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ASIF SAEED KHAN
KHOSA
136. On the basis of the declarations made above the following
directions are hereby issued by me:
(i) The Election Commission of Pakistan is directed to issue a
notification of disqualification of respondent No. 1 namely Mian
Muhammad Nawaz Sharif from being a member of the Majlis-e-Shoora
(Parliament) with effect from the date of announcement of the present
judgment.
(ii) The President of Pakistan is required to take necessary steps under
the Constitution to ensure continuation of the democratic process
through parliamentary system of government in the country.
(iii) The National Accountability Bureau is directed to proceed against
respondent No. 1 and any other person connected with him in respect of
the offence of corruption and corrupt practices under section 9(a)(v) of
the National Accountability Ordinance, 1999 and during such proceedings
the evidence and material collected by the Federal Investigation Agency
in connection with FIRs No. 12 and 13 dated November 10, 1994 and
November 12, 1994 respectively and by the National Accountability Bureau
in connection with its Reference No. 5 of 2000 besides the report
prepared by Mr. A. Rehman Malik of the Federal Investigation Agency in
September 1998 and the evidence and material appended therewith or
referred to therein may also be utilized by the National Accountability
Bureau if any such evidence or material is relevant to or has nexus with
possession or acquisition of the relevant properties in London.
(iv) The National Accountability Bureau is also directed to probe into
the other assets acquired and businesses set up by respondent No. 1’s
children in Pakistan and abroad to find out whether respondent No. 1’s
children have acted as Benamidarsof respondent No. 1 in those assets and
businesses or not and if so whether respondent No. 1 can satisfactorily
account for those assets and businesses or not if he is discovered to be
their actual owner.
(v) As neutrality and impartiality of the incumbent Chairman, National
Accountability Bureau Mr. Qamar Zaman Chaudhry has been found by me to
be compromised in the matters of respondent No. 1, therefore, he is
directed not to exercise any power, authority or function in respect of
the matters directed above. The Honorable Chief Justice of Pakistan is
requested to constitute an Implementation Bench of this Court in the
above mentioned regard and in the interest of doing complete justice it
is ordered that all the powers, authority and functions of the Chairman,
National Accountability Bureau in the above mentioned matters of
respondents No. 1 shall henceforth be exercised by the said
Implementation Bench and the relevant officials of the National
Accountability Bureau shall seek all the necessary orders in those
matters from the Implementation Bench till Mr. Qamar Zaman Chaudhry
completes his current non-extendable term of office. The Implementation
Bench shall also monitor the progress made by the National
Accountability Bureau in the matters referred to above and it shall also
supervise the investigation being conducted by it in the matters as and
when found necessary and called for besides issuing any order deemed
expedient in the interest of justice.
(vi) The National Accountability Bureau is directed to proceed against
respondent No. 10 namely Mr. Muhammad Ishaq Dar in connection with its
Reference No. 5 of 2000 wherein the said respondent was not an accused
person when the said Reference was quashed by the Lahore High Court,
Lahore and reinvestigation against the accused persons therein was
barred because after quashing of that Reference against the accused
persons therein and after setting aside of the confessional statement of
respondent No. 10 his status in that Reference stood revived as an
accused person against whom no Reference had been quashed and
reinvestigation qua him was never ordered to be barred.
JUSTICE EJAZ AFZAL KHAN
23. Having thus considered we sum up the case as under:
no aboveboard or undisputed documentary evidence has been brought on the
record to show that respondent No. 1 defaulted in the payment of tax as
far as his assets as declared in the tax returns are concerned; nothing
significant has come forth against respondents No. 9 and 10 as could
the issuance of the direction asked for. However, sufficient
material, as highlighted in para 16 above, has surfaced on the record
which prima facie shows that respondent No. 1, his dependents and
benamidars acquired assets in the early nineties and thereafter which
being disproportionate to his known means of income call for a thorough
investigation. In the normal circumstances this job could well be done
by NAB, but when its Chairman, in view of his conduct he has
demonstrated in Hudaibya’s case by not filing an appeal against a split
verdict of the Lahore High Court, appears to be indifferent and even
unwilling to perform his part, we are constrained to constitute a joint
investigation team (JIT) which would consist of the following members:
1. a senior Officer of the Federal Investigation Agency (FIA), not below
the rank of Additional Director General who shall head the team having
firsthand experience of investigation of white collar crime and related
matters;
ii) a representative of the National Accountability Bureau (NAB);
iii) a nominee of the Security & Exchange Commission of Pakistan (SECP)
familiar with the issues of money laundering and white collar crimes;
iv) a nominee of the State Bank of Pakistan (SBP);
v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by
its Director General; and
vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its
Director General.
