ISLAMABAD: Redefining power of the National Accountability Bureau (NAB) to investigate ex-military men, especially retired generals, the Islamabad High Court (IHC) on Friday directed the bureau to proceed against Pervez Musharraf for his alleged corruption while holding the office of president of Pakistan.

A division bench of the IHC comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb issued the landmark judgement on a petition filed by retired Lt Col Inamur Rahim in 2014 seeking probe into the alleged corruption by retired Gen Musharraf.

The judgement has cleared a 19-year-old ambiguity in the National Accountability Ordi­nance (NAO) 1999 due to which NAB had always shown reluctance to proceed against retired army officers despite complaints of mega corruption against them.

In his complaint filed some five years ago, the petitioner had asked NAB to hold an inquiry into the allegation that the general in his nomination papers had declared assets which were beyond his known sources of income. The bureau, vide letter dated April 25, 2013, informed the retired colonel that his complaint could not be entertained for want of jurisdiction, because as a member of the armed forces the general was immune from being proceeded against under the NAO.

In landmark judgement, IHC clears ambiguity due to which NAB did not proceed against ex-army officers despite corruption complaints

The IHC verdict discussed in detail the scope of NAO and its applicability to retired military personnel.

“In the light of the above discussion retired General Pervez Musharraf is amenable to be proceeded under the [NAB] Ordinance of 1999 and thus investigated, tried or convicted there under because of two eventualities; firstly, for having held the Constitutional post of the President of Pakistan and secondly, clause (vi) of section 5(m) of the Ordinance of 1999 is attracted because he had resigned and stands retired from the Armed Forces of Pakistan,” the division bench declared.

The verdict further said: “For what has been discussed above, we are satisfied that the bureau has indeed erred in misinterpreting the provisions of the NAB Ordinance of 1999 by refusing to consider and entertain the complaint, which had been filed by the petitioner.”

Hence the IHC bench declared NAB’s written refusal to entertain the complaint against Gen Musharraf on April 25, 2013 “illegal and has been issued without lawful authority”.

The court ruled: “The bureau is vested with the power and jurisdiction to consider the complaint of the petitioner and after such consideration if it is of the opinion that an offence under the Ordinance of 1999 is prima facie made out, then it will become a duty of the latter to proceed to inquire, investigate and take all other steps mandated under the Ordinance of 1999.”

According to the petitioner, Mr Musharraf as Chief of the Army Staff as well as the President of Pakistan violated his oath according to which he was duty bound to defend the country and protect its citizens. Retired Lt Col Inam referred to page 237 of Musharraf’s book, In the Line of Fire, and its chapter titled ‘Man Hunt’ pointing out that the former military ruler admitted to handing over a large number of people to the US in order to make money.

The petitioner also alleged that Mr Musharraf “injected corruption into the senior hierarchy of the armed forces by allotting them plots over and above their entitlements”.

In April 2013, the retired colonel said, he approached NAB against the alleged corruption but the bureau did not entertain his application with the observation that the allegations pertained to the tenure of retired Gen Musharraf as COAS and president of Pakistan that the bureau said did not fall under the ambit of the National Accountability Ordinance (NAO), 1999.

In 2014, the counsel for Mr Musharraf, Akhtar Shah submitted a reply on behalf of the former military ruler. He argued that NAO 1999 did not cover the acts of corruption of an army officer during his tenure of service. Therefore, he said, the complaint had been rightly returned by NAB.

On Jan 25, 2018 when the petitioner requested the IHC to direct NAB to initiate proceeding against Mr Musharraf, the bench asked how the court could pass such directions to the bureau as there was a certain procedure under NAO 1999 for dealing with complaints. In his response, the counsel for the petitioner referred to the July 28, 2017 verdict of the Supreme Court and argued that there was precedent that a direction could be given to NAB for preparing and filing of a reference.

Published in Dawn, February 10th, 2018