The Supreme Court on Monday questioned the National Accountability Bureau's (NAB) lawyer regarding the circumstances under which former prime minister Nawaz Sharif was exiled to Saudi Arabia in 2000 ─ the same year the Hudaibiya Paper Mills reference was filed against Nawaz and Shahbaz Sharif before an accountability court.
A three-judge SC bench ─ comprising Justice Mushir Alam, Justice Qazi Faez Isa and Justice Mazhar Alam Khan Miankhel ─ had resumed hearing a NAB appeal against a 2014 decision of the Lahore High Court to quash the Rs1.2 billion reference.
The bureau's lawyer, Advocate Imranul Haq, recalled that the case was first registered on March 27, 2000 and that the accused returned to Pakistan on November 25, 2007.
"Who exiled Nawaz Sharif? Why aren't we taking that person's name?" questioned Justice Isa, asking Advocate Haq whether the law has provisions for an individual to be forced into exile.
The lawyer replied that while there are no provisions in the law to this effect, an understanding was reached between the accused and the government at the time of Nawaz's exile. "At the time, the chief executive of the country was Pervez Musharraf," the lawyer added.
"What will the courts do if tomorrow the prosecution reaches an understanding with a murderer?" Justice Isa asked. "Nobody, including the Supreme Court, has the right to send an accused person into exile."
"Was the country being ruled in keeping with the law or on the whims of an individual?"
The lawyer told the court that under the agreement reached with the government, Nawaz went into exile himself.
"If he went into exile voluntarily, action should have been taken against him as an absconder," Justice Isa said.
"Nawaz Sharif returned to Pakistan on the Supreme Court's order," Advocate Haq said.
"If Nawaz had left the country voluntarily, he would not have had to file a petition before the court for his return," Justice Isa observed.
Justice Alam questioned why the accused was not arrested upon his return, to which the lawyer replied, "Once the case was underway, only the court could have ordered the accused to be arrested."
Stay order
The advocate told the court that on July 17, 2011, the NAB chairman had filed a request for the case to be reopened.
On 17 October that year, the accused had filed a petition in the Lahore High Court and the day after a stay order was issued by the court, the lawyer said.
"The LHC did not issue a stay order,"Justice Isa told the court, adding that NAB had the reference squashed.
"Even if we revoke the high court's decision, the references will not be restored," Justice Isa remarked.
The lawyer replied that an accountability court will hear the petition for the references to be restored.
On a question by Justice Isa about the grounds for the original reference, the lawyer said that fake bank accounts had been set up.
The court asked the lawyer to present arguments regarding reopening of the Hudaibiyacase.
"If it weren't for the Panama Papers case, you wouldn't do anything," Justice Isa said, instructing the lawyer to read the operative part of the SC's verdict in the Panama Papers case.
"The verdict does not say anything about Hudaibiya," Justice Isa noted. "It says that when NAB files an appeal, it will be looked at."
The apex court adjourned the hearing until 11am tomorrow (Tuesday), prohibiting discussions on the Hudaibiya reference from being aired on TV channels.
NAB's application dismissed
Earlier, the court had expressed its displeasure with the arguments presented by the lawyer in relation with an application filed by the bureau seeking an adjournment of today's proceedings in the Hudaibiya Paper Mills reference until its new prosecutor general is appointed. The court dismissed the application.
"The office of the NAB prosecutor is vacant and it will be appropriate that a prosecutor appears in the court for such an important case," the bureau's lawyer had argued before the court.
The bench, however, observed that the reason provided by the bureau for an adjournment had no basis, expressing its displeasure with the lawyer's argument and the adjournment application.
"Do not ridicule the court," Justice Isa said. "Why shouldn't we initiate contempt of court proceedings against you? Every case is high-profile for us," the judge told the lawyer.
"We have nothing to do with the appointment of the prosecutor," Justice Alam said.
Justice Isa asked the lawyer on whose recommendation the application for adjournment had been filed.
The lawyer replied that the decision was taken during a meeting over which the bureau's chairman presided.
"In that case, why don't we call the chairman to appear before the court?" Justice Isa said.
Documents submitted
During today's hearing, the lawyer also told the court that on Saturday he had submitted before the SC documents that were sought by the bench on Nov 28. On that day, the bench had adjourned the hearing due to NAB lawyer's lack of preparation.
Copies of interim, the final reference on Hudaibiya case, and Volume 8A of the report of the Panama Papers joint investigation team, which also contains the copy of the Hudaibiya reference, were submitted before the bench on Saturday.
In addition, NAB had submitted the diary of the accountability court that had heard the Hudaibiya reference, as well as the procedure of appointment of the NAB chairman and the list of all chairmen of the bureau appointed so far since its inception in 1999.
NAB had also furnished before the court a timeline during which Nawaz Sharif served as prime minister as well as the period when he was in exile after the ouster of his government by Gen Pervez Musharraf.
Hudaibiya Paper Mills case
The 2000 Hudaibiya Paper Mills money laundering reference was initiated on the basis of an April 25, 2000 confession statement from Ishaq Dar, wherein he admitted to his role in laundering money to the tune of $14.86 million on behalf of the Sharifs through fictitious accounts.
The witness was, however, pardoned by the then NAB chairman.
LHC referee judge Justice Sardar Shamim had quashed the reference on March 11, 2014 on the grounds that if a re-investigation was allowed against the Sharif family, it would provide an opportunity to investigators to pad up lacunas.
The LHC had quashed the case as the PML-N continued to claim that Dar's statement was taken under duress.
Later, NAB had decided not to challenge the high court’s decision.
While Nawaz was not named in the interim reference filed in March 2000, in the final reference against the Hudaibiya Paper Mills — approved by then chairman NAB Khalid Maqbool — the bureau had accused Nawaz Sharif, Shahbaz Sharif, Abbas Sharif, Hussain Nawaz, Hamza Shahbaz, Shamim Akhtar, Sabiha Abbas and Maryam Nawaz.
