Excerpts from Justice Khosa's verdict regd Hudaibya case
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101. Respondent No. 1’s brush with criminal law is also not new. In the case of Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others (1999 P.Cr.L.J. 1584) two FIRs had been registered by the Federal Investigation Authority in the year 1994 and Challans in respect of such FIRs had been submitted before the competent court with the allegations that respondent No. 1 and others had indulged in serious corruption and money laundering, etc. Those Challans had been quashed later on at a time when respondent
No. 1 was serving as the Prime Minister of the country
. In the case of Messers Hudabiya Paper Mills Ltd. and others v. Federation of Pakistan and others (PLD 2016 Lahore 667) a Reference had been filed by the National Accountability Bureau against respondent No. 1 and others with the allegations of corruption and money laundering, etc. but even that Reference was quashed during the incumbency of respondent No. 1 as the Prime Minister of the country.
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128.
Adverting to the two FIRs registered by the Federal Investigation Agency and a Reference filed by the National Accountability Bureau against respondent No. 1, respondent No. 10 and others I note that all those criminal proceedings had been quashed by the Lahore High Court, Lahore at a time when respondent No. 1 was serving as the Prime Minister of the country and the manner in which such proceedings were quashed, it is observed with respect, had left much to be desired. To top it all, neither the Federal Investigation Agency nor the National Accountability Bureau challenged such quashing of criminal proceedings before this Court.
130. Reference No. 5 of 2000 had been filed against respondents No. 1 and 10 and some others by the National Accountability Bureau before an Accountability Court with allegations of money laundering, etc. to the tune of Rs. 1242.732 million (over Rs. 1.2 billion) and in that Reference reliance had also been placed upon a judicial confession made by respondent No. 10 before a Magistrate First Class, Lahore on April 25, 2000. It was alleged in that Reference that respondent No. 10 was instrumental in laundering of 14.886 million US Dollars upon the instructions and for the benefit of respondent No. 1 by opening fake foreign currency accounts in different banks in the names of others.
Writ Petition No. 2617 of 2011 filed before the Lahore High Court, Lahore in connection with that Reference was allowed by a learned Division Bench of the said Court on December 03, 2012 and the said Reference was quashed through a unanimous judgment but the learned Judges disagreed with each other over permissibility of
reinvestigation of the matter whereupon the matter was referred to a learned Referee Judge who held on March 11, 2014 that reinvestigation of the case was not permissible [Reference: Hudabiya Paper Mills Ltd. v. Federation of Pakistan (PLD 2016 Lahore 667)]. 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! Even that judgment of the Lahore High Court, Lahore was not challenged by the National Accountability Bureau or the State before this Court and incidentally respondent No. 1 was again the Prime Minister of Pakistan at that time. The said Reference had been quashed by the Lahore High Court, Lahore because in the investigation preceding filing of the Reference the accused persons had not been associated and a confessional statement made by respondent No. 10 had been made before a Magistrate and not before the Accountability Court which was the trial court. I may observe with respect that soundness of both the said reasons prevailing with the High Court for quashing the relevant Reference was quite suspect. The relevant record produced before us shows that on April 20, 2000 a written application had been submitted by respondent No. 10 before the Chairman, National Accountability Bureau volunteering to make a confession and seeking tender of pardon. Respondent No. 10 personally appeared before the Chairman, National Accountability Bureau in that connection on April 21, 2000 and on the same day full pardon was tendered by the Chairman to him under section 26 of the National Accountability Ordinance, 1999 whereafter respondent No. 10 made a confessional statement before a Magistrate First Class, Lahore on April 25, 2000. In view of this development in the Final Reference filed by the National Accountability Bureau on November 16, 2000 respondent No. 10 was referred to as a prosecution witness and not an accused person. In the said confessional statement made by respondent No. 10 under section 164, Cr.P.C. he had confessed to being a party to money laundering of 14.886 million US Dollars on the instructions and for the benefit of respondent No. 1 and also to opening of fake foreign currency accounts in different banks in the names of others. It is not denied that making of the said confessional statement and signing of the same had never been denied by respondent No. 10 and he had never approached any court seeking setting aside or annulment of that statement made by him and it was the accused persons in the above mentioned Reference who had maintained before the High Court that respondent No. 10 had made his confessional statement under coercion of the military regime of that time after remaining in custody for more than six months (from October 15, 1999 to April 25, 2000).
