November 11, 2017
Justice Khosa to hear Hudaibiya Paper Mills case
ISLAMABAD: The Supreme Court (SC) will take up on Monday (Nov 13) the appeal filed by the National Accountability Bureau (NAB) against the Lahore High Court (LHC)'s 2014 order quashing a reference against the Sharif family in the Hudaibiya Paper Mills case.
The Sharif family is already facing corruption references in the accountability court, and on November 8, ousted Prime Minister Nawaz Sharif was indicted in three separate corruption references filed against him and his children. The Accountability Court (AC) on Friday announced its detailed judgement on a plea by former prime minister Nawaz Sharif to club three references against him.
A three-member bench of the Supreme Court, headed by Justice Asif Saeed Khan Khosa and comprising Justice Dost Muhammad Khan and Justice Mazhar Alam Miankhel, will hear the appeal of NAB, challenging the LHC order of 2014, quashing a reference against the Sharif family in the Hudaibiya Paper Mills case.
NAB Prosecutor General Waqas Qadeer Dar on September 20 had filed an appeal in the Supreme Court, requesting to set aside the judgment delivered by the LHC in 2014, quashing the case of Hudaibiya Paper Mills through which Nawaz Sharif and members of his family were acquitted.
Nawaz Sharif, his brothers Punjab Chief Minister Shahbaz Sharif, Abbas Sharif (late), Hussain Nawaz, Hamza Shahbaz, Mrs Shamim Akhtar and Mrs Sabiha Abbas, Mrs Maryam Safdar, Federation of Pakistan and Judge Accountability Court No IV, Rawalpindi, had been made respondents in the appeal.
NAB had requested the apex court to examine the legality, propriety and vires of the impugned judgment of March 11, 2014, asking that it may be set aside in the interest of justice, fair play and equity, adding that the impugned judgment was not passed in consonance with the dictums laid down by the Supreme Court.
It was contended that the LHC’s referee judge was not competent to set aside the findings of the high court, in which NAB had been allowed to re-initiate investigations against the members of Sharif family.
The anti-graft body had submitted that in view of the fact that the JIT, which was constituted by the apex court while dealing with the petitions for probing the Panama Papers issue, when collected further incriminating material regarding Hudaibiya Paper Mills, it (NAB) cannot be debarred or restrained from proceeding further with the investigation, hence it would be appropriate to set aside the impugned judgment to the extent of re-investigation in order to fortify and corroborate the material collected by the JIT.
The JIT had in its report recommended that the Hudaibiya Paper Mills case should be reopened. It is also pertinent to mention here that the Hudaibiya Paper Mills money laundering reference was initiated on the basis of an April 25, 2000, confessional statement of Ishaq Dar, wherein he admitted his role in laundering money to thetune of $14.86 million on behalf of the Sharif family through fictitious accounts in 1990s. The witness was, however, pardoned by the then NAB chairman.
LHC’s referee Justice Sardar Shamim had quashed the reference on March 11, 2014, on the grounds that if a re-investigation was allowed against the Sharif family, it would provide an opportunity to the investigators to pad up lacunas.
The LHC had quashed the case as the PML-N continued to claim that Dar's statement was taken under duress.
Later, NAB had decided not to challenge the high court’s decision. Nawaz Sharif was not named in the interim reference filed in March 2000; however, in the final reference against the Hudaibiya Paper Mills -- approved by then chairman NAB Khalid Maqbool -- the bureau had accused Nawaz Sharif, Shahbaz Sharif, Abbas Sharif, Hussain Nawaz, Hamza Shahbaz, Shamim Akhtar, Sabiha Abbas and Maryam Nawaz.
The Hudaibiya Paper Mills case came to the limelight when a five-member bench of the Supreme Court, headed by Justice Asif Saeed Khosa, took up the PTI's plea to disqualify Finance Minister Ishaq Dar on charges of facilitating the Sharif family in alleged money laundering of Rs1.2 billion.
On Sept 15, NAB Prosecutor General Waqas Qadeer Dar assured the Supreme Court that it will be filing an appeal in the Hudaibiya Paper Mills case. He gave the assurance during the hearing of Awami Muslim League leader Sheikh Rashid's petition in the court seeking reopening of the Hudaibiya Paper Mills case.
The decision of closing the Hudaibiya case was taken by NAB authorities on the grounds that earlier in October 2011, a Rawalpindi division bench of the LHC restrained the accountability court from proceeding in the matter after Nawaz Sharif and members of his family challenged the revival of the references and requested the court to quash the cases.
Meanwhile, Accountability Court (AC) Judge Muhammad Bashir here on Friday issued the detailed judgment in a matter through which the court on November 7 had dismissed Nawaz Sharif's three applications seeking joint charges and joint trial in the three corruption references.
Previously, an Islamabad High Court (IHC) bench had directed the AC to decide applications for joint charges in the light of mandate of Section 17(d). In another development, the deadline for both the sons of Nawaz Sharif to surrender before the court in three references has lapsed as despite issuance of proclamation last month, they are still absconding. The AC, on October 9, had declared Hussain Nawaz and Hassan Nawaz proclaimed offenders issuing their non-bailable arrest warrants.
The AC in its detailed judgment said that "Section 17(d) of the National Accountability Ordinance (NAO) 1999 provides a mechanism which may be adopted or not depending on the circumstances of each case".
Prosecution or accused cannot insist on joint trial of offences even in the case of same kind. The accused/ applicant could not justify clubbing of all the three references for a joint trial in the circumstances of the cases, the court, in the detailed judgement, said.
In order to avoid conflicting judgements, or any likelihood of ignoring any defence that will be produced by the applicant separately in each reference, all the three references shall be decided simultaneously.
The AC further said that the request for single trial in all the three references is made particularly in view of convenience of the accused in producing his defence. On the other hand, there are so many factors which may cause complications and confusion in the trial. The court further said that in case of joint charges and trial facts of each case will be mixed up. Further that the offences alleged in the three corruption references are not of the same kind, the AC observed.
The court said that the request made in the applications is not based on that offences allegedly were committed in series of same transaction. Therefore, the point that offences were committed in the same transaction or in different transactions is not discussed here. The singular word "he" is used in the Section 17(d) as argued by learned prosecutor but it can also be read as "they" (plural word of he) such explanation is given in Section 9 of PPC
On November 7, legal counsel for Nawaz Sharif, Khawaja Haris Ahmad, while forwarding arguments in these applications, had said that in all the three corruption references, the main allegation is the same that assets in the name of Hassan and Hussain Nawaz are actually owned by Nawaz Sharif. And those assets are beyond his known sources of income that he failed to justify as bonafide.
The defence counsel had further argued that all the three references are supplemented by a 9 volume Joint Investigation Team (JIT) report. Six out of nine witnesses are common in references number 18 and 19 while two witnesses out of 10 are common in all the three corruption references.
The Nawaz Sharif's counsel had further said that in all the three corruption references, the offence is the same under Section 9(a)(v) of NAO. The defence counsel as an alternate had suggested that, under Section 17(d) of NAO, the court may frame a single charge and conduct a single trial on the basis of each set of allegations. He had also argued that Section 9(a)(v) did not cover dependents or benamdars.