Panama Final Verdict 2017
Panama Final Verdict 2017
Panama Final Verdict 2017
(Original Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ejaz Afzal Khan
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
Mr. Justice Ijaz ul Ahsan
versus
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ConstitutionPetitionNo.29of2016,
ConstitutionPetitionNo.30of2016&
ConstitutionPetitionNo.03of2017
Constitution Petition No. 30 of 2016
(Panama Papers Scandal)
JUDGMENT
The popular 1969 novel The Godfather by Mario Puzo
recounted the violent tale of a Mafia family and the epigraph
selected by the author was fascinating:
Lesecretdesgrandesfortunessanscauseapparente
est un crime oubli, parce quil a t proprement fait.
(The secret of a great success for which you are at a
loss to account is a crime that has never been found
out, because it was properly executed)
It is ironical andasheercoincidencethatthepresentcaserevolves
around that very sentence attributed to Balzac as through
Constitution Petition No. 29 of 2016 it has been alleged by the
petitioner namely Imran Ahmad Khan Niazi, Chairman of a
political party named TehreekeInsaf, that while holding high
public offices in the State of Pakistan over a stretched period of
time respondent No. 1 namely MianMuhammadNawazSharif,the
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incumbent Prime Minister of Pakistan, and through him his
immediate family has amassed hugewealthandassetswhichhave
been acquired through means which were illegal and unfair,
practices which were unlawful and corrupt and exercise of public
authority which was misused and abused. Through Constitution
Petition No. 30 of 2016 Sheikh Rasheed Ahmed petitioner,
Chairman of a political party named Awami Muslim League, and
through ConstitutionPetitionNo.3of2017SirajulHaqpetitioner,
Ameer of another political party named JamaateIslami,havealso
agitated the same issue. All the above mentioned petitioners have
inter alia prayed that it may be declared by this Court that
respondent No. 1 in Constitution Petition No. 29 of 2016 (who is
respondent No. 4 in the other two petitions) is not honest and
ameen within the purview of Article 62(1)(f) oftheConstitutionof
the Islamic RepublicofPakistan,1973and,thus,heisdisqualified
from being a member of the MajliseShoora (Parliament). Some
other reliefs have also been prayed for by the petitioners and the
same shall also be dealt with by me at appropriate stages of the
present judgment.ForfacilityofreferenceMianMuhammadNawaz
Sharif shall be referred to in this judgment as respondent No. 1,
his daughter namely Mariam Safdar shall be referred to as
respondent No. 6, his soninlaw namely Captain (Retired)
Muhammad Safdar shall be referred to as respondent No. 9, his
sons namely Mr. Hussain Nawaz Sharif and Mr. Hassan Nawaz
Sharif shall be referred to as respondents No. 7 and 8 respectively
and his Samdhi(fatherinlaw of one of his daughters) namely Mr.
Muhammad Ishaq Dar shall bereferredtoasrespondentNo.10as
arrayed in Constitution Petition No. 29 of 2016. We have been
informed by the learned counsel forrespondentNo.1thatthesaid
respondent has so far held the following high public offices:
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6. Mr. Bokhari pointed out from the documents produced on
the record by respondent No. 1 and his children that some land
was obtained on lease in Dubai on March 28, 1974, permission to
set up a factory was granted by the Government of Dubai on April
28, 1974, a rent agreement in that regard was executed on June
12, 1974, afactorywasinstalledonthatlandthroughfundswhich
were never properly explained, 75% shares of that factory were
soldtotheAhlifamilythroughaTripartiteAgreementofSaleinthe
year 1978 and then through a Final Share Sale Agreement dated
April 14, 1980 the remaining 25% shares of that factory were also
sold to the same family. He maintained that a bare perusal of the
Tripartite Agreement of Sale of 1978 showed that no money
became available to the seller on the basis of that sale as the
proceeds of the sale werecompletelyconsumedinpayingoffdebts,
dues and liabilities which were much more than the sale proceeds
inasmuch as the seller owed the Bank of Credit and Commerce
International a sum of 27.6 million Dirhams and the outstanding
liabilities of the company were to the tune of about 36 million
Dirhams. He pointed out that it was claimed by respondent No. 1
and his children that an amount of 12 million Dirhams in cash
had become available to the seller as a result of the Final Share
Sale Agreement in the year 1980 but no independent proof had
been produced in that respect. He also pointed out that the
Agreement in the year 1980 had been signed by Mian Muhammad
Shahbaz Sharif, a younger brother of respondent No. 1, as an
authorized agentofoneMr.TariqShafi,acousinofrespondentNo.
1, who was statedly a Benamiowner of that factory on behalf of
respondent No. 1s father namely Mian Muhammad Sharif and no
independent proof had been brought on the record of this case to
establish that Mian Muhammad Sharif was the actual owner of
that factory, Mr. Tariq Shafi washisBenamidar,MianMuhammad
Shahbaz Sharif was an authorized agent of Mr. Tariq Shafi or 12
million Dirhams had actuallybeenreceivedincashbytheselleras
a result of that sale. While referring to the signatures of Mr. Tariq
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Shafi available on his affidavit sworn onNovember12,2016itwas
maintained by Mr. Bokhari that the signatures of Mr. Tariq Shafi
on the Agreement signed in the year 1980 were fake. Mr. Bokhari
emphasized that in his affidavit of November 12, 2016 Mr. Tariq
Shafi had clearly maintained that no money had come into his
hands from the sale of 75% shares of the factory in Dubai in the
year 1978 but in the year 1980 a sum of 12 million Dirhams had
been received by him in cash through the sale of the remaining
25% shares of the factory in the year 1980. Thus, Mr. Bokhari
maintained that respondent No. 1 was not being truthful when he
had stated before the National Assembly on May16,2016thatthe
sale of the factory in Dubai had fetched the family a sum of 33.37
million Dirhams in the year 1980.
7. Mr. Bokhari forcefully argued that respondent No. 1 had
never mentioned any investment by the family in the real estate
business in Qatar in his speeches madebeforethenationorinthe
National Assembly and he had also failed to make any mention of
the same in his concise statements filed before thisCourtwhereas
respondent No. 1s children had based their entire case upon the
resources generated through the familys investment made in the
real estate business in Qatar. According to Mr. Bokhari the
contradictions between respondent No. 1 and his children in this
regard were irreconcilable because according to respondent No. 1
the resources becoming available through sale of the factory in
Dubai were used for setting up a factory in Jeddah whereas his
children had maintained that the resources becoming available
from the sale ofthefactoryinDubaiwereutilizedforinvestmentin
the real estate business in Qatar and thereafter the properties in
London had been acquired on the basis of a settlement of the
business in Qatar! Referring to a statement of one Mr. Hamad Bin
Jassim Bin Jaber AlThani of Qatar dated November 05, 2016
produced before this Court during the present proceedings Mr.
Bokhari maintained that the said statement was nothing but an
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afterthought and acompleteconcoctionwhichdestroyedcredibility
of respondent No. 1 irretrievably. Mr. Bokhari asserted with
vehemence that the relevant four properties in London had
actually been purchased by respondent No. 1 between the years
1993 and 1996throughundisclosedresourcesandthroughmoney
laundering.
11. Mr. Bokhari pointed out that respondent No. 7 namely Mr.
Hussain Nawaz Sharif lives in Jeddah, SaudiArabiasincetheyear
2000 and till that year he had no income of his own to set up his
own business. Respondent No. 8 namely Mr. HassanNawazSharif
was a student in London, United Kingdom in the year 1999 with
no incomeofhisownandhehadstatedlystartedhisownbusiness
in London on April 12, 2001 by setting up a company named
Flagship Investments Limited. The Directors report of the said
company for that year showed that respondent No. 8 had Pounds
Sterling 705,071 to his credit as the Director of that companyand
respondent No. 8 never advanced any explanation of his ownasto
how and from where he came to have that kind of money. The
Financial Statement of that company dated March 31, 2003
showed that respondent No. 8 had made a loanofPoundsSterling
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307,761 to that company with a balance of Pounds Sterling
990,244. The Financial Statement of that company dated March
31, 2004 showed that the said respondent had made a loan of
Pounds Sterling 593,939 to that company with a balance of
Pounds Sterling 1,606,771. The Financial Statement of that
company dated March 31, 2005 also showed that the company
owed that respondent a huge amount of money. Mr. Bokhari also
pointed out that respondent No. 8 had also set up another
company by the name of Que Holdings Limited and the Notes of
Account ofthatcompanydatedJuly31,2004showedthatthesaid
respondent had 100% holding in that company to which he had
given a loan of PoundsSterling99,999.TheFinancialStatementof
that company dated July 31, 2005 showed that respondent No. 8
had given a loan to that company amounting to Pounds Sterling
541,694. Mr. Bokhari highlighted that respondent No. 8 owned
about ten companiesinLondonevenpriortothesaleofthefactory
in Jeddah by the family in June 2005 and the credit from
respondent No. 8 to the companies controlled by him was Pounds
Sterling 2,351,877 by the year 2005 for which he had offered no
explanation whatsoever till the belated revelation regarding an
investment in Qatar by way of an afterthought. According to Mr.
Bokhari the money becoming available to respondent No. 8 in
London was nothing but money laundered by respondent No. 1
and the details of such money laundering were available in the
report prepared by Mr. A. Rehman Malik of the Federal
Investigation Agency of Pakistan in September 1998.
13. Mr. Bokhari also argued that the documents relied upon by
respondents No. 6 and 7 as Trust Deeds establishing respondent
No. 6 as a trustee of respondent No. 7 in respect of the four
properties in London were sham. He pointed out that the said
documents were purportedly signed by one party on February 02,
2006 in one country and by the other party on February 04, 2006
in another country, a seal was affixed on those documents on
November 07, 2016 after about ten years and those documents
were certified to be correct copiesonly.Accordingtohimtherewas
no attestation of the trust deedsandattestationappearingthereon
was not of the documents but of the copies only.
15. Mr. Bokhari further argued that respondent No. 1 had also
been guilty of tax evasion. In this regard he submitted that
respondent No. 1hadreceivedRs.74croresfromhissonsbetween
the years 2011 and 2015 as gifts but no tax was paid by him on
that amount. He referred to the Wealth Statement submitted by
respondent No. 1 for the tax year 2011 in columnNo.3(ii)whereof
it was mentioned that the said respondent had received a gift of
more than Rs. 12 crores from a son and he had gifted about Rs.5
crores to R6 and R7. According to Mr. Bokhari total gifts received
by respondent No. 1 from respondent No. 7 were forRs.81crores.
He referred to section 39 of the Income Tax Ordinance 2001
according to which all the loans and gifts received were to be
declared but respondent No. 1 had not paid tax on such gifts. Mr.
Bokhari questioned the capacity of respondentNo.7tomakesuch
huge gifts to respondent No. 1 and maintained that money was
being rotated and laundered money was being made kosher
through such gifts. According to Mr. Bokhari nearly Rs. 74 crores
had admittedly been received by respondent No. 1 from
respondents No. 7 & 8 which was income from other sources but
no tax was paid on that amount. He submitted that the Federal
Board of Revenue may be directed to recover the tax due and
respondent No. 1 may be disqualified under Article 62(1)(f) of the
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Constitution even on that score.
21. Regarding the Trust Deed dated February 02, 2006 statedly
executed between respondents No. 6 and 7 the petitioner pointed
out that thedocumenthadnotbeenattestedbythePakistaniHigh
Commission, it was not notarized andthewitnessofthedocument
was not identifiable.
27. The learned counsel for the petitioner also referred to the
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case ofSyed Zafar Ali Shah and othersv. GeneralPervez
MusharrafChiefExecutiveofPakistanandothers (PLD 2000 SC
869) wherein the submissions made on behalf of the Federation of
Pakistan had been noted and in those submissions the judgment
of the High Court of Justice, Queens Bench Division, London
dated November 05, 1999, placing of caution on the relevant four
propertiesinLondonandliftingofthatcautionuponsatisfactionof
the decree for about 34 million US Dollars had been mentioned.
According to the learned counsel for the petitioner no source of
funds for satisfaction of that decree had been disclosed by
respondent No. 1 and satisfaction of that decree by the said
respondents family and lifting of caution on the said properties
clearly established a direct connection between those properties
and the respondents family in the year 2000.
28. Mr. Asif further argued that acquisition of the relevant four
properties in London had been admitted by respondent No. 1 and
his children, possession of those properties had not been denied
and it was always maintained by them that the entire record in
that respect was available but no such record had been produced
before this Court. According tothelearnedcounseltheinitialonus
of proof on the petitioners, thus, stood discharged and a heavier
onus of proof shifted to respondent No. 1 and his children to
explain that the said properties had been acquired through
legitimate resources and lawful means but they had completely
failed to discharge that onus of proof. He maintained that a fact
admitted by a party may not be proved and that the onus of proof
in such cases shifts to the person who admits ownership or
possession of the property in issue. He referred in this regard to
the provisions of Articles 30, 53, 114 and 122 of the
QanuneShahadat Order, 1984.
29. The learned counsel for the petitioner went on to argue that
the privilege in connection with a speech in the NationalAssembly
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contemplated by the provisions of Article 66 of the Constitution is
not absolute and in support of that argument he referred to the
case of SyedMasroorAhsanandothers v. ArdeshirCowasjeeand
others (PLD 1998 SC 823). He also referred to the provisions of
Article 5(2) of the Constitution and to the oath of a Member of the
National Assembly (Article 65) and of the Prime Minister (Article
91(5)) prescribed by the Constitution according to which he hasto
conduct himself honestly in all situations. In the context of Article
66 of the Constitution he pointed out that theOrderoftheDayfor
the National Assembly on May 16, 2016 did not mention any
speech to be made by respondent No. 1 as the Prime Minister and
that no such speech was a part of the agenda of the day. He
maintained that although thespeechmadebyrespondentNo.1on
that day was something said in the proceedings of the National
Assembly yet for the purposes of the privilege contemplated by
Article 66 of the Constitution the speech of respondent No. 1 had
to be relevant to the matter before the National Assembly and he
referred to Rule 31 of the Rules of Procedure and Conduct of
Business in the National Assembly, 2007. He pointed out Rule 50
of the said Rules dealing with classes of business and Rule 51
according to which a Tuesday is a private members day and May
16, 2016 was a Tuesday. According to him the Speaker of the
National Assembly ought not to have allowed respondent No. 1 to
make a speech in the National Assembly on that day on a matter
which was purely personal to him and if such speech was in fact
allowed to be made then it was notapartoftheproceedingsofthe
National Assembly and, therefore, no privilege under Article 66 of
the Constitution could be claimed for such speech. In the context
of the privilege under Article 66 of the Constitution he also relied
upon the case of ZahurIlahi,M.N.A.v.Mr.ZulfikarAliBhutto (PLD
1975 SC 383) and referred to an article written by Dr. Ken Coghill
captioned as Why Parliamentary Privilege Matters.
33. At theoutsetMr.MakhdoomAliKhan,Sr.ASCappearingfor
Prime Minister Mian Muhammad Nawaz Sharif, respondent No. 1
in Constitution Petition No. 29 of 2016 and respondent No. 4 in
Constitution Petitions No. 30 of 2016 and 3 of 2017, submitted
thatrespondentNo.1snamedidnotappearinthePanamaPapers
in any capacity whatsoever, no allegation was leveled against him
therein and, thus, he did not have to answer for anything
connected with the said issue. The learned counsel, however,
hastened to add that some issues had been raised through the
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present petitions concerning respondent No. 1s children and in
respect of some speeches made by him and, thus, the said
respondent felt obliged to offer some explanations in that regard
and to make submissions on some legal aspects relevant to the
present petitions.
