ISLAMABAD: The Supreme Court on Thursday restrained the relevant authorities from transfers, postings or removals of those involved in the investigation or prosecution of high-profile cases against top government functionaries pending in the courts of special judge (central) and the accountability courts.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, the larger bench also ordered that no prosecution case will be withdrawn against the top government officials until the next date of hearing.

The bench, also consisting of Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Muhammad Ali Mazhar, had taken suo motu notice on apprehensions of undermining criminal justice system.

The apex court is concerned with the guarantees provided by the Constitution to the people of Pakistan under Article 4 for the rule of law, Article 10 for compliance with due process and Article 25 for equal protection of and equal treatment of all persons in accordance with law, observed the CJP.

Supreme Court seeks names of those transferred in FIA and NAB, removed from ECL in last six months

These guarantees serve to assure the integrity, sanctity and fairness of the criminal justice system and to secure that alone is the object of these proceedings, the CJP observed, also brushing aside the impression of point-scoring or embarrassing or accusing any individual. The court also made it clear that these top officials in the government were only accused and not convicts and that the court only wanted to ensure that no one was allowed to fiddle around with the criminal justice system.

The apex court, the CJP observed, did not get affected by fair or unfair criticism, adding the judges answered only to the Constitution, were not afraid of criticism and did not seek any gratitude or praise.

He also observed that the court or judges must not be condemned for a judgement or decision, adding today political parties had strong media sections, but “we know our strength and weaknesses”, and highlighted a number of vacancies of judicial officers in different provinces.

During the hearing, Attorney General for Pakistan (AGP) Ashtar Ausaf also sought leave to file documents that to his mind will be of assistance in the matter of securing, promoting and ensuring the integrity, sanctity and the fairness of the justice system in the investigation, prosecution and trial of high-profile cases before these courts.

When the AGP sought ample time for the purpose, CJP Bandial observed the court would find other people -- like the courts below it -- for assistance.

The Supreme Court also issued notices to the interior secretary, the Federal Investigation Agency (FIA) director general, the National Accountability Bureau (NAB) chairman/regional directors, prosecutors general and advocates general in the provinces and the Islamabad Capital Territory (ICT) and the head of prosecution branch in the FIA and NAB.

These officers are required to file their statements in writing, answering to the extent relevant to them, the allegations, facts and material contained in the opinion of the recommending judge for the commencement of these proceedings.

The order explained that the points involved for response and explanation by these officers are: the names of such officers and their successors in the investigating and prosecution branches of the FIA and NAB in high-profile cases, who have been transferred, posted, removed from their positions in the last six weeks, the names of those who have been removed from the Exit Control List (ECL) during the same time and the process employed in distinguishing their cases for the relief granted.

The statement should also contain the description of the process adopted for dealing with the ECL-affected persons and whether the previous process has been amended or abandoned as a result.

The opinion on the basis of which suo motu notice was taken also suggested that out of 4,663 names on the ECL, 3,000 will benefit from the change of standard being implemented on the removal from the list. The CJP emphasised that the process for removing names from the ECL should be transparent, otherwise it spreads despondency, adding he expected the federal government to cooperate in explaining the situation.

The court also ordered status quo till the next hearing and that steps be taken for the preservation of case files and case records with the investigating and prosecution branches and the record of the trial court concerned.

The investigation and prosecution record in respect of high-profile cases pending with both the FIA and NAB will -- unless required for submission in court -- be checked, verified and kept in safe custody of the head of the department concerned, and a report stating compliance will be presented to the Supreme Court on May 27.

The court also issued notices to the registrars of high courts for conveying this order to the courts of special judge (central) and accountability functioning within the jurisdiction of the respective high courts.

Transfers, postings and removals of people involved in the investigation of or prosecution of high-profile cases falling within the jurisdiction of the above mentioned courts shall not be carried out till further orders.

The CJP also mentioned a media report highlighting that NAB Special Prosecutor Jehanzeb Bharwana had recently told the Islamabad High Court that records of four cases against former president Asif Ali Zardari had gone missing.

He also asked the AGP to read an application of a prosecutor in the FIA that he had been conveyed instructions from his DG Rai Tahir not to appear in high-profile cases. The note on the basis of which the suo motu notice was taken includes newspaper reports like the passing away of FIA director Dr Muhammad Rizwan, setting up of a committee by Prime Minister Shehbaz Sharif to update the ECL rules, names of the PM and Maryam Nawaz struck off from ECL, tampering with FIA records relating to the Sharif family, the government’s intention of removing the NAB chairman and amending the NAB rules etc.

Published in Dawn, May 20th, 2022

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