–Three member bench questions NAB prosecutor over circumstances under which Sharifs were sent into exile
–Says no one, including top court, can send accused into exile
–Says prima facie, Rs 1.2 billion Hudaibiya Mills scam is a case of income tax
ISLAMABAD: The Supreme Court (SC) on Monday observed that prima facie the Rs1.2 billion Hudaibiya Paper Mills scam is a case of income tax, as it questioned the National Accountability Bureau (NAB) prosecutor regarding the circumstances under which ousted prime minister Nawaz Sharif went in exile to Saudi Arabia in 2000 ─ the same year the Hudaibiya Paper Mills reference was filed against Nawaz and his younger brother Shehbaz in an accountability court.
A three-judge SC bench comprising Justice Mushir Alam, Justice Qazi Faez Isa and Justice Mazhar Alam Khan Miankhel had resumed hearing a NAB appeal against a 2014 decision of the Lahore High Court (LHC) to quash the reference.
NAB lawyer Imranul Haq recalled that the case was first registered on March 27, 2000, and that the accused returned to Pakistan on November 25, 2007.
“Who exiled Nawaz Sharif? Why aren’t we taking that person’s name?” questioned Justice Isa, asking Advocate Haq whether the law has provisions for an individual to be forced into exile.
The lawyer replied that while there are no provisions in the law to this effect, an understanding was reached between the accused and the government at the time of Nawaz’s exile. “At the time, the chief executive of the country was Pervez Musharraf,” the lawyer added.
“What will the courts do if tomorrow the prosecution reaches an understanding with a murderer?” Justice Isa asked. “Nobody, including the SC, has the right to send an accused person into exile.”
“Was the country being ruled in keeping with the law or on the whims of an individual?”
The lawyer told the court that under the agreement reached with the government, Nawaz went into exile himself.
“If he went into exile voluntarily, action should have been taken against him as an absconder,” Justice Isa said.
“Nawaz Sharif returned to Pakistan on the SC’s order,” Advocate Haq said.
“If Nawaz had left the country voluntarily, he would not have had to file a petition before the court for his return,” Justice Isa observed.
Justice Alam then questioned why the accused was not arrested upon his return, to which the lawyer replied, “Once the case was underway, only the court could have ordered the accused to be arrested.”
The advocate told the court that on July 17, 2011, the NAB chairman had filed a request for the case to be reopened.
On 17 October that year, the accused had filed a petition in the Lahore High Court and the day after, a stay order was issued by the court, the lawyer said.
“The LHC did not issue a stay order,”Justice Isa said, adding that NAB had the reference squashed. “Even if we revoke the high court’s decision, the references will not be restored,” Justice Isa remarked. The lawyer replied that an accountability court will hear the petition for the references to be restored.
The court then asked the lawyer to present NAB’s arguments for the reopening of the Hudaibiya case.
“If it weren’t for the Panama Papers case, you wouldn’t do anything,” Justice Isa remarked, instructing the lawyer to read the operative part of the SC’s verdict in the said case.
“The verdict does not say anything about Hudaibiya,” Justice Isa noted. “It says that when NAB files an appeal, it will be looked at.”
Justice Qazi also asked how the fictitious accounts were opened. He observed that accounts are not generally used to send black money abroad as other methods are adopted for this purpose.
“What criminality was committed by Sharif family in this case?” he asked.
The apex court adjourned the hearing until 11am on Tuesday. It also issued a gag order for any discussions on the Hudaibiya reference on TV channels, saying only court reporting would be allowed on the proceedings of the case.
NAB PLEA DISMISSED:
Earlier, the court had expressed its displeasure at the arguments presented by the lawyer in relation with an application filed by NAB seeking an adjournment of Monday’s proceedings until its new prosecutor general is appointed. The court had summarily dismissed the application.
“The office of the NAB prosecutor is vacant and it will be appropriate that a prosecutor appears in the court for such an important case,” the bureau’s lawyer had argued before the court.
“Do not ridicule the court,” Justice Isa had responded. “Why shouldn’t we initiate contempt of court proceedings against you? Every case is high-profile for us,” the judge told the lawyer.
“We have nothing to do with the appointment of the prosecutor,” Justice Alam said.
Justice Isa asked the lawyer on whose recommendation the application for adjournment had been filed. The lawyer replied that the decision was taken during a meeting presided over by the bureau’s chairman.
“Well in that case, why don’t we just call the chairman to appear before the court?” Justice Isa asked, before adjourning the proceedings briefly.
During the hearing, the lawyer also told the court that on Saturday he had submitted before the SC documents that were sought by the bench on Nov 28. On that day, the bench had adjourned the hearing due to the NAB lawyer’s lack of preparation.
Copies of the interim and final references on the Hudaibiya case, and Volume 8A of the report of the Panama Papers joint investigation team, which also contains a copy of the Hudaibiya reference, were submitted before the bench on Saturday.
In addition, NAB had submitted the diary of the accountability court that had heard the Hudaibiya reference, as well as the procedure of appointment of the NAB chairman and the list of all chairmen of the bureau appointed so far since its inception in 1999.
NAB had also furnished before the court a timeline during which Nawaz Sharif served as prime minister as well as the period during which he was in exile after the ouster of his government by retired Gen Pervez Musharraf.