35. Mr. Khan also argued that the bar for disqualificationunder
Article 62(1)(f) of the Constitution is higher than the bar for
disqualification under section 99(1)(f) of the Representation of the
People Act, 1976 because for the constitutional disqualification a
prior declaration by a court of law is required whereas the said
requirement is not there for the statutory disqualification. In
support of this argument he referred to the cases of Muhammad
IjazAhmadChaudhryv.MumtazAhmadTararandothers (2016
SCMR 1), MalikUmarAslamv.Mrs.SumairaMalikandothers
(2014 SCMR 45), MalikIqbalAhmadLangrialv.JamshedAlam
and others (PLD 2013 SC 179), Muhammad Khan
Junejov.Federation of Pakistan through Secretary, M/O Law
JusticeandParliamentaryAffairsandothers (2013 SCMR 1328),
AbdulGhafoorLehriv.ReturningOfficer,PB29,NaseerabadIIand
others (2013 SCMR 1271), Allah Dino Khan Bhayov.Election
CommissionofPakistan,Islamabadandothers(2013SCMR1655),
MianNajeebudDinOwasiandanotherv.AmirYarWaranand
others(PLD 2013 SC 482), MudassarQayyumNahrav.Ch.Bilal
Ijazandothers(2011SCMR80),HajiNasirMehmoodv.MianImran
Masood and others (PLD 2010 SC 1089), Nawabzada Iftikhar
AhmadKhanBarv.ChiefElectionCommissionerIslamabadand
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others(PLD 2010 SC 817), MuhammadRizwanGillv.NadiaAziz
andothers (PLD 2010 SC 828), MuhammadKhanJunejo v.Fida
HussainDeroandothers(PLD 2004 SC 452), RanaAftabAhmad
Khanv.Muhammad Ajmal (PLD 2010 SC 1066), Muhammad
SiddiqueBalochv.JehangirKhanTareenandothers(PLD 2016
SC 97), General(R.)PervezMusharrafv.ElectionCommissionof
Pakistan and another (2013 CLC 1461), Gohar Nawaz
Sindhuv.MianMuhammadNawazSharifandothers(PLD 2014
Lahore 670) and Ishaq Khan Khakwaniand others v.Mian
MuhammadNawazSharifandothers(PLD2015SC275).Referring
to the cases of RanaAftabAhmadKhanv.MuhammadAjmal (PLD
2010 SC 1066) andMuhammadSiddiqueBalochv.JehangirKhan
Tareenandothers(PLD 2016 SC 97) Mr. Khan maintained that
affirmative evidence is required to establish dishonesty for the
purposes of electoral disqualification and thatthethresholdhasto
be very high for disqualifying a person on the basis of
qualifications which are obscure and vague. He also contended
thatnodeclarationabouthonestycanbemadewithouttherebeing
a prior adjudication made by a court on the subject and in this
regard he relied upon the cases of SuoMotuCaseNo.4of2010
(ContemptproceedingsagainstSyedYousafRazaGillani,thePrime
MinisterofPakistan)(PLD 2012 SC 553) and MuhammadAzhar
Siddiqueandothersv.FederationofPakistanandothers(PLD2012
SC 660). He pointed out that in the cases of Umar Ahmad
Ghummanv.GovernmentofPakistanandothers(PLD2002Lahore
521) and SyedMehmoodAkhtarNaqvi v. FederationofPakistan
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 intheabsenceofaprioradjudicationinthatregardbut
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 SadiqAliMemonv.ReturningOfficer,
NA237, ThattaI and others (2013 SCMR 1246) wherein dual
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nationality was not disputed and was in fact admitted. He also
referred to the case of Dr.SherAfganKhanNiaziv.Mr.ImranKhan
(Reference No. 1 of 2007)whereinImranAhmadKhanNiazi,oneof
the present petitioners, had successfully maintained before the
Election Commission of Pakistan that postelection disputes fell
only under Article 63 and not under Article62oftheConstitution.
It was, however, conceded by Mr. Khan that a decision of the
Election Commission of Pakistan is not binding upon this Court.
38. On theissueofrespondentNo.6allegedlybeingadependent
of respondent No. 1 Mr. Khan argued that the nomination papers
filed by respondent No. 1 for election to NA120 before the general
elections held in the country in the year 2013 had correctly been
filled, no misstatement was made by him in the relevant solemn
affirmation regarding the list of his dependents and the Wealth
Statement filed by him for the year 2011 was quite correct. He
explained that in Column No. 12 of the said Wealth Statement
some land purchased by respondent No. 1 in the name of
respondent No. 6 had been shown but actually respondent No. 1
was not his dependent and a mention to her had been made in
Column No. 12 only because in the relevant form there was no
other column for disclosure of the land purchased. He further
clarified that respondent No. 6 had not been mentioned by
respondent No. 1 in Column No. 18 of the same form in respectof
dependents. He also pointed out that later on the incometaxform
wasamendedandanewColumnNo.14wasintroducedthereinfor
Assets in others name. Mr. Khan drew our attention towards a
clarification issued by a reputed firm of chartered accountants
wherein it was asserted and opined that the land purchased by
respondent No. 1 inthenameofrespondentNo.6hadbeenshown
in Column No. 12 of the relevant form because the said form did
not contain any other column wherein the above mentioned
purchase by the father in the name of his daughter could be
shown. According to Mr. Khan showing the relevant purchase by
respondent No. 1, beitinawrongcolumn,establishedbonafideof
the said respondent and that was surely better than suppressing
the said information. He emphatically maintained that respondent
No. 6 was amarriedladyhavinggrownupchildren,shewasapart
of a joint family living in different houses situated in the same
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compound, she contributed towards some of the expenses
incurred, submitted her independent tax returns, owned sizeable
property in her own name, was capable of surviving on her own
and she could not be termed a dependent merely because she
periodically received gifts from her father and brothers. He drew
our attention toward achartshowingthedetailsoftheagricultural
land owned by respondent No. 6 and referred to the cases of M.A.
Faheemuddin Farhum v. Managing Director/Member (Water)
WAPDA,WAPDAHouse,Lahoreandothers (2001 SCMR 1955), In
reBall.Decd. (1947) 1 Ch. 228 and InReBadensDeedTrusts
(No.2) (1973) Ch. 9 wherein the term dependent had been
interpreted. He clarified that as far as some foreign judgments on
the issue of dependence were concerned they were merely of
persuasive value but where interpretation of some foreign law is
involvedtheretheforeignlawistobeformallyprovedasaquestion
of fact, as held in the case of Atlantic Steamers Supply
Companyv.M.V.Titiseeandothers (PLD 1993 SC 88). He also
referred to the definition of Benamidar contained in the National
Accountability Ordinance, 1999 and to the cases of AbdulMajeed
and othersv.Amir Muhammad and others (2005 SCMR 577),
GhaniurRehmanv.National Accountability Bureau and others
(PLD 2011 SC 1144) and Mst.AsiaBibiv.Dr.AsifAliKhanand
others (PLD 2011 SC 829) wherein the said term had been
interpreted. In view of the interpretations of the terms dependent
and Benamidar in the said precedent cases Mr. Khanarguedthat
respondent No. 6 could not be treated or accepted as a dependent
of respondent No. 1. He also maintained that very clear proof of
dependence of one person on another is required before a court of
law and in that connection he relied upon the cases of AmirBibi
throughlegalheirsv.MuhammadKhurshidandothers(2003SCMR
1261) and Ch.MuhammadSiddiqueandanotherv.Mst.FaizMai
andothers (PLD 2012 SC 211). Mr. Khan emphasized that the
alleged dependence of respondent No. 6 on respondent No.1,even
if established, was relevant to the year 2011 and not to the year
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2013 when nomination papers were filed by respondent No. 1 for
contesting an election in the general elections. He alsopointedout
that the issue of respondent No. 6 allegedly being a dependent of
respondent No. 1 is already pending before the Election
Commission of Pakistan and, therefore, he submitted that this
Court may withhold any comment on that issue in the present
proceedings.
41. Mr. Hamid pointed out that respondents No. 6 and 9 had
placed on the record of these petitions copies of the tax returns of
respondent No. 6 for the years 2011 and 2012, the tax returns of
respondent No. 1 for the years 2011 and 2012, an opinion of a
reputed tax consultancy firm about correctness of the tax returns
filed by respondent No. 1, the license granted for setting up a
factory in Dubai, the lease deed for obtaining land in Dubai for
setting up a factory, the land rent agreement executed in Dubai,
the tripartite sale agreement inrespectofsaleof75%sharesofthe
factory inDubai,thesharessalecertificatepertainingtosaleofthe
remaining 25% shares of the factory in Dubai,aphotographtaken
at the time ofinaugurationofthefactoryinDubai,twoaffidavitsof
Mr. Tariq Shafi who was the Benamidarowner of the factory in
Dubai, incorporation certificates of Nescoll Limited and Nielsen
Enterprises Limited, all the share certificates in favour of
respondent No. 7, a trust deed qua a company named Coomber, a
trust deed dated 02/04.02.2006, two statements of a gentleman
from Qatar, incometax returns of respondent No. 6 from the year
2011 to the year 2016, incometax returns of respondent No. 6s
grandmother from the year 2011 to the year 2016, wealth
statement of respondent No. 1 for the year 2010 showing
agricultural land in the ownership of respondent No. 6, bank
statements of respondent No. 1 showing that all the relevant
transactions were carried out through banks, SRO No. 84(I)/2015
amending the incometax return form and the nomination papers
of respondent No. 1 showing that respondent No. 1 lived in his
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mothers house.
56. RespondentNo.5namelyDr.MuhammadIrshad,Chairman,
Federal Board of Revenue appeared before this Court in person
along with his learned counsel onFebruary21,2017andapprised
the Court that after disclosures made through the Panama Papers
the Federal Board of Revenue approached the Ministry of Foreign
Affairs for access to the Panaman authorities for obtaining
informationaboutthePakistanicitizensinvolvedinthescambutit
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did not receive any response and then notices were issued by the
Federal Board of Revenue on September 02, 2016 to 334 persons
located out of the 444 persons named in connection with that
scam through the print and electronic media. He informed that
only a few out of those 334 persons responded to the notices and
they included respondents No. 6, 7 and8herein.Accordingtohim
in her response dated November21,2016respondentNo.6denied
the allegations whereas through their response of the same date
respondents No. 7 and 8 maintained that they were Nonresident
Pakistanis and, thus, owning offshore companies by them did not
fall within the jurisdiction of the Federal Board of Revenue. The
Chairman stated before the Court in categorical terms that no
further steps had been taken by him in the matter. Later on
through a miscellaneous application filed on February 28, 2017
respondent No. 5 placed an formation before this Court that on
February 22, 2017 notices had been issued to respondents No. 7
and 8 under section 176 of the IncomeTax Ordinance, 2001
requiring themtosubstantiatetheirclaimedstatusofNonresident
Pakistanis. The Court was also informed through the same
application that the Immigration authorities had also been
required by the Federal Board of Revenue to produce the travel
record of the saidrespondentsduringtheperiodbetweentheyears
2006 and 2016. It was assured through the said application that
after receiving the necessary information from respondents No. 7
and 8 and the Immigration authorities the Federal Board of
Revenue would take further necessary action in the matter. It is
unfortunate that till passage of the final judgment of this case no
further information has been received by this Court from the
Chairman, Federal Board of Revenue regarding anyprogressmade
in the matter at his end.
It is true thatontheissueofhonestyofacandidateoramembera
prior declaration by a court of law regarding lack of honesty is a
prerequisite but inthecasesinitiatedbeforeanElectionTribunala
practice has developed that the same Tribunal first decides the
issue of honesty on the basis of theevidenceledbeforeitandthen
while issuing a declaration regarding honesty or the lack of it
simultaneously decides the matter of qualification or
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disqualification. The plethora of caselawreferredtobythelearned
counsel for the parties in this regard may not be reproduced here
because that is the practice in vogue without any contest. The
same is alsothepracticeincaseswhereintheissueofqualification
or disqualification is raised before a High Court in its
constitutional jurisdiction through a writofquowarrantoandthen
the matter reaches this Court through its appellatejurisdiction.In
all such cases some fact finding by a court or tribunal below is
involved and this Court then adjudicates upon the matter on the
basis of the evidence or material which is already on the record.
The issue involved in the present petitions is that the matter of
qualification or disqualification on the basis of honesty of
respondent No. 1 or thelackofithasbeenraisedbeforethisCourt
directly and the learned counsel for the private respondents have
maintained that while exercising its original jurisdiction under
Article 184(3) of the Constitution this Court ought to be extremely
reluctant to receive evidence or material on the issueofhonestyin
the first instance in the absence of a proper evidentiary hearing
and then simultaneously to issue a declaration on that issue and
proceed to disqualify a person, particularly when no remedy of
appeal is available against such adjudication and the
disqualification is permanent. Theyhavemaintainedthattheissue
of honesty or otherwise of respondent No. 1 involves disputed and
intricate questions offactwhichcannotadequatelyorsatisfactorily
be answered in theoriginaljurisdictionofthisCourt.Thestanceof
the learned counsel for the private respondents in this regard can
be attended to after appreciating as to why these petitions had
been entertained by this Court in its original jurisdiction under
Article 184(3), isthereanyothercourtoflawavailableatthisstage
to issue the prayed for declaration in the context of Article 62(1)(f)
of the Constitution regarding lack of honesty of respondent No. 1
and are there disputed or intricate questions offactreallyinvolved
in these petitions or not.
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68. According to Article 90(1) of the Constitution by virtueofhis
being the Prime Minister of the country respondent No. 1 is the
Chief Executive of the Federation and it is practically he who
appoints the heads of all the institutions in the country which
could have inquired into or investigated the allegations leveled
against respondent No. 1 and his family on the basis of the
Panama Papers. Even the Speaker of the National Assembly who
could refer the matter to the Election Commission of Pakistan
belongs to his political party and is his nominee. These petitions
had been entertained by this Court in the backdrop of an
unfortunate refusal/failure on the part of all the relevant
institutions in thecountryliketheNationalAccountabilityBureau,
the Federal Investigation Agency, the State Bank of Pakistan, the
Federal Board of Revenue, the Securities and Exchange
Commission of Pakistan and the Speaker oftheNationalAssembly
toinquireintoorinvestigatethematterortoreferthemattertothe
Election Commission of Pakistan against respondent No.1.AHigh
Court could have entertained a writ petition in the nature of quo
warrantosoastoattendtothematterbutitisagreedatallhands
that the matter is of immense public importance and involves
enforcement of some Fundamental Rights guaranteed by the
Constitution and that is why allthepartiesbeforethisCourtagree
that the present petitions filed under Article 184(3) of the
Constitution are competent and maintainable and also that the
jurisdiction underArticle184(3)oftheConstitutionisfreefromthe
trappings of Article 199 of the Constitution. It is also not disputed
that the remedy of filing an Election Petition before an Election
Tribunal under Article 225 of the Constitution is not available at
this juncture. The Speaker of the National Assembly could have
referred the matter to the Election Commission of Pakistan under
Article 63(2) of the Constitution but he has already dismissed
various petitions filed before him in this regard by as many as
twentytwo members of the NationalAssemblyincludingoneofthe
presentpetitioners.Itisproverbialthatthereisnowrongwithouta
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remedy. It was in the above mentioned unfortunate background
that this Court had entertained thesepetitionsandnowthisCourt
cannot turn around and shy awayfromdecidingthemattersimply
because it statedly involves somedisputedorintricatequestionsof
fact which, as shall be discussed shortly, it does not. Apart from
that if this Court stops short of attending to the issue merely
because it involves some disputed or intricate questions of fact
then the message being sent would be that if a powerful and
experienced Prime Minister of the country/Chief Executive of the
Federation appoints his loyalists as heads of all the relevant
institutionsinthecountrywhichcaninquireintoorinvestigatethe
allegations of corruption, etc. against such Prime Minister/Chief
Executive of the Federation then a brazen blockingofsuchinquiry
or investigation by such loyalists would practically render the
Prime Minister/Chief Executive of the Federation immune from
touchability or accountability and that surely would be nothing
short of a disaster. It is said that how highsoever you may be the
law is above you. It is in such spirit of democracy, accountability
and rule of law that this Court would not give a Prime
Minister/Chief Executive of the Federation a field day merely
because no other remedy is available or practicable to inquire into
the allegations of corruption, etc. leveled against him or where
such inquiry involves ascertainment of some facts. It is not for
nothing that Article 187(1) of the Constitution hasempoweredthis
Court to do complete justice where all other avenues of seeking
justice are either unavailable or blocked. Apart from that I refuse
toacceptthecontentionthatthepetitionsinhandinvolvedisputed
and intricate questions of fact which we cannot attend to or
adjudicate upon in the present proceedings under Article184(3)of
the Constitution. The ownership and possession of the relevant
four properties in London are not denied by respondent No. 1s
family and the onlyquestionrelevanttotheissuebeforeusisasto
whether respondent No. 1s denial of any connection with
acquisition of those properties is honest or not. It ought not to be
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lost sight of that it is not the property in London which is inissue
before this Court but what is at issue is respondent No. 1s
honesty for the purposes of a disqualification under Article62(1)(f)
of the Constitution. Therefore, in order to attend to the said core
issue I have decided to keep aside the material produced by the
petitioners regardingthefourpropertiesinLondonandtotakeinto
consideration primarily the explanations offered and the material
supplied by respondent No. 1 and his children in order to see
whether their explanations visvis acquisition of the said
properties are on the face of it honest or not. This approach
adopted by me leaves mewithnodisputedorintricatequestionsof
fact on the issue and focuses solely on the issue of honesty of
respondent No. 1 with reference to the explanations advanced by
him and his family only. Respondent No. 1 and his family cannot
claim that their explanations offered on the issue are themselves
disputed or intricate and this Court cannot even look at them!
