M. M. ALAM

ISLAMABAD: Justice Ejaz Afzal Khan (who had headed apex court’s implementation bench) reading the Panamagate verdict has announced that PM Nawaz Sharif has been judged disqualified unanimously by the bench comprising five judges from holding office. 

“He [Nawaz] is no more eligible to be an *honest member of the parliament, and he ceases to be holding the office of prime minister,” said Judge Ejaz Afzal Khan in court.

President of Pakistan has been asked to take necessary measures following the PM’s disqualification. 

PM has been asked to quit office immediately. There is no law allowing appeal against this verdict. 

SC has asked all the Panamagate related material to be provided to the Accountability Court.

NAB has been ordered to complete investigation within six week and file reference against Nawaz Sharif, Hussain, Hasan, Marium and Captain Safdar (R) apropos apartments in London.

Accountability court has been ordered to dispose the case off within six months.

The SC also ordered filing of reference against Finance Minister Ishaq Dar.

It has been instructed that a judge be nominated for implementation of the orders. 

SC has ordered the ECP to immediately denotify Nawaz Sharif:

*Article 62 requires that MPs should be Sadiq and Ameen (honest): brought in to existence by a dictator, it has repeatedly used by so called rightists against liberals.

INTERNATIONAL MEDIA

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DW:

PANAMA JUDGMENT POINTS:

ASIF SAEED KHAN KHOSA

136. On the basis of the declarations made above the following directions are hereby issued by me:

(i)        The Election Commission of Pakistan is directed to issue a notification of disqualification of respondent No. 1 namely Mian Muhammad Nawaz Sharif from being a member of the Majlis-e-Shoora (Parliament) with effect from the date of announcement of the present judgment.

(ii)        The President of Pakistan is required to take necessary steps under the Constitution to ensure continuation of the democratic process through parliamentary system of government in the country.

(iii)        The National Accountability Bureau is directed to proceed against respondent No. 1 and any other person connected with him in respect of the offence of corruption and corrupt practices under section 9(a)(v) of the National Accountability Ordinance, 1999 and during such proceedings  the evidence and material collected by the Federal Investigation Agency in connection with FIRs No. 12 and 13 dated November 10, 1994 and November 12, 1994 respectively and by the National Accountability Bureau in connection with its Reference No. 5 of 2000 besides the report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency in September 1998 and the evidence and material appended therewith or referred to therein may also be utilized by the National Accountability Bureau if any such evidence or material is relevant to or has nexus with possession or acquisition of the relevant properties in London.

(iv)        The National Accountability Bureau is also directed to probe into the other assets acquired and businesses set up by respondent No. 1’s children in Pakistan and abroad to find out whether respondent No. 1’s children have acted as Benamidarsof respondent No. 1 in those assets and businesses or not and if so whether respondent No. 1 can satisfactorily account for those assets and businesses or not if he is discovered to be their actual owner.

(v)        As neutrality and impartiality of the incumbent Chairman, National Accountability Bureau Mr. Qamar Zaman Chaudhry has been found by me to be compromised in the matters of respondent No. 1, therefore, he is directed not to exercise any power, authority or function in respect of the matters directed above. The Honourable Chief Justice of Pakistan is requested to constitute an Implementation Bench of this Court in the above mentioned regard and in the interest of doing complete justice it is ordered that all the powers, authority and functions of the Chairman, National Accountability Bureau in the above mentioned matters of respondents No. 1 shall henceforth be exercised by the said Implementation Bench and the relevant officials of the National Accountability Bureau shall seek all the necessary orders in those matters from the Implementation Bench till Mr. Qamar Zaman Chaudhry completes his current non-extendable term of office. The Implementation Bench shall also monitor the progress made by the National Accountability Bureau in the matters referred to above and it shall also supervise the investigation being conducted by it in the matters as and when found necessary and called for besides issuing any order deemed expedient in the interest of justice.

(vi)        The National Accountability Bureau is directed to proceed against respondent No. 10 namely Mr. Muhammad Ishaq Dar in connection with its Reference No. 5 of 2000 wherein the said respondent was not an accused person when the said Reference was quashed by the Lahore High Court, Lahore and reinvestigation against the accused persons therein was barred because after quashing of that Reference against the accused persons therein and after setting aside of the confessional statement of respondent No. 10 his status in that Reference stood revived as an accused person against whom no Reference had been quashed and reinvestigation qua him was never ordered to be barred.

JUSTICE EJAZ AFZAL KHAN

23. Having thus considered we sum up the case as under:

no aboveboard or undisputed documentary evidence has been brought on the record to show that respondent No. 1 defaulted in the payment of tax as far as his assets as declared in the tax returns are concerned; nothing significant has come forth against respondents No. 9 and 10 as could justify the issuance of the direction asked for. However, sufficient material, as highlighted in para 16 above, has surfaced on the record which prima facie shows that respondent No. 1, his dependents and benamidars acquired assets in the early nineties and thereafter which being disproportionate to his known means of income call for a thorough investigation. In the normal circumstances this job could well be done by NAB, but when its Chairman, in view of his conduct he has demonstrated in Hudaibya’s case by not filing an appeal against a split verdict of the Lahore High Court, appears to be indifferent and even unwilling to perform his part, we are constrained to constitute a joint investigation team (JIT) which would consist of the following members:

1. a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters;
2. ii)        a representative of the National Accountability Bureau (NAB);

iii)         a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes;

1. iv)        a nominee of the State Bank of Pakistan (SBP);
2. v)        a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and  
3. vi)        a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.

24. The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required. The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution. The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.
25. It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered and appropriate orders, in this behalf, be passed, if so required.
26. We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.

 JUSTICE GULZAR AHMED 

18. I may also observe here that this Court while dealing with Constitution Petition under Article 184(3) of the Constitution neither acts as a Civil Court conducting trial of the case nor does it act as a Criminal Court conducting trial of an accused person in a criminal offence rather the Court purely decide such Constitution Petition on matters and facts stated and brought before this Court purely on the basis of constitutional provision that being a case of public importance with reference to enforcement of Fundamental Rights as conferred in Chapter 1 Part II of the Constitution.
19. This being the legal position, Mian Muhammad Nawaz Sharif against whom in the very Constitution Petitions before us allegation was made that he and his family own four London Flats and the sources of acquiring all these properties have not been declared, to me as is said earlier, there was a duty cast upon Mian Muhammad Nawaz Sharif as holder of Public Office to satisfy this Court and the Nation of the country (which being their Fundamental Right) about the true facts regarding four London Flats, which he miserably failed to do so and thus what emerges is that he has not been Honest and Ameen in terms of Article 62(1)(f) of the Constitution.  Being faced with this scenario, the Court cannot be expected to sit as a toothless body and become a mere spectator but it has to rise above screen of technicalities and to give positive verdict for meeting the ends of justice and also to safeguard the Fundamental Rights of the people of Pakistan.  It is thus declared that Mian Muhammad Nawaz Sharif has not been Honest and Ameen in terms of Article 62(1)(f) of the Constitution and thus rendered himself disqualified from holding the office of a Member of National Assembly of Pakistan and ceasing to be the Prime Minister of Pakistan.  I will accept the three Constitution Petitions to the above extent.
    