24. The Heads of the aforesaid departments/ institutions shall recommend
the names of their nominees for the JIT within seven days from today
which shall be placed before us in chambers for nomination and approval.
The JIT shall investigate the case and collect evidence, if any, showing
that respondent No. 1 or any of his dependents or benamidars owns,
possesses or has acquired assets or any interest therein
disproportionate to his known means of income. Respondents No. 1, 7 and
8 are directed to appear and associate themselves with the JIT as and
when required. The JIT may also examine the evidence and material, if
any, already available with the FIA and NAB relating to or having any
nexus with the possession or acquisition of the aforesaid flats or any
other assets or pecuniary resources and their origin. The JIT shall
submit its periodical reports every two weeks before a Bench of this
Court constituted in this behalf. The JIT shall complete the
investigation and submit its final report before the said Bench within a
period of sixty days from the date of its constitution. The Bench
thereupon may pass appropriate orders in exercise of its powers under
Articles 184(3), 187(2) and 190 of the Constitution including an order
for filing a reference against respondent No. 1 and any other person
having nexus with the crime if justified on the basis of the material
thus brought on the record before it.
25. It is further held that upon receipt of the reports, periodic or
final of the JIT, as the case may be, the matter of disqualification of
respondent No. 1 shall be considered and appropriate orders, in this
behalf, be passed, if so required.
26. We would request the Hon’ble Chief Justice to constitute a Special
Bench to ensure implementation of this judgment so that the
investigation into the allegations may not be left in a blind alley.
JUSTICE GULZAR AHMED
18. I may also observe here that this Court while dealing with
Constitution Petition under Article 184(3) of the Constitution neither
acts as a Civil Court conducting trial of the case nor does it act as a
Criminal Court conducting trial of an accused person in a criminal
offence rather the Court purely decide such Constitution Petition on
matters and facts stated and brought before this Court purely on the
basis of constitutional provision that being a case of public importance
with reference to enforcement of Fundamental Rights as conferred in
Chapter 1 Part II of the Constitution.
19. This being the legal position, Mian Muhammad Nawaz Sharif against
whom in the very Constitution Petitions before us allegation was made
that he and his family own four London Flats and the sources of
acquiring all these properties have not been declared, to me as is said
earlier, there was a duty cast upon Mian Muhammad Nawaz Sharif as holder
of Public Office to satisfy this Court and the Nation of the country
(which being their Fundamental Right) about the true facts regarding
four London Flats, which he miserably failed to do so and thus what
emerges is that he has not been Honest and Ameen in terms of Article
62(1)(f) of the Constitution. Being faced with this scenario, the Court
cannot be expected to sit as a toothless body and become a mere
spectator but it has to rise above screen of technicalities and to give
positive verdict for meeting the ends of justice and also to safeguard
the Fundamental Rights of the people of Pakistan. It is thus declared
that Mian Muhammad Nawaz Sharif has not been Honest and Ameen in terms
of Article 62(1)(f) of the Constitution and thus rendered himself
disqualified from holding the office of a Member of National Assembly of
Pakistan and ceasing to be the Prime Minister of Pakistan. I will accept
the three Constitution Petitions to the above extent.