69. Apart from what has been observed above in the case of
Lt.Col.FarzandAliandothersv.ProvinceofWestPakistanthrough
the Secretary, Department of Agriculture, Government of West
Pakistan,Lahore (PLD 1970 SC 98) this Court had clarified that
where the question is of a right to continue in public office the
matter is of public interest and in the absence of any other
adequate remedy this Court can interfere through proceedings not
exactly as quowarranto but in the nature of quowarranto with a
wider scope. In the present case respondent No. 1 is not just a
serving member of the National Assembly but also the Prime
Minister of the country and, thus, public interest in his right to
continue in office is immense. In the case of MuhammadAzhar
Siddiquiandothersv.FederationofPakistanandothers(PLD2012
SC 774) Prime Minster Syed Yousaf Raza Gillani was declared by
this Court itself to be disqualified through proceedings conducted
under Article 184(3) of the Constitution after his conviction had
been recorded for committing contempt of court. In the case of
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Syed Mehmood Akhtar Naqvi v.FederationofPakistanthrough
SecretaryLawandothers(PLD2012SC1089)numerousmembers
of the MajliseShoora (Parliament) had been declared by this
Court to be disqualified on the basis of their being holders of dual
nationality and were shownthedoorthroughdirectexerciseofthis
Courts jurisdiction under Article184(3)oftheConstitutionandon
that occasion some factual inquiry had also been conducted by
thisCourt.IthadclearlybeenheldinthatcasethatthisCourthad
the jurisdiction to satisfy itself on a question of fact touching a
disqualification notwithstanding any admissionmadebyapartyor
not. It is settled by now that the jurisdiction of this Court under
Article 184(3) of the Constitution is inquisitorial in nature rather
than adversarial and while exercising such jurisdiction this Court
can ascertain, collect and determine facts where needed or found
Pakistan Muslim League (N)through
necessary. In the case of
Khawaja Muhammad Asif, M.N.A. and othersv. Federation of
Pakistan through SecretaryMinistryofInteriorandothers (PLD
2007 SC 642) it was observed by this Court that there was a
judicial consensus on the scope of proceedings under Article
184(3) of the Constitution and that evendisputedquestionsoffact
could be looked into where a Fundamental Right had been
breached provided there was no voluminous evidence to be
assessed and no intricate disputed questions offactwereinvolved.
In the case of Air Marshal (Retd.) Muhammad Asghar
Khanv.General(Retd.)MirzaAslamBaig,FormerChiefofArmy
Staff and others (PLD 2013 SC 1) some evidence was in fact
recorded by this Court while hearing a petition filed under Article
184(3) of the Constitution. Even in the case of GeneralSecretary,
WestPakistanSaltMinersLabourUnion(CBA)Khewra,Jhelumv.
TheDirector,IndustriesandMineralDevelopment,Punjab,Lahore
(1994 SCMR 2061) this Court had clearly held that an exercise of
finding facts can be resorted toinproceedingsunderArticle184(3)
of the Constitution. It is also a fact that while proceeding under
Article 184(3) of the Constitution this Court had in many a case
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constituted Commissions tasked to inquire into some facts by
recording evidence and to determine questions of fact on behalf of
the Court and areferenceinthisrespectmaybemadetothecases
of Ms.ShehlaZiaandothersv.WAPDA (PLD 1994 SC693),Watan
Partyandothersv.FederationofPakistanandothers (PLD 2012
SC 292) and Suo Motu case No. 16 of 2016 (Quetta lawyers
carnage case).
71. It was also contended by the learned counsel for the private
respondents that in exercise of this Courts jurisdiction under
Article 184(3) of the Constitution ordinarily no evidence is
recorded, no right of crossexamination of witnesses is available
and no right of appeal exists against the decision rendered and,
therefore, it can be argued that rendering a finding of fact in
exercise of such jurisdiction maymilitateagainsttheFundamental
Right guaranteed by Article 10A of the Constitution regarding fair
trial and due process. Article 10A of the Constitution provides as
follows:
52016
!
25
161971
15 2 1972
1936
18 6
1979
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1989
)(
50 1989
5050
1999
14
7
1994
2000
6
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77. OnMay16,2016respondentNo.1readoutawrittenspeech
in the National Assembly which was broadcast andtelecastliveon
radio and television and this is what he said on that occasion:
162016
!
!
!
22
315
!
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!
20
!
!
11
80
1970
1972
41971
1 80
700 44
4 500
50 155
!8
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6
60 1983
6 757
! 1995
197080
!
237
8 23 10
!
"
"
23 8 15
360
""
!
! 1972
10
!45
! 1980 33.37
9
!
1999
!
2005
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6417
!
!
!
! 70
3
2018
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A careful reading of that speech made by respondent No. 1 shows
that it was for the first time that any mention had been made
therein by the respondent to setting up and sale of a factory in
Dubai as no mention of the same had been made by the
respondent in his first or second address to the nation on the
issue. It had been stated in the latestspeechthatintheyear1999
the entire record of the familys business had been taken away by
the authorities and the same had not been returned despite
repeated requests but later on in the same speech respondent No.
1 had categorically stated that the entire record and documents
pertaining to the Dubai and Jeddah factories was available and
that such record could be produced before any committee or
forum! The first address to the nation mentioned setting up of a
steel factory near Makkah but the speech made in the National
Assembly referred to a steel factory in Jeddah. In the first address
to the nation respondent No. 1 had claimed that the proceeds of
sale of the steel factory near Makkah had been utilized by his two
sons for setting up their business but in the speech made in the
National Assembly he had changed his earlier stance and had
maintained that the generated resources had been utilized for
purchase of the flats in London. Even in that speech respondent
No. 1 had never stated that he had noconcernwiththeownership
of those properties or that no money belonging to him had been
utilized for their acquisition. The story about purchase of the
relevant properties in London had taken yet another turn at a
subsequent stage.
Jeddah factory
are available.
These are the
means and
resources which
were used to
purchase the
flats in London.
Mr. Speaker! Let
me say this in
clear and
unambiguous
terms that
whether it was
Jeddah factory,
London flats or
any other
payment, not a
singleRupeefrom
Pakistan had
been transferred
for them. The
insecurity
because of which
our father
invested in Dubai
was proved to be
well founded in
1999 when our
family business
was once again
crippled.
All concise Deniedownership * Never denied
statements of any of the four possession of the four
filed by properties in properties in London.
Mian London.
Muhammad * Neversaidthatthesaid
Nawaz four properties belong to
Sharif his children.
before this
Court * Did not mentionsaleof
the factory in Jeddah
being the sources of
funds for acquisition of
the flats in London as
mentioned in his speech
in the National
Assembly.
* No mention of the
factory in Dubai, the
factory in Jeddah or any
investment in Qatar.
Mrs. Park Lane flats * Children were studying
Kulsoom were bought in London in the 1990s.
Nawaz because the
Sharif children were * Supported her
quoted by studying in husbands stance that
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Guardian, London. the flats in London had
London: been purchased.
April 10,
2000. * Contradicted the
stance of her children
that the flats were
acquired in 2006.
Respondent No. Interview: I do not have any *In2011shedeniedthat
6: Lekin, Geo property in she or her siblings
Mariam Safdar News: Central London, owned any property in
November in fact farfromit, London whereas her
08, 2011 I do not own any stance before this Court
property even in is that her brother
Pakistan. I live Hussain Nawaz Sharif
with my father. I owns the relevant four
fail tounderstand properties in Central
from where they London since 2006 and
have dug out she is a trustee of those
properties properties for the said
belonging to me, brother since 2006.
my mother, my
sister or my
brothers.
Joint Respondent No. * Did not mention that
concise 6isonlyatrustee she was a trustee for
statement for Respondent respondent No. 7 in
filed by No. 7 in relation relation to Nielsen
respondents to Nescoll. Enterprise Limited also.
No. 6, 7 and
8:
November
07, 2016
Additional She came to * That meant that she
statement know of the knew about acquisition
filed by settlement in of the flats in London by
respondent Qatar regarding one of her brotherssince
No. 6: the flats in 2005butinherinterview
January 24, London in 2005 in 2011 she categorically
2017 when she was denied knowledge of any
asked to become property of his brothers
a trustee for her or sister in London.
brother.
* She maintained that
she had been asked to
become a trustee for her
brothers in respect of the
flats in London in 2005
whereas the flats had
statedly been transferred
in favour of her brother
in 2006. This established
that the flats were
already owned by the
brother since before the
socalled settlement of
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business in Qatar.
Respondent No. Interview: Stance 1: * No document produced
7: Capital The sale of the to showthatanyamount
Mr. Hussain Talk, factory in Saudi was officially transferred
Nawaz Sharif Geo News: Arabia fetched from Saudi Arabia to the
January 19, us a very good United Kingdom after
2016 amount and that sale of the factory in
money was then Jeddah.
officially
transferred to * No proof of any
Britain. mortgage created for
acquisition of the
Stance 2: properties in Londonhas
From that been produced.
officially
transferred * The story about
money to Britain mortgage was a totally
I had obtained newstoryandcompletely
three properties contradictory to the
in London other stories based upon
through purchase or settlement
mortgage. in Qatar.
Those properties
are still* A document produced
mortgaged and by respondent No. 1
the mortgage before the Court showed
amount is still that after the death of
being paid for Mian Muhammad Sharif
them gradually. in 2004 his inheritance
We, again said had been settled in 2009
I, had with distribution of
purchased assets.
those properties
in 2006. * Under Shariah
respondent No. 7 was
Stance 3: not an heir of his
All the assets grandfather Mian
were distributed Muhammad Sharif and,
in 2005 thus, he did not inherit
whereafter my anything from him in
father ceased to 2004. After the death of
have any legal the grandfather in 2004
connection with all his assets, including
his sons any investment in Qatar,
businesses but automatically devolved
according to upon his heirs including
Shariah respondent No. 1. So,
everything respondent No. 1 was
belonging to me one of the owners of the
is his and even I assets which were
am owned by statedly transferred in
him. favour of respondent No.
7 in 2006 and that is
why respondent No. 7
might have said that
everything belonging to
me is his.
Interview: In 2005 I sold a * The subsequent stand
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The facts mentioned above are neither disputed nor intricate. The
material referred to above is not controverted by respondent No. 1
or his children and the same materialisinfactalsorelieduponby
the petitioners. None of the parties has asked us to record any
evidence or to call for any evidence. No detailed assessment of
such material is required because the material speaks for itself.
Resipsaloquitur(the thing speaks for itself). Even a layman can
appreciate, and one does not have to be a lawman to conclude,
that what had been told to the nation, the National Assembly or
even this Court about how the relevant properties in London had
been acquired was not the truth. A pedestrian in PakistanChowk,
Dera Ghazi Khan (a counterpart of Lord Dennings man on the
Clapham omnibus) may not have any difficulty in reaching that
conclusion. However, that is not all as much more is still to follow.
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84. On one of the dates of hearing of these petitions Mr.
Muhammad Akram Sheikh, Sr. ASC, the then learned counsel for
the children of respondent No. 1, dramatically, and with theatrical
impact, took out an envelope from his brief and produced before
the Court a document containing a statement of one Mr. Hamad
Bin Jassim Bin Jaber AlThani who statedly belongs to the royal
family of Qatar and had remained a PrimeMinisterofthatcountry
in the past. That statement was made on November 05, 2016 and
the signatures of the gentleman on that statement had been
attested by the Ambassador of Pakistan to Qatar onthesameday.
That statement was not an affidavit nor the contents of the same
had been attested by any authority or authorized person. The
contents of that document are reproduced below for facility of
reference:
Hamad Bin Jassim Bin Jaber AlThani
5 November 2016
I, the undersigned, do hereby state the following:
1. Myfatherhadlongstandingbusinessrelationswith
Mr. Mian Muhammad Sharif, which were
coordinated through my eldest brother. Our
Families enjoyed and continue to enjoy personal
relations.
2. I was informed that during the year 1980, Mr.
Mian Muhammad Sharif expressed his desire to
invest a certain amount of money in real estate
business of Al Thani family in Qatar.
3. I understoodatthattime,thatanaggregatesumof
around 12 Million Dirhams (AED 12,000,000) was
contributed by Mr. Mian Muhammad Sharif,
originating from the sale of business in Dubai,
UAE.
4. The properties Flat # 17,Flat#17a,Flat#16,Flat
# 16a at Avenfield House, Park Lane, Londonwere
registered in the ownership of two offshore
companies, bearer share certificates of which were
kept during that time in Qatar. These were
purchased from the proceeds of the real estate
business.
On account of relationship between the families,
Mr. Mian Muhammad Sharif and his family used
the Properties whilst bearing all expenses relating
to the Properties, including the ground rent and
service charges.
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5. I can recall that during his life time, Mr. Mian
Muhammad Sharif wished that the beneficiary of
his investment and returns in the real estate
business is his Grandson, Mr. Hussain Nawaz
Sharif.
6. In the year 2006, the accounts in relation to the
above investment were settled between Mr.
Hussain Nawaz Sharif & AlThanifamily,whothen
delivered the bearer shares of the companies
referred in para 4 above to a representative of Mr.
Hussain Nawaz Sharif.
Theforegoing,asfarasmyrecollectionofeventsandtheavailable
records in Doha, depicts the relationship between the families.
This statement is private and confidential it cannot be used or
disclosed to any partywithoutmypriorwrittenconsent,exceptto
the benefit of the courts and regulators oftheIslamicRepublicof
Pakistan.
(signed)
Hamad bin Jassim bin Jaber Al Thani
Signature of H. E. Sheikh
Hamad bin Jassim binJaber
Al Thani is ATTESTED.