    JUSTICE SH. AZMAT SAEED:

“102. Above are the reasons for our short order of even date whereby the instant petitionwas disposed of as under:–

“The Constitution of the IslamicRepublic of Pakistan commandsthat it is the will of the people ofPakistan to establish an orderwherein the State shall exercise itsMpowers and authority through thechosen representatives of thepeople, wherein the principles ofdemocracy, freedom, equality,etc., shall be fully observed, sothat the people of Pakistan mayprosper and attain their rightfuland honoured place amongst thenations of the world, and maketheir full contribution towardsinternational peace and progress

And happiness of humanity.People of Pakistan had beenstruggling to establish aparliamentary and democraticorder since long within theframework of the Constitution andnow they foresee a strong systemwhich is established by thepassage of time without any threatand which is subject to theconstitution and rule of law.

2. The essence of this HumanRights case is based on the fundamental right of citizensenshrined in Article 17 of the Constitution. It raises animportant question of publicimportance to enforce thefundamental rights, inter alia,noted hereinabove, therefore, inaccordance with the provisions ofArticle 184(3) of the Constitution,jurisdiction has been assumed andexercised to declare, for thereasons to be recorded later, asunder:-

(1) That citizens ofPakistan as a matter ofright are free to electtheir representatives inan election processbeing conductedhonestly, justly, fairlyand in accordance withlaw. …”We are confronted with a matter consisting of rather interestinglegal propositions and complicated facts. We cannot afford the luxury of oversimplification or intellectual lethargy. The questions raised will need to beanalyzed in their true, factual and legal perspective. Even the question of thesource of funds may become relevant but in a totally different context andperspective.

82. We are dealing with the first Family of the country. RespondentNo.1 is the Prime Minister of Pakistan. The questions regarding properties of hisfamily members outside Pakistan have remained unanswered. Such aninconclusive state of affairs is not acceptable. The people of Pakistan have a rightto know the truth.

83. No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questionsof facts. However, this is not an absolute rule. In exceptional circumstances, thisCourt on more than one occasion has undertaken such an exercise.In the instant case, the allegations against Respondent No.1 werenot conclusively established, yet, sufficient suspicious circumstances, detailedabove, have come to light, which require to be investigated to facilitate thediscovery of the true facts. Such investigation appears to be necessary before wecan proceed further in the matter. Despite the jurisdiction to determine thedisputed questions of facts and the tools, in this behalf, available to this Courtmentioned above, this Court does not have the powers under Article 184(3) of theConstitution to investigate a matter. Reference, in this behalf, may be made to thejudgment of this Court, reported as Suo Motu Action regarding allegation ofbusiness deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting toinfluence the judicial process (PLD 2012 SC 664).

We have been constrained to cast a widenet as regard to the institution, the Officeswhereof are to form the Members of the JIT. Theattitude of NAB has gone a long way in pushingus in this direction. Furthermore, it has beenalleged that some of other investigatinginstitutions are also under the influence ofRespondent No.1 and under his direct or indirectcontrol. Such sweeping allegations may or maynot be wholly true but do not appear to beunfounded. Furthermore, the nature of expertiserequire in the instant investigation is not confinedto any one institution and the several institutionsmay be able to supplement such expertise.

JUSTICE SH. AZMAT SAEED

“102. Above are the reasons for our short order of even date whereby the instant petitionwas disposed of as under:–

“The Constitution of the IslamicRepublic of Pakistan commandsthat it is the will of the people ofPakistan to establish an orderwherein the State shall exercise itsMpowers and authority through thechosen representatives of thepeople, wherein the principles ofdemocracy, freedom, equality,etc., shall be fully observed, sothat the people of Pakistan mayprosper and attain their rightfuland honoured place amongst thenations of the world, and maketheir full contribution towardsinternational peace and progress

And happiness of humanity.People of Pakistan had beenstruggling to establish aparliamentary and democraticorder since long within theframework of the Constitution andnow they foresee a strong systemwhich is established by thepassage of time without any threatand which is subject to theconstitution and rule of law.

2. The essence of this HumanRights case is based on the fundamental right of citizensenshrined in Article 17 of the Constitution. It raises animportant question of publicimportance to enforce thefundamental rights, inter alia,noted hereinabove, therefore, inaccordance with the provisions ofArticle 184(3) of the Constitution,jurisdiction has been assumed andexercised to declare, for thereasons to be recorded later, asunder:-

(1) That citizens ofPakistan as a matter ofright are free to electtheir representatives inan election processbeing conductedhonestly, justly, fairlyand in accordance withlaw. …”We are confronted with a matter consisting of rather interestinglegal propositions and complicated facts. We cannot afford the luxury of oversimplification or intellectual lethargy. The questions raised will need to beanalyzed in their true, factual and legal perspective. Even the question of thesource of funds may become relevant but in a totally different context andperspective.

82. We are dealing with the first Family of the country. RespondentNo.1 is the Prime Minister of Pakistan. The questions regarding properties of hisfamily members outside Pakistan have remained unanswered. Such aninconclusive state of affairs is not acceptable. The people of Pakistan have a rightto know the truth.

83. No doubt, ordinarily this Court in exercise of its jurisdiction underArticle 184(3) of the Constitution tends to avoid deciding the disputed questionsof facts. However, this is not an absolute rule. In exceptional circumstances, thisCourt on more than one occasion has undertaken such an exercise.In the instant case, the allegations against Respondent No.1 werenot conclusively established, yet, sufficient suspicious circumstances, detailedabove, have come to light, which require to be investigated to facilitate thediscovery of the true facts. Such investigation appears to be necessary before wecan proceed further in the matter. Despite the jurisdiction to determine thedisputed questions of facts and the tools, in this behalf, available to this Courtmentioned above, this Court does not have the powers under Article 184(3) of theConstitution to investigate a matter. Reference, in this behalf, may be made to thejudgment of this Court, reported as Suo Motu Action regarding allegation ofbusiness deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting toinfluence the judicial process (PLD 2012 SC 664).

