ISLAMABAD: A star witness in the last corruption reference against former president Asif Ali Zardari has mysteriously disappeared, allowing the defence to move an application for acquittal.

The Supreme Court has been the centre of attention as hearings of the Panamagate case continue, but a couple of months ago, the National Accountability Bureau (NAB) informed a Rawalpindi accountability court about the ‘disappearance’ of key prosecution witness, Barrister Jawad Mirza.

The court has now declared Barrister Mirza a ‘proclaimed offender’.

Barrister Mirza was custodian of all documentary evidence; documents have no legal value without his testimony

Mirza was a legal consultant for NAB’s Financial Crime Investigation Wing (FCIW) and, in 2002, presented volumes of documentary evidence to the investigation officer in the reference against the former president.

The evidence included documents related to transactions, including bank accounts and offshore companies owned by Asif Ali Zardari and his members of his family.

According to court records, Mr Mirza also signed the seizure memo. Legally speaking, all documents taken into possession during investigation of the case are attached with case file through the seizure memo.

In this case, unless the witness testifies before the court, takes ownership for the documents and authenticates them, the evidence would not be admissible and useless as tangible evidence.

Earlier, Mr Zardari was acquitted in four references, namely the ARY Gold case, SGS-Cotecna, Ursus Tractors and the Polo Ground reference between 2014 and 2015.

In nearly all these cases, the original records had gone missing and NAB prosecutors pursued the case based on photocopies of the record.

The co-accused in all these references were acquitted while Mr Zardari was president. He was not tried alongside the co-accused due to the ex-officio immunity he enjoyed, but was rather tried separately after end of his term in office.

The assets reference is the only case where NAB has the original documents against Mr Zardari, but if the custodian of that evidence does not appear to authenticate it, the documents cannot be used against the former president, sources in the prosecution told Dawn.

They also revealed that in addition to the documents submitted by Barrister Mirza, there was another solid piece of evidence against Mr Zardari; the confession of an approver, Ausaf Ali Agha.

Agha confessed to having set up four sugar mills for Mr Zardari in the names of alleged front-men, but escaped legal action by fleeing abroad. However, sources claim that the confessional statement could still be used as evidence.

The prosecution has so far produced 41 witnesses against Mr Zardari. Most of the witnesses were either former or serving government officials or private individuals.

The case, however, revolves around the star witness, Barrister Mirza; the other witnesses were produced before the court to strengthen the case, which is based on the documents Mirza handed over to the investigation officer.

According to Khawaja Azhar Rasheed, a former NAB deputy prosecutor general, the documents have no legal value unless Barrister Mirza appears in court to authenticate them.

“In criminal proceedings, when the man who signs the seizure memo does not authenticate the evidence, it becomes doubtful,” he said, adding that the benefit of doubt always went to the accused.

Mr Zardari’s lead counsel, Senator Farooq H. Naek, said that it was the job of the prosecution to produce witnesses, and the job of the defence counsel was to cross examine them.

He said that in case an accused is not appears his initial statement becomes irrelevant.

According to a lawyer who was close to Barrister Mirza, he Mirza joined an oil company after quitting NAB in 2003. He claimed that NAB could have traced his whereabouts and if he was abroad, the bureau had the resources to recover their star witness.

A NAB prosecutor, however, said that while the bureau was capable of tracking down the absconding witness, forcing him to testify could result in his becoming a hostile witness, which would harm the prosecution’s case even more.

When contacted, NAB spokesperson Nawazish Ali Asim said he was unaware of the details of the case and suggested getting in touch with NAB Rawalpindi Director General Atiqur Rehman, as he was the relevant officer.

When approached, Mr Rehman said that he did not know Barrister Mirza, who had already quit by the time he (the DG) joined NAB.

Published in Dawn, February 19th, 2017