ISLAMABAD: The Supreme Court bench hearing the appeal in the Hudaibya case on Tuesday wondered why the confessional statement of former finance minister Ishaq Dar was recorded before a magistrate in the year 2000, when under the law of the time, it should have been recorded before the chairman of National Accountability Bureau (NAB) or the concerned accountability court.

The observation came when NAB Prosecutor Imranul Haq cited the April 25, 2000 confessional statement of Mr Dar recorded before a magistrate under Section 164 of the Criminal Procedure Code (CrPC), after which he was granted a pardon and made a star witness in the case against the Sharifs.

In his statement, Mr Dar had confessed to laundering $14.86 million by allegedly opening fictitious bank accounts under the names of Sikandar Masood Qazi and Talat Masood Qazi for the Sharifs.

But Justice Mushir Alam, who was heading the three-judge SC bench, inquired whether NAB had corroborated all the allegations made in the confessional statements, by collecting evidence such as bank statements, to establish the flow of money.

The apex court is hearing an appeal by NAB seeking permission for the resurrection of the controversial Rs1.2 billion Hudaibya Paper Mills reference, which was quashed by the Lahore High Court in 2014.

The court ordered NAB to submit evidence of a money trail to establish laundering apart from the recommendations of the SC-appointed Joint Investigation Team (JIT), and other supplementary or additional evidence about the Hudaibya reference, recovered by the JIT during its probe.

NAB also has to satisfy the court about the reasons why it should hear a time-barred appeal and the reasons behind its late filing, so that proper notices can be issued to respondents in the case.

The bureau will also have to convince the court on the legal effects of granting a pardon to a person, as well as sending a person into exile. Moreover, the prosecutor may also have to argue on efforts made against the individual who facilitated the exile of deposed prime minister Nawaz Sharif, at a time when he was facing multiple cases inside the country.

Judges ask why Dar’s confession was recorded before magistrate, not before bureau chief or accountability court

The prosecutor argued that such a statement was recorded by showing abundant caution to maintain transparency, otherwise a simple statement could have sufficed. He claimed that the law permitted the recording of a statement before the magistrate.

But Justice Qazi Faez Isa reminded him that an amendment to the National Accountability Ordinance, 1999, to this effect came in July 5, 2000, before which statements could only be recorded either before the chairman or the accountability court.

On Tuesday, newly-appointed Special Prosecutor Shah Khawar was also present in Courtroom No 4 to personally witness proceedings.

Justice Isa inquired from the prosecutor point-blank what other evidence NAB had about criminality on part of the Sharifs if Mr Dar was out of the picture. The judge also asked why Mr Dar indulged in money laundering on behalf of the Sharifs, and whether it was in return for some commission. “To get political benefit,” was the prosecutor’s reply.

Justice Isa asked the prosecutor to explain if the confessional statement recorded under Section 164 CrPC could be used against the co-accused and then after going through the NAO the judge himself answered that it could not be used.

Justice Alam, however, observed that the statement could be used as a witness against the co-accused.

The prosecutor read out the statement of Mr Dar, stating how in early 1992 then prime minister Nawaz Sharif asked him to provide a credit line of approximately Rs100 million to the business concerns of his family, from Mr Dar’s Hajveri Modarba Company, and subsequently sent him photo copies of the passports of Mrs Sikandar Masood Qazi, Nuzhat Gohar, Talat Masood Qazi and Kashif Masood Qazi, all family members of Masood Qazi on whose names the alleged fictitious foreign accounts were opened. When Mr Dar expressed reservations about opening the “Benami Accounts,” he was assured by Mr Sharif that the Qazis had agreed for the use of their names.

On this Justice Isa asked the prosecutor not to test the patience of the court because it was not interested in listening to the life story of Mr Dar and demanded evidence of criminality, the nature of which the court still had not been able to understand. Justice Isa reiterated that the Hudaibya reference might be the case under the income tax laws.

The court also reminded the prosecutor that it was hearing the Panama Papers case under Article 184(3) of the Constitution which deals with the enforcement of the fundamental rights of citizens, but here the court was seized with a case which deals with a criminal offence, therefore, it was necessary to satisfy it on all counts.

The prosecutor argued that the JIT had collected additional evidence that new bank accounts were used for the benefit of Hudaibya.

But when the court inquired about specific direction on the Hudaibya reference in the Panama Papers case verdict, the prosecutor admitted that the reference had never been mentioned in the judgement though various names highlighted in JIT recommendations were related to it.

When Justice Alam inquired whether any administrative instrument was issued by the then government to benefit the then public office holders, the prosecutor explained that all foreign currency accounts were seized when on May 28, 1998, Pakistan tested nuclear weapons. The Sharifs benefited by withdrawing the amounts from the banks a week ahead of May 28 also admitting that $99,000 was remitted from abroad on May 21 in favour of the Hudaibya accounts out of the accounts of Sadiqa Saeed Qazi. The court, however, reminded that the money was coming in and not going out of the country.

The court asked the prosecutor that he should have furnished a flow chart with bank statements to establish what money move out of which account to another account.

Neither the JIT did anything in this regard nor NAB, regretted Justice Isa.

The court will resume the hearing on the case again on Wednesday.

Published in Dawn, December 13th, 2017