We have been constrained to cast a widenet as regard to the institution, the Officeswhereof are to form the Members of the JIT. Theattitude of NAB has gone a long way in pushingus in this direction. Furthermore, it has beenalleged that some of other investigatinginstitutions are also under the influence ofRespondent No.1 and under his direct or indirectcontrol. Such sweeping allegations may or maynot be wholly true but do not appear to beunfounded. Furthermore, the nature of expertiserequire in the instant investigation is not confinedto any one institution and the several institutionsmay be able to supplement such expertise.

JUSTICE IJAZ UL AHSAN

89. Regrettably, most material questions have remained unanswered or answered insufficiently byRespondent No.1 and his children. I am also constrained tohold that I am not satisfied with the explanation offered byRespondent No.1 (Mian Muhammad Nawaz Sharif, the PrimeMinister of Pakistan) and his children regarding the mode andmanner in which the said properties came in their possessionand what were the sources of funds utilized for acquisition ofthe same. Further, the source(s) of funding for Azizia Steel Millsand Hill Metals Establishment in Saudi Arabia, FlagshipInvestments Limited and a number of other companies setup/taken over by Respondent No.8 also need to beestablished. In addition to the affairs of Capital FZE, Dubaiwhich also appears to be owned by Respondent No.7 needan inquiry. The aforesaid investigation and inquiry undernormal circumstances should have been conducted by NAB.However, it has become quite obvious to us during theseproceedings, Chairman NAB is too partial and partisan to besolely entrusted with such an important and sensitiveinvestigation involving the Prime Minister of Pakistan and hisfamily. Further owing to the nature and scope of investigationa broader pool of investigative expertise is required which maynot be available with NAB.

90. In the afore-noted circumstances, I would order asfollows:-

1. i) A Joint Investigation Team (JIT) shall beconstituted, which shall investigate thematter, collect all relevant record andmaterial in order to determine and establishthe real title and ownership of the MayfairProperties, the source(s) of funds utilized forpurchase of the said properties and themode, manner and time when such fundswere transmitted to the United Kingdom forpurchase of the Mayfair Properties;

1. ii) Likewise, the JIT shall also collect evidence todetermine the source(s) of funds forestablishing Hill Metals Establishment in SaudiArabia as well as the mode, manner andsource(s) of funding for Flagship InvestmentsLimited and all other companies owned andcontrolled by Respondent No.8 from time totime;

iii) Evidence shall also be collected by the JITregarding source(s) of funding of Capital FZE,Dubai; its business activities and role intransfer of funds to different entities owned orcontrolled by Respondents No.7 & 8;

iv) The JIT is also directed to investigate and findout if Respondent No.1 (Mian MuhammadNawaz Sharif, the Prime Minister of Pakistan)directly or indirectly or through benamidars orauthorized agents owns any otherproperties/assets/financial resources of anynature including but not limited to sharesthrough offshore companies/bank accounts,which have not been disclosed to theconcerned authorities.

v) The JIT shall consist of the following members:-

a) A senior Officer of the FederalInvestigation Agency (FIA) not belowthe rank of Additional Director Generalheading the Team. He shall havefirsthand experience of investigation ofwhite collar crime and related matters;

b) A representative of the NationalAccountability Bureau (NAB);c) A nominee of the Securities andExchange Commission of Pakistanfamiliar with issues of money launderingand white collar crime;d) A nominee of the State Bank ofPakistan familiar with internationalbanking transactions involving moneylaundering and matters relevant to theinvestigation;

e) A senior Officer nominated by theDirector General, ISI; andf) A senior Officer appointed by theDirector General, MI.

vi) Heads of the aforesaid Departments/Agencies/ Institutions shall communicate thenames of their nominees within seven (07)days hereof which shall be placed before theSpecial Bench for perusal/approval.

vii) Respondents No.1, 7 & 8 are directed toassociate and render full cooperation to theJIT, provide any and all record(s),document(s) and material(s) sought by it andappear before the JIT, if and when required.

viii) The JIT may also examine the evidence andmaterial available with the FIA and NAB, ifany, relating to or having any nexus with thepossession or acquisition of the MayfairProperties and the source(s) of funding forthe same.

ix) The JIT shall submit its periodical report(s)before the Special Bench of this Court everyfortnight. The JIT shall complete and submit itsfinal report before such Bench within a periodof sixty (60) days from the date of receipt of acopy of this judgment.

x) I would request the Honourable Chief Justiceof Pakistan to constitute a Special Bench toensure implementation of this judgment inletter and spirit.

91. On receipt of report of the JIT, the Bench shall passappropriate orders in exercise of powers under Article 184(3)read with Articles 187 & 190 of the Constitution relating todisqualification of Mian Muhammad Nawaz Sharif, the PrimeMinister of Pakistan, Respondent No.1 as a member of Majlis-eConstitutionShoora (Parliament), if necessary. In this regard, it may, ifconsidered necessary or expedient, summon RespondentsNo.1 (Mian Muhammad Nawaz Sharif), 7 (Hussain Nawaz) and8 (Hassan Nawaz) or any of the said Respondents and anyother person having any direct or indirect connection with orhaving knowledge about the matters relevant to theseproceedings, to appear before it for being examined. Further,if so justified by law and on the basis of material placed beforethe Bench, orders may also be passed for filing of a Referencebefore the Accountability Court against Respondent No.1, theprivate Respondents and any other person having nexus withthe offence.

92. During hearings of these matters and whileexamining the various pleas raised by the parties and thedocuments and other material placed before us, I have foundit imperative to pass orders and take steps to ensure that thetrue facts should come before the people of Pakistan whohave a fundamental right to be governed in accordance withlaw, by those who fulfill the requirements of the Constitutionand the law and whose financial dealings, earnings andexpenditures are open to public scrutiny to show that theymeet the test of honesty, integrity, financial probity and bonafide dealings. It is high time that standards were set andsystems were put in place to develop a culture ofaccountability at all levels in order to cleanse our system andinstitutions from the evils of corruption, money laundering, lootand plunder of national resources by a few, irrespective oftheir rank or status in the system.

