KARACHI: The case against Axact has hit its first hurdle, and there are likely to be a few more in the days to come. Thus far, the prosecution had a near perfect score in winning all their battles.

Nine bail applications had been rejected, and a precedent was set in using the Anti-Money Laundering Act of 2010 to freeze the assets of Axact.

Two petitions against sealing Axact premises for the forensic examination of materials within, and an appeal to unfreeze the assets and bank accounts of Axact and the principal accused, were rejected back on December 22 by a two-judge bench of the Sindh High Court that included the Chief Justice.

At the centre of the prosecution was Zahid Jamil, a relatively young lawyer serving his first stint as a special public prosecutor. He had pursued the case with a visible vigour that impressed all observers in the court and apparently also the judges, given his success rate against all appeals filed by the defence. In an unusual statement released on Sunday night, the FIA described his efforts as “relentless and consistent”.

On January 11, Jamil told the court his team will be ready to file the final charge sheet and commence trial by the end of the month, or latest by the middle of February.

This was to be the big moment everyone was waiting for, when the evidence against the accused would be presented in court and the trial could begin in earnest.

Then suddenly on January 18, he disassociated himself from the proceedings.

In his resignation letter he gave no reasons, other than to say that “circumstances have arisen” that make it difficult for him to continue. “My professional conduct would be affected” he said in the letter, if he were to continue with the case. He signed off saying he took this step with “disappointment”.

What provoked the resignation?

“The prosecution team has no case, they have found no evidence” one of the defence lawyers tells Dawn. Some of Jamil’s detractors take that line a step further. In an anonymous video posted on YouTube, for example, edited and scripted like a TV package but without the logo of any channel, Jamil is accused of “deserting” the FIA after employing “delaying tactics” for as long as he could.

The narrator of the package calls him names towards the end, and hails a decision by an Islamabad court to grant bail in a similar case involving Axact, showing footage of the accused leaving the courtroom amidst a shower of rose petals. In another blog entry posted on a site called Pakistan Biz, and reproduced in a few other locations, he is again accused of much the same, in addition to “charging hefty fees”.

In fact Jamil worked pro bono. And if he was only employing “delaying tactics” without any evidence, how did his team manage to win every appeal filed by the defence?

A source in the FIA says that Jamil resigned for “personal reasons” to give more time to pressing family obligations. But his resignation letter points in another direction, in a cryptic statement where he says “my professional conduct would be affected” by continuing with the prosecution. There is no mention of personal reasons.

Jamil himself refuses to discuss anything beyond what has transpired in court, citing attorney-client confidentiality. But he does confirm that the investigation had ended, and the prosecution was now ready to begin.

“We have arrived in a position to file the final challan” he says. “The team has been able to pull it together in a short span of time.”

He repeatedly credits the forensic team of the FIA with having done “a fantastic job”, going so far as to say that “it is a matter of pride for the country the way the forensic experts were able to dig this information out.”

What information is he talking about?

Jamil was building his case on the materials found on the servers of Axact. According to people who worked there, the company maintained a heavily monitored office environment, recording telephone calls, monitoring the movements of its employees and their interactions with each other, and so on. All of this material, stored on its servers and hard drives, was seized by the FIA and made part of the investigation.

Some of this material was played in court during one of the bail hearings, and proved pivotal in persuading the judge to deny bail. Four telephone calls were played over the court’s audio system, calls that were placed from the offices of Axact, in which employees of the company can be clearly heard impersonating government officials of other countries. The calls were made to people who had already purchased a fake degree that Axact is accused of trafficking in. The callers, some of whom are in custody and cooperating with the investigators, can be heard pressuring, bullying and misleading the person on the other end into making additional payments to obtain a new certification for their degree, or risk being reported to the employer or their host country’s authorities.

But for the prosecution to proceed, the investigators needed a smoking gun. It wasn’t enough to establish that criminal deeds were being carried out in the premises of the company. The interim charges under which the accused have been held state that “they systematically and continuously acted in an organised manner on multiple occasions” to orchestrate a massive scam that, by some estimates obtained by investigators, had almost 200,000 victims. To prove that the wrongdoing that can be heard on the tapes was part of an organised effort, the prosecution needed a smoking gun, a document that directly connected Shoaib Shaikh with the activity taking place on the tapes.

A source with direct knowledge of the facts of the investigation says they found this smoking gun, allowing Jamil to give the court the commitment that he will be ready to frame final charges by the end of the month. And that is precisely when something seems to have happened, prompting his resignation.

Does a smoking gun exist to link the principal accused with the crime? That would be forensic evidence. And if so, did its discovery activate polite suggestions from powerful quarters, directed either towards the investigators or the prosecution, to soft pedal the prosecution, perhaps by burying key pieces of evidence? We’ll know soon enough. The FIA claims the prosecution will proceed with “relentless fortitude”, despite the departure of the lead prosecutor under mysterious circumstances. “We’ll be filing the final charge sheet within days,” says a high level source within the FIA.

Published in Dawn, January 25th, 2016

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