(signed)
(Shahzad Ahmad)
Ambassador of Pakistan
DohaQatar
(seal)
85. The first thought that comes to mind in the context of the
said statement of Mr. AlThani is about its timing. In the first
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address to the nation respondent No.1talkedaboutafactorynear
Makkah but not about any factory in Dubai and certainly not
about any real estate business in Qatar as the source of funds for
acquisition of the properties in London. In his second address to
the nation respondent No. 1 did not talk about anyspecificsource
of funds for such acquisition at all. In his speech in the National
Assembly respondent No. 1 introduced the factory in Dubai and
the proceeds of its sale besides the purchase and sale of a factory
in Jeddah (not near Makkah) but uttered no word about any
investment in Qatar or any resource becoming available through
any real estate business in Qatar. In those speeches respondent
No. 1 had categorically said that those were the funds and
resources through which the properties in London had been
purchased and also that he had given the entire background of
his familys business and he had informed his countrymen about
all the important stages ofhisfamilysjourneyinbusiness.Hehad
maintained on that occasion that the true facts had been fully
brought to the knowledge of his dear countrymen. He had also
claimed that nothing had been concealed by him and that
everything was like an open book. The subsequently introduced
statement from Qatar, however, established beyond doubtthatthe
speeches made by respondent No. 1 before the nation or its
representatives in the National Assembly were not the whole truth
andthebookpresentedbyhimhadmanymissingpages.Whenthe
speeches made by respondent No. 1 before the nation or its
representatives in the National Assembly are juxtaposed with the
above mentioned statement received from Qatar it becomes
obvious that they are mutually destructive and cannot coexist
simultaneously as the truth. The speeches spoke of purchase of
the properties in London whereas the statement from Qatar spoke
of transfer of those properties as a result of a settlement in the
backdrop of an earlier investment in real estate businessinQatar.
The speeches spoke ofarouteoffundswhichwasMakkahLondon
or DubaiJeddahLondon butthestatementfromQatardiscloseda
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totally different route, i.e. DubaiDohaLondon. An impression is,
thus, unavoidable that all was not well with the divergent
explanations being advanced and itwasnotjusttheresourcesand
the routes of resources which were being changed from time to
time but it was the truth which was being improved, moulded
and sacrificed at the altar ofexpedience.Itisofcriticalimportance
to mention here that even in his concise statements submitted by
respondent No. 1 before this Court in connection with the present
petitions the said respondent has not said a word about any
investment in real estate business in Qatar or about some funds
becoming available through a settlement in respect of such
business!
A bare look at this chart makes one wonder where truth and
honesty stand in the list of priorities of respondent No. 1 and his
children. The most unbelievable part of the story about setting up
of the factory in Jeddah is told through the second statement of
the gentleman from Qatar dated December 22, 2016 wherein it is
maintained that between the years 2001 and2003AlThanifamily
of Qatar had transferred 5.41 million US Dollars in favour of
respondent No. 7 for investing in setting up a factory in Jeddah
and that information was supplied to respondent No. 7 by one
Nasir Khamis, a representative of Mr. Hamad Bin Jassim Bin
Jaber AlThani, at the time of over allsettlementoftheinvestment
at the end of the year 2005. The said story wants this Court to
believe that respondentNo.7wasgivenahugesumof5.41million
US Dollars between the years 2001 and 2003 but he was told
about it in the year 2005! As against that in one of his interviews
given much later than 2005 respondentNo.7hadmaintainedthat
loans had been obtained from friends and banksforsettingupthe
factory in Jeddah which loans had then been repaid before the
time due. We have also been told that the said factory in Jeddah
had been sold in the year 2005 and it had fetched 20,630,000
Riyals (about 17 million US Dollars) butnobankingtransactionor
money trail in that regard has been produced before this Court
showing from where did that money come and then where did it go.
And what was the evidence produced before this Court in respect
of allthosemillionsofUSDollarsrollingaround?Itisamazingand
unbelievable. The following two handwritten documents were all
that had been produced before this Court in support of all those
transactions:
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We have been told that the last of the said documents is a
worksheet which reads in English language as follows:
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101. Respondent No. 1s brush with criminal law is also not new.
InthecaseofMianHamzaShahbazSharifv.FederationofPakistan
andothers(1999 P.Cr.L.J. 1584) two FIRs hadbeenregisteredby
the Federal Investigation Authority in the year 1994 and Challans
in respect of such FIRs had been submitted before the competent
court with the allegations that respondent No. 1 and others had
indulged in serious corruption and money laundering, etc. Those
Challans had been quashed later on at a time when respondent
No. 1 was serving as the Prime Ministerofthecountry.Inthecase
of MessersHudabiyaPaperMillsLtd.andothersv.Federationof
Pakistanandothers(PLD 2016 Lahore667)aReferencehadbeen
filed by the NationalAccountabilityBureauagainstrespondentNo.
1 and others with the allegations of corruption and money
laundering, etc. but even that Reference was quashed during the
incumbency of respondent No. 1 as the Prime Minister of the
country. In the case of MianMuhammadNawazSharifv.TheState
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(PLD 2009 SC 814) respondent No. 1 had been convicted and
sentenced on April 06, 2000 by an AntiTerrorism Court for
offences under section 402B, PPC and section 7(f) of the
AntiTerrorism Act, 1997 on the allegation of highjacking a
commercial aeroplane and thereby committing the offence of
terrorism but later on he wasacquittedofthechargebythisCourt
on July 17, 2009. In the case of AirMarshal(Retd.)Muhammad
AsgharKhanv.General(Retd.)MirzaAslamBaig,FormerChiefof
ArmyStaffandothers(PLD2013SC1)adeclarationwasrecorded
by this Court in exercise of its jurisdiction under Article 184(3) of
the Constitution to the effectthatcorruptionandcorruptpractices
had been committed in the holding of a general election in the
country and in the judgment passed in that case respondent No.
1s stated involvement in the matter had been referred to twice in
that context and the matter of criminality of respondent No. 1and
others in that connection was required to be investigated by the
Federal Investigation Agency. Unfortunately no investigation in
that matter has so far been conducted for obvious reasons. In the
case of MianMuhammadNawazSharifv.TheState(PLD 2010
Lahore 81) respondent No. 1 had been convictedandsentencedby
an Accountability Court on July 22, 2000 but subsequently his
conviction and sentence had been set aside by the Lahore High
Court on June 26, 2009. In that case the allegation was that in
October 1993 respondent No. 1 had purchased a helicopter and
had used and maintained the same for his election campaign
whereas the costs and maintenance expenses incurred by
respondent No. 1 were beyond his known sources of income.
Respondent No. 1 had been acquitted in that case because it had
been shown that the helicopter was actually purchased by one
Abdul Rehman Bin Nasir AlThani of Qatar. The said gentleman
from AlThani family of Qatar is statedly a close relative of Mr.
Hamad Bin Jassim Bin Jaber AlThaniwhosetwostatementshave
been produced before this Court in the present proceedings in
support of respondent No. 1 andhischildren.Itappearsthatclose
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friendship between AlThani family of Qatar and respondent No. 1
and his family has stood the test of time. It is proverbial that a
friend in need is a friend indeed. Being a foreign dignitary Mr.
Hamad Bin Jassim Bin Jaber AlThani is held by me in high
esteem yet the information about him available on the Internet is
unfortunately quite uncharitable and the same is reproduced
below without making any comment of my own on the same:
(https://en.wikipedia.org/wiki/Hamad_bin_Jassim_bin_Jaber_Al_
Thani)
Legal issues
BAE Systems
FollowingcourtingbyMichaelPortillo,Qatarenteredintoanarms
deal worth 500 million with BAE Systems.[15]7 million was
transferred into two trusts in Jersey of which Hamadwasnamed
as a beneficiary. In an attempt to prevent money laundering, the
funds were frozen from 16 July 2000 by the Jersey Financial
Services Commission, who then began a court case and
investigation.[14]Hamad paid the Jersey authorities 6 million as
a "voluntary reparation" as "the structures put in place by his
advisers may have contributed to the cost and complexity of the
inquiry." The case was then dropped by the Jersey authorities.[5]
Fawaz AlAttiya
HBJ is facing a lawsuit brought on by Fawaz AlAttiya, former
official spokesman for Qatar, who says that agents acting on
behalf of HBJ imprisoned and tortured him in Doha for 15
months from 20092011. AlAttiya says that he was kept in
solitary confinement, only let out of handcuffs tobeinterrogated,
subjected to sleep deprivation, and denied proper access to food,
water, and sunlight.[16]AlAttiya also alleged that he was not
adequatelycompensatedforhisQatarilandthatwasexpropriated
by the state.[17]Documents submitted by AlAttiyas lawyers state
that in 1997, HBJ offered to buy 20,000 square meters of land
from AlAttiya in west Doha. AlAttiya says that he refused the
offer because he felt that the land was worth more than HBJs
offer, a move that angered HBJ. He alleges that HBJ then seized
the land and subjected AlAttiya to increasing harassment,
threats, and surveillance. A decade later in 2007, HBJ allegedly
tried to have AlAttiya arrested in Dubai. AlAttiya thenmovedto
Saudi Arabia in 2008 when a series of legal cases were filed
against him, including one that alleged that he leaked state
secrets during his tenure serving in public office. Court
documents state that AlAttiya was forcibly taken from Saudi
Arabia to Qatar in October2009.FromthenuntilJanuary2011,
AlAttiya was held in various prisons around Qatar. Attiya was
told by Qatars assistant attorney during this time that he was
being detained at the behest of the prime minister (Hamad bin
Jassim), that there was no intention to release him and that any
attempt to secure release through securing a court orderwould
either be prevented or any such order would not be carried out.
Attiya was ultimately released on orders of the crown prince.[5]
After his release, HBJ filed another case against Attiya claiming
that he had forged a check worth 3 million riyals and as aresult
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owed money to Qatar National Bank. This case was alsodropped
due to intervention by the crown prince.[16]
HBJ denies all claims against him in regards to Fawaz AlAttiya
and says that he has diplomatic immunity and state immunity
given his diplomatic position in London, leaving Londons High
Court without jurisdiction. No decision has been made yet as to
whether his diplomatic immunity will extend to this case.[16][18]
Heritage Oil
InJune2014,HBJacquired80%ofHeritageOil,whichwaslisted
as a London exploration and production company. At the same
time, he was listed as a Counsellor at the Qatari embassy and
as such was privileged to legal immunity under the 1961 Vienna
Convention. Article 42 of this convention states that a diplomat
shall not in the receiving State practise for personal profit any
professional or commercial activity thereby disallowing the
acquisition in which HBJ engaged. The stake, valued at 924
million and dated April 30, 2014, transferred to a wholly owned
subsidiary of AlMirqab Capital, an investment company
privately owned by HBJ and his family. HBJs lawyers maintain
that the fact that the company was listed in London is not
sufficient evidence to determine that Article 42 had been
violated.[19]
Controversies
A May 2008 diplomatic cable sent by then U.S. charg d'affaires
in Doha, alluded to a dispute between HBJ and the Qatari
intelligence officials over a Qatari senior bank official imprisoned
for 6 months over his role in fundingKhalid Sheikh
Mohammed(KSM), thealQaedamastermind ofSeptember 11.
The senior bank official was Khalifa Muhammad Turki alSubaiy
who financed KSM while working atQatar Central Bank.[14]
In November 2016, Pakistani Prime Minister produced a letter
from Hamad Bin Jassim to claim that thepropertiesidentifiedas
owned by his daughterinPanamaLeaksareactuallyareresultof
a settlement that happened in 2006. The letter wasmostlybased
on hearsay and soon after the first letter second letter was
produced which tried to cover up holes left in the firstletter.The
properties were purchased by Sharif family from 19921996
through off shore companies Nescoll and Nielson. The beneficial
owner of those four flats is Maryam Safdar (daughter of Prime
Minister Nawaz Sharif) according to leakedPanamapapers.Ifthe
court calls Hamad Bin Jassim to stand as the witness to prove
the worth of his letter, he could be sent to prison for lying.
Pakistan is a poorcountrybutwilldefinitelyimprisonfraudswho
could help making black money white. It is alleged that Hamad
bin Jassim's companies got lucrative LNG deal worth Billions of
dollars with Pakistan through his connection with Nawaz Sharif.
A holder of a publicoffice,oranyotherperson,issaidtocommit
or to have committed the offence of corruption and corrupt
practices:
(v) if he or any of his dependents or benamidars owns,
possesses, or has acquired right or title in any assets or holds
irrevocablepowerofattorneyinrespectofanyassetsorpecuniary
resourcesdisproportionatetohisknownsourcesofincome,which
he cannot reasonably account for or maintains a standard of
living beyond that which is commensurate with his sources of
income
Definition of proved:
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the standard of proof need notbe,andshouldnotbe,weakened,
nor thatitneedbeorshouldbestrengthened.Thesamestandard
of proof, namely one based upon the balance of probability,
should be applied. That standard does not require certainty, or
even likelihood beyond a reasonable doubt. Nor does it require
conclusive, direct evidence. It requires evidence, to be sure, but
such evidence may be indirect or circumstantial, to the extent it
is sufficient, in the context of the surrounding circumstances, to
tip the balance of probability.
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In the case of Dr.AftabShahv.PakistanEmployeesCooperative
SocietyLimitedand5others(2006 CLC 342) the High Court of
Sindh had observed as follows:
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115. The main relief prayed for by the petitioners through the
present petitions is regarding a declaration that respondent No. 1
is not honest and ameen and consequently he is not qualified to
be elected to or remain a member of the MajliseShoora
(Parliament) and for seeking such relief a wholehearted reliance is
placed upon the provisions of Article 62(1)(f) of the Constitution
which are reproduced below:
62. (1) A person shall not be qualified to be elected or
chosen as a member of MajliseShoora (Parliament) unless
(a)
(b)
(c)
(d) he isofgoodcharacterandisnotcommonlyknownasone
who violates Islamic Injunctions
(e) he has adequate knowledge of Islamic teachings and
practices obligatorydutiesprescribedbyIslamaswellasabstains
from major sins
(f) he is sagacious, righteous, nonprofligate, honest and
ameen, there being no declaration to the contrary by a court of
law and
.
It appears that while prescribing the said qualifications guidance
must have been sought from the Holy Quran wherein the
qualifications for a domestic servant indicated are alqavi ul
ameen (physically strong and reliable/trustworthy) [Surah
AlQasas: verse No. 26] and those forbeingplacedoverresources
of the land are hafeezunaleem(reliablecustodian/protectorand
knowledgeable) [Surah Yusuf: verse No. 55]. It is probablyinthose
contexts that the qualifications of being honest and ameen
prescribed in Article 62(1)(f) of the Constitution are to be
understood, interpreted and applied. The reasons why such
stringent qualifications for the elected representatives found their
way into the Constitutionandthedifficultieslikelytobefacedbya
court or tribunal in interpreting and applying such abstract
qualifications to real cases were commented upon by me in my
separate concurring judgment delivered in the case of IshaqKhan
Khakwaniandothersv.MianMuhammadNawazSharifandothers
(PLD 2015 SC 275). In the said judgment a numberofambiguities
and impracticalities were highlighted and observations were made
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how it was difficult for a court or tribunal to apply the above
mentioned requirements of Article 62 of the Constitution. The
relevant part of that judgment reads as follows:
4. It is unfortunate thatthenightmaresofinterpretationand
application apprehended and anticipated by me as a young
lawyer more than a quarter of a century ago are presently
gnawing the Returning Officers, Election Tribunals and the
superior courts of the country in the face but those responsible
for rationalizing the troublesome provisions of the Constitution
through appropriate amendments of the Constitution have slept
over the matter for so long and they still demonstrate no sign of
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waking up. As long as the highlighted obscurities and
impracticalities are not addressed and remedied nobody should
complain that the Returning Officers, Election Tribunals and the
superior courts of the country are generally unsuccessful in
catching the candidates with bad character or antecedentsinthe
net of Articles 62 and 63 of the Constitution, particularly when
the electorate is quite happy to elect such candidates with
sweeping majorities while in fullknowledgeoftheircharacterand
antecedents. Let us not shy away from acknowledging the hard
reality that there is a disconnect between our constitutional
morality and our political ethos. There are no qualms of
conscience when through a constitutional and legal process a
person is ousted from an elected chamber on account of his
academic degree being fake and forged but he is returned by the
electorate to the same chamber with a bigger majority and he
triumphantly reenters that chamber while flashing a sign of
victory. The sign so shown or flaunted proclaims victory of
political expediency over constitutional values andsuchattitudes
of our society call for serious reflection and soulsearching.