93. As a Nation, we need to heed the words of thegreat poet and philosopher Dr. Allama Muhammad Iqbal, ifwe aspire to reach our true potential and hold our heads highamongst the comity of Nations:-

94. Before parting with this judgment, I wouldacknowledge and appreciate Syed Naeem Bukhari, learnedASC; Mr. Taufiq Asif, learned ASC; Sh. Rashid Ahmed, petitionerin person; Mr. Makhdoom Ali Khan, learned ASC forRespondent No.1; Mr. Shahid Hamid, learned Sr.ASC forRespondents No.6, 9 & 10; Mr. Ashtar Ausaf Ali, learnedAttorney General for Pakistan; Mr. Muhammad Waqar Rana,ASC; and Mr. Waqas Qadeer Dar, Prosecutor General, NABand their respective teams for rendering valuable assistance inthe matter.

OVER ALL NOTICE:

4. The Parliament of any country is one of its noblest, honorable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation — posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating — cheating not only his own constituents but the nation at large.”

63(1) (a)]. Similarly, a father cannot be disqualified if his son has been convicted for an offence involving moral turpitude or such son has been dismissed from the service of Pakistan (Article 63(1) (h) & (i). Thus, obviously a father cannot be disqualified if his son is allegedly dishonest [Article 62(1) (f)]. facts and failed to disclose beneficial ownership of the Mayfair Properties, Respondent No.1 has been guilty of concealment, mis-declaration and dishonesty, and is therefore liable to be disqualified from being Member of the Parliament and holding the office of Prime Minister.

The learned counsel for the petitioner has further argued that Respondent No.1 had taken two Oaths. One as a Member of the National Assembly and the other as Prime Minister of Pakistan. In both the said oaths, he had sworn to perform his functions honestly, to the best of his ability, faithfully, in accordance with the law and the Constitution and the Rules of Business of the National Assembly. Further he had sworn to preserve, protect and defend the Constitution. He further maintains that in terms of Article 5 of the Constitution loyalty to the State is the basic duty of every citizen. He, therefore, submits that by failing to disclose the correct facts and producing the relevant records before the Parliament or before this Court, Respondent No.1 had been guilty of dishonesty giving Constitution preference to his personal interests over and above the national interests and as such he has not only violated his oath of office but has also been guilty of dishonesty which attracts the penal consequences of Article 62 read with Article 63 of the Constitution.

viii. Learned counsel has drawn our attention to Article 119 of the Qanun-e-Shahadat Order, 1984 to argue that burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any other person. He submits that as a whistleblower the only responsibility on the shoulders of the petitioner was to bring to the notice of this Court certain facts of public importance where-after the burden of proof was on the Respondent No.1 to establish that he had neither acted dishonestly nor in any other manner that would expose him to the penal consequences of Article 62 read with Article 63 of the Constitution. Reference in this regard has been placed on Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681 (para 32)].

26. The loss of qualification under Article 62(1) (f) of the Constitution has been visited with removal from elected office under the Constitution in a number of cases including Weighty reasons have been assigned for adopting and implementing the constitutional mandate as a bar on membership in Parliament. Firstly, the qualifications of a candidate set out in Article 62 of the Constitution are a sine qua non for eligibility to be elected as a Member of Parliament. No time limit for eligibility on this score is given in the Constitution.

A person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office. Such faults in character or disposition, if duly established, cannot be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution. The trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial is a universally recognized norm. However, our Constitution emphasizes upon it expressly for an elected parliamentary office. The Constitutional norm must be respected and therefore implemented.

Mr. Imran Ahmad Khan Niazi, petitioner in Constitution Petition No.29 of 2016 sought permission of the Court to make a few submissions, which was granted by us. He submitted that the Prime Minister amongst other capacities is the custodian of the treasury of the country. A person who is not truthful, dishonest or corrupt cannot be expected to enjoy the trust of the people. He maintained that this is one reason why people of Pakistan are unwilling to pay taxes as they do not trust the custodians of their tax money. He further submitted that a leader is a role model and leadership by its example uplifts the moral values of the society as has been seen in the history of Islam as well as the world. He expressed his full confidence in the Court and prayed that the petition may be accepted.

97) Mr. Khan maintained that affirmative evidence is required to establish dishonesty for the purposes of electoral disqualification Constitution Petition No. 29 of 2016,  and that the threshold has to be very high for disqualifying a person on the basis of qualifications which are obscure and vague. He also contended that no declaration about honesty can be made without there being a prior adjudication made by a court on the subject and in this regard he relied upon the cases of Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) some persons were declared to be disqualified in exercise of the constitutional jurisdiction on the ground of holding dual nationality in the absence of a prior adjudication in that regard but in those cases the facts were either admitted/undisputed or the same were conveniently ascertainable with minimum inquiry. Healso referred to the case of Sadiq Ali Memon v. Returning Officer,NA-237, Thatta-I and others (2013 SCMR 1246) wherein dual nationality was not disputed and was in fact admitted. He also referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan  (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under article 62 of the Constitution. It was, however, conceded by Mr. Khan that a decision of the Election Commission of Pakistan is not binding upon this Court.

That the petitioner alleges that in the said speeches Respondent No.1 had lied to the Nation, in consequence of which he had ceased to be honest and ameen in terms of Article 62(1) (f) of the Constitution and was

Therefore liable to be disqualified.

iii. That the second ground on which disqualification has been sought is that Respondent No.1 had received large sums of money as gifts from Respondent No.7. The said amounts were required to be treated as other

Income within the contemplation of Section 39 of the Income Tax Ordinance. The said amount was neither declared as such nor was the

Requisite income tax paid on it. Consequently, he was liable to be disqualified in terms of Article 63(2) (o) of the Constitution.

The learned counsel has further stated that in terms of Article 62(1)(f) of the Constitution read with various provisions of the RoPA, a declaration issued by a Court of competent jurisdiction is required to the effect that a holder of public office is not sagacious, righteous, nonprofligate, honest or ameen. He submits that there is no declaration against Respondent No.1

In the field therefore, he cannot be disqualified. He further submits that in a large number of cases this Court has upheld the decisions of Election Tribunals and / or other Courts which have issued declarations but has seldom entertained matters in exercise of its powers under Article 184(3) of the Constitution and proceeded to issue declarations and then disqualified the holder of public office.

