ISLAMABAD: Prime Minister Imran Khan has claimed that the Sharif family got an NRO in the Hudaibya case, getting away with the allegation of money laundering although the accusation was dismissed as inconsequential by the Supreme Court.A three-member bench comprising Justice Mushir Alam, Justice Qazi Faez Isa and Justice Mazhar Alam Miankhel in December 2017 dismissed an appeal of the National Accountability Bureau (NAB), belatedly seeking reopening of the Hudaibya Paper Mills Limited reference against the Sharif family, Ishaq Dar and others.“If the Sharif family had not got NRO from Musharraf in the Hudaibya Paper Mills Limited case and if the case had been decided on merit, money laundering would have ended in Pakistan today. Unfortunately, the NRO in the Hudaibya Paper Mills Limited has been used as a model in all other cases. Money was sent abroad through front men and then got back in Pakistan. In the matter of Asif Zardari and Nawaz Sharif this model was followed,” the premier said according to an official statement, released after Information Minister Fawad Chaudhry’s meeting with him on Sunday.In its appeal, the NAB had sought condonation of delay of 1,229 days in filing this petition that the bench refused in its judgment authored by Justice Faez Isa and endorsed by the two other judges. It also held that a money laundering case is to be tried by a sessions court, and not by an accountability court under the National Accountability Ordinance (NAO).The panel came to the “painful conclusion” that the Sharif family and other respondents were denied due process. The legal process was abused, by keeping the reference pending indefinitely and unreasonably. The respondents were denied the right to vindicate themselves. The reference served no purpose but to oppress them, the judgment said.“We have also noted with grave concern the lack of commitment and earnestness on part of NAB at the relevant time. NAB did not produce the accused in [accountability] court; NAB did not seek to have charges framed against them; NAB did not examine a single witness, and tender evidence; NAB sought innumerable adjournments; NAB sought the reference to be indefinitely (sine die) adjourned. For over four years, NAB chairman did not submit an application under his signature for the restoration/revival of the reference. And, when the chairman did submit such an application it was not pursued. The reference remained moribund.”The judgment said the references were filed against respondents in the year 2000, and were based on the opening of the alleged Benami foreign currency accounts in the year 1992, or earlier, and it was alleged that the monies from such accounts were converted into rupees and then invested into the Hudaibya Company.The purported offence was, therefore, committed over twenty five years ago. Reading constitutional provisions (cited in the verdict] together it becomes clear that a person cannot indefinitely await the pleasure of a prosecuting agency to prosecute him. If this is allowed prosecution becomes persecution, “and persecution (or oppression) is worse than death (or killing)”.The decision said that the final reference also states that the Sharifs “in order to launder and conceal their ill-gotten wealth” had “opened fictitious foreign currency accounts”. It is not clear whether the reference to “launder” wealth is an allegation of “money laundering”. Panama Joint Investigation Team (JIT) report refers to “money laundering” that took place in 1991-1992. However, money laundering was made an offence in Pakistan when the Anti-Money Laundering Ordinance, 2007 was enacted on September 7, 2007. Neither in the years 1991-1992 nor when the references were filed, in the year 2000, did money laundering constitute an offence. There is another aspect to consider. The term money laundering, as defined in this Ordinance and then Anti-Money Laundering Act, 2010, states that it emanates from “proceeds of crime”. However, NAB doesn’t allege that the monies in the foreign currency accounts were proceeds of crime.According to the judgment, the record reveals that none of the accused had ever requested that the case be adjourned, let alone, it be adjourned sine die. NAB was spurred into action when the respondents filed a writ petition to remove the sword of Damocles from over their heads. A person should not be penalised for approaching the [Lahore] High Court (LHC) to secure his fundamental rights. The comments filed before the LHC by NAB did not state that NAB was now ready, able and willing to pursue the application seeking revival/restoration of the references, let alone, to proceed with them. The respondents were in Pakistan for over a year before they were exiled and neither then nor when they returned did NAB proceed with the references.The ruling said that to enable a statement recorded under section 164 of the Code of Civil Procedure (CPC) to be used against an accused, it must be recorded “in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement”. Ishaq Dar’s [purported confessional] statement says that the “money [in the foreign currency accounts] was/is owned by the Sharif family”, therefore, if this statement is to be treated as a statement under section 164 and sought to be used against the Sharif family, it should have been recorded in their presence and they should have been given the opportunity to cross-examine Dar. As this was not done the law does not permit it to be used against the Sharif family, the judgment said.It said that the NAB prosecutor stated that the Sharifs’ exile was by mutual agreement, and Nawaz Sharif and Shahbaz Sharif did not want to return to Pakistan with a view to avoiding prosecution. “Exile is alien to the laws of Pakistan; lawyers and judges must not give credence to it because we then run the risk of the concept of exile gaining traction and causing harm to the administration of the criminal legal system. A purported document, which mentions exile, even if reduced into writing, does not constitute an agreement or a contract in law. If such a document is executed with an incarcerated person accused of a crime it would not be entered into with “free consent”.According to the decision, such an agreement will also not be for “a lawful consideration and with a lawful object” and it would therefore be void. In any event the state and those who have the physical custody of an accused are responsible to produce him in court and cannot exile him. It is an offence punishable with rigorous imprisonment for up to ten years, if any person compromises, hampers, jeopardizes or defeats any investigation under process before NAB or the Accountability Court. The Sharif brothers could not exile themselves. The person or persons who had exiled them would be deemed to have compromised, hampered, jeopardized and/or defeated the legal process; however, NAB did not launch a prosecution against them.”
from The News International - National http://bit.ly/2InHWxt
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