Day of Supreme Court decisions: Imran in, Tareen out, Hudaibiya down

ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan on Friday came out of the Supreme Court smelling of roses as the country’s top judges in a consensus decision cleared him of failing to declare his assets. The apex court also dismissed an appeal filed by the National Accountability Bureau (NAB) seeking reopening of the Hudaibiya Paper Mills case, giving a clean chit to Punjab Chief Minister Shahbaz Sharif and his son Hamza Shahbaz .

However, his Secretary General, close aide and confidant Jahangir Khan Tareen (JKT) was disqualified for not being honest in declaring his property in the United Kingdom. The Election Commission of Pakistan (ECP) will also investigate the allegations that the PTI illegally received money from foreign nationals.

A three-member bench of the apex court, headed by Chief Justice Mian Saqib Nisar and comprising Justice Umer Ata Bandial and Justice Faisal Arab as members, announced the much-awaited judgment on identical petitions filed by Pakistan Muslim League-Nawaz (PML-N) leader Hanif Abbasi.

Abbasi sought the disqualification of Imran Khan and Jahangir Tareen for not disclosing their assets and ownership of offshore companies. The judgment was slated to be announced at 2pm; however, it was delayed to half an hour. The judges took their seats at 3:15 pm.

Chief Justice of Pakistan Mian Saqib Nisar apologised for the delay and explained all 250 pages had to be read again due to a mistake on one page. Announcing the operative part of both the judgments, the chief justice said the verdict should be heard with patience, adding that the entire evidence was examined carefully.

The unanimous judgment also carried an additional note by Justice Faisal Arab. Justice Arab observed that a person’s honesty prior to his becoming a member of the National or a Provincial Assembly could be called in question onlyif he had accumulated wealth through fraud, embezzlement, bribery or tax evasion and had been so declared by a competent court of law.

He further observed that insofar as his dishonesty with regard to the assets acquired after becoming a member of the National Assembly or a Provincial Assembly are concerned, the same could be scrutinised by the court in the proceedings in the nature of quo warranto which will determine whether a case for acquisition of assets beyond known sources of income was made out.

The apex court reserved the instant judgment on November 14 and ruled that the matter would be decided after examining all the facts provided by the parties concerned. The judgment ruled that Imran had committed no mis-declaration of assets in relation to the said property in his annual return filed with the Election Commission of Pakistan in 2014.

It further ruled that there was no dishonesty in the omission made by the respondent. The judgment said Imran had declared his advance payment made to 1-Constitution Avenue Tower, Islamabad in his statement of assets and liabilities filed with his income tax return in the tax year 2014.

In the following year, the court noted, the respondent was allotted a flat and declared the same both in his assets and liabilities statement filed with his income tax return for the tax year 2015 as well as his annual return under Section 42A of the ROPA filed with the ECP in 2015.

The court found that M/s NSL was established as a corporate vehicle for the legal ownership of London flat, of which the respondent was the beneficial owner. “The respondent was neither a shareholder nor director of Niazi Service Limited (NSL) which had a paid-up capital of £9 and the London flat as its sole asset,” says the judgment.

It said the asset held by the NSL was declared by the respondent under an amnesty scheme granted pursuant to Section 59D of the Income Tax Ordinance, 1979; therefore, the respondent was under no legal obligation to disclose the corporate vehicle NSL as an asset either in his income tax returns or his statement of assets and liabilities filed with the ECP along with his nomination papers or in his annual returns filed under Section 42A of the ROPA.

The court found that the purchase price of Rs43.5 million of Banigala property was paid to the extent of Rs7.3 million by the respondent and the balance amount of Rs36.2 million was paid with amounts converted from foreign currency remittances made by Ms. Jemima Khan, the ex-wife of the respondent.

During the period April 8, 2002 until January 22, 2003 the court found that Ms. Jemima Khan provided a total amount of $665,340 (equivalent to UK£417,901 according to the exchange rate prevalent on 7.5.2003) towards the purchase of Banigala property.

The court held that Mr. Khan repaid on 7.5.2003 an amount of £562,415.54 to Ms. Jemima Khan from the sale proceeds of his London flat in order to settle the funding temporarily provided by her.

The judgment observed that Banigala property was owned by the respondent after it was orally gifted to him by his ex-wife Ms. Jemima Khan vide gift mutation No.10696 dated 29.10.2005 after their divorce became effective in June, 2004.

Prior to that, the court observed that Banigala property had been purchased by the respondent as a family home for his wife and children for which the financial provision extended by his wife was more than reimbursed by the respondent on May 07, 2003.

The judgment ruled that allegation that the PTI was a foreign-aided political party could be leveled only by the federal government under Article 15 of the PPO for its validation on a reference made to this court.

The court held that the petitioner had no locus standi in this behalf adding that whether the PTI had received political contributions and donations from sources that are prohibited under the provisions of Article 6(3) of the PPO is a matter, which for the reasons given in our opinion, is referred for determination in accordance with the law by the ECP in exercise of jurisdiction conferred by the PPO and the rules framed thereunder.

