LAHORE: The Lahore High Court on Monday granted post-arrest bail to Pakistan Muslim League-Nawaz vice president Maryam Nawaz in the Chaudhry Sugar Mills (CSM) case, observing that the “bail cannot be withheld as a punishment”.

While announcing the judgement that it had reserved last week, a two-judge bench comprising Justice Ali Baqar Najafi and Justice Sardar Ahmad Naeem asked Ms Maryam to surrender her passport and furnish surety bonds as the prosecution feared she might flee the country.

Interestingly, the bench granted the bail on merit and not on the ‘humanitarian grounds’ as sought by the petitioner to see her hospitalised father and declared the allegations levelled against her by the prosecution “a case of further inquiry”.

Justice Najafi read out operative paragraphs of the verdict in open court.

The bench rejected arguments of the petitioner with respect to double jeopardy, ruling that the impugned inquiry into the CSM never remained a subject matter in the Panama Papers case.

LHC asks PML-N leader to surrender her passport as prosecution fears she might flee country

Deciding a charge of abetment, aiding and conniving on the petitioner in acquiring assets allegedly beyond means, the bench observed that the analysis of Suspicious Transaction Report (STR) that led to the impugned inquiry reflected transfer of money from the account of the former prime minister to the CSM but the name of the petitioner (Ms Nawaz) did not figure anywhere.

These two important foundations did not prima-facie expose the name of the petitioner directly to suggest that she actively participated, connived, abetted or aided to acquire assets disproportionate to the known sources of income since no connection of the petitioner was established with the said foreign nationals in order to persuade them to invest in the CSM to attract the provisions of National Accountability Ordinance, 1999 and Anti-Money Laundering (AML) Act, 2010, the court observed.

With respect to a huge amount transferred by UAE nationals as consideration for shares in the CSM, the bench observed that the absence of a direct mention of the petitioner in the report did not suggest that she actively participated, connived, abetted or aided to acquire assets beyond known sources of income.

No connection of the petitioner was established with the said foreign nationals in order to persuade them to invest in the mills to attract the provisions of National Accountability Ordinance 1999 & Anti-Money Laundering Act 2010, it added.

The bench dismissed the petitioner’s argument that since she was minor at the time of the CSM establishment, she could not be held responsible for any such transaction. It observed that the allegations against her pertained to the year 2008 and onward when she was not a minor and was in fact a shareholder with increased shareholding.

As far as the ownership of shares of UAE national Nasser Abdullah Hussain Lootah was concerned, the bench said the official record of the Securities and Exchange Commission of Pakistan (SECP) did not show that he was not the shareholder. It noted that Mr Lootah admitted before the National Accountability Bureau that he sent the money out of investment made by the petitioner’s family in real estate on their instructions back to them though he did not own any share in the CSM.

“In our considered view, the petitioner has prima facie shown her money trail linked to the said foreigners, leaving the prosecution to further probe into the matter of the allegation against the petitioner,” the LHC observed.

The bench remarked that the trial court could decide the fate of Mr Lootah’s testimony recorded before a magistrate in the absence of the petitioner and her counsel, without permitting them the right to cross-examine him.

It further observed the amount of US$4.885 million sent by Mr Lootah to co-suspect Yousaf Abbas as a profit/investment from real estate made by the petitioner’s family would shift the onus back to the prosecution to prove it as a dubious transaction.

The bench noted that the statements of three other UAE nationals, who were also mentioned as CSM shareholders, had not been recorded so far by the prosecution, calling for further probe into the guilt of the petitioner.

“In the present case, it has not come on record that the petitioner had in any manner aided, abetted to persuade the foreign nationals to send their money into the M/S CSML account,” the bench ruled.

It observed that the implication of Section 3 of the AML Act, 2010 required some nexus with crime proceeds, therefore, a further investigation would be required to attract the ingredients of this section in the instant case.

It said the question of making layers and becoming beneficial also required further probe since it was not the prosecution’s case that investments in the real estate in the UAE was out of some crime proceeds in the form of ill-gotten money.

“It is also not the prosecution case that the said money coming from the UAE was black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc.,” the bench observed, adding that attracting foreign investment had always been a perennial demand of every government and all governments would dream of it, but great hurdles were always faced by them to turn it into a reality.

With respect to Rs70m transaction made in the petitioner’s account, the bench ruled that the withdrawal of money as alleged by the anti-graft watchdog could not be termed ill-gotten money or an asset beyond known source of income since prima-facie the source of money was shown in the official record of mills with reference to foreign investment.

The bench also rejected an argument of the prosecution against court’s jurisdiction to hear the bail petition under Article 199.

“It is true that corruption and corrupt practices are rampant in our society, therefore, needed to be curbed with an iron hand but at the same time this court cannot keep its eyes off the legal proposition that bail cannot be withheld as a punishment since this court would otherwise transgress into the power of the trial court to return its finding upon guilt on the basis of evidence,” observed the bench.

The court, however, left unanswered the point of “humanitarian ground” taken by the petitioner for the interim bail so as to see her hospitalised father as the same had not been pressed by her counsel.

Referring to some previous judgments, the bench, however, entertained the ground taken by the petitioner of being a woman who had neither absconded nor obstructed the process of law.

“We allow this petition and admit the petitioner to post-arrest bail subject to furnishing of surety bonds in the sum of Rs10 million with two sureties each in the like amount to the satisfaction of the learned trial court and to establish her bona fide, would also deposit amount of Rs70 million with the deputy registrar (judicial) of this court besides submitting her passport(s) with him,” the bench concluded the judgement.

Officials of the anti-graft watchdog had arrested Ms Nawaz on Aug 8 when she went to Kot Lakhpat jail to see her incarcerated father, former prime minister Nawaz Sharif. She remained in the bureau’s custody till Sept 25 when the trial court remanded her to judicial custody. The LHC has already granted bail to ex-PM Sharif in the same case on medical grounds.

Sources in the NAB said the bail granted to Ms Nawaz would be challenged before the Supreme Court.

Published in Dawn, November 5th, 2019