Page-459,

      Therefore not truthful and ameen. He further maintained that despite having categorically stated that all relevant records regarding acquisition of assets in London will be produced, Respondent No.1 has consistently failed to do so which has rendered him liable to be disqualified. He referred to Nasir Mehmood v. Imran Masood [PLD 2010 SC 1089 @ 1117] to submit that Respondent No.1 did not meet the criteria of being truthful and ameen as provided in Article 62(1)(f) of the Constitution.

ORDER OF THE COURT 

By a majority of 3 to 2 (Asif Saeed Khan Khosa and GulzarAhmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities;where did its sale proceeds end up; how did they reach Jeddah,Qatar and the U.K.; whether respondents No. 7 and 8 in view of theirtender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of

Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; howbearer shares crystallized into the flats; who, in fact, is the real andbeneficial owner of M/s Nielsen Enterprises Limited and NescollLimited, how did Hill Metal Establishment come into existence;where did the money for Flagship Investment Limited and othercompanies set up/taken over by respondent No. 8 come from, andwhere did the Working Capital for such companies come from andwhere do the huge sums running into millions gifted by respondentNo. 7 to respondent No. 1 drop in from, which go to the heart of thematter and need to be answered. Therefore, a thoroughinvestigation in this behalf is required.

2. In normal circumstances, such exercise could beconducted by the NAB but when its Chairman appears to beindifferent and even unwilling to perform his part, we areconstrained to look elsewhere and therefore, constitute a JointInvestigation Team (JIT) comprising of the following members:

1. ii) A senior Officer of the Federal InvestigationAgency (FIA), not below the rank of

Additional Director General who shall headthe team having firsthand experience of

Investigation of white collar crime andrelated matters;

1. ii) A representative of the NationalAccountability Bureau (NAB);

iii) a nominee of the Security & ExchangeCommission of Pakistan (SECP) familiar withthe issues of money laundering and whitecollar crimes;

1. iv) A nominee of the State Bank of Pakistan(SBP);
2. v) A seasoned Officer of Inter-ServicesIntelligence (ISI) nominated by its DirectorGeneral; and
3. vi) A seasoned Officer of Military Intelligence(M.I.) nominated by its Director General.

3. The Heads of the aforesaid departments/ institutionsshall recommend the names of their nominees for the JIT withinseven days from today which shall be placed before us inchambers for nomination and approval. The JIT shall investigate thecase and collect evidence, if any; showing that respondent No. 1 orany of his dependents or benamidars owns, possesses or hasacquired assets or any interest therein disproportionate to his known

Means of income. Respondents No. 1, 7 and 8 are directed toappear and associate themselves with the JIT as and whenrequired. The JIT may also examine the evidence and material, ifany, already available with the FIA and NAB relating to or havingany nexus with the possession or acquisition of the aforesaid flats orany other assets or pecuniary resources and their origin. The JIT shallsubmit its periodical reports every two weeks before a Bench of thisCourt constituted in this behalf. The JIT shall complete theinvestigation and submit its final report before the said Bench withina period of sixty days from the date of its constitution. The Benchthereupon may pass appropriate orders in exercise of its powersunder Articles 184(3), 187(2) and 190 of the Constitution including anorder for filing a reference against respondent No. 1 and any otherperson having nexus with the crime if justified on the basis of thematerial thus brought on the record before it.

4. It is further held that upon receipt of the reports,periodic or final of the JIT, as the case may be, the matter ofdisqualification of respondent No. 1 shall be considered. If foundnecessary for passing an appropriate order in this behalf,respondent No. 1 or any other person may be summoned and

Examined.

5. We would request the Hon’ble Chief Justice toconstitute a Special Bench to ensure implementation of thisConstitution Petition No. 29 of 2016,judgment so that the investigation into the allegations may not be left in a blind alley.

 POST JUDGEMENT COMMENTS

Attorney General of Pakistan Ashtar Ausaf Ali has said that the decision was according to his expectations. He told that Nawaz Sharif has been disqualified for life. He went on to say that the Aqama led to the disqualification.  

Grabbing at the opportunity PTI (that spearheaded the Panamagate case) leaders have said that now the nation was looking towards Imran Khan.

Vice Chairman PTI Shah Mahmood Qureishi calling it a historic day thanked JIT members for not succumbin gto the pressure: “Let us take this moment to express gratitude to the armed forces, police and other law enforcement agencies”.

JEMIMA GOLDSMITH: “Gone Nawaz Gone!”

PM’S DISQUALIFICATION: POLITICIANS TERM IT AS ‘HISTORIC JUDGMENT’

 PM’s disqualification: Politicians term it as ‘historic judgment’

ISLAMABAD: Pakistan Tehreek-i-Insaf (PTI), Pakistan Peoples Party (PPP), PML-Q, and other opposition parties and politicians praised Supreme Court’s decision to disqualify Prime Minister Nawaz Sharif in a landmark decision on the Panama Papers case.

“It’s a historic day. Let us take this moment to express gratitude to the JIT members for not succumbing to the enormous pressure and serving the cause of justice,” PTI Vice Chairman Shah Mehmood Qureshi said.

PPP leader Qamar Zaman Kaira said that all opposition parties played their part in this, but the credit does go to PTI and Imran Khan for taking this issue to court and fighting this long legal battle.

Jehangir Tareen said that PTI will pray shukrana (thanksgiving) prayers at Bani Gala on Sunday.

“We will keep playing our part for Pakistan and democracy. This is the best time for democracy. I congratulate everyone.”

RELEVANT PIECE PUBLISHED EARLIER

5-MEMBER LARGER BENCH OF SC TO ANNOUNCE PANAMAGATE DECISION TOMORROW AT 11.30AM

M. M. ALAM

ISLAMABAD: Courtroom No. 1 is the place that will attract people’s attention tomorrow at 11.30am. 

This is the courtroom from where, many expect, a historic decision apropos Panamagate, will be announced by a five member larger bench consisting of: 

Justice Asif Saeed Khan KhosaJustice Ejaz Afzal Khan

Justice Gulzar AhmedJustice Sheikh Azmat SaeedJustice Ijazul Ahsan

__________________________________________________________

It is pertinent to remind here that a 3-member implementation bench has heard the case after JIT submitted its findings on 10th of July apropos Sharif clan’s wealth that exceeds its sources of income and the accusation of money-laundering, submitted on July 10.

JIT has recommended commencement of reference against Sharif Clan in NAB. 

The Apex Court had reserved its decision on 21st day of July. 