MR. JUSTICE SH. AZMAT SAEED:
“102. Above are the reasons for our short order of even date whereby the
instant petition was disposed of as under:–
“The Constitution of the Islamic Republic of Pakistan commands that it
is the will of the people of Pakistan to establish an order where in the
State shall exercise its Mpowers and authority through the chosen
representatives of the people, wherein the principles of democracy,
freedom, equality ,etc., shall be fully observed, so that the people of
Pakistan may prosper and attain their rightful and honored place amongst
the nations of the world, and make their full contribution towards
international peace and progress and happiness of humanity. People of
Pakistan had been struggling to establish a parliamentary and democratic
order since long within the framework of the Constitution and now they
foresee a strong system which is established by the passage of time
without any threat and which is subject to the constitution and rule of
law.
2. The essence of this Human Rights case is based on the fundamental
right of citizens enshrined in Article 17 of the Constitution. It raises
an important question of public importance to enforce the fundamental
rights, inter alia,noted hereinabove, therefore, in accordance with the
provisions of Article 184(3) of the Constitution, jurisdiction has been
assumed and exercised to declare, for the reasons to be recorded later,
asunder:-
(1) That citizens of Pakistan as a matter of right are free to elect
their representatives inan election process being conducted honestly,
justly, fairyland in accordance with law. …”We are confronted with a
matter consisting of rather interesting legal propositions and
complicated facts. We cannot afford the luxury of oversimplification or
intellectual lethargy. The questions raised will need to be analyzed in
their true, factual and legal perspective. Even the question of the
source of funds may become relevant but in a totally different context
and perspective.
82. We are dealing with the first Family of the country. RespondentNo.1
is the Prime Minister of Pakistan. The questions regarding properties of
his family members outside Pakistan have remained unanswered. Such an
inconclusive state of affairs is not acceptable. The people of Pakistan
have a rightto know the truth.
83. No doubt, ordinarily this Court in exercise of its jurisdiction
under Article 184(3) of the Constitution tends to avoid deciding the
disputed questionsof facts. However, this is not an absolute rule. In
exceptional circumstances, thisCourt on more than one occasion has
undertaken such an exercise.In the instant case, the allegations against
Respondent No.1 werenot conclusively established, yet, sufficient
suspicious circumstances, detailedabove, have come to light, which
require to be investigated to facilitate the discovery of the true
facts. Such investigation appears to be necessary before wecan proceed
further in the matter. Despite the jurisdiction to determine the
disputed questions of facts and the tools, in this behalf, available to
this Court mentioned above, this Court does not have the powers under
Article 184(3) of theConstitution to investigate a matter. Reference, in
this behalf, may be made to the judgment of this Court, reported as Suo
Motu Action regarding allegation ofbusiness deal between Malik Riaz
Hussain and Dr. Arsalan Iftikhar attempting toinfluence the judicial
process (PLD 2012 SC 664).
We have been constrained to cast a widenet as regard to the institution,
the Offices whereof are to form the Members of the JIT. Theattitude of
NAB has gone a long way in pushingus in this direction. Furthermore, it
has been alleged that some of other investigatinginstitutions are also
under the influence of Respondent No.1 and under his direct or indirect
control. Such sweeping allegations may or maynot be wholly true but do
not appear to be unfounded. Furthermore, the nature of expertise require
in the instant investigation is not confinedto any one institution and
the several institutions may be able to supplement such expertise.
MR. JUSTICE SH. AZMAT SAEED:
“102. Above are the reasons for our short order of even date whereby the
instant petitionwas disposed of as under:–
“The Constitution of the Islamic Republic of Pakistan commands that it
is the will of the people of Pakistan to establish an orderwherein the
State shall exercise itsMpowers and authority through the chosen
representatives of the people, wherein the principles of democracy,
freedom, equality ,etc., shall be fully observed, sothat the people of
Pakistan may prosper and attain their rightfuland honoured place amongst
thenations of the world, and make their full contribution towards
international peace and progress and happiness of humanity.People of
Pakistan had been struggling to establish aparliamentary and democratic
order since long within the framework of the Constitution andnow they
foresee a strong system which is established by the passage of time
without any threat and which is subject to theconstitution and rule of
law.