The court held that it was the duty of the ECP to scrutinize accounts of political parties on the touchstone of Article 6(3) of the PPO read in the light of Article 17(3) of the Constitution.

“In this behalf, the ECP must act transparently, fairly and justly, without discrimination among different political parties seeking election symbols to contest the elections to the Constitutional Legislatures of Pakistan”, says the judgment.

For undertaking such scrutiny, the court held that it shall be reasonable for the ECP to examine the accounts of a political party within five years of the objected accounts of that party having been published in the official gazette.

The judgment noted that the alleged falsity of certificates issued by the respondent under Article 13(2) of the PPO was a secondary fact, ascertainable by a competent court of law after the ECP gives its findings whether any prohibited funding had been received and collected by the PTI in terms of Article 6(3) of the PPO.

The 80-page judgment in Jehangir Tareen case, authored by Chief Justice Mian Saqib Nisar, held that the respondent was disqualified in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA for not declaring his property/asset i.e. “Hyde House” in his nomination papers, and in making untrue statement before this court, that he had no beneficial interest in SVL; therefore, he should cease to hold the office as the member of the National Assembly with immediate effect.

“We hold that (Shiny View Limited) SVL, an offshore company, was established by the respondent which had legal title of property measuring 12 acres known as “Hyde House” but the actual, true, real and beneficial owner of the said property is the respondent”, says the verdict.

The court rule that Mr. Tareen had sent around more than fifty crore rupees at the exchange rate prevalent at that time and claims that amount to have been utilized for the purposes of purchase and construction of “Hyde House”.

The verdict observed that SVL or Hyde House was never transferred to any trust by the respondent, thus, it was his asset which he had failed to declare in his nomination papers filed on 9.9.2015 according to the mandate of the law to contest the by-elections from NA-154 Lodhran and, therefore, he is not honest in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA.

The court however held that it was not convinced and persuaded on the proposition that the respondent had got any loans written off from various banks and thus had incurred disqualification under Article 63(1)(n) of the Constitution because such loans had been written off with regard to FPML and was prior to the year 2010, whereas the respondent at that time was not the shareholder or director of the said company.

The court noted that Mr. Tareen became the shareholder and director with effect from 29.12.2010 to 4.2.2013 and during this period no loans were written off; besides the respondent was ex-officio Director of the Heavy Mechanical Complex being the federal minister and resultantly any written-off loans with respect to this company could not be attributed to the respondent.

“We are also not persuaded to hold that the provisions of Section 15-A and 15-B of the Ordinance, 1969 in the facts and circumstances of the case and because of subsequent enactment of the Act, 2015 are ultra vires of the Constitution,” said the verdict.

The judgment ruled that the proposition that the respondent should be declared dishonest on account of some alleged mis-declaration and short payment of agricultural income tax for the years 2010 and 2011 because there were vital discrepancies in the declaration of agricultural income in the tax returns filed with the FBR for these two years.

“We are not persuaded to make any declaration against the respondent in this context because the matter whether inaccurate declaration has been made by the respondent, either in respect of agricultural income tax before the concerned department under the Act of 1997 or before the FBR, is a matter which is sub judice before different forums in the income tax hierarchy and even before this Court; besides, no action so far for the alleged mis-declaration or short payment has been taken against the respondent by the authorities under the Act of 1997”, the verdict ruled.

Within hours of the Supreme Court decision, the Election Commission of Pakistan (ECP) de-notified Jahangir Tareen with immediate effect.

The commission rescinded its December 28, 2105 notification that declared Tareen as the successful candidate from NA-154, Lodhran-I. Within next few days, the commission will issue a schedule for a fresh electoral exercise in the constituency.

The apex court, earlier, dismissed an appeal filed by NAB seeking re-opening of the Hudaibya Paper Mills case. A three-member bench of the apex court, headed by Justice Mushir Alam and comprising Justice Qazi Faiz Isa and Justice Mazhar Alam Khan Miankhel as members, heard the NAB appeal.

The appeal was filed against a 2014 judgment of the Lahore High Court (LHC), quashing a reference against the Sharif family. The court dismissed the appeal by majority decision after the NAB Deputy Prosecutor Imranul Haq concluded his arguments.

The court ruled that the facts of Panama Papers and Imran Khan cases were dissimilar. “Reasons to be recorded later on and the appeal is dismissed,” Justice Mushir Alam announced the order after a short break.

During the course of hearing, the NAB deputy prosecutor argued that the LHC had erred flaws in its judgment and prayed that the reference, quashed by the court, should be reopened in the interest of justice.

He requested the court that notices be issued to the respondents and reinvestigation into the case re-allowed by setting aside the LHC verdict. During the hearing, Nab deputy chairman and Special Prosecutor Shah Khawar were also present in the court.

Courtesy www.thenews.com.pk

Courtesy www.thenews.com.pk

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