RELEVANT PIECE PUBLISHED EARLIER

PANAMAGATE: SC COMPLETES HEARING AND RESERVES THE VERDICT

Panamagate: SC completes hearing and reserves the verdict

July 21, 2017

SANA MAHMOOD

ISLAMABAD: Following completion of arguments in the Panamagate case against the sitting PM from lawyers of both parties given before the three-judge bench of SC, the Apex Court has reserved the verdict without giving a judgment announcement date.

It is pertinent to mention here that today the Apex Court has opened the (much trumpeted in the media) confidential tenth volume of the JIT report on Panamagate inquiry.

One may wonder what exactly is Volume X? It is basically the international correspondence and papers obtained by the six-member JIT from foreign countries during the last two months. 

PANAMAGATE 4TH DAY OF HEARING: APEX JUDGES EXPRESS DISPLEASURE OVER DISCUSSING MATTER IN MEDIA

 

Panamagate 4th day of hearing: Apex Judges express displeasure over discussing matter in Media

July 20, 2017

SANA MAHMOOD

ISLAMABAD:  When Salman Akram Raja – advocate of Maryam, Hassan and Hussain Nawaz – commenced arguments today before the three-member SC bench headed by Justice Ejaz Afzal, the judges expressed annoyance noting the way all the documents were discussed in the Media outside the court.

However, advocate Raja maintaining that he has not given any documents to the Media submitted papers including:

i)  acquired from Abu Dhabi customs to show that scrap and machinery from the Gulf Steel Mills did move from Dubai after its liquidation;

ii) invoice from Ahli Steel Company verifying the shipment of dismantled rolling mill equipment from the Al-Azizia Steel Company;

iii)  a document from JPCA Ltd, an accountancy firm, dealing with the ownership of Nescoll and Neilsen;

iv) from Minerva Financial Services Limited, the holding firm for both companies;

v)  confirming an agreement between PM’s cousin Tariq Shafi and Mohammad Abdullah Ahli for the sale of his 25pc shares in Ahli Steel.

Justice Ejaz Afzal said that from the first day (one year ago) they have been asking about the money trail that PM’s family failed to answer.

Justice Ijazul Ahsan reminded that PTI advocate had insinuated that Maryam had furnishing fabricated (bogus) documents to the court and registering a criminal case against her had also been recommended.

During the forth hearing it transpired that many of the papers submitted could be forged on the basis that: signature of identified size and structure are present on varied documents; verification was carried out on 4th February, 2006 when there was a public holiday in UK…

It is pertinent to mention here that hearing in Supreme Court resumed after JIT provided report of its investigations apropos accusation of money laundering by Sharif clan.

The hearing has been adjourned till tomorrow (21st of July, 2017). 

PANAMAGATE 3RD ROUND: FOLLOWING PTI’S ADVOCATE’S ARGUMENTS TODAY SHARIF’S ADVOCATE TO GIVE ARGUMENTS TOMORROW

 

Panamagate 3rd round: Following PTI’s advocate’s arguments today Sharif’s advocate to give arguments tomorrow

July 17, 2017

M. M. ALAM

ISLAMABAD: As 3-member bench  headed by Justice Ejaz Afzal Khan and comprising Justice Ijazul Hassan and Justice Sheikh Azmat Saeed started proceedings of the Panamagate today at 9.30am PTI’s Naeem Bukhari commenced giving arguments in favor of JIT report here in SC. 

According to PTI lawyer, Sharifs were not able to prove their statement apropos sales of Dubai Gulf Steel Mills. He maintained those furnishing forged documents should face criminal charges. 

Following Bukhari, Sharif clan counsel Khawaja Harris will present his arguments tomorrow (July 17). 

As presaged in NewsPakistan.tv report earlier Sharif clanincluding Ishaq Dar submitted their objections on the JIT report before the hearing began apropos:

i)  allegiances of the JIT investigators;

ii)  their conduct;

iii)  the way the evidence was collected and the report’s findings;

iv) they exceeded their mandate.

Sharif’s lawyer also requested the apex court that volume ten be provided to his client. 

JIT SUGGESTS REOPENING OF 5 DECIDED CASES, 8 PROBES AND 2 INQUIRIES AGAINST PM!

 

JIT suggests reopening of 5 decided cases, 8 probes and 2 inquiries against PM!

July 16, 2017

SANA MAHMOOD 

ISLAMABAD: JIT has recommended reopening of 15 cases against PM, five of which were decided by LHC.

According to details three of the said cases were registered during the PPP tenures (1994 and 2011) while 12 were registered during Musharraf regime following toppling of Sharif Govt. in October 1999.

It is pertinent to mention here that 8 probes include NAB’s quest into PM clan’s four London apartments that commenced in December 1999.

PM all ready to challenge JIT report in SC:

PM clan has raised a number of arguments against the JIT focusing on the objections:

i) That the team’s findings were not supported by testified documents;

ii) That stance of JIT towards PM’s clan was prejudiced;

iii) That PM’s cousin Tariq Shafi and son Hussain Nawaz were harassed by JIT members.

According to the sources PM’s family is ready to submit a petition to SC requesting the apex court to decide their plea before any further action.

The petition challenging the JIT report will be filed by a legal team comprising of four lawyers headed by Khawaja Haris.

COMPLETE TEXT OF SUPREME COURT’S ORDER

This judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017 which ended up in the following order of the Court :

“By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required.

1. In normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, we are constrained to look elsewhere and therefore, constitute a Joint Investigation Team (JIT) comprising of the following members :

i) a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters;

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ii) a representative of the National Accountability Bureau (NAB);

iii) a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes;

iv) a nominee of the State Bank of Pakistan (SBP);

v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and

vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.

1. The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required.

The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution.

The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.

1. It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined.

2. We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.”

3. The Hon’ble Chief Justice of Pakistan constituted the implementation Bench consisting of Ejaz Afzal Khan, J., Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. The Bench vide order dated 05.05.2017 constituted the JIT consisting of Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with NIBAF, Mr. Bilal Rasool, Executive Director, SECP, Mr. Irfan Naeem Mangi, Director NAB, (BS-20). Brig. Muhammad Nauman Saeed from ISI, Brig. Kamran Khurshid from M.I. and Mr. Wajid Zia, Additional Director General (Immigration), FIA to head the JIT.

