ISLAMABAD: The National Accountability Bureau (NAB) on Monday accused the governments of the Pakistan Peoples Party (PPP), Pakistan Muslim League-Nawaz (PML-N) and former president retired Gen Pervez Musharraf of keeping adjourned for an indefinite period the Rs1.2 billion Hudaibya corruption reference against the Sharif family.

“Keeping the reference 5 of 2000 (Hudaibya reference), adjourned sine die was a collusive arrangement of the PPP, PML-N and regime of Gen Pervez Musharraf,” argued a 39-page petition filed by the NAB through Special Prosecutor Imran-ul-Haq seeking review of the Jan 5 judgement in the Hudaibya case.

This was the reason why the NAB authorities did not show interest in prosecution of the reference, the petition explained.

On Jan 5, a three-judge Supreme Court bench headed by Justice Mushir Alam, while rejecting NAB’s appeal against the 2014 Lahore High Court (LHC) quashment of reference, had held that the legal process was abused and due process was denied to former prime minister Nawaz Sharif, his brother and Punjab Chief Minister Shahbaz Sharif and other respondents through “protracted” proceedings in the Hudaibya reference.

Watchdog blames successive govts for keeping the reference adjourned indefinitely

But NAB argued that it cannot be stated that after 2007 the regimes of Gen Musharraf or of the PPP were inimical towards the PML-N rather they were instrumental in bringing back the Sharif family into the political arena.

Thus the Jan 5 judgement of the Supreme Court in the Hudaibya case is in conflict with the Panama judgement rendered by a larger bench and, therefore, needs to be revisited, the review petition highlighted.

The petition emphasised that the respondents (the Sharif family) were never subjected to intensive investigation because they were never taken into custody by NAB in the Hudaibya reference.

“There is not an iota of evidence that NAB has any animosity against the respondents therefore reference in the judgement is incorrect,” the petition said.

It is a well established law that reinvestigation can be carried out in any case unless the accused is acquitted after a full-fledged trial and the technicalities, if so considered a ground for quashing of proceedings can never be a hurdle in conducting reinvestigation to provide substantial justice, the petition argued.

The review petition also sought to expunge paragraphs 6, 23, 27 and 32 from the Hudaibya judgement by arguing that these seems to be superfluous and irrelevant. Interestingly in para 6 the judgement had dealt with how Gen Musharraf ousted the democratically elected government on Oct 12, 1999, as the then army chief and proclaimed emergency on Oct 14, 1999, put the Constitution in abeyance, suspended the Senate, the National Assembly, the provincial assemblies, dismissed the prime minister, all the governors, chief ministers, federal and provincial ministers and also issued PCO. Just a month after assuming power Gen Musharraf enacted the National Accountability Ordinance (NAO), 1999, and appointed a serving Gen Syed Mohammad Amjad to head NAB in the capacity of its chairman, the judgement had stated.

The petition highlighted that the apex court discarded the confessional statement of former finance minister Ishaq Dar on wrong premise like it was recorded before a magistrate after grant of pardon by the NAB chairman as required under Section 26 of NAO, 1999.

The petition argued that an important provision of law has been overlooked by the Supreme Court in the judgement under review and on the contrary wrong interpretation on the subject has been endorsed and approved which is an error floating on the surface of the judgement and, therefore, needs to be rectified.

The Supreme Court declined the NAB petition not merely on the grounds of limitation but on merits too, the review petition highlighted, adding that if the court was inclined to decide the case on its merits, then a notice to the respondents was sine qua non (an essential condition).

And the petition for the condonation of delay should have been decided at the time of final pronouncement of judgement on merit.

Similarly, when the apex court discussed the merits of the case, the maintainability of writ petitions before the high court should have been decided before embarking upon merits of the case, the petition said.

The review petition recalled that in the 2012 Tauqeer Sadiq case, the Supreme Court held that it can go to the extent of taking a suo motu notice of any judgement of the high court even if the legal proceeding was pending.

Thus when serious observations and remarks were made by the Supreme Court in the Panama judgment, importance should have been given to them, the petition concluded.

Published in Dawn, January 16th, 2018