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Loopholes in judicial system: bigwigs get off the hook

August 11, 2012

ISLAMABAD, Aug 11: It has become customary that bigwigs who get caught in scams manage their acquittal using loopholes of the judicial system.

Since 2011, those involved in high-profile cases — six corruption references — have been acquitted by the Accountability Courts in which President Asif Ali Zardari was allegedly involved.

In corruption references, some of the witnesses backtracked in their statements, recorded against the accused.

Even an investigation officer of Ursus tractor reference disowned the photo copies of his own investigation report as the original report along with the court record was reportedly misplaced during the transfer of the cases from Attock to the Rawalpindi courts.

The influential accused persons in the high profile cases are still being exonerated, even in those cases in which the Supreme Court had taken suo motu notice and had remanded the cases to the trial courts.

In the Haj corruption case, the then federal minister Hamid Saeed Kazmi was considered to be the main accused.

The final challan submitted to the court by the Federal Investigation Agency (FIA), however, exonerated Mr Kazmi from other sections of 409, 420, 467, 468, 471 and 109 (related to fraud and abetment) of Pakistan Penal Code in which the convict may get life imprisonment and only charged him with section 5(2)47 of Prevention of Corruption Act (PCA) in which the maximum punishment is not more than 7 year.

According to the FIA, special prosecutor Chaudhry Zulfiqar Ali, the former minister is facing charges of negligence, as it was his duty to oversee matters related to the Haj arrangements, therefore, the prosecution did not charge him with the sections of PPC.

Sardar Naseer, the counsel of Mr Kazmi, however, believed that section 5(2)47 did not attract his client in the Haj corruption case as being chairman building hiring committee, the then director general Haj Rao Shakeel Ahmed was the main accused.

Mr Ahmed has been appointed as DG Haj was appointed by the prime minister Syed Yousaf Raza Gillani, while the minister had no role in his appointment.

The recent acquittal of a member National Assembly from Pakistan Muslim League-Nawaz (PML-N) Anjum Aqeel Khan is another example of bigwigs getting off the hook. MNA Mr Khan was arrested in July last year in connection with his alleged involvement in Rs6 billion National Police Foundation land scam. After his escape, the Shalimar police had booked the MNA and his 15 supporters on charge of forcibly freeing from police custody.

ATC judge Chaudhry Habibur Rehman on July 24 while acquitting the MNA observed that for the sake of arguments if the allegation against Mr Khan was true, even then it was also a fact that he had later voluntarily surrendered to the police.

The 12 police officials from the ranks of sub-inspectors to constables, who were the witnesses of the prosecution and had earlier recorded their statements against the accused became “hostile witnesses”, and also backtracked from the allegation.

Advocate Syed Tayyab, the special prosecutor of Islamabad police when contacted said backtracking to their earlier statements of the police official was the main reason of the acquittal of PML-N lawmaker.

I cross-examined the hostile witnesses in the court and asked them whether they changed the statements under some pressure or incentive.

I also suggested to the witnesses in the court that they went in some under the table deal but the witnesses denied that and exonerated the MNA, he added.

A prosecutor on condition of anonymity told Dawn that it is impossible that the police officials, who work on the advice of prosecution could change their statements on their own.

He expressed possibility of the involvement of their bosses in an under-the-table deal and said that the constables and sub-inspectors might have turned hostile witnesses on the direction of their superiors.

Superintendent of police (SP), prosecution department Islamabad, Niamatullah Kundi when approached for comments said that the department took notice of this extraordinary situation in which the police officials reverted from their already recorded statements.

He said that the strict disciplinary action has been recommended against the ‘hostile witnesses’ and the inquiry in this regard has also been initiated.

In October 2011, a session court of Lahore acquitted a member Punjab Assembly of PML-Q, and son of former chief minister Pervez Elahi, Moonis Elahi in the National Insurance Company Limited (NICL) scam in which he allegedly forced NICL to buy land at a highly inflated price.

In the Moonis case, bank officials had turned “hostile witnesses” and did not utter a single word against Moonis in their statements.

According to the court order the accused was not nominated in the first information report and the only evidence available against him was the confessional statements of Abdul Malik, manager of Moonis’s firm At-Tahur (Pvt) Ltd., and Khalil Ahmad, a banker, adding that the confession of an accused cannot be used against his co-accused for passing a conviction, unless it is corroborated with evidence.

FIA had alleged that an amount of Rs10 million was transferred from the account of Mohsin Habib Warraich, an accused in the NICL land scam, to the account of Khadim Traders on April 30, 2010.

Muhammad Malik, manager of At-Tahur, a company owned by Moonis, withdrew that amount.

The court, however, observed that there was no direct or indirect evidence that the amount credited into the account of Khadim traders was ever given to Moonis.

Tariq Asad, legal counsel of Ayaz Khan Niazi the main accused in NICL scam, when contacted said that prosecution agencies in order to show their efficiency prepare fake cases and then create unnecessary hype.

According to him, it is survival of the fittest; the investigation agencies exonerate the powerful under certain pressures, while making others scapegoats, in order to maintain their impression of being efficient and to avoid embarrassment.

Saleemullah Khan a retired inspector general of police and practicing lawyer claimed that the primitive prosecution methodology, in which the eye-witness is the key, is the main reason of acquittals.

He said our law of evidence is based on the Police Act of 1861, which is in fact a pro-accused law, adding that the law is a reason in the rapid increase in organised crimes.

He suggested that the law of evidence should be pro-prosecution in which forensic evidence —photographs, video/CCTV footage or mobile phone record-would be treated at par with the evidence of eye witnesses. Ends.