Constitutional Petition._29_2016_2807 (Panama Papers)

The Supreme Court of Pakistan while exercising its original Jurisdiction in the Presence of Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz Ul Ahsan disposed of the constitutional Petition. This judgment disposed of many constitutional petitions under the title of C. M. A. No. 4978 of 2017 in Constitution Petition No. 29 of 2016 etc. (Report by JIT), Imran khan and others versus Mian Muhammad Nawaz Sharif (prime minister of Pakistan), Imran Ahmed khan Niazi versus Mian Muhammad Nawaz Sharif (Prime minister of Pakistan, etc.) Sheikh Rasheed Ahmed versus Federation of Pakistan through Secretary Law (justice and parliamentary division, etc.) and Siraj-ul-Haq, Ameer Jamat-e-Islami, Pakistan versus Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and others.

Justice Ejaz Afzal Khan narrated that this judgment was in continuation of judgments dated 20.04.2017 in constitution Petitions No. 29, 30 of 2016 and constitution Petition No. 03 of 2017 which ended up in an order. In that order a five judge bench by majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissented. They gave separate declarations and directions. They inquired how the Gulf Steel Mill came into being and where the proceeds of its sale ended up; how respondents’ No. 7 and 8 in their tender ages had the means to possess and purchase flats; who the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited was etc. It was therefore stated that a thorough investigation was required. The Court formed a Joint Investigation Team (JIT) to investigate the case and collect evidence.

The JIT undertook the task and submitted a complete investigation report on 10.07.2017. Parties to the proceedings were provided the report of the JIT and a week’s time to go through it. Khawaja Harris Ahmed, appeared on behalf of respondent No. 1(Mian Muhammad Nawaz Sharif). Advocate for the petitioners, by picking up the thread from where they left off prior to the JIT’s investigation, sought to prove that the JIT had collected sufficient evidence proving that respondent No. 1, his dependents and benamidars possessed assets which were disproportionate to their known source of income, due to which he had become disqualified to be a member of parliament. They further stated that certified copies of the correspondence between Mr. Errol George, Director Financial Investigating Agency and the Anti-Money Laundering officer of Mossack Fonseca & Co. (B.V.I) Limited collected through mutual legal assistance proved that respondent No. 6 (Maryam Nawaz Sharif) was the beneficial owner of the Avenfield Apartments, which proved the documents recording her as a trustee of that property to have been fabricated (the Calibri font used in the preparation of the trust deed in February 2006 had not become commercially available until 2007) and for this she was liable to be proceeded against for forgery.

In response to the Qatari letters submitted by the respondents, the JIT stated that whatever had been provided in those letters remained unsubstantiated as the Qatari Prince neither appeared before JIT nor did he ever testify through any alternative, legally recognizable means. The JIT went through all the material collected during the course of investigation and concluded that the assets of respondent NO. 1, his children and benamidars were disproportionate to their known sources of income and that their failure to satisfactorily account for them would inevitably entail disqualification of respondent No. 1 in terms of Section 9(a) (v) of the National Accountability Bureau Ordinance, 1999.

The Counsel for respondent No. 1 contended that JIT had overstepped its mandate by reopening the case of Hudabiya Paper Mills when it was not so directed by the Court, as another investigation or inquiry would be barred by the principle of double jeopardy. He further submitted that the material collected and findings given by the JIT did not deserve any consideration in as much as they were beyond the scope of the investigation authorized by the Court. He further added that the investigation conducted by the JIT was unfair and unjust, as the team exceeded its authority while obtaining documents from abroad. An investigation of this kind, the Counsel added, which was a farce and a breach of due process could not form the basis of any adverse verdict against respondent No.1(Mian Muhammad Nawaz Sharif).

The Counsel for respondents No. 6, 7, 8 and 9 [Hussain Nawaz Sharif (Respondent No.7), Hassan Nawaz Sharif (Respondent No. 8) and Captain Muhammad Safdar (Respondent No.9)] opposed the evidences presented against them and stated that the JIT report and the material collected by it could not evidence the judgment in a proceeding under Article 184 (3) of constitution of Islamic Republic of Pakistan.

Advocates on behalf of respondent No. 10 contended that assets of respondent No. 10 had been audited and examined from time to time with no irregularity ever being discovered in any of them as he had accounted for all of them and that his assets were also subject to the Reference No. 5 of 2000 which was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (supra) due to which another criminal proceeding could not be initiated. Adducing evidence in the form of income tax returns from 2007 to 2016, wealth tax returns from 1981-1982 to 2000-2001 and from 2009 to 2016 the counsel further added that the finding of the JIT had no legal or factual basis as the 91 times increase in his assets from 1992-1993 to 2008-2009 shown in the JIT’s report was based on a miscalculation and that the respondent could not be impaled on the same charge by imputing a wrongdoing without tangible evidence. Failure on the part of the FBR to provide the relevant record was stated to not be capable of being construed to the detriment of the respondent as it would be rather unjust to thrust the respondent in another tiresome trial before the Accountability Court.

The Court went through the record, the report submitted by the JIT and considered the submissions of advocated for both the petitioners and the respondents. The Court stated that JIT had simply made recommendations and had not overstepped its authority by reopening the case of Hudabiya paper Mills. Respondent No.1 as a chairman of the Board of Capital FZE was held to be entitled to salary, but the court explored if the salary, which was being received but not withdrawn, constituted the assets which should have been disclosed in terms of Section 12(2) of the Representation of the People Act (ROPA), 1976. The respondent’s failure to so disclose raised a question of law debating the disqualification of the respondent. The Counsel for respondent No. 1 replied in affirmative when asked if the respondent had ever acquired a work permit in Dubai, or remained chairman of the Board of FZE and was therefore entitled to remuneration. The Counsel just added that respondent had never withdrawn any salary. The court held that salary which had not been withdrawn but was being received, was an asset and was therefore required to be disclosed in the nomination papers for the Elections of 2013 in terms of Section 12 (2) of ROPA. Since respondent No. 1 had not done so, this amounted to furnishing a false declaration on solemn affirmation in violation of law, which rendered him to not be honest in terms of section 99 (1) (f) of the ROPA and Article 61 (1) (f) of the Constitution of Pakistan.

The Court directed NAB to file references within six weeks against Mian Muhammad Nawaz Sharif (Respondent No.1), Maryam Nawaz Sharif (Respondent No. 6), Hussain Nawaz Sharif (Respondent No.7), Hassan Nawaz Sharif (Respondent No. 8) and Captain Muhammad Safdar (Respondent No.9). The Court declared that Prime Minister, Mian Muhammad Nawaz Sharif, had failed to disclose his un-withdrawn receivable assets from capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of 12 (2) (f) of ROPA and furnished a false declaration . Mian Muhammad Nawaz Sharif was not honest in terms of section 99 (f) of ROPA and Article 62 (1) (f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, was disqualified to be a member of the Majlis-e-shoora (parliament). The Court ordered the Election Commission of Pakistan to issue a notification disqualifying respondent No.1 Mian Muhammad Nawaz Sharif from being a member of Parliament with immediate effect, whereafter he ceased to be the Prime Minister of Pakistan.

The Court stated that the President of Pakistan was required to take all necessary steps under the Constitution to ensure the continuation of democratic process. The Chief Justice of Pakistan was requested to nominate a judge of the Court to supervise and monitor implementation of this judgment.