5. This reminds me of George Bernard Shaw who had
observed that "Democracy is a device that ensures we shall be
governed no better than we deserve." Abraham Lincoln had once
remarked: Let me not be understood as saying that thereareno
bad laws, nor that grievances may not arise for the redress of
which no legal provisions have beenmade.Imeantosaynosuch
thing. But I do mean to say that although bad laws,iftheyexist,
should be repealed as soon as possible, still, while they continue
in force, for the sake of example they should be religiously
observed. If theconstitutionalprovisionsdiscussedabovecannot
be put to practical use due to theirobscuritiesorimpracticalities
then we may pay heed to Baron de Montesquieu who had
declared that Useless laws weaken necessary laws. It may be
well to remember that laws and institutions, like clocks, must
occasionally be cleaned, wound up and settotruetime.Eventhe
old bard William Shakespeare had written in Measure for
Measure:
116. It may be true that the provisions of Article 62(1)(f) and the
likes of them had been inserted in the Constitution through an
amendment by an unrepresentative regime of a military ruler but
at the same time it is equally true that all the subsequent
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democratic regimes and popularly elected Parliaments did nothing
either todeletesuchobscureprovisionsfromtheConstitutionorto
define them properly so that any court or tribunal required to
apply them may be provided some guidance as to how to interpret
and apply them. Be that as it may the fact remains that the said
provisions are still very much a part of the Constitution and when
they are invoked in a given case the courts and tribunalsseizedof
the matter have no other option but to make some practical sense
of them and to apply them as best as can be done. Before
application of those provisions to real cases it is imperative to
understand as to why such provisions were made a part of the
Constitution and where do they stand in the larger design of the
Constitution.
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119. In all the above mentioned cases the relevant courts and
tribunals were cognizant of the constitutional scheme peculiar to
the Islamic Republic of Pakistan wherein thedelegatedsovereignty
of Almighty Allah is to be exercised by the chosen representatives
of the people as a sacred trust and,hence,theneedtoensurethat
only those who are honestandameenenterintoorremaininthe
Nawabzada Iftikhar
highest elected chambers. In the case of
AhmadKhanBarv.ChiefElectionCommissionerIslamabadand
others (PLD 2010 SC 817) this Court had observed as follows:
13. And it was to preserve the pureness, the piety and the
virtuousness of suchlike eminent and exalted institutions that,
interalia, Articles62and63oftheConstitutionandsection99of
the Representation of the People Act, 1976 had declared that,
amongst others, the personswhowerenotofgoodcharacterwho
indulged in commission of major sins who were not honestwho
were removed, dismissed or compulsorily retired from service of
Pakistan who had obtained loans from banks and had not
repaid the same orwhohadindulgedincorruptpracticesduring
the course of elections, would not be allowed to pollute the
clearness of these legislative institutions.
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123. Article 62(1)(f) of the Constitution provides as under:
99. Qualificationsanddisqualifications.(1)Apersonshallnot
be qualified to be elected or chosen as a member of an Assembly
unless
(f) he is sagacious, righteous and nonprofligate and honest
and ameen
Ifacourtoflawdeclaresapersontobeotherwisethanhonestthen
he isnolongerqualifiedtobeelectedorchosenasamemberofthe
MajliseShoora (Parliament) and if he has already been elected or
chosen as a member of the MajliseShoora (Parliament) then
through loss of the requisite qualification he necessarily becomes
disqualified from being a member of the MajliseShoora
(Parliament). Articles 62 and 63 of the Constitution dealing with
qualifications and disqualifications are overlapping in many ways
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and I find it difficult to accept the notion thatArticle62dealsonly
with preelection qualifications and Article 63 deals with
postelection disqualifications only. The negative terminology used
in Article 62(1) [A person shall notbequalified to be elected or
chosen] and use of the word disqualifications in Article 62(2)
besides the words disqualifiedfrombeingelectedorchosen used
in Article 63(1) render the distinction between qualifications and
disqualifications contained in Articles 62 and 63 quite illusory. Be
that as it may, that issue is not strictly relevant to the case in
hand. The declaration by this Court throughthepresentjudgment
regarding lack of honesty ofrespondentNo.1cannotbyundoneor
ignored by the Speaker/Chairman or the Election Commission of
Pakistan and such a declaration has to have an automatic effect.
In the case of MuhammadAzharSiddiqueandothersv.Federation
ofPakistanandothers(PLD2012SC774)thisCourthadclarified
the legal position as follows:
125. It has also been argued before us by all the learned counsel
appearing for the private respondents that invoking jurisdiction of
this Court under Article 184(3) of theConstitutionandissuanceof
declarations and directions by this Court in exercise of that
jurisdiction in matters of disqualification of electedrepresentatives
as a first and the final resort shall set a dangerousprecedentand,
therefore, this Court may not like to open the door to such a
perilous course. This argument, however, conveniently overlooks
the fact that, as already observed above, the present petitions had
been entertained by this Court in the backdrop of an unfortunate
refusal/failure on the part of all the relevant institutions in the
country like the National Accountability Bureau, the Federal
Investigation Agency, the State Bank of Pakistan, the Federal
Board of Revenue, the Securities and Exchange Commission of
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Pakistan and the Speaker of the National Assembly to inquire into
or investigate the matter or to refer the matter to the Election
Commission of Pakistan against respondent No. 1. Under Article
90(1) of the Constitution by virtue of his being the Prime Minister
of the country respondent No. 1 is the Chief Executive of the
Federationanditispracticallyhewhoappointstheheadsofallthe
institutions in the country which could have inquired into or
investigated the allegations leveled against respondent No. 1 and
his family on the basis of the Panama Papers. The remedy offiling
an Election Petition before an Election Tribunal under Article 225
of the Constitution is notavailableatthisjuncture.TheSpeakerof
the National Assembly could have referred the matter to the
Election Commission of Pakistan under Article 63(2) of the
Constitution but he has already dismissed various petitions filed
before him in that regard by as many as twentytwo members of
the National Assembly. It is proverbial that there is no wrong
without a remedy. It was in the above mentioned unfortunate
background that this Court had entertained these petitions and
now this Court cannot turn around and shy away from deciding
the matter simply because it may set a dangerous precedent. As a
matter of fact it shall be a more dangerous precedent to set if this
Court declines to attend to the issue with a message that if a
powerful and experienced Prime Minister of the country/Chief
Executive of the Federation appoints his loyalists as heads of all
the relevant institutions in the country which can inquire into or
investigate the allegations of corruption, etc. against such Prime
Minister/Chief Executive of the Federation then a brazen blocking
of such inquiry or investigation by such loyalists would practically
render the Prime Minister/Chief Executive immune from
accountability. The precedent to be set by this Court through the
present petitions shall in fact be dangerous only for those Prime
Ministers/Chief Executives of the Federation who try tocaptureor
render ineffective all the institutions of accountability in the
country in order to protect themselvesleavingnootheroptionwith
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a whistleblower or an aggrieved or interested person but to
approach this Court for interference in the matter as a first, and
the only, resort. The precedent to be set by this Courtthroughthe
present petitions should in fact be a warning to all those rulers
who try to subjugate all the organs of power, enslave the
institutions of accountability and then in a false sense of security
and invincibility proclaim as Christopher Marlowes Tamburlaine
did by boasting that
A holder of a publicoffice,oranyotherperson,issaidtocommit
or to have committed the offence of corruption and corrupt
practices:
(v) if he or any of his dependents or benamidars owns,
possesses, or has acquired right or title in any assets or holds
irrevocablepowerofattorneyinrespectofanyassetsorpecuniary
resourcesdisproportionatetohisknownsourcesofincome,which
he cannot reasonably account for or maintains a standard of
living beyond that which is commensurate with his sources of
income
135. For what has been discussed above these petitions are
allowed and it is declared by me as follows:
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(vi) Similarly, the other assets acquired and the businesses set
up by respondent No. 1s children in Pakistan and abroad also
need to be probed into by the National Accountability Bureau to
find out whether respondent No. 1s children have acted as
BenamidarsofrespondentNo.1inthoseassetsandbusinessesor
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.
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(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
MajliseShoora (Parliament) with effect from the date of
announcement of the present judgment.
(Asif Saeed Khan Khosa)
Judge
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EJAZ AFZAL KHAN, J. Petitioner in Const. P. No. 29 of 2016 seeks:
Section9and18oftheNationalAccountabilityOrdinance,1999bytaking
the investigationinmegacorruptioncasestotheirlogicalendplacement
of the name of Mian Nawaz Sharif and his family members named in the
Panama LeaksontheExitControlList(ECL)issuanceofanordertoinitiate
in question anddirectionagainsttheChairmanFederalBoardofRevenue
toscanandscrutinizethetaxreturnsandassetsdeclarationofrespondent
16.05.2016 made false statements which are not only contradictory but
also in conflict with the statements made by his sons, respondent No. 7
tripartite agreement witnessing the sale of 75% shares in Gulf Steel Mill at
Dubai has been brought on the record but a look at the saidagreement
would reveal that the sale did not bring them any cash, as its proceeds
BCCI Bank that the remaining 25% shares were sold subsequently to the
Jeddah, Qatar and the U.K. is again anybodys guess that respondent
No. 7 pretended to become the owner of flats No. 16, 16A, 17 and 17A
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at Avenfield House Park Lane London in 2006 but according to the order
No. 1 has consistently evaded income tax on the sums remitted tohimas
gift by his son Hussain Nawaz, respondent No. 7 herein, with the
she is husbanded by a person who has neither any source of income nor
1 for all legal and practical purposes that the correspondence between
the flats in London that when it has been established on the record that
respondent No. 1 was duty bound to disclose her assets in his tax returns
respondent No. 1, the latter cannot lay his hands off theownershipofthe
Constitution mentioned above that how did the Sharif family establish
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Azizia Steel Mill at Jeddah, where did they get the means of investment
from, how long did it remain functional and when did the Sharif family
not been witnessed by anything in black and white that how did its sale
the sums have been transmitted through banking channels that the tax
andthewealthtaxstatementsofrespondentNo.6fortheyears20112012
enablinghertoacquirethemthatexpensesincurredbyrespondentNo.6
her husband catered therefor when he paid no tax prior to 2013 that
is an offence of the gravest form and that the people indulging in such
passed by the High Court of Justice Queens Bench Division in the case
of flats purchased in 1993 when they being 20, 21 and 17 years old
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respectively at the time had no independent sources of income that
the story thus set up in the trust deed that nothing would turn much on
establishment of the Jeddah Steel Mill, its sale and transmission of its sale
the then President of Pakistan is replete with details as to how the Sharif
names of fake persons for converting black money into white and what
was the design behind forming offshore companies in the British Virgin
respondent No.10hereinisanotherpieceofevidencegivingthedetailsof
the money laundered by the Sharif family that the case involving
flimsy and fanciful grounds that respondent No. 2 despite knowing that
the case has been quashed on flimsy and fanciful grounds didnotfilean
appeal against the judgment of the Lahore High Court and thus failedto
indicated in its financial statement for the period ending on 31st March,
of respondents No. 7 and 8 after the sale of Jeddah Steel Mills is also
had sufficient capital in its accounts before the said sale that even the
slimy soil unless they are proved to have been registered in conformity
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with Section 41 of the BVI Business Companies Act, 2004 that a bearer
does not carry any of the entitlement which it would otherwise carry
accordance with Section 68 of the BVI Business Companies Act is for him
to prove and that where he fails to prove it, transfer of any interest in the
AvenfieldHouseParkLaneLondoninthenamesofhisdependentswhoat
that timehadnosourceofincomethathefailedtodeclaretheirassetsin
his tax returns that in his speech addressing the nation and the speech
Bin Jassim Bin Jaber AlThani being concocted and based on hearsay
cannot come to his rescue nor can it save him from disqualification in
another. Vs. Amir Yar Waran and others (PLD 2013 SC 482), Muhammad
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Rizwan Gill. Vs. Nadia Aziz and others (PLD 2010 SC 828), Muddasar
Qayyum Nahra. Vs. Ch. Bilal Ijaz and others (2011 SCMR 80), Malik Umar
Aslam. Vs. Mrs. Sumaira Malik and others (2014 SCMR 45) and Sadiq Ali
Memon. Vs. Returning Officer, NA237, ThattaI and others (2013 SCMR
1246).
4. CaseofrespondentNo.1isthatprayersmadeinthepetition
not been mentioned that direction against respondent No. 4 for placing
the name of Mian Nawaz Sharif and his family members named in
against respondent No. 5 to probe and scrutinize the tax returns and
members has been named in the petition that the last prayer tends to
altogether that with the prayer of this nature nothing can be pinned on
a directornorashareholdernorabeneficialownernoraguarantorinany
of the BVI Companies that the speeches addressing the nation and the
correct that respondent No. 1 giving the outlines of the business of his
nothing ontherecordtoshowthatintentionbehindthemwassuppression
honest and ameen unless a declaration to the contrary has been given
by a court of law that since no such declaration has been given by any
under Article 184(3) of the Constitution, that too, when it is sought on the
basis of the facts which are seriously disputed that no finding about
admitted that this is what has been held by this Court in the judgments
Ahmad Tarar and others (2016 SCMR 1), Malik Iqbal Ahmad Langrial. Vs.
Jamshed Alam and others (PLD 2013 SC 179), Muhammad Khan Junejo.
Parliamentary Affairs and others (2013 SCMR 1328), Allah Dino Khan
NajeebudDin Owasi and another Vs. Amir Yar Waran and another (PLD
2013 SC 482), Mudassar Qayyum Nahra Vs. Ch. Bilal Ijaz and others(2011
SCMR 80), Rana Aftab Ahmad Khan Vs. Muhammad Ajmal and another
(PLD 2010 SC 1066), Haji Nasir Mehmood Vs. Mian Imran Masood and
others (PLD 2010 SC 1089), Nawabzada Iftikhar Ahmed Khan Bar Vs.Chief
Muhammad Rizwan Gill Vs. Nadia Aziz and others (PLD 2010 SC 828),
Muhammad Siddique Baloch Vs. Jehangir Khan Tareen (PLD 2016 SC 97),
Rai Hassan Nawaz Vs. Haji Muhammad Ayub and another (Civil Appeal
Muhammad Nawaz Sharif (PLD 2015 SC 275) that where Article 63(2) of
the Constitution itself provides a mode and even a forum for deciding
about the fate of a person who has become disqualified from being a
member, this Court while exercising jurisdiction under Article 184(3) of the
Constitution could not usurp the functions of such forum that where no
nexus of respondent No. 1 has been established with the Panama Leaks,
any court that there is no equation between this case and that of Syed
Supreme Court of Pakistan and others (PLD 2012 SC 466) as in the latter
case the charge of defying the judgments of this Court against the then
pointingtotheinvolvementofrespondentNo.1inacquisitionoftheflatsis
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available on the record nothingcanbefishedoutofhisspeechdelivered
Parliament has been recognized the world over and even in the
the USA and Article 105 of the Constitution of India notwithstanding they
are phrased and punctuated a bit differently that Erskine May in his
the stature of this treatise in our jurisprudence can well be gathered from
thewordsusedbyhislordshipMr.JusticeA.R.Cornelius,ashethenwas,in
(PLD 1958 SC 397) when he said I, therefore, need make no apology for
exemption from the general law because the House cannot perform its
the Court has no jurisdiction to proceed against him for what he said in
that case of Owen Robert Jennings. Vs. Rojer Edward Wyndham (2004 UK
PC36),Regina.Vs.Chaytor[2011]1A.C.684]A.Vs.UnitedKingdom[2003]
privilege that the words used in Article 66 being clear and unambiguous
need no precedent, all the same the judgment rendered in the case of
Syed Masroor Ahsan and others. Vs. Ardeshir Cowasjee and others (PLD
1998 SC 823) is quite illustrative and enlightening on the subject that the
defaulted nor delayed payment of any wealth tax that if at all any part
accordance with Section 17 of the Wealth Tax Act, 1963 that the
incorrect when the amounts remitted and received through gifts are fully
reflected in the debit and credit entries of the respective accounts that
1 is not liable to be taxed when it clearly and squarely falls within the
purview of Section 39(3) of the Income Tax Ordinance, 2001 that when
respondent No. 6 has been living on her own and has independent
Dictionary, OxfordEnglishDictionary,WorkmansCompensationAct,1923,
212
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Provident Funds Act, 1925, Prevention of Corruption Act, 1947, Employees
National Foundation Ordinance, 2002 or any other law could make hera
House, Lahore and another (2001 SCMR 1955), Hand. Vs. Ball and others
[1947](1) Chancery 228) and Re Badens Deed Trusts Baden and others.