2. The essence of this HumanRights case is based on the fundamental
right of citizensenshrined in Article 17 of the Constitution. It raises
animportant question of publicimportance to enforce thefundamental
rights, inter alia,noted hereinabove, therefore, inaccordance with the
provisions ofArticle 184(3) of the Constitution,jurisdiction has been
assumed andexercised to declare, for thereasons to be recorded later,
asunder:-
(1) That citizens ofPakistan as a matter ofright are free to electtheir
representatives inan election processbeing conductedhonestly, justly,
fairlyand in accordance withlaw. …”We are confronted with a matter
consisting of rather interestinglegal propositions and complicated
facts. We cannot afford the luxury of oversimplification or intellectual
lethargy. The questions raised will need to beanalyzed in their true,
factual and legal perspective. Even the question of thesource of funds
may become relevant but in a totally different context andperspective.
82. We are dealing with the first Family of the country. RespondentNo.1
is the Prime Minister of Pakistan. The questions regarding properties of
hisfamily members outside Pakistan have remained unanswered. Such
aninconclusive state of affairs is not acceptable. The people of
Pakistan have a rightto know the truth.
83. No doubt, ordinarily this Court in exercise of its jurisdiction
underArticle 184(3) of the Constitution tends to avoid deciding the
disputed questionsof facts. However, this is not an absolute rule. In
exceptional circumstances, thisCourt on more than one occasion has
undertaken such an exercise.In the instant case, the allegations against
Respondent No.1 werenot conclusively established, yet, sufficient
suspicious circumstances, detailedabove, have come to light, which
require to be investigated to facilitate thediscovery of the true facts.
Such investigation appears to be necessary before wecan proceed further
in the matter. Despite the jurisdiction to determine thedisputed
questions of facts and the tools, in this behalf, available to this
Courtmentioned above, this Court does not have the powers under Article
184(3) of theConstitution to investigate a matter. Reference, in this
behalf, may be made to thejudgment of this Court, reported as Suo Motu
Action regarding allegation ofbusiness deal between Malik Riaz Hussain
and Dr. Arsalan Iftikhar attempting toinfluence the judicial process (PLD
2012 SC 664).
We have been constrained to cast a widenet as regard to the institution,
the Officeswhereof are to form the Members of the JIT. Theattitude of
NAB has gone a long way in pushingus in this direction. Furthermore, it
has beenalleged that some of other investigatinginstitutions are also
under the influence ofRespondent No.1 and under his direct or
indirectcontrol. Such sweeping allegations may or maynot be wholly true
but do not appear to beunfounded. Furthermore, the nature of
expertiserequire in the instant investigation is not confinedto any one
institution and the several institutionsmay be able to supplement such
expertise.
MR. JUSTICE IJAZ UL AHSAN:
89. Regrettably, most material questions haveremained unanswered or
answered insufficiently byRespondent No.1 and his children. I am also
constrained tohold that I am not satisfied with the explanation offered
byRespondent No.1 (Mian Muhammad Nawaz Sharif, the PrimeMinister of
Pakistan) and his children regarding the mode andmanner in which the
said properties came in their possessionand what were the sources of
funds utilized for acquisition ofthe same. Further, the source(s) of
funding for Azizia Steel Millsand Hill Metals Establishment in Saudi
Arabia, FlagshipInvestments Limited and a number of other companies
setup/taken over by Respondent No.8 also need to beestablished. In
addition to the affairs of Capital FZE, Dubaiwhich also appears to be
owned by Respondent No.7 needan inquiry. The aforesaid investigation and
inquiry undernormal circumstances should have been conducted by
NAB.However, it has become quite obvious to us during theseproceedings,
Chairman NAB is too partial and partisan to besolely entrusted with such
an important and sensitiveinvestigation involving the Prime Minister of
Pakistan and hisfamily. Further owing to the nature and scope of
investigationa broader pool of investigative expertise is required which
maynot be available with NAB.