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. As respondent No. 10 was not an accused person in the relevant Reference when it was quashed and reinvestigation of which was declared by the High Court to be impermissible, therefore, I see no reason why after restoration of respondent No. 10’s status as an accused person in that case reinvestigation to his extent and filing of a Reference against him cannot be undertaken or resorted to. This is more so because the reasons prevailing with the Lahore High Court, Lahore for quashing the Reference were not applicable to the case of respondent No. 10 as he had been associated with the investigation and there was evidence available against him other than his confessional statement.
The stark reality is that the allegations of corruption, corrupt practices and money laundering, etc. involving over Rs. 1.2 billion and prosecution on the basis of such allegations had been scuttled by the High Court and this Court would not like to stand in the way of reopening of the said investigation or prosecution where even the smallest opening for such investigation or prosecution is available or legally possible. One of the prayers made before this Court by the petitioner in Constitution Petition No. 29 of 2016 is that the Chairman, National Accountability Bureau may be directed to file a petition/appeal before this Court against the judgment of the Lahore High Court, Lahore whereby Reference No. 5 of 2000 filed by the National Accountability Bureau had been quashed and reinvestigation of the matter was held to be impermissible and also that proceedings may be initiated before the Supreme Judicial Council against the Chairman, National Accountability Bureau under Article 209 of the Constitution for his removal from office.
The circumstances in which Reference No. 5 of 2000 filed by the National Accountability Bureau had been quashed and reinvestigation of the matter was held by the High Court to be impermissible might have tempted me to issue a direction to the State or the National Accountability Bureau to challenge the said judgment of the High Court before this Court through a time-barred petition/appeal but I have found it to be inappropriate for an appellate court to direct a party to a case to file a petition or an appeal before it in a matter decided by a Court below. Issuance of such a direction can have the effect of compromising the impartiality of the appellate court and clouding its neutrality and, thus, I have restrained myself from issuing the direction prayed for. Initiating proceedings against the Chairman, National Accountability Bureau under Article 209 of the Constitution may involve some jurisdictional issues and the same may also be inappropriate for this Bench of the Court to order because two of the Members of this Bench are also Members of the Supreme Judicial Council and such Members may feel embarrassed in the matter. Apart from that we have been informed that the term of office of the present Chairman, National Accountability Bureau is about to expire in the next few months and his term of office is non-extendable.
131. It may be true that the Challans in the above mentioned two FIRs registered with the Federal Investigation Agency had been quashed and the accused persons therein had been acquitted by the Lahore High Court, Lahore and Reference No. 5 of 2000 filed by the National Accountability Bureau before an Accountability Court had also been quashed by the said Court and thereby the allegations leveled against respondents No. 1 and 10 and some others in those matters had remained without a trial
but the fact remains that the evidence collected or the material gathered by the investigating agencies in connection with those cases does not stand vanished and the same remains available and can be usefully utilized if such evidence or material is also relevant to some other allegations leveled against the said respondents or others.
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@PakSword @Shane Read these excerpts from Justice Khosa's verdict regarding hudaibya case ...esp parts in bold and red...... all questions asked by judges yesterday have been answered by Justice Khosa already..
Ab batayein ke is sab ke baad...doosray judges ke pass kitna chance reh jata hai..NAB ki appeal ko reject karnay ka?
Aur Ye tu main ne NAB ka hudaibya case ke reference se related excerpts share kiye hain Justice Khosa ki verdict se.. FIA ka bhi reference tha releted to hudaibya case...bhtt similar...which was also quashed by Lahore high court...us ko bhi itni hi detail se discuss kiya hai Justice Khosa ne... woh excerpts tu main ne abhi yahan share nahi kiye..
Itna sab kuch likh diya Justice Khosa ne...is sab Justice Qazi Faez Isa aur doosray judges kaisy reject karsaktay hian ke ye sab references tab quash uhay when Nawaz Sharif was the PM? Kal yehi pooch rahay thay na judges ke batayein sharif family kaisy influence karsakti thee..in references ko? Is sba ka jwab tu in excerpts mian mojood hai..
Is liye SC se NAB ki appeal reject hona tu almost impossible hai warna ye judges bhtt ziada badnaam honge.. Justice Khosa sharif family ko phansaany ka poora kaam kar gaye hain
@PakSword
Jab ye reference reopen hoga..tab accountability court se zuroor sharif family acquit hosakti hai...wahan zuroor inhein relief milay ga lekin SC se mushkil hai...warna buri tarah expose hojayein ge ye judges..