Vs. Smith and others (1969 1 ALL. E.R. (1016) are instructive and
Pakistan (PLD 2014 SC 206) this Court, no doubt, intervened and handed
down a verdict but on the basis of the documents and the record which
went undisputed that this Court in view of Articles 184(3) and 187 of the
forum having power and competence to grant the desired relief, this
the same treatment where Writ Petition No. 31193/16 filed in the Lahore
HighCourtandasmanyasfourpetitionsraisingthesameissuesfiledinthe
above have the power and competence to grant the desired relief.
Steel Mill in Jeddah and disposed that of, it is for him to prove the trail of
purchased flats No. 16, 16A, 17 and 17A at Avenfield House Park Lane
London that where he did not prove either of them nor did he disclose
also violated the Oath of his Office in his capacity as MNA as well as the
PrimeMinister,heisnomorehonestandameen,therefore,heisalsoliable
to bedisqualifiedonthisscorethatrespondentNo.4inCP.No.03of2017
the Constitution respectively when his speech is studded with lies and
distortions and related to the matters which are essentially personal that
respondent No.4 while explaining the assets of his family used first person
plural in his speeches in and outside the Parliament but while defending
himself in the Court he denied to have any nexus with the assets of
respondentsNo.6,7and8thatwhererespondentsNo.6,7and8haveno
come from and what was the channel they were taken through for
presumed that the flats were purchased with the money having spurious
Bar Vs. Chief Election Commissioner, Islamabad and others (PLD 2010 SC
others Vs. Federation of Pakistan and two others (PLD 2012 SC 681),
others (PLD 2012 SC 774), Watan Party and another Vs. Federation of
Pakistan and another (PLD 2011 SC 997) and Muhammad Azhar Siddique
and others Vs. Federation of Pakistan and others (PLD 2012 SC 660).
is that she, ever since her marriage, has been living on her own with her
disposed of has been fully indicated in her tax returns, therefore, nothing
of respondents No. 1 and 9 that whatever her father gifted to her in any
form was out of his abundant love and affection for her that she has
Lane London that she independently owns assets, pays taxes thereon
and holds a National Tax Number as is fully evident from her tax returns
the year 2011, an immovable property purchased in her name but that
mentioning such property was available in the relevant forms till the
issuance of SRONo.841(1)of2015datedIslamabadthe26thAugust,2015
that failure of respondent No. 9 to disclose in his tax returns the gift of
him when he annexed the wealth statement of respondent No. 6 with his
returns would not entail any liability against him that her contribution to
the Shamim Agri Farms can well be noticed from the returns for tax years
2013, 2014 and 2015 submitted by Mst. Shamim Akhtar would also go a
borrowedfromChaudhrySugarMillsLtdthatherassetsevenon30thJune,
blamed for that that she paid the amount to respondent No.1 in the tax
year, 2012 for the land he purchased for her in tax year 2011 through a
banking channel as is evident from the entries made at page Nos. 251
and 258 of CMA. No. 7530 of 2016 that if at all there has been any
forum and not by this Court that respondent No. 6 in her interview with
Sana Bucha denied to have owned anything in and outside the country
in her tax returns that the documents filed by the petitioner in CMA. No.
Errol George,DirectorFIA,BritishVirginIslandsandMossackFonseca&Co.
no stage has been a beneficial owner of the flats that in all matters
within the definition of the word dependent when she lives on her own
question whether she lives on her own and has independent means of
and Taxes and bringing her a profit of Rs.19,664,955/ on its having been
2016 SC 79), Janta Dal. Vs. H.S. Chowdary (AIR 1993 SC 829), S.P. Gupta.
Union of India and others (AIR 2006 SC 1774) that the principles and the
under Article 184(3) of the Constitution simply because it has been given
fundamental right.
statementattributedtohimisaresultofinducement,coercionandtorture
the same matter has been set at rest by the Lahore High Court in its
and six others (PLD 1998 Lahore 90) that even if the confessional
approver unless the pardon granted is forfeited which is not the case
Section 403 of the Cr.P.C. that no parallel can be drawn between this
SC 132) as in that case the core issue was not discussed and decidedby
theHighCourtthatwherethiscasehasbeensetatrestbyaBenchofthe
Lahore High Court in the case of Messrs Hudaibya Paper Mills Ltd and
others. Vs. Federation of Pakistan and others (PLD 2016 Lahore 667) and
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the Chairman NAB has not filed an appeal against the judgment of the
1 has any nexus with flats No. 16, 16A, 17 and 17A at Avenfield House
Park Lane London, nor any documentary evidence has been brought on
the assertion that the statement of respondent No. 1 runs counter to the
prayer of the petitioner to disqualify respondent No. 1 is just a cry for the
to trace the trail of money that it is all the more impossible when more
Musharraf in the wake of October, 1999 coup detat that whatever trail
he could trace to is, that the Gulf Steel Mill was established by late Mian
land from the Municipality that since the Mill hardly proved to be a
success, its 75% shares were sold in 1978 through a tripartite agreement
that the money thus obtained was adjusted against its outstanding
AED 12 millions that the money so received by Tariq Shafi, as per his
of his longstanding business relations with the AlThani family that Mian
advised Althani family to credit the amount so entrusted together with its
cumulative returnsintheaccountofrespondentNo.7thateventuallythe
needful was done and pursuant thereto Hamad Bin Jassim Bin Jaber
No. 7 that the money as per the available record may not have been
handbag that the orders passed by the High Court of Justice Queens
Bench Division do not tend to negate the version set forth by respondent
No.7astheordersbringingtheflatsunderthechargewerepassedonthe
Shezi Nackvi dated 13.01.2017 gives added strength to the version that
the documents relied upon by the petitioner are disputed and so arethe
stances would not expose them to any liability under any law that the
judgment rendered in the case of The State. Vs. Muhammad Hanif and 5
others (1992SCMR2047)wouldbequiterelevanttothecaseinhandthat
this Court in the case of Dr. Arsalan Iftikhar. Vs. Malik Riaz Hussain and
others (PLD 2012 SC 903) while dealing with a similar situation left
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determination of the disputed questions of fact to a competent Court of
shares remained with AlThani and the day they were delivered to
letters written by Hamad Bin Jassim Bin Jaber AlThani that respondents
assets acquiredorownedbyanymemberoftheShariffamilycanbeheld
time andpartlyduetolossoftherecordinthepandemoniumofthecoup
dtat that whatever record is available does not show that respondent
No. 6 ever held any proprietary interest in the property that the
respondent No. 6 nor it tallies with her admitted signature and secondly
because it hasnotbeenownedbyMinervathattheletterdated6.2.2006
would liaise on his behalf with service providers for Nescol Limited and
Limited and Minerva Trust and Corporate Services Limited shows that the
not believed to be the latters authorship that there are gaps in the
could becondemnedwhentheyhaveneithercomefrompropercustody
nor they have been authenticated that this Court in the cases of Air
Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), Watan Party
and another. Vs. Federation of Pakistan and others (PLD 2011 SC997)and
Secretary M/o Law and Justice and others (2013 SCMR 1683) gave a
of law provided by the normal law of the land as was held in Suo Motu
deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to
the petitionerhavetobelookedatwithreferencetothecontextthatthe
form of the petition may suggest that it is in the nature of quo warranto
but it partakes more of an election petition that the issues raised in the
issues take it outside the scope of Article 184(3) of the Constitution that
thisCourtcanentertainapetitionunderArticle184(3)oftheConstitutionif
has been breached that when it has not been averred in any of the
the breach of any of the fundamental rights taken place, all of them
(PLD 2015SC275)thattheexpressionhonestandameenbeingincapable
declaration can neither be given under Article 199 nor Article 184(3) of
the Constitution as was held in the case of Aftab Ahmed Khan. Vs.
Muhammad Ajmal(PLD2010SC1066)thatwherethisdisputehasalready
been raised before the Election Commission and could also be raised in
disqualification onaccountofhisfailuretosubmitastatementofhisassets
a Court of lawthatinnosituationthisCourtwillactasaninvestigatorora
view of their tender ages could not acquire the flats norcouldtheyknow
anything about the trail of money, its growth, tripartite agreement and its
that whererespondentNo.1inhisspeechesinandoutsidetheParliament
explain it, and that when he did not, it could well be gathered that he is
2016 reiterated the same argument by submitting that Qatri letter being
complete justice and as such can pass an order even beyond what has
been averred and prayed in the petitions. The petitioner to support his
383), Syed Masroor Ahsan and others. Vs. Ardeshir Cowasjee and others
(PLD 1998 SC 248), Miss Benazir Bhutto. Vs. Federation of Pakistan and
another (PLD 1988 SC 416), Ch. Nisar Ali Khan. Vs. Federation of Pakistan
and others (PLD 2013 SC 568), Muhammad Ashraf Tiwana and others. Vs.
Pakistan and others (2013 SCMR 1159), Muhammad Yasin. Vs. Federation
others (PLD 2012 SC 132), Pir Sabir Shah. Vs. Shad Muhammad Khan,
Hitachi Limited and another. Vs. Rupali Polyester and others (1998 SCMR
through Khawaja Muhammad Asif, M.N.A. and others (PLD 2007 SC 642)
and Mian Muhammad Nawaz Sharif. Vs. The State (PLD 2010 Lahore 81).
urged that it could only be claimed when the speech or the subject
the cases of Canada (House of Common) Vs. Vaid [2005] 1 S.C.R. 667,
2005 SCC 30) and R Vs. Chaytor and others (2010 UKSC 52).
No.3 of 2017 also reiterated the same arguments. He while defining the
Fazal Muhammad. Vs. Mst. Chohara and others (1992 SCMR 2182).
the submissions of learned ASCs for the parties as well as the learned
flats No. 16, 16A, 17 and 17A at Avenfield House Park Lane London
the wake of the Panama Leaks. The leaks kicked off a storm the world
over which also spilled over the shores of this country. The immediate
admitted theownershipoftheflatsandalludedtothemeanswherebyhe
Park Lane London, that the latter was bound to disclose her assets and
Section 12(2)(f)oftheROPAandthatwhenhedidnotdoheisliabletobe
the very outset, we asked the learned ASC for the petitionerswhetherthis
on therecordtoshowthatrespondentNo.1orrespondentNo.6ownsthe
(supra). But a huge difference lies between this case and that of Syed
No. 1 are yet to be proved while in the latter case, Syed Yousuf Raza
Gillani was proceeded against and convicted under Article 204(2) of the
Contempt of Court Ordinance for defying not only paragraphs No. 177
others. Vs. Federation of Pakistan and others (PLD 2010 SC 265), but many
conviction of Syed Yousuf Raza Gillani the Speaker declined to refer the
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question to the Election Commission within 30 days, this Court in the case
others (supra) held that since no appeal was filed by Syed Yousuf Raza
Rizwan Gill. Vs. Nadia Aziz and others, Muddasar Qayyum Nahra. Vs. Ch.
Bilal Ijaz and others, Malik Umar Aslam. Vs. Mrs. Sumaira Malik andothers
and Sadiq Ali Memon. Vs. Returning Officer, NA237, ThattaI and others
The case of Ch. Zahur Ilahi, M.N.A. Vs. Mr. Zulfikar Ali Bhutto and 2 others
Articles 204 or 248 of the Constitution of Pakistan has been raised in this
case. The case of Mian NajeebudDin Owasi and another. Vs. Amir Yar
Muhammad Ijaz Ahmad Chaudhry. Vs. Mumtaz Ahmad Tarar and others,
Malik Iqbal Ahmad Langrial. Vs. Jamshed Alam and others, Muhammad
Justice and Parliamentary Affairs and others, Allah Dino Khan Bhayo. Vs.
Siddique and another Vs. Federation of Pakistan, Sadiq Ali Memon Vs.
Vs. Ch. Bilal Ijaz and others, Rana Aftab Ahmad Khan Vs. Muhammad
Ajmal and another, Haji Nasir Mehmood Vs. Mian Imran Masood and
Aziz and others, Muhammad Siddique Baloch Vs. Jehangir Khan Tareen,
RaiHassanNawaz Vs.HajiMuhammadAyubandanotherandIshaqKhan
rendered in the cases of Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief
Pakistan and others, Watan Party and another Vs. Federation of Pakistan
of 2017 too are not applicable to the case in hand when the decisions in
the said cases were based on undisputed material on the record. The
Secretary and 6 others Vs. Federation of Pakistan and two others (supra)
Constitution.
means of income? The learned ASCs for the petitioners in their efforts to
documents showing the establishment of Gulf Steel Mill at Dubai, its sale,
Nescol LimitedandNeilsonEnterprisesLimitedinBritishVirginIslands.Under
the veil of the aforesaid companies, respondent No. 1 has been alleged
to have acquired flats No. 16, 16A, 17 and 17A at Avenfield House Park
No. 6 as the beneficial owner of the flats. This document has been
the questions how did Gulf Steel Mill come into beingwhatledtoitssale
where did go its sale proceeds how did they reach Jeddah, Qatar and
the U.K. whether respondents No. 6, 7 and 8 in view of their tender ages
a reality how bearer shares crystallized into the flats how did Hill Metal
Establishment come into existence where did the money for Flagship
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Investment Limited and where did its Working Capital Fund come from
and where did the huge sums running into millions gifted by respondent
17. ThethirdquestionrequiringconsiderationofthisCourtiswhat
a person isrequiredtodoundertheConstitutionandthelawandwhether
those of hisdependentsiftheyaredisproportionatetohisknownmeansof
and
(ii) in a Province, from where such personseeksmembershipfor
election to a seat reserved for women];
(c) he is, in the case of Provincial Assembly, not less than
twentyfive years of age and is enrolled as a voter in any
electoral roll[asavoterinanyareainaProvincefromwherehe
seeks membership for ] that Assembly;
[(cc) xxxxxxx]
(d) he is of good character andisnotcommonlyknownasone
who violates Islamic Injunctions ;
(e) he has adequate knowledge of Islamic teachings and
practices obligatory duties prescribed by Islam as well as
abstains from major sins ;
(f)heissagacious,righteousandnonprofligateandhonestand
ameen ;
(g) he has not been convicted for a crime involving moral
turpitude or for giving false evidence; and
(h) he has not, after the establishment of Pakistan, worked
against the integrity of the country or opposed the ideology of
Pakistan: Provided that the disqualifications specified in clauses
(d) and (e) shall not apply to apersonwhoisanonMuslim,but
such a person shall have good moral reputation.
