thus, quashing of that Reference by the High Court did not entail respondent No. 10’s acquittal or smothering of any possibility of his trial on the said charges at any subsequent stage. It is also quite obvious that with quashing of the Reference and setting aside of the confessional statement of respondent No. 10 the pardon tendered to respondent No. 10 by the Chairman, National Accountability Bureau under section 26 of the National Accountability Ordinance, 1999 ipso facto disappeared with an automatic revival of the said respondent’s status as an accused person who had never been acquitted and against whom no Reference had been quashed…”

However, the three member bench on Hudaibya Papers Mills Case say, “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 statement could only be recorded “before the Chairman, NAB or the Court. In view of the aforesaid legal position and the order of the Chairman it is quite clear that the statement attributed to Mr. Dar could not be categorized as one made under section 164 of the Code. And, as it was not recorded before the Chairman NAB nor before the Accountability Court it can also not be categorized as one under section 26 (e) of the NAB Ordinance….”