Judicial system at fault

05 Feb 2014

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— File photo
— File photo

NOW that Asif Ali Zardari has stepped out of the presidency, he is faced with five corruption references in the accountability court but is there any real possibility of his being convicted? To the disappointment of the PPP detractors, the chances are next to nothing.

After the Supreme Court struck down the National Reconciliation Ordinance (NRO) in December 2009, corruption references against Mr Zardari were reopened, though he was not tried as he was serving as the president of the country and enjoyed immunity.

These references were: receiving alleged kickbacks from SGS PSI Company; grant of licence of gold import to ARY traders; illegal commission in purchase of tractors under the Awami Tractor Scheme; illegal award of contract to Cotecna, and the illegal construction of polo ground at PM House.

However, in the past five years, his co-accused in all five cases have been acquitted and the process of acquittal once again reveals the poor manner in which corruption cases are built up against individuals, which then fall apart equally easily. In fact, regimes, instead of hard evidence, determine ‘corruption’, and trials then continue infinitely as pace or lack thereof is set by those in power rather than those trained to collect evidence.

Indeed, most of the cases were based on witness testimonies and they had had a change of heart, leaving the prosecution with nothing.

According to documents, the prosecution witnesses, on whose testimony the cases had been built, did not support the prosecution once the trial began.

In some cases, the investigation officers disowned the investigation report when they appeared before the court in the last five years.

For instance, an investigation officer (IO) in the ARY reference backtracked from his earlier stance and refused to acknowledge the investigation report as genuine.

According to the court’s documents, the IO “admitted that the report signed by him was computer-generated and he does not know who prepared this report”. He added that he could not remember “who had produced these documents (related to malpractices of the accused person in the ARY reference) as well as saying that “there was no evidence against Salman Farooqui, former secretary commerce, Mr Asif Ali Zardari” and he had never collected any evidence against both of them. But it was not just the IO who had a change of heart; so did the main prosecution witness. Hussain Lawai, former president of the Arif Habib Bank and Muslim Commercial Bank, had turned into a state witness to avoid prosecution.

But when the hearing of the case reopened in 2010 during the PPP government, Lawai changed his stance and claimed that “he never joined the investigation process” and that he had not given a statement to the investigation officer.

The ARY reference witnessed a similar about-turn.

Accountability judge Mian Altaf Hussain Mahar acquitted the accused in the ARY references including retired Brig Aslam Hayat Qureshi, Salman Farooqui and Abdul Razzaq Yaqub in 2011 because none of the 17 prosecution witnesses testified against the accused persons.

“In view of evidence available on record no prosecution witness has made any statement that Mr Asif Ali Zardari, Brig (retired) Aslam Hayat Qureshi, Mr Salman Farooqui, Mrs Benazir Bhutto or any other holder of public office had exercised… influence or pressure upon any of the persons concerned with the approval of this (gold) import policy and for grant of licence….” Similarly, in the Cotecna reference (in which Mr Zardari has been accused of taking six per cent of the $131 million pre-shipment contract awarded to the Swiss company) the prosecution witnesses told the court that the contract had benefited the national exchequer.

This change in the testimony of witnesses means that Mr Zardari will also be acquitted in the days to come.

Amjad Iqbal Qureshi, a defence lawyer in the ARY reference, tells Dawn that the witnesses cannot change their statements while Mr Zardari is being tried; they will have to stick to what they said earlier which led to the acquittal of others.

If a witness turns hostile and claims that his earlier statement was fake, he can face at least 10 years imprisonment under the NAB laws, Qureshi adds.

However, some of these witnesses have already backtracked on testimonies they had given when the PPP was not in power. This time around also it will be the attitude of the prosecution that will determine the testimonies and their fate.