4. The JIT undertook the task thus assigned and submitted a complete investigation report on 10.07.2017. Parties to the proceedings were provided the report of the JIT and a weeks’ time to go through it. Khawaja Harris Ahmed, learned Sr. ASC appearing on behalf of respondent No. 1 submitted a CMA expressing his reservations about the report. Dr. Tariq Hassan, learned ASC for respondent No. 10 also filed a CMA expressing his reservations about the report. Learned ASC appearing for petitioner in Const. P. No. 29 of 2016, Sheikh Rasheed Ahmed, petitioner appearing in person in Const. P. No. 30 of 2016 and learned ASC appearing for the petitioner in Const. P. No. 03 of 2017, by picking up the thread from where they left off, sought to canvass at the bar that the JIT has collected sufficient evidence proving that respondent No. 1, his dependents and benamidars own, possess and have acquired assets which are disproportionate to their known sources of income; that neither respondent No. 1 nor any of his dependents or benamidars before or during the course of investigation could account for these assets, therefore, he has 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 prove that respondent No. 6 is the beneficial owner of the Avenfield apartments, therefore, the document showing her as trustee is a fabrication on the face of it for which she is liable to be proceeded against for forgery and using forged documents; that use of Calibri Font, which became commercially available in 2007, in the preparation of the trust deed in February 2006 is another circumstance leading to the inference that it was forged and fabricated; that narrative of Tariq Shafi vis-à-vis receipt of AED 12 million from sale of 25% shares of Ahli Steel Mills formerly known as Gulf Steel Mills is false on the face of it which has been confirmed by the JIT in its report; that whatever has been stated in Qatri letters remained unsubstantiated as the Qatri Prince neither appeared before the JIT nor ever stated his point of view through any other legally recognizable means; that respondents were given ample opportunities to provide the trail of money and answer the questions asked in the order of the Court dated 20.04.2017 but they throughout have been evasive; that the discrepancies between the first Qatri letter and affidavit of Mr. Tariq Shafi show that neither of them is credible; that the spreadsheet attached with the second Qatri letter too is of no help to the respondents as it is neither signed nor supported by any documentary evidence; that the entire story about trail of money is seriously marred by inconsistencies surfacing in the statements of the respondents recorded by the JIT; that story of transporting machinery from Dubai to Jeddah and thereby establishing Azizia Steel Company Limited still awaits proof; that how the entire amount running to SAR 63.10 million could be utilized by respondent No. 7 notwithstanding he was entitled to only 1/3rd finds no explanation therefor, the sources establishing Hill Metal Establishment have not been proved; that failure of respondent No. 1 to disclose his assets deposited in his account on account of his being Chairman of Capital FZE would also call for his disqualification, as it being an asset for all legal and practical purposes was required to be disclosed under Section 12(2)(f) of the Representation of the People Act, 1976; that the respondent denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance; that the assets of respondents No. 7 and 8 have surprisingly grown manifold overnight notwithstanding all of their business enterprises run in loss; that the facts and figures showing inflow and outflow of Hill Metals Establishment also appear to be fudged and fabricated when seen in the light of the material collected during the course of investigation by the JIT; that material already brought on the record and collected through the JIT leave no doubt that the assets of respondent No. 1, his children and benamidars are 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.

1. Learned Sr. ASC appearing for Respondent No. 1 contended that JIT overstepped its mandate by reopening the case of Hudabiya Paper Mills when it was not so directed by the Court; that another investigation or inquiry shall also be barred by the principle of double jeopardy when the Reference relating to the said Mills was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (PLD 2016 Lahore 667); that no evidence has been collected by the JIT showing respondent No.1 to have any nexus with the Avenfield apartments, Hill Metals Establishment, Flagship Investment Limited or any other business concern run by respondent no. 7 and 8; that all the material collected and finding given by the JIT do not deserve any consideration inasmuch as they are beyond the scope of investigation authorized by the order of this Court; that the investigation conducted by the JIT cannot be said to be fair and just when none of the respondents was questioned about or confronted with any of the documents tending to incriminate them and that the JIT exceeded its authority while obtaining documents from abroad by engaging the firm of the persons happening to be their near and dear.

Such exercise, the learned Sr. ASC added, cannot be termed as Mutual Legal Assistance by any interpretation nor can the documents thus obtained be vested with any sanctity in terms of Section 21(g) of the National Accountability Bureau Ordinance, 1999. He next contended that no weight could be given to the finding of the JIT when it is not supported by any authentic document. An investigation of this type, the learned Sr. ASC added, which is a farce and a breach of due process cannot form basis of any adverse verdict against respondent No. 1. The learned Sr. ASC to support his contention placed reliance on the cases of Khalid Aziz. Vs. The State (2011 SCMR 136) and Muhammad Arshad and others. Vs. The State and others (PLD 2011 SC 350).

1. Learned ASC appearing on behalf of respondents No. 6, 7, 8 and 9 contended that Avenfield apartments are owned and possessed by respondent No. 7, and that the trail of money and the way it has culminated in the acquisition of the Avenfield apartments stand explained by Qatri letters; that respondent No. 6 besides being a trustee of the apartments at some stage of time has not been their beneficial owner, therefore, the correspondence between Errol George, Director FIA and Mossack Fonseca & Co. (B.V.I.) Limited or the certified copies thereof obtained through an MLA request cannot be relied upon unless proved in accordance with law and that the JIT report and the material collected by it during the course of investigation per se cannot form basis of a judgment in a proceeding under Article 184(3) of the Constitution of the Islamic Republic of Pakistan.

2. Learned ASC appearing on behalf of respondent No. 10 contended that assets of respondent No. 10 have been audited and examined from time to time but no irregularity was ever found in any of them; that the respondent has accounted for whatever assets he owns, possesses or has acquired; that his assets were also subject matter of Reference No. 5 of 2000 which was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (supra); that another criminal proceeding cannot be initiated when everything has been accounted for down to the rupee.

The learned ASC by producing the income tax returns from 2007 to 2016, wealth tax returns from 1981-1982 to 2000-2001 and from 2009 to 2016 contended that every asset is property vouched and documented; that the finding of the JIT has no legal or factual basis; that no conclusion much less sweeping can be drawn on the basis of such report; that 91 times increase in his assets from 1992-1993 to 2008-2009 shown in the JIT’s report is based on miscalculation; that the respondent cannot be impaled on the same charge by imputing a wrongdoing without any tangible evidence; that failure on the part of the FBR to provide the relevant record cannot be construed to the detriment of the respondent when it has been with the NAB Authorities throughout and that with this background in view, it would be rather unjust to thrust the respondent in another treadmill of tiresome trial before the Accountability Court.

1. We have carefully gone through the record, the report submitted by the JIT and considered the submissions of the learned ASCs, Sr. ASC of the parties as well as the learned Additional Attorney General for Pakistan.

