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Justice Khosa withdraws from Hudaibya appeal hearing

November 14, 2017

ISLAMABAD: Justice Asif Saeed Khosa — the puisne judge of the Supreme Court — on Monday withdrew himself from the three-judge bench constituted specially to hear an appeal in the Rs1.2 billion Hudaibya corruption reference.

Moved by the National Accountability Bureau (NAB), the appeal challenged the 2014 quashment of the Hudaibya Paper Mills reference by the Lahore High Court (LHC). Justice Khosa was to head the bench, which also consisted of Justice Dost Muhammad Khan and Justice Mazhar Alam Khan Miankhel.

Following his recusal, the matter will be referred to Chief Justice Mian Saqib Nisar again, who may constitute another bench to hear and decide the appeal.

At the outset of Monday’s proceedings Justice Khosa was surprised that the NAB appeal had been fixed before him, saying that it seemed the court’s office had not read the court’s April 20 judgement in the Panama Papers case, where he had written 14 paragraphs on the Hudaibya reference.

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Justice Khosa recalled that it was he who had ordered NAB to proceed against Finance Minister Ishaq Dar, and had noted in the judgement that he was not arrayed as an accused in the final reference filed by NAB, but was rather a prosecution witness when the reference was quashed and reinvestigation was barred.

The quashment did not acquit Mr Dar, nor did it eliminate the possibility of his trial over the charges at any subsequent stage, the judge recalled, adding that once the reference was thrown out, the pardon granted to him by the NAB chairman ceased to hold the field.

Mr Dar was, therefore, an accused person in the reference who had never been acquitted and against whom no reference had been quashed.

On Monday, when NAB Special Prosecutor Syed Imran Ali requested Justice Khosa to order the case to be fixed for hearing next week, the judge observed that such a decision was the prerogative of the chief justice.

In its appeal, filed on behalf of NAB Prosecutor General Waqas Qadeer Dar on Sept 20, the bureau has sought leave to appeal against the March 11, 2014 LHC verdict. NAB has filed a separate application asking the apex court to condone the delay in filing the appeal.

The respondents in the matter include deposed prime minister Mian Mohammad Nawaz Sharif, Punjab Chief Minister Mian Mohammad Shahbaz Sharif, their mother Mrs Shamim Akhtar, the late Mian Mohammad Abbas Sharif, Maryam Safdar, Hussain Nawaz, Mian Hamza Shahbaz, M/s Hudaibya Paper Mills Ltd, the federal government as well as the judge of Rawalpindi accountability court No 4.

If NAB manages to convince the Supreme Court to accept its appeal, it will mean resurrecting Reference No. 5 of 2000 and filing it before the accountability court concerned for a final decision.

The reference accuses the respondents of setting up the Hudaibya Paper Mills to launder money under the cover of the Economic Reform Act 1992. The money was laundered by converting the same into Foreign Exchange Bearer Certificates, to be deposited into foreign currency accounts opened in the name of ‘benamidars’ and friends by allegedly forging the signatures of some of the account holders.

These foreign currency accounts were then allegedly utilised by the Sharifs as collateral to obtain credit lines in Pakistani rupees for the Hudaibya Paper Mills. The reference also accused Finance Minister Dar of helping open a number of fictitious bank accounts, as well as a number of other illegal activities.

The reference alleged that the laundered money, shown as the share-deposit equity of Hudaibya Paper Mills, was used to pay the liabilities of the mills and other allied companies of the group, amounting to Rs642.7 million.

On Dec 3, 2012, the high court had quashed the reference in a unanimous judgement, but the judges disagreed over the permissibility of a NAB reinvestigation. The matter was referred to a referee judge, who held that a reinvestigation was not permissible because it would mean providing NAB another opportunity to shore up the lacunas in their case to victimise the Sharifs.

In the appeal, the bureau has argued that the verdict was not in consonance with the dictum of the apex court, also contending that the referee judge was not competent to set aside the findings of the high court judge on the question of re-investigation.

The investigation of corruption allegations was a continuous process aimed at reaching a just conclusion and no embargo could be placed on fresh or further investigations, especially when new material had emerged, the appeal contended.

In the presence of fresh material, produced by the Joint Investigation Team before the Supreme Court, NAB could not be blocked from fulfilling its legal obligations, the appeal concluded.

Published in Dawn, November 14th, 2017