Daily Times

For the fair play of equity, the effect of provisions of punitive laws has to be retrospective. That’s the fundamental rule of criminal jurisprudence. In Pakistan, the same has been given existence by being embodied in Article 12 of the Constitution, and made a fundamental right, which in turn is protected by Article 8. However, it has been twenty years since today’s much-hyped law, the National Accountability Bureau Ordinance 1999, was coined by Pervez Musharraf, and our lawmakers are still shying away from determining its credibility. Drafted in 1999 and implemented from 1985, it is absolutely just to ask: Is such code worthy of being implemented where the commencement, a basic ingredient of any code, raises eyebrows and, placing reliance upon Art. 8(i), “shall be” declared “void” as it is inconsistent with the rights conferred in Part II Chapter 1 of the Constitution?

Opposition behind bars: To this date, this ordinance is operating as Musharraf wanted it to. No amendment has been made to democratise this prima facie mens rea of a dictator. Resultantly, characterised as the decade of JITs, today every para of every JIT’s report ends with the recommendation of initiating reference in NAB, though “we have seen faces” and the fate of previous infinite such references ending up in acquittal.

On March 14, 2019, a member of FBR Inland Revenue (IR) Policy announced that “the government had implemented the much awaited the Benami Transaction (Prohibition) Act 2017 on Monday”. With a delay of two years. But, finally… however, timing matters. Is this Act of 2017 along with the NABO 1999 going to aid the govt in getting the desired results? It’s hard to not doubt that. Because the cornerstone of the benami accounts case, i.e. F.I.R, is already weak enough. Particularly to the extent of beneficiary # 7. The ” M/S Z Group (Asif Ali Zardari and FaryalTalpur). The name(s) that has made “benami” account case “nam’darr” (notable). Inter alias, to whom no specific role is attributed in FIR per se.

Such an FIR can’t be said to have evidentiary value where the offence is mentioned to be committed between 2014 to 2015 (with no exact date or timing) but got reported after 1815 hours on 06.07.2018. As adjudicated in Noor Muhammad v/s the state 2010 SCMR 97, “the delay of (even) 12 hours in lodging the FIR is fatal to the prosecution case”. Placing reliance upon Muhammad Fiaz Khan v/s Ajmer Khan 2010 SCMR 105, “it raises suspicion as to truthfulness (of FIR)”. Following Iftikhar Hussain and others v/s the state 2004 SCMR 1185, the benefit of such doubt shall be extended to the accused.

Used as references by the present CJP Asif Saeed Khosa whilst penning his one of landmark judgments recently, the principles embodied in these case laws are binding on all lower courts and result in infinite acquittals every day. But!!! Does NAB consider itself bound by them? Does it consider anyone supreme to it?

Had it accepted and respected the writ of words coming from the most sacrosanct building of justice, the supreme court, it wouldn’t have summoned Bilawal Bhutto Zardari on 20.3.2019, who is neither nominated in F.I.R at all nor any specific role is attributed to him in JIT report; proving his stance in the written statement correct that his position is only of only-director-in-name. Later, the then CJP SaqibNisar directed to remove Bilawal Bhutto Zardari’s name from the benami account case’s JIT ( #2 ) report but that is yet to happen.

The case is of 4145/billion and only fifteen million are attributed to the M/Z group, yet the whole JIT ( # 2) report revolves around it.

Unlike Panama Case, one of the issues is not a disqualification, but every second page of JIT ( # 2 ) synthesis report mentions ground of disqualification of Asif Ali Zardari and FaryalTalpur. The question here arises: But why? No one knows. Apparently.

One of the points that Nawaz Sharif agreed on while signing the Charter of Democracy with Shaheed Benazir Bhutto was to bring an end to the NAB ordinance via the parliament

From Article 8 to 28, “if the investigation is slow” is not incorporated as a fundamental right. So JIT cannot be formed on the said ground as a fundamental right. Particularly when an incomplete challan, though with the delay of more than three years, is already submitted before the concerned court.

As per the pertinent law, the obligation to investigate alleged offence vested in FIA, and it pleasantly surrendered its cognizance, in the apex court, to JIT by admitting to not have a “multidimensional and technically skilled team of experts presently”. Rather than questioning that vital agency of the state for failure to not have required “specialized expertise” in four and half decades, Art. 184(3) got in action and JIT ( # 2) was formed, as this JIT formed by the apex court later itself admitted at the first page of its synthesis report that an ” internal JIT of FIA” ( JIT #1 ) was also formed.

If the investigation has to be made advanced by directing “all executive authorities or agencies in the country shall render assistance and provide support” to JIT, why section 25 of the money laundering act 2010 was ignored, under which FIA already has all the authority to seek assistance from any such agency for any inquiry? The same power is embodied in section 22(b) and 27 of the NAB ordinance 1999 too. Why have accused persons been subjected to more than one investigation, which is tantamount to violation of Article 10?

Perhaps that happened because only “of public importance” is focused in Art. 184(3) while reading the said provision. No doubt, this term has wider meaning but, applying the literal rule of interpretation, what matters is intentions of legislatures, as per which the power is limited to “the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II”.

While the matter of submission of final challan is delayed and the right of accused persons to commencement of trial is held in abeyance, the (internal) JIT (formed by FIA) #1, JIT #2 (formed by the apex court), Incomplete challan have failed to fulfill obligation of “burden of proof” and bring on record sufficient & satisfactory incriminating material or cogent and forthright evidence.

“Was able to destroy evidences before jit (# 2) could reach it”, “burnt record”, “not made available”, “suspected to be deleted” – that’s how allegations have been backed in JIT (#2) synthesis report, whose own evidentiary value is nothing but just being ” an opinion of the member of JIT, (hence,) could at the most be considered, as a report under Sec 173 Cr.pc, (and) report under Sec 173 crpc was inadmissible in evidence.” (PLD 2018 SC 178)

Now, the desire is to shift the burden of innocence, that too, without fulfilling (four) conditions made mandatory for prosecution in Khalid Aziz v. The State (Criminal Appeal No 361 of 2001 decided on 5-10-2010) and Hakim Ali Zardari v. State (2007 MLD 910). With that, attempts are being made to transfer the case Karachi to Rawalpindi under section 16-A of the NABO 1999. The very same section about the August supreme court has adjudicated: ” Section 16-A(b) (i) and (ii) does not meet ends of justice, in that, Chairman NAB has been given choice to make a move before appropriate Chief Justice through Prosecutor General but such right is not available to accused” (PLJ 2001 SC 817), and “matter of transfer of cases from one court to another, either with a province or from one province to another, as contemplated under section 16-A, prosecutor and accused must be on equal footing. To this extent, Section 16-A is declared ultra vires to the constitution and needs to be suitably amended.” (PLD 2001 SC 607)

In such a scenario, the benami accounts case is actually “politically engineering” and cannot be said to strong to result in a conviction, unless the huge names involved become exceptions due to their names.

To quote Bilawal Bhutto Zardari, ” NAB was found for political engineering … it is an institution such that will be used for political engineering no matter how good a person you appoint as its head”. One of the points that Nawaz Sharif agreed on while signing the Charter of Democracy with Shaheed Benazir Bhutto was to bring an end to the NAB ordinance via the parliament. However, later when PPP government, after her, approached him he flatly refused. Due to his political reasons. And has become a victim himself. Hopefully, Imran Khan will learn from this and all parties together will take it down. That’s the need of the hour.

The writer is an Attorney-at-law, BZU/GLC alumna — a gold medalist, columnist and blogger

Published in Daily Times, March 22^nd 2019.