(IA) A person shall be disqualified from being elected as, and
from being, a member of an Assembly, if
(a) he is of unsound mind and has been so declared by a
competent court; or
(b) he is an undischarged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the
citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other
than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory bodyoranybodywhich
is owned or controlled by the Government or in which the
Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of section 14B of the
Pakistan Citizenship Act,1951(11 of 1951),heisforthetimebeing
disqualified under any law in forceinAzadJammuandKashmir
from being elected as a member of theLegislativeAssemblyof
Azad Jammu and Kashmir; or
(g) he is propagating any opinion, or acting in any manner,
prejudicial to the Ideology of Pakistan, or the sovereignty,
integrity or security of Pakistan, or morality, or themaintenance
of public order,ortheintegrityorindependenceofthejudiciary
of Pakistan, orwhichdefamesorbringsintoridiculethejudiciary
or the Armed Forces of Pakistan, or
[(h) has beenconvictedbyacourtofcompetentjurisdictionon
a charge of corrupt practice, moral turpitude or misuse of
power or authority under any law for the time being in force; or
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(i) has been dismissed from the service of Pakistan or service of
a corporation or office set up or controlled by the Federal
Government, Provincial Government or a local government on
grounds of misconduct or moral turpitude; or
(j) has been removed or compulsorily retiredfromtheserviceof
Pakistan orserviceofacorporationorofficesetuporcontrolled
by the Federal Government, Provincial Government or a local
government on grounds of misconduct or moral turpitude; or ]
(k) he has been in the service of Pakistan or of any statutory
body or any body which is owned or controlled by the
Government or in which the Government has a controlling
share or interest, unless a period of twoyearshaselapsedsince
he ceased to be in such service; or
(l) he is found guilty of a corrupt or illegal practice under any
law for the time being in force, unless a periodoffiveyearshas
elapsed from the date on which that order takes effect; or
[(m) Omitted.
(n) he, whether by himself or by any person or body of persons
in trust for him or for his benefit or on his account or as a
member of a Hindu undividedfamilyhasanyshareorinterestin
a contract, not being a contract between a cooperative
society and Government, for the supply of goods to, or for the
execution ofanycontractorfortheperformanceofanyservice
undertaken by, Government:
Provided that the disqualification under this clause shall not
apply to a person
(i)wheretheshareorinterestinthecontractdevolvesonhimby
inheritance or succession or as a legatee, executor or
administrator, until the expiration of six months after it has so
devolved on him;
(ii) where the contract hasbeenenteredintobyoronbehalfof
a public company as defined in the Companies
Ordinance,1984 (XLV II of 1984),of whichheisashareholderbut
is not a director holding an office of profit under thecompany;
or
(iii) where he is a member of a Hindu undivided family and the
contract has been entered into by any other member of that
family in the course of carrying on a separatebusinessinwhich
he has no share or interest; or
Explanation.In this section goods does not include
agricultural produce or commodity grown or produced by him
or such goods as he is, under any directive of Government or
anylawforthetimebeinginforce,underadutyorobligationto
supply;
(o) he holds any office of profit in the service of Pakistan other
than the following offices, namely:
(i) an office which is not whole time office remunerated either
by salary or by fee;
(ii) the office of Lumbardar, whether called by this or anyother
title;.
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is
liable to be called up for military training or military service
underanylawprovidingfortheconstitutionorraisingofaForce;
or
(p)having,whetherbyhimselforbyanypersonintrustforhimor
for his benefit or on his account, any share or interest in a
contract for
(i) the supply of goods to, or
(ii) the execution of any work, or the performance of any
service, undertaken by, the Government, or a localauthorityor
an autonomous body in which the Government has a
controlling share or interest, he does not, after his election as a
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member but within thirty days of his making oath assuchmake
a declaration in writing to the Commission that he has such
share or interest, unless a period of five yearshaselapsedsince
his failure to do so; or
(q) being a managing agent, manager or secretary of, or
holding any other office carrying the right to remuneration in,
any company or corporation (other than a cooperative
society)in the capital of which the Government has not less
than twentyfive per cent share or which is managed by the
Government, he does not, after his election as a member but
within thirty days of his making oath as such, make a
declaration in writing to the Commissioner that he is such
managing agent, manager or secretary, or holds such office,
unless a period of five years has elapsed since his failure to do
so; or
[(r) has been convicted and sentenced to imprisonment for
having absconded byacompetentcourtunderanylawforthe
time being in force; or
(s) has obtained a loan for an amount of two million rupees or
more,fromanybank,financialinstitution,cooperativesocietyor
cooperative body in his own name orinthenameofhisspouse
or any of his dependents, which remains unpaid for more than
one year from the due date, or has had such loan written off; or
(t) he or his spouse or any of his dependents is in default in
payment of government dues or utility expenses, including
telephone, electricity, gas and water charges of an amount in
excess of ten thousand rupees, for over six months, at the time
of filing of nomination papers of such person.]
Explanation l.In this subsection, service of Pakistan has the
same meaning as in Article 260.
(2) Omitted].
A reading of Article 4 of the Constitution would reveal that no
Section 99 of the ROPA would reveal that none of them requires any
member of Parliamenttoaccountforhisassetsorthoseofhisdependents
12(2)(f) of the ROPA requires him to disclose his assets and those of his
spouse and dependents and not the means whereby such assets are
for his assets and those of his dependents, even if they are
ameenifhedoesnotaccountforsuchassets.GivenSection9(a)(v)ofthe
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Ordinance requires him to account for his assets and those of his
not be of any consequence. It, thus, cannot call for his disqualificationat
tohisknownmeansofincomewhichhecannotaccountfor.Theansweris
Any liability arising out of these Sections has its own trappings. Any
Courtfordeterminationofsuchliability.ButwhereneithertheInvestigation
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Agency investigated the case, nor any of the witnesses has been
and that of the Accountability Court under the Ordinance and between
lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the
Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the
mode, mechanism and machinery provided thereunder. Let the law, the
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Investigation Agency and the Accountability Court and other Courts in
the hierarchy take their own course. Let respondent No. 1 go through all
the phases of investigation, trial and appeal. We would not leap over
heart and the soul of the rule of law. We also dont feel inclined to
Article 184(3) of the Constitution. Who does not know that making of a
thetestimonyprovisionsofQanooneShahadatOrderregulaterelevancy
individual case would not dispense with due process and thereby undo,
19. Yes, the officers at the peak of NAB and FIA may not cast
their prying eyes on the misdeeds and lay their arresting hands on the
calling the shots in the matters of their appointment posting and transfer.
But it does not mean that this Court should exercise a jurisdiction not
andthelawregulatingtrichotomyofpowerandconfermentofjurisdiction
latter is guilty of a heinous crime and that his trial in the Court of
may be, would be a precursor of doom and disaster for the society. It as
Let us stay and act within the parameters of the Constitution andthelaw
as they stand, till the time they are changed or altered through an
amendment therein.
Court is what are the fora provided by the Constitution and the law to
deal with the questions emerging from Articles 62(1)(f) and 63(2) of the
Constitution. ToanswerthisquestionwewillhavetofallbackuponArticles
held in the cases of Lt. Col. Farzand Ali and others. Vs. Province of West
West Pakistan, Lahore (PLD 1970 SC 98) and Syed Mehmood Akhtar
Naqvi. Vs. Federation of Pakistan through Secretary Law and others (PLD
be dealt with differently. In the former case the Returning Officer or any
other fora in the hierarchy would not reject the nomination of a person
honest and ameen. Even the Election Tribunal, unless it itself proceeds to
court of law has not been defined in Article 62 or any other provision of
which has the power to record evidence and give a declaration on the
Parliamenthasbecomedisqualifieditshallbedealtwithonlybythe
Constitutionbutwedonotthinkaquestionofsuchnaturehasariseninthis
caseasrespondentNo.1hasbeenallegedtobedisqualifiedevenonthe
inside and outside the Parliament are false because of their being in
to his own stance taken in his concise statement and that the privilegein
No. 1 and statements of respondents No. 7 and 8 does not prove any of
crossexamining both of them that their statements are correct and true.
Where it is notdeterminedthatstatementsofrespondentsNo.7and8are
the statementsofrespondentsNo.7and8tobetrueandcorrect,norwas
other judgments have been cited at the bar by the learned ASCs for the
of the parties.
tax as far as his assets as declared in the tax returns are concerned
could justify the issuance of the direction asked for. However, sufficient
which prima facie shows that respondent No. 1, his dependents and
recommend the names of their nominees for the JIT within seven days
and approval. The JIT shall investigate the case and collect evidence, if
disproportionatetohisknownmeansofincome.RespondentsNo.1,7and
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
constituted in this behalf. The JIT shall complete the investigation and
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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
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.
final of the JIT, as the case may be, the matter of disqualification of
JUDGE
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observe that his lordship in his usual way has very elaborately
and eloquently dealt with all the matters and points raised
all the questions which have been raised during the course of
argumentsbeforeus.
that may be the need of the case which may arise out of any of
given its judgments time and again in which this matter has
makingreferenceanddiscussingthemhereinbelow.
Constitution).SuchArticleisreproducedasfollows:
OnreadingofthisveryArticle,itisclearthatthisCourthasbeen
that may have been imposed on the High Court for exercising
v Ejaz Ahmad & others [2017 SCMR 206], this Court has held
others [2015 SCMR 1520] this Court has held that the rules of
Khan&othersvNationalPoliceFoundationthroughM.D&others
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[2015 SCMR 1348], while considering power of the Chairman,
Fundamental RightsconferredbytheConstitutionwasinvolvedit
Azhar Khan Baloch & others v Province of Sindh & others [2015
the case of Khalid Iqbal & 2 others v Mirza Khan & others [PLD
while dealing with the scope stated that the Constitution did not
aside its earlier judgments and orders by invoking its suo motu
hasheldasfollows:
Abdul Wahab & others v HBL & others [2013 SCMR 1383], this
Court has dealt with the scope under Article 184(3) of the
Supreme Court has the powers and jurisdiction to lay down the
rules forthepurposesofregulatingitsownjurisdictionandapply
itselfhasitsownlimitationsandconditionswhicharethatmatter
importance and that they are sine qua non i.e. both conditions
Court 641], this Court dealt with the matter of Cooper and Gold
Mirza Aslam Baig, Former Chief of Army Staff & others [PLD
2013 Supreme Court 1], this Court was dealing with a Human
creation ofanElectionCellinthePresidencywiththeaidofChief
passeditsjudgmentmakingthefollowingdeclaration:
Pakistan & others [2012 SCMR 1958], held that the Constitution
No.18 of 2010 [PLD 2011 Supreme Court 927], Suo Motu action
officials who had done nothing at all in the matter for almost
two years and who had remained only silent spectators ofentire
exercisingtheirpowertoreviewtheadministrativeandexecutive
Pakistan & others [PLD 2011 Supreme Court 997], it was held
Case No.24 of 2010 [PLD 2011 Supreme Court 963], this Court
another v Haris Steel Industries (Pvt) Ltd & others [PLD 2010
No.10 of 2007 [PLD 2008 Supreme Court 673], this Court held
the informationlaidbeforeitthatthematterinvolvesquestionof
Mills was not in accordance with law and thus setaside the
bythepartiesandthereafterproceededtopassdeclaration.
intermsofArticle184(3)oftheConstitution.
EnterprisesLimitedandinthefollowingmanner:
one to the Nation dated 05.04.2016 and the other which was a
has lied to the Nation and on the floor of the House in that he
has asserted that these four London Flats were purchased from
the funds generated out of sale of Gulf Steel Mills, Dubai and
AlAzizia Steel Mills, Jeddah out of which the Gulf Steel Mills
was sold in the year 1980 while AlAzizia Steel Mills was sold in
the year 2005 whereas the four London Flats were purchased
any offshore entities and that his name does not appear in the
Panama Papers nor any accusation has been made against him
requiresproofbeyondreasonabledoubtandnosuchproceedings
before the competent Court has been initiated nor there exist
that no such reference has been filed by the petitioner nor any
after aMemberofParliamenthasbeenelectedandnotified,such
No.433 of 2017,whichrepliesaremoreorlesssimilartotheone
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asfiledinConstitutionPetitionNo.29of2016.
Nawaz Sharif and Hassan Nawaz Sharif and the two speeches of
establish that the four London Flats were owned, possessed and
did not disclose the real facts about the ownership of four
London Flatsratherhascontradictedhimselfinthatinhisspeech
required to be adjudgedanddeclaredbythisCourtandremoved
National AssemblyandalsoPrimeMinisterregardingfourLondon
referencetoenforcementofFundamentalRights.
Constitutionandisliabletoberemovedfromoffice.
Shahid Hamid, learned Senior ASC and Mr. Salman Akram Raja,
companies. ThelearnedAttorneyGeneralforPakistanappearing
for the Federation conceded that the Court has power to make
inthethreeConstitutionPetitionsismadeout.
established Gulf Steel Mills and 75% of the shares of Gulf Steel
Mills were sold in the year 1978 through tripartite share sale
sold to the first party 75% share of the factory for a total
name of Gulf Steel Mills was changed to that of Ahli Steel Mills
1978 where Ahli Steel Mills Company was formed with a capital
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of Dirham 28,500,000/ of which 75% share was of Muhammad
SteelMillsCompany,comesasfollows:
CompanybyMuhammadTariqShafitoMuhammadAbdullahKaid
showthatcapitalvalueofAhliSteelMillsCompanyhadincreased
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and further what happened to the liabilities of Gulf Steel Mills
Tak, has said that Mian Muhammad Sharif when he came from
and the loan from Saudi Banks from which a small mill was
Mills on very low price as the owner of Mills was thinking that
this will never be sold as it has become scrape and this scrape
was reconditioned at Jeddah and the very fact that Ahli Steel
Mills was lying closed and has become scrape negates the fact
that its capital value had increased to make 25% shares in the
amountofDirhams12million.
friends from whom loans were obtained and secondly the loans
Now, as the case has been put up before the Court, therewasa
trove was not tapped, it could be inferred and inferred well that
Mills was sold in the year 2005 for an amount of US$17 million.
What happened to its own loans and how they were paid,
these dates of their birth that when Gulf Steel Mills was
suckling child yet again when 75% shares of Gulf Steel Mills
were sold still all the three above named children were minors
Limited.
issued by the two companies and their bearer was the owner of
this very CMA it was claimed that both these Bearer Share
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Certificateswerecancelledandregisteredshareswereissuedi.e.
out here that there existed one Bearer Share Certificate each of
showntohavetwosharecertificateseachregisteredinthename
leads only to Mian Muhammad Nawaz Sharif and his family who
admission, are paying rents and all charges of the four London
his family connection with the four London Flats, more so when
hide and that there are all records available with him. This was
Flatsandofthetwooffshorecompanies. Thisevasiveattitudeof
Mian MuhammadNawazSharif,moresobeforethehighestCourt
act of hiswillcastasubstantialshadowuponhim,moresowhen
andthePrimeMinisterofPakistan.
with the four London Flats which has so much been highlighted
four London Flats, more so when the same being in his own
todowiththesefourLondonFlats.
were purchased from the funds made available from sale ofGulf
Steel Mills and AlAzizia Steel Mills but admitted material placed
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before us altogether give a different story regarding the source
thisbackdrop,thescenariounfoldsbeforeusisthat:
Nawaz Sharif and his family since the year 1992/93 and all this
time they have been paying their rent and all other dues and
done as the owner does towards his property. While the four
Muhammad NawazSharifandhisfamily,Managers/Agentsofthe
unexplainedbyMianMuhammadNawazSharif.