90. In the afore-noted circumstances, I would order asfollows:-
i) A Joint Investigation Team (JIT) shall beconstituted, which shall
investigate thematter, collect all relevant record andmaterial in order
to determine and establishthe real title and ownership of the
MayfairProperties, the source(s) of funds utilized forpurchase of the
said properties and themode, manner and time when such fundswere
transmitted to the United Kingdom forpurchase of the Mayfair Properties;
ii) Likewise, the JIT shall also collect evidence todetermine the
source(s) of funds forestablishing Hill Metals Establishment in
SaudiArabia as well as the mode, manner andsource(s) of funding for
Flagship InvestmentsLimited and all other companies owned andcontrolled
by Respondent No.8 from time totime;
iii) Evidence shall also be collected by the JIT regarding source(s) of
funding of Capital FZE,Dubai; its business activities and role
intransfer of funds to different entities owned or controlled by
Respondents No.7 & 8;
iv) The JIT is also directed to investigate and find out if Respondent
No.1 (Mian MuhammadNawaz Sharif, the Prime Minister of Pakistan)directly
or indirectly or through benamidars orauthorized agents owns any
otherproperties/assets/financial resources of anynature including but
not limited to shares through offshore companies/bank accounts, which
have not been disclosed to the concerned authorities.
v) The JIT shall consist of the following members:-
a) A senior Officer of the FederalInvestigation Agency (FIA) not
belowthe rank of Additional Director Generalheading the Team. He shall
havefirsthand experience of investigation ofwhite collar crime and
related matters;
b) A representative of the NationalAccountability Bureau (NAB);
c) A nominee of the Securities andExchange Commission of
Pakistanfamiliar with issues of money launderingand white collar crime;
d) A nominee of the State Bank of Pakistan familiar with international
banking transactions involving money laundering and matters relevant to
the investigation;
e) A senior Officer nominated by the Director General, ISI; and
f) A senior Officer appointed by the Director General, MI.
vi) Heads of the aforesaid Departments/Agencies/ Institutions shall
communicate the names of their nominees within seven (07)days hereof
which shall be placed before theSpecial Bench for perusal/approval.
vii) Respondents No.1, 7 & 8 are directed toassociate and render full
cooperation to the JIT, provide any and all record(s), document(s) and
material(s) sought by it and appear before the JIT, if and when
required.
viii) The JIT may also examine the evidence and material available with
the FIA and NAB, ifany, relating to or having any nexus with the
possession or acquisition of the May fair Properties and the source(s)
of funding forthe same.
ix) The JIT shall submit its periodical report(s)before the Special
Bench of this Court every fortnight. The JIT shall complete and submit
itsfinal report before such Bench within a periodof sixty (60) days from
the date of receipt of acopy of this judgment.
x) I would request the Honorable Chief Justice of Pakistan to constitute
a Special Bench to ensure implementation of this judgment inletter and
spirit.
91. On receipt of report of the JIT, the Bench shall pass appropriate
orders in exercise of powers under Article 184(3)read with Articles 187
& 190 of the Constitution relating to disqualification of Mian Muhammad
Nawaz Sharif, the Prime Minister of Pakistan, Respondent No.1 as a
member of Majlis-eConstitution Shoora (Parliament), if necessary. In
this regard, it may, if considered necessary or expedient, summon
RespondentsNo.1 (Mian Muhammad Nawaz Sharif), 7 (Hussain Nawaz) and8 (Hassan
Nawaz) or any of the said Respondents and anyother person having any
direct or indirect connection with orhaving knowledge about the matters
relevant to these proceedings, to appear before it for being examined.
Further,if so justified by law and on the basis of material placed
before the Bench, orders may also be passed for filing of a Reference
before the Accountability Court against Respondent No.1, the private
Respondents and any other person having nexus with the offence.
92. During hearings of these matters and while examining the various
pleas raised by the parties and thedocuments and other material placed
before us, I have foundit imperative to pass orders and take steps to
ensure that the true facts should come before the people of Pakistan who
have a fundamental right to be governed in accordance withlaw, by those
who fulfill the requirements of the Constitution and the law and whose
financial dealings, earnings andexpenditures are open to public scrutiny
to show that they meet the test of honesty, integrity, financial probity
and bonafide dealings. It is high time that standards were set and
systems were put in place to develop a culture of accountability at all
levels in order to cleanse our system andinstitutions from the evils of
corruption, money laundering, lootand plunder of national resources by a
few, irrespective oftheir rank or status in the system.
