ISLAMABAD: After the rejection of the alleged “confessional” statement of Ishaq Dar by the Supreme Court, the investigation started by the National Accountability Bureau (NAB) against him has become inconsequential, frivolous and out of place. Besides, outgoing NAB Chairman Qamar Zaman’s inflexible opinion not to appeal against the judgment of the Lahore High Court (LHC) that had quashed the Hudaibya Paper Mills reference also stands vindicated by the verdict now handed down by a three-member bench.
After the LHC had rubbished the reference, Qamar Zaman had on the advice of the NAB prosecutor general decided not to dispute this verdict in the Supreme Court. During the proceedings in the Panama case, he had stubbornly refused to change his mind and had told the judges that he would not call the LHC decision into question. This had severely annoyed the justices, prompting one of them to say that the NAB died today.
In his legal opinion, the prosecutor general had told the chairman that there was no point in pursuing an appeal since the reference was old and the main “accused” – Mian Muhammad Sharif – has died.
Without giving any justification or reason, the NAB recently launched investigation against Dar on account of his “confession”, when its appeal in the Hudabiya Paper Mills case was yet to be taken up and finally adjudicated by the apex court. It had sprung into action immediately after the dismissal of the review petition of Nawaz Sharif against the July 28 ruling that had disqualified him as the prime minister. The NAB had based its initiative on an observation of Justice Asif Saeed Khosa made during the hearing on the review petition that he had nothing to add because his minority judgment had not been disputed in the present plea; and that he had already stated in his April 20 note that Dar’s retraction of his “confession” had converted him into an accused.
The present judgment having been unanimously delivered now prevails as against the minority ruling of only one judge – Justice Khosa in the Panama case. This will render any further proceedings by the NAB against Dar null and void.
Under the law, investigation can be reopened against an accused only if fresh evidence surfaces. The NAB had treated the finding of the Panama Joint Investigation Team (JIT) as “fresh material” against Dar. However, the instant verdict dismissed the JIT report relating to Hudabiya Paper Mills reference, holding that the JIT had not come out with any fresh material and what it treated as such was already in the NAB’s possession.
According to the present verdict, during his arguments the NAB prosecutor placed considerable reliance on Dar’s April 25, 2000 statement, which was recorded before a magistrate. The bench enquired from the prosecutor whether it was under Section 164 of the Criminal Procedure Code (Cr.P.C.) because the JIT report refers to it as such. He categorically stated that it was not so, but a statement under 26 of the NAB Ordinance, which provides for the tender of pardon to accomplice/plea-bargaining and in this regard referred to Dar’s letter addressed to the NAB Chairman, titled “Tender of Pardon” and the chairman’s order dated April 21, 2000 whereby he in exercise of powers Section 26 tendered full pardon to Dar.
The ruling said that the LHC justices had correctly observed that a magistrate was not competent to record the statement under Section 26 (e). It could only be recorded before the NAB chairman or the accountability court. The NAB Ordinance was later amended on July 5, 2000 to enable a statement to be recorded by a magistrate.
The original un-amended Section 26 (e) read: Any statement made before the NAB Chairman or the court by a person who has accepted a tender of pardon may be given in evidence against him at such trial. Amended section 26 (e) said any statement made before a magistrate by a person who has accepted a tender of pardon may be given in evidence against him at the trial.
Justice Qazi Faez Isa, who authored the judgment, wrote that in view of this legal position and the NAB chief’s order it is quite clear that the statement attributed to Dar could not be categorised as one made under Section 164. As it was not recorded before the NAB chairman nor before the accountability court it can also not be categorised as one under Section 26 (e). Moreover, if a Section 164 statementis confession, it must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. Dar’s statement is also self-exculpatory and it states, “I have never obtained any illegal personal benefits of these funds”.
The judge wrote that to enable a statement recorded under Section 164 to be used against an accused, it must be recorded in his presence and the accused given an opportunity of cross-examining the witness making it. Dar’s statement says that the “money [in the foreign currency accounts] was/is owned by the Sharif family”, therefore, if it is to be treated as a statement under Section 164 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 Dar. As this was not done the law does not permit its use against the Sharif family.