Muhammad Nawaz Sharif and his family with the four London
Flats in theyear1999,istheorderdated05.11.1999oftheHigh
the interestinthesaidassetofMianMuhammadShehbazSharif,
these four London Flats was got vacated but available record
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does not show remittance or payment of US$34 million to
claimingownershipofthefourLondonFlats.
sale of Gulf Steel Mills, Dubai and AlAzizia Steel Mills, Jeddah.
there would have been no occasion for him to appear and give
the flats he is living in, his answer to this question was thatitis
and for what reason and on what account such evasiveness has
stated that London Flats are his properties Nescoll and Nielsen
London Flats nor did he mention about the source of funds from
showingregistrationofHillMetalsEstablishmentisnotfiled. The
to from where and from what sources they have been traced.
specificallystatedasfollows:
"
"
This statement of Hussain Nawaz Sharif is altogether
that had it not been true he would have not spoken so, moreso
Lincolns Inn since 1996 and also having his own family that of
two wives and children. It may be noted here that none of the
interviewsaredisputedordeniedrathertheyallareadmitted.
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16. Mr. Makhdoom Ali Khan, learned Senior ASC for Mian
Article248oftheConstitutionisnotclaimedbyMianMuhammad
NawazSharifontheflooroftheHouse.
17. Mr. Makhdoom Ali Khan, learned Senior ASC for Mian
amendmentisasfollows:
The difference that has been made in clause (f) of this Article
that the Supreme Court is the Court of law and also competent
of the learned Senior ASC but at the same time it is also well
disputed questions about the given facts and yet again the High
Secretary Law & others [PLD 2012 Supreme Court 1054] where
theissuethisCourtpassedthedeclarationasfollows:
18. I may also observe here that this Court while dealing with
PartIIoftheConstitution.
allegation was made that he and his family own four London
Flats and the sources of acquiring all these properties have not
satisfy this Court and the Nation of the country (which being
aboveextent.
JUDGE
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SH.AZMATSAEED,J.Ihavehadtheprivilegeofreadingthe
judgments of my learned brothers Ejaz Afzal Khan and Ijaz ul Ahsan, JJ. I find
me,Ihaveaddedmyfollowingadditionalnote.
predicted decisions, which were bounced around on the airwaves every evening.
The temptation to restrain such media coverage and public comments was
defend the same. An open Court is the essence of our Legal System. Restraining
open Court. Being insulted from all criticism, it can do more harm to an
unleashed from both sides of the aisle but this Court cannot allow itself to
withoutfearorfavour,affectionorillwill.
imperativetoaddressthesameevenattheriskofstatingtheobvious.
of the ConstitutionoftheIslamicRepublicofPakistan,1973,havebeenvariously
filed by the two Members of the National Assembly, who are also the Heads of
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their respective Political Parties currently in the Opposition. It has been alleged
that in the first week of April, 2016, documents, purportedly the record of a
Panama based Law Firm, MossackFonseca were leaked, released and published
in the International Media, the world over. The said Law Firm was apparently
of its clients from all over the world, including Pakistan. It is in the above
backdrop,thePetitionersfiledtheaforesaidtwoConstitutionPetitions.
information inthepublicdomain,purportedlyemanatingfromtheaforesaidleaks,
owned by Respondent No.1 i.e. the Prime Minister of Pakistan and the members
neither been declared in the Nomination Papers of Respondent No.1 nor the
sourceoffundsfortheacquisitionthereofdisclosed.
This Court vide its order dated 03.11.2016 passed in Constitution Petition No.29
of 2016heldthatthequestionsraisedwereofpublicimportanceandinvolved,the
down by this Court was cited and relied upon. However, during thecourseofthe
proceedings, onbehalfoftheAttorneyGeneralforPakistan,aquestionwasraised
Respondents also contended that disputed questions of facts had emerged, which
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could not be adjudicated upon by this Court in exercise of its jurisdiction under
Article184(3)oftheConstitution.
from the Constitutional provisions, more particularly, the opening lines of its
the heart and soul of our Constitution, which is also reflected in Article 17, the
of the Court under Article 184(3) of the Constitution has been considered in
(Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Baig, Former
Chief of Army Staff and others (PLD 2013 SC 1), wherein it has been observed,
interalia,asfollows:
Election Tribunal under Section 68 of ROPA, if the Returned Candidate has not
correctly disclosed his own assets and liabilities or that of his spouse or
dependants and false statement has been made in this behalf. Such an omission
withanexposuretocriminalprosecution.
election, reaching the Election Tribunal strict procedural requirements have been
prescribed, which are rigorously enforced at the cost of the Election Petitioner.
However,anexceptionhasbeenmadeintermsofSection76AofROPA,whereby
Candidate has failed to faithfully disclose his assets (or liabilities) ofhimself,his
reference:
76A.AdditionalpowersofElection
Tribunal.(1) If an Election Tribunal,
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ofthereturnedcandidateshallnotbe
published in the official Gazette.
(3) No order under subsection (1) or
subsection (2) shall be made unless
the returnedcandidateisprovidedan
opportunity of, being heard.]
the People Act, 1976 makes it clear and obvious that if a person fails to disclose
any asset owned by him, his spouse or dependent in his Nomination Papers in
also prosecution for corrupt practices under Section 78 of ROPA besides any
otherliabilityprescribedbythelaw.
election. Such is the law of the land and as has been repeatedly and consistently
Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others (2008
SCMR 504) and (3) Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and
others(2016SCMR763).
20. In all the above cases, the candidates were deseated for
offered,acceptedorrejected.
thelawisequallysettled.Therelevantprovisionsreadasunder:
9. Corruptionandcorruptpractices.( a)
A holder of a public office, or any other
person, is said to commitortohavecommitted
the offence of corruption and corrupt
practices
(i) .
(ii) .
(iii) .
(iv)..
(v) If he or any of his dependents or
benamidars owns, possesses, or has
acquired right or title in any assets or
holds irrevocable power of attorney in
respect of any assets or pecuniary
resources disproportionate to his known
sources of income, which he cannot
reasonably account for or maintains a
standard of living beyond that which is
commensurate with his sources of
incomeor
22. It isevidentfromabarereadingoftheaforesaidprovisionsthatthe
accused must give an explanation as to the source of legal funds for acquiring
such property and upon his failure to do so, he becomes liable for punishment
under the aforesaid law. Such punishment not only includes fine and
of the NAB Ordinance, 1999. Reference, in this behalf, can be made to the
judgments,reportedas(1)IqbalAhmedTurabiandothersv.TheState(PLD2004
(PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The State andothers
(PLD 2013 SC 594), (4) The State through Prosecutor General Accountability,
150), (5) Syed Zahir Shah and others v. National Accountability Bureau and
another (2010 SCMR 713), (6) Muhammad Hashim Babar v. The State and
another(2010SCMR1697)and(7)K
halidAzizv.TheState(2011SCMR136).
his spouse, his dependents or benamidars. And thereafter, the accused had failed
to account for the source of funds for acquiring the said property and if the
explanationwasfoundunsatisfactory,convictionfollowed.
a requirement of Section 9(a)(v) of the NAB Ordinance, which cannot ipso facto
especially in the absence of any legislation by the Reformers. Any effort, in this
behalf,wouldnotonlybewithoutanyjurisprudentialbasisbutbeillegal.
25. In theabovebackdroptoholdthatanMNA,whomay(ormaynot)
own an undeclared property yet his explanation for the source of the funds for
acquiring such property, though legally irrelevant, is not acceptable, hence, such
MNA is disqualified, is a legal absurdity under the laws of the Islamic Republic
ofPakistan.
holds the Office of the Prime Minister. The last time in our legal history, when
suchacourseofactionwasfollowed,ithadtragicconsequences.
and the allegations constituting an offence under Section 9(a)(v) of the NAB
person insuchaneventualitywouldrequireturningourentireLegalSystemonits
headandwouldconstituteanactofjurisprudentialheresy.
their behalf, that the explanation offered by Respondent No.1 for acquisition of
thefourFlatsinLondonwasnothonest.
reproducedhereinbelowforeaseofreference:
(g)
30. Before the said provisions can be pressed into service, there must
clarified thattheCourtsoflawareconcernedwiththemattersoflawnotmorality.
There can be no manner of doubt that the term honest as employed in Article
62(1)(f)referstolegalhonesty,anobjectiveconceptandnotmeremoralorethical
honesty, which is subjective. The Courts have never wandered into the realm of
morality,inthisbehalf.
31. In the instant case, the issue agitated pertains not to any incorrect
statement made by the Respondents but rather the alleged failure to disclose the
Constitution.
view of Article 62(1)(f) of the Constitution, may crop up before, after or during
disputes before the Election Commission of Pakistan. But most often Election
Petitions are filed before the Election Tribunal eventually constituted under
thisCourtArticle62(1)(f)oftheConstitutionrequiredinterpretation.
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33. The provisions of Article 62(1)(f) of the Constitution in not too
Respondent No.1. A Writ Petition was filed in the Lahore High Court wherein it
allegations that he had made a misstatement before the National Assembly. The
bearing No.865 of 2014 was also filed, which was also dismissed vide judgment
Nawaz Sharif and others (PLD 2014 Lahore 670). The Appeal wasdismissedby,
misstatement have not been established on the material available on the record
Article 66 of the Constitution, as it did not fall within the ambit of any of the
exceptiontheretoassetdownbythisCourtinitsvariousjudgments.
34. TheaforesaidjudgmentwaschallengedbeforethisCourtthrougha
Petitions underArticle184(3)oftheConstitutionwerealsofiledseekingasimilar
relief which were heard along with the said Civil Petition for Leave to Appeal.
The aforesaid Civil Petition for Leave to Appeal and the Constitutional Petitions
were heard by a Larger Bench of this Court and were dismissed vide judgment,
reported as Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif
the learned High Court was not of a nature which could notbeadjudicatedupon,
hence, the judgment of the learned High Court only to the extent that the Writ
Petitions being not maintainable, were set aside. However, the judgment
dismissing the Writ Petition was maintained and the Constitutional Petitions
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under Article 184(3) of theConstitutionwerealsodismissed.Thelegalquestions,
whichfloatedtothesurface,werenotanswered.
cases, reported as (1) Ghaznafar Ali Gull v. Ch. Tajammul Hussain and others
(1997 CLC 1628), (2) Nawabzada Iftikhar Ahmed Khan Bar v. Chief Election
Rizwan Gillv.NadiaAzizandothers(PLD2010SC828),(4)RanaAftabAhmad
Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), (5) Muddasar
Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), (6) Mian
NajeebudDin Owaisi v. Aamir Yar and 7 others (2011 SCMR 180), (7) Malik
Najeebuddin Owasi and another v. Amir Yar Waran and others (PLD 2013 SC
482), (9) Sadiq Ali Memon v. Returning Officer, NA237 ThattaI and others
(2013 SCMR 1246), (10) Abdul Ghafoor Lehari v. Returning Officer PB29,
NaseerabadII and others (2013 SCMR 1271), (11) Muhammad Khan Junejo v.
Affairs and others (2013 SCMR 1328), (12) Allah Dino Khan Bhayo v. Election
Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), (15)
Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC
97) and (16) Muhammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmed Tarar and
others(2016SCMR1).
36. In alltheaforesaidcases,theapplicabilityofArticle62(1)(f)ofthe
Constitution was considered. In no case, any person was disqualified under the
at the bar where a person has been disqualified under Article 62(1)(f) for being
abreachornonfulfillmentofalegalobligation.
37. Such is the true and obvious import of Article 62(1)(f) of the
be used as a tool for political engineering by this Court nor should this Court
arrogationuntoitselfthepowertovetcandidatesonmoralgrounds,likeaCouncil
peopleandnotchosenbyanyInstitutionorafewindividuals.
38. The Petitioners have laid great emphasis on the various speeches
explanations offered by the said Respondents with regard to the assets attributed
to them. The aforesaid speeches and interviews are, at best, previous statements
make such statements or give such interviews. The compulsion was political and
sotoitseffect.
39. Be that as it may, there can be no escape from the fact that the
puzzle were made public, which do not really fit in with each other. Had the
explanations been clear, satisfactory and acceptable, no one would have been
allowedtocomeknockingatourdoor.
41. Emphasis was laid on behalf of the Petitioners upon the alleged
and8,inthisbehalf,wasnotwithoutforce.Hecontendedthatthereisnobasisfor
the assumption that the statements/interviews of Respondent No.7 are the gospel
deviationthereofareuntrueasisallegedbythePetitioners.
and the source of funds for the acquisition of the properties in question has not
No.1or7cannotbeascertained.
42. It has been noticed that the learned counsel for the Petitionershad
acts and omissions and not that of others. Such vicarious liability must be
specifically set forth in clearcut terms and cannot be assumed. Such vicarious
liabilityhasnoplaceinourElectionLaws,includingtheConstitutionalprovisions
63(1)(a)]. Similarly, a father cannot be disqualified if his son has been convicted
service of Pakistan (Article 63(1)(h) & (i). Thus, obviously a father cannot be
disqualifiedifhissonisallegedlydishonest[Article62(1)(f)].
in the above context, would require rewriting the Laws pertains to Elections,
of ROPA,1976.Inthecurrentlegaldispensationattributingvicariousliabilitytoa
father for the acts and omissions of his son, more particularly, oral statements
wouldresultinalegalfarce,whichcannotbecontemplated.
44. The learned counsel for Respondent No.1 with his usual
regarding the speech on 16th May, 2016 made on the floor of the House by
Respondent No.1. We are aware of the speech and debate clause and the
protection available to the Members of the Parliament thereunder and also the
its own is not a ground for culpability, hence, it is not necessary to decide such
privilege.
Petitions Nos.29 & 30 of 2016, was focused on the four flats i.e. Flats Nos.16,
16A, 17 and 17A, Avenfield House, Park Lane, London, in respect whereof, it
was contended that the same were in the beneficial ownership of Respondent
No.6 Maryam Safdar, who allegedly was legally dependant of Respondent No.1
Mian Muhammad Nawaz Sharif and the said Respondent No.1 had notdisclosed
the ownership of the said flats in his Nomination Papers and in the periodic
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statement of assets submitted to the Speaker,hence,wasdisqualified.Thecaseof
No.1 and, in this behalf, reliance was placed upon the Income Tax Return of
Respondent No.1 for the year 2011, in which Respondent No.6 had been
mentioned in Column No.12 pertaining to the assets held in the name of, inter
alia, a dependant. It was also alleged that the said Respondent No.6 had no
TaxReturnsandthatofherhusbandMuhammadSafdar,RespondentNo.9.
46. The record reveals that Respondent No.6 was mentioned in the
aforesaid terms only in one Income Tax Return i.e. for the year 2011, while it is
TaxReturnsbyRespondentNo.1.
property was held in someone else's name whether a dependant or not, it could
only be mentioned in the said Column at that point of time. Since land had been
was mentioned in respect of the said land in the relevant Column in the relevant
year and upon receipt of consideration subsequently with regard to the said land
excludedinthenextyearfromthesaidColumn.
48. The learned counsel also brought to the notice of this Court a
wouldbespecificallymentionedwithoutshowingthesaidperson,asadependant.
byRespondentNo.6.
that Respondent No.6 owned four very valuable flats in Central London worth
millionsofdollars,yet,itwasalleged,shewasadependantofRespondentNo.1.
otherwisebecomeavailablethatRespondentNo.6wasadependantofRespondent
No.1 and the property, if any, in her name, was required to be disclosed by
RespondentNo.1inhisNominationPapers.
52. The primary basis of the case of the Petitioners are the series of
Papers. The said documents are, in fact, copies, including of emails and are by
and large unsigned. Furthermore, the said documents to the extent that the same
judgment based upon the copies of unsigned documents, which are disputed and
have not come from proper custody. This is a legal impossibility in view of the
evenadevelopingLegalSystem.Thereisnolegalprecedent,inthisbehalf.
andthefallofpoliticalicons.Suchisthepoliticalnotthelegalconsequenceofthe
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reports of the journalists. We are also witnesses to the fact that suchreportshave
the disqualification or impeachment of the high and mighty but mere publication
notipsofactoresultintheconvictionsorimpeachment.
is fiercely guarded by such journalists with their liberