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Malam Jabba case not pending in court, no stay order

Pakistan

December 10, 2019

PESHAWAR/ISLAMABAD: The Malam Jabba scam is neither pending with any court of law nor is there any stay order. However, the Supreme Court had suspended the high court’s orders for the inquiry of BRT on September 5, 2018 which is pending with the apex court.

Addressing an event to mark the international day against corruption, NAB Chairman Justice (retd) Javed Iqbal said on Monday, they (NAB) cannot take action against BRT and Malam Jabba cases due to the stay orders. “Corruption references are 'ready' in the BRT Peshawar and Malam Jabba ski resort case,” the chairman said.

The NAB sources confirmed that KP government had approached the Supreme Court in Peshawar Bus Rapid Transit case, and court had issued a stay order but there is no stay order on the Malam Jabba case.

“We have not received any stay order from any court in Malam Jabba case, the investigation had already been completed and a reference was sent to the headquarters for approval from the executive board of the bureau, but a decision about filing of the reference by theboard is still pending”, a NAB officer told this correspondent on condition of anonymity. However, NAB KP spokesperson refused to comment on this issue.

On the other hand, NAB has not completed any inquiry in the BRT case due to the stay order of apex court; it is not possible to file a reference without following the procedure. According to the National Accountability Ordinance, a reference can be filed after due course of law — complain verification, inquiry and investigation. According to NAO, when an inquiry is completed, a case is upgraded for investigation. Finally, the competent authority -- NAB executive board -- can approve a reference to be filed.

The Malam Jabba scandal was reported on January 7, 2018, but despite the passage of two years, the NAB has not shown any concrete development in mega scams of the province. The NAB chairman himself declared it a classic example of misuse of authority, and ordered an inquiry to be completed accordingly.

In the inquiry, the NAB KP had recorded statements of the former chief minister Pervez Khattak, now the defense minister, Chief Minister Mahmood Khan, Sports Minister Atif Khan, Principal Secretary to PM Azam Khan. It may be mentioned the NAB KP had already declared Malam Jabba scam a mega fraud.

According to a report from Islamabad, on Sep 5, 2018, a three-judge apex court bench headed by the then Chief Justice Saqib Nisar, on an appeal filed by the Khyber Pakhtunkhwa (KP) government, had suspended the operation of a judgment of the Peshawar High Court (PHC), which had mandated the investigation by the NAB.

The suspension had come the same day the NAB was to submit a report to the PHC. After Justice Waqar Ahmad Seth took over as the PHC chief justice, he and another judge, Justice Mussarat Hilali, had directed the NAB to probe the rising costs of the BRT project and the government’s inability to complete it in the six months it had promised at the very outset.

The bench had also ordered the NAB to investigate why the contract for the project had been awarded to an allegedly blacklisted company. It had termed the project “shaky and shady” and directed the NAB to submit its report to the PHC on September 5, the day the apex court had suspended the PHC order.

The Supreme Court bench issued the stay order on the appeal submitted by the KP government and the Peshawar Development Authority (PDA) against the PHC order.

The PHC’s judgment had come on a petition filed by Jamiat Ulema-e-Islam-Fazl (JUI-F) leader Amanullah Haqqani, when the project had been launched. He had claimed that its feasibility report was not prepared before it was started and that the provincial government had misled the public by making them believe that the project would be completed within six months.

The KP government’s lawyers including Makhdoom Ali Khan had pleaded before the apex court that the PHC had on December 7, 2017 disposed of this petition declaring the project legal and not in violation of Article 140-A of the Constitution. After that, they claimed, the PHC had no further jurisdiction to issue another order on the same matter.

The PHC had directed the NAB to investigate the delay, contract awarding process and all the issues relating to the BRT project, and conduct proper inquiry regarding transparency. It noted that 50 per cent scope of work has been enhanced and the last date for completion of the project was June 24, 2018.

While the apex court’s stay against investigations by the NAB was in force, the PHC, in November this year, directed the Federal Investigation Agency (FIA) to probe the BRT project as early as possible, but not later than 45 days and submit the report to its registrar. The FIA was also directed to take action against delinquents, found in the inquiry.

Irked by the latest PHC ruling, the KP government on Friday challenged it in the Supreme Court saying that the investigation by the FIA ordered by the PHC can’t be reordered when the probe by the NAB has been halted by the apex court. The PHC's act of directing the FIA to probe the case is unlawful, it claimed. One of its ministers has stated that what is to be probed, as ordered by the PHC, when the project has not so far been completed.

The PHC judgment not only raised over two dozen points about the serious shortcomings of the project but also contained the names of former KP Chief Minister and incumbent Defence Minister Khattak, Azam Khan, principal secretary to Prime Minister Imran Khan, Shah Muhammad and others to ascertain whether “nexuses” were created to manipulate the desired shares.

All the persons named in the PHC order, however, have denied wrongdoings, saying that the entire process was carried in a transparent manner.

The verdict authored by PHC Chief Justice Waqar Ahmad Seth referred the case to FIA for inquiry noting that the project is grossly mismanaged and mishandled, launched without feasibility study, contains false and deceptive financial model and have poor planning that led to 35 percent increase in its cost and a lot more.

“Probable questions” and “points to ponder” included in the judgment for FIA probe seek response to queries that hints at a possible shady deals, corruption and nexuses between top political and bureaucratic players.

The judgment said that the project has been initiated without any vision and plan by the government, and raised the question why it was pushed for approval without proper feasibility and PC-I.

It said that the KP government had concentrated loaned money in one city ignoring people of the remote areas. It said that the project was begun without proper design which is mandatory for mega ventures. The provincial government itself violated the parameters set by the Planning Commission. In the absence of feasibility report, the project design has repeatedly been changed at the implementation stage, the judgment said.

According to the PHC ruling, the detailed design for 27.37 km linear project with numerous bridges, underpasses and building infrastructure was to be completed in a short duration of 5 to 6 months. The political announcements resulted in haste in the design and created many errors. It ultimately led to delays, cost over-run and loss of productivity.

Neither the original petitioner, JUI-F leader Amanullah Haqqani, nor the NAB has approached the Supreme Court, requesting it to vacate its 15-month old stay order. The KP government on whose appeal the NAB was stopped from inquiring into the allegations will certainly not go to the apex court for undoing the stay because it doesn’t want the NAB to resume its investigations.

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