2. We have already dealt with the background of the case and detailed submissions of the learned ASCs for the parties in paras 1 to 12 of the majority judgment authored by one of us (Ejaz Afzal Khan, J) and notes written by my learned brothers Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. What necessitated the constitution of JIT has been highlighted in para 19 of the judgment which reads as under :-

“19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer.

But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice.

Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the Law and the Book. Let us stay and Act within the parameters of the Constitution and the Law as they stand till the time they are changed or altered through an amendment therein.”

1. A careful examination of the material so far collected reveals that a prima facie triable case under Section 9, 10 and 15 of the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the following assets:- “(i) Flagship Investments Limited. (ii) Hartstone Properties Limited; (iii) Que Holdings Limited; (iv) Quint Eaton Place 2 Limited; (v) Quint Saloane Limited (formerly Quint Eaton Place Limited). (vi) Quaint Limited; (vii) Flagship Securities Limited; (viii) Quint Gloucester Place Limited; (ix) Quint Paddington Limited (formerly Rivates Estates Limited); (x) Flagship Developments Limited; (xi) Alanna Services Limited (BVI); (xii) Lankin SA (BVI); (xiii) Chadron Inc; (xiv) Ansbacher Inc; (xv) Coomber Inc; and (xvi) Capital FZE (Dubai).”

So is the case against respondent No. 10 vis-à-vis 91 times increase (from Rs.9.11 million to 831.70 million) in his assets within a short span of time. What to do in the circumstances has already been dealt with in the majority judgment in the words as follows:-

“Any liability arising out of these Sections has its own trappings. Any allegation leveled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated.

We must draw a line of distinction between the scope of jurisdiction of this Court under Article 184(3) of the Constitution and that of the Accountability Court under the Ordinance and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of the Ordinance lest we condemn any member of Parliament on assumptions by defying the requirements of a fair trial and due process.

We cannot make a hotchpotch of the Constitution and the law by reading Sections 9 and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99 of the Act and pass a judgment in a proceeding under Article 184(3) of the Constitution which could well be passed by an Accountability Court after a full-fledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the member of Parliament so proceeded against is not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority. If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the Accountability Court and other Courts in the hierarchy take their own course.

Let respondent No. 1 go through all the phases of investigation, trial and appeal. We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and the soul of the rule of law. We also don’t feel inclined to arrogate to ourselves a power or exercise a jurisdiction which has not been conferred on us by any of the acts of the Parliament or even by Article 184(3) of the Constitution. Who does not know that making of a statement on oath in a trial lends it an element of solemnity; cross-examination provides safeguards against insinuation of falsehood in the testimony; provisions of Qanoon-e-Shahadat Order regulate relevancy of facts, admissibility of evidence and mode of proof through oral and documentary evidence and thus ensure due process of law. We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.”

1. The same theme was reiterated by my learned brother Mr. Justice Sh. Azmat Saeed by holding as under :-

“22. It is evident from a bare reading of the aforesaid provisions that the prosecution must establish that a person or his spouse or dependent or benamidar owns or possesses a property. If the aforesaid allegation is proved then the accused must give an explanation as to the source of legal funds for acquiring such property and upon his failure to do so, he becomes liable for punishment under the aforesaid law. Such punishment not only includes fine and imprisonment but also disqualification from holding a public Office, including that of Member of the Majlis-e-Shoora for a period of 10 years under Section 15 of the NAB Ordinance, 1999. Reference, in this behalf, can be made to the judgments, reported as (1) Iqbal Ahmed Turabi and others v. The State (PLD 2004 SC 830), (2) Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The State and others (PLD 2013 SC 594), (4) The State through Prosecutor General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), (5) Syed Zahir Shah and others v. National Accountability Bureau and another (2010 SCMR 713), (6) Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and (7) Khalid Aziz v. The State (2011 SCMR 136).

1. In none of the aforesaid cases was any person convicted without a definitive finding that the assets were in fact owned or possessed by the accused, his spouse, his dependents or benamidars. And thereafter, the accused had failed to account for the source of funds for acquiring the said property and if the explanation was found unsatisfactory, conviction followed.”

Almost the same view was expressed by my learned brother Mr. Justice Ijaz ul Ahsan in the words which reads as under:-

“58. Where there is an allegation that a holder of public office or any of his dependents or benamidars owns or possesses any assets or pecuniary resources which are disproportionate to his known sources of income which he cannot reasonably account for he can be convicted of an offence of corruption and corrupt practices and upon such conviction, penal consequences would follow.

However, such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution. Further, such course of action would be violative of the principles enshrined in Articles 4 and 25 of the Constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional Court following an unconstitutional course. This, we are not willing to do, in the interest of upholding the rule of law and our unflinching and firm belief in adherence and fidelity to the letter and spirit of the Constitution.”

1. The argument that the JIT overstepped its authority by reopening the case of Hudabiya Paper Mills when Reference No. 5 was quashed by the High Court does not appear to be correct as the JIT has simply made recommendations in this behalf which can better be dealt with by this Court if and when an appeal, before this Court, as has been undertaken by Special Prosecutor NAB, is filed and a view to the contrary is taken by this Court.

2. The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill”.

The definition of the word receivable as used in the above mentioned definition as given in the Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable a claim against a debtor usually arising from sales or services rendered”. The word ‘receivable’ also has similar ring and connotation according to Business Dictionary which reads as under:-

“Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm”.

The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary.

This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:-

“So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.”

It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.

1. As a sequel to what has been discussed in paragraphs 7 to 11 the following directions are made:-

i) The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigating Agency (FIA) and NAB having any nexus with the assets or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-

a) Reference against Mian Muhammad Nawaz Sharif (Respondent No. 1), Maryam Nawaz Sharif (Maryam Safdar) (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd) Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier.

b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated above;

c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 above;

d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 above;

e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;

f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;

g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and

h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person(s) in accordance with law.

1. As a sequel to what has been discussed in paragraphs 13 above, the following declaration and direction is issued:-

i) It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is 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, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament);

ii) The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; and

iii) The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.

1. The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by the NAB and the Accountability Court in the above matters.

2. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.

3. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney-General for Pakistan and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.

Final order of the court

The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-

a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments;

b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment;

c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;

d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;

e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;

f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;

g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and

h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law.

1. It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is 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 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).

2. The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan;

3. The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.

4. The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters.

5. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.

6. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.