93. As a Nation, we need to heed the words of the great poet and
philosopher Dr. Allama Muhammad Iqbal, ifwe aspire to reach our true
potential and hold our heads high amongst the comity of Nations:-
94. Before parting with this judgment, I would acknowledge and
appreciate Syed Naeem Bukhari, learned ASC; Mr. Taufiq Asif, learned ASC;
Sh. Rashid Ahmed, petitioner in person; Mr. Makhdoom Ali Khan, learned
ASC for Respondent No.1; Mr. Shahid Hamid, learned Sr.ASC for
Respondents No.6, 9 & 10; Mr. Ashtar Ausaf Ali, learned Attorney General
for Pakistan; Mr. Muhammad Waqar Rana,ASC; and Mr. Waqas Qadeer Dar,
Prosecutor General, NAB and their respective teams for rendering
valuable assistance inthe matter.
OVER ALL NOTICE:
4. The Parliament of any country is one of its noblest, honorable and
important institutions making not only the policies and the laws for the
nation but in fact shaping and carving its very destiny. And here is a
man who being constitutionally and legally debarred from being its
member, managed to sneak into it by making a false statement on oath and
by using bogus, fake and forged documents polluting the piety of this
pious body. His said conduct demonstrates not only his callous contempt
for the basic norms of honesty, integrity and even for his own oath but
also undermines the sanctity, the dignity and the majesty of the said
august House. He is guilty, inter alia, of impersonation --- posing to
be what he was not i.e. a graduate. He is also guilty of having been a
party to the making of false documents and then dishonestly using them
for his benefit knowing them to be false. He is further guilty of
cheating --- cheating not only his own constituents but the nation at
large.”
63(1) (a)]. Similarly, a father cannot be disqualified if his son has
been convicted for an offence involving moral turpitude or such son has
been dismissed from the service of Pakistan (Article 63(1) (h) & (i).
Thus, obviously a father cannot be disqualified if his son is allegedly
dishonest [Article 62(1) (f)]. facts and failed to disclose beneficial
ownership of the Mayfair Properties, Respondent No.1 has been guilty of
concealment, mis-declaration and dishonesty, and is therefore liable to
be disqualified from being Member of the Parliament and holding the
office of Prime Minister.
vi. The learned counsel for the petitioner has further argued that
Respondent No.1 had taken two Oaths. One as a Member of the National
Assembly and the other as Prime Minister of Pakistan. In both the said
oaths, he had sworn to perform his functions honestly, to the best of
his ability, faithfully, in accordance with the law and the Constitution
and the Rules of Business of the National Assembly. Further he had sworn
to preserve, protect and defend the Constitution. He further maintains
that in terms of Article 5 of the Constitution loyalty to the State is
the basic duty of every citizen. He, therefore, submits that by failing
to disclose the correct facts and producing the relevant records before
the Parliament or before this Court, Respondent No.1 had been guilty of
dishonesty giving Constitution preference to his personal interests over
and above the national interests and as such he has not only violated
his oath of office but has also been guilty of dishonesty which attracts
the penal consequences of Article 62 read with Article 63 of the
Constitution.
viii. Learned counsel has drawn our attention to Article 119 of the
Qanun-e-Shahadat Order, 1984 to argue that burden of proof as to any
particular fact lies on the person who wishes the Court to believe in
its existence, unless it is provided by any law that the proof of that
fact shall lie on any other person. He submits that as a whistleblower
the only responsibility on the shoulders of the petitioner was to bring
to the notice of this Court certain facts of public importance
where-after the burden of proof was on the Respondent No.1 to establish
that he had neither acted dishonestly nor in any other manner that would
expose him to the penal consequences of Article 62 read with Article 63
of the Constitution. Reference in this regard has been placed on
Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681 (para
32)].
26. The loss of qualification under Article 62(1) (f) of the
Constitution has been visited with removal from elected office under the
Constitution in a number of cases including Weighty reasons have been
assigned for adopting and implementing the constitutional mandate as a
bar on membership in Parliament. Firstly, the qualifications of a
candidate set out in Article 62 of the Constitution are a sine qua non
for eligibility to be elected as a Member of Parliament. No time limit
for eligibility on this score is given in the Constitution.
A person who is untruthful or dishonest or profligate has no place in
discharging the noble task of law making and administering the affairs
of State in government office. Such faults in character or disposition,
if duly established, cannot be treated as transient for the purpose of
reposing trust and faith of the electorate and the Constitution in the
holder of an elected office under the Constitution. The trusteeship
attendant upon the discharge of every public office under the
Constitution, whether Legislative, Executive or Judicial is a
universally recognized norm. However, our Constitution emphasizes upon
it expressly for an elected parliamentary office. The Constitutional
norm must be respected and therefore implemented.
Mr. Imran Ahmad Khan Niazi, petitioner in Constitution Petition No.29 of
2016 sought permission of the Court to make a few submissions, which was
granted by us. He submitted that the Prime Minister amongst other
capacities is the custodian of the treasury of the country. A person who
is not truthful, dishonest or corrupt cannot be expected to enjoy the
trust of the people. He maintained that this is one reason why people of
Pakistan are unwilling to pay taxes as they do not trust the custodians
of their tax money. He further submitted that a leader is a role model
and leadership by its example uplifts the moral values of the society as
has been seen in the history of Islam as well as the world. He expressed
his full confidence in the Court and prayed that the petition may be
accepted.
97) Mr. Khan maintained that affirmative evidence is required to
establish dishonesty for the purposes of electoral disqualification
Constitution Petition No. 29 of 2016, and that the threshold has to be
very high for disqualifying a person on the basis of qualifications
which are obscure and vague. He also contended that no declaration about
honesty can be made without there being a prior adjudication made by a
court on the subject and in this regard he relied upon the cases of Suo
Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza
Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad
Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012
SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v.
Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood
Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others
(PLD 2012 SC 1089) some persons were declared to be disqualified in
exercise of the constitutional jurisdiction on the ground of holding
dual nationality in the absence of a prior adjudication in that regard
but in those cases the facts were either admitted/undisputed or the same
were conveniently ascertainable with minimum inquiry. He also referred
to the case of Sadiq Ali Memon v. Returning Officer,NA-237, Thatta-I and
others (2013 SCMR 1246) wherein dual nationality was not disputed and
was in fact admitted. He also referred to the case of Dr. Sher Afgan
Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran
Ahmad Khan Niazi, one of the present petitioners, had successfully
maintained before the Election Commission of Pakistan that post-election
disputes fell only under Article 63 and not under article 62 of the
Constitution. It was, however, conceded by Mr. Khan that a decision of
the Election Commission of Pakistan is not binding upon this Court.
ii. That the petitioner alleges that in the said speeches Respondent
No.1 had lied to the Nation, in consequence of which he had ceased to be
honest and ameen in terms of Article 62(1) (f) of the Constitution and
was Therefore liable to be disqualified.
iii. That the second ground on which disqualification has been sought is
that Respondent No.1 had received large sums of money as gifts from
Respondent No.7. The said amounts were required to be treated as other
Income within the contemplation of Section 39 of the Income Tax
Ordinance. The said amount was neither declared as such nor was the
Requisite income tax paid on it. Consequently, he was liable to be
disqualified in terms of Article 63(2) (o) of the Constitution.
ix. The learned counsel has further stated that in terms of Article
62(1)(f) of the Constitution read with various provisions of the RoPA, a
declaration issued by a Court of competent jurisdiction is required to
the effect that a holder of public office is not sagacious, righteous,
nonprofligate, honest or ameen. He submits that there is no declaration
against Respondent No.1 In the field therefore, he cannot be
disqualified. He further submits that in a large number of cases this
Court has upheld the decisions of Election Tribunals and / or other
Courts which have issued declarations but has seldom entertained matters
in exercise of its powers under Article 184(3) of the Constitution and
proceeded to issue declarations and then disqualified the holder of
public office.
Page-459, Therefore not truthful and ameen. He further maintained
that despite having categorically stated that all relevant records
regarding acquisition of assets in London will be produced, Respondent
No.1 has consistently failed to do so which has rendered him liable to
be disqualified. He referred to Nasir Mehmood v. Imran Masood [PLD 2010
SC 1089 @ 1117] to submit that Respondent No.1 did not meet the criteria
of being truthful and ameen as provided in Article 62(1)(f) of the
Constitution.
ORDER OF THE COURT
By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ)
dissenting, who have given separate declarations anddirections, we hold
that the questions how did Gulf Steel Mill come into being; what led to
its sale; what happened to its liabilities; where did its sale proceeds
end up; how did they reach Jeddah, Qatar and the U.K.; whether
respondents No. 7 and 8 in view of their tender ages had the means in
the early nineties to possess and purchase the flats; whether sudden
appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a
myth or a reality; how bearer shares crystallized into the flats; who,
in fact, is the real and beneficial owner of M/s Nielsen Enterprises
Limited and Nescoll Limited, how did Hill Metal Establishment come into
existence; where did the money for Flagship Investment Limited and other
companies set up/taken over by respondent No. 8 come from, and where did
the Working Capital for such companies come from and where do the huge
sums running into millions gifted by respondent No. 7 to respondent No.
1 drop in from, which go to the heart of the matter and need to be
answered. Therefore, a thorough investigation in this behalf is
required.
2. In normal circumstances, such exercise could be conducted by the NAB
but when its Chairman appears to be indifferent and even unwilling to
perform his part, we are constrained to look elsewhere and therefore,
constitute a Joint Investigation Team (JIT) comprising of the following
members:
ii) A senior Officer of the Federal Investigation Agency (FIA), not
below the rank of Additional Director General who shall headthe team
having firsthand experience of Investigation of white collar crime and
related matters;
ii) A representative of the National Accountability Bureau (NAB);
iii) a nominee of the Security & Exchange Commission of Pakistan (SECP)
familiar with the issues of money laundering and white collar crimes;
iv) A nominee of the State Bank of Pakistan(SBP);
v) A seasoned Officer of Inter-Services Intelligence (ISI) nominated by
its Director General; and
vi) A seasoned Officer of Military Intelligence(M.I.) nominated by its
Director General.
3. The Heads of the aforesaid departments/ institutions shall recommend
the names of their nominees for the JIT within seven days from today
which shall be placed before us in chambers for nomination and approval.
The JIT shall investigate the case and collect evidence, if any; showing
that respondent No. 1 orany of his dependents or benamidars owns,
possesses or hasacquired assets or any interest therein disproportionate
to his known Means of income. Respondents No. 1, 7 and 8 are directed to
appear and associate themselves with the JIT as and when required. The
JIT may also examine the evidence and material, ifany, already available
with the FIA and NAB relating to or having any nexus with the possession
or acquisition of the aforesaid flats orany other assets or pecuniary
resources and their origin. The JIT shall submit its periodical reports
every two weeks before a Bench of this Court constituted in this behalf.
The JIT shall complete the investigation and submit its final report
before the said Bench within period of sixty days from the date of its
constitution. The Bench thereupon may pass appropriate orders in
exercise of its powers under Articles 184(3), 187(2) and 190 of the
Constitution including anorder for filing a reference against respondent
No. 1 and any other person having nexus with the crime if justified on
the basis of the material thus brought on the record before it.
4. It is further held that upon receipt of the reports, periodic or
final of the JIT, as the case may be, the matter of disqualification of
respondent No. 1 shall be considered. If found necessary for passing an
appropriate order in this behalf, respondent No. 1 or any other person
may be summoned and
Examined.
5. We would request the Hon’ble Chief Justice to constitute a Special
Bench to ensure implementation of this Constitution Petition No. 29 of
2016,judgment so that the investigation into the allegations may not be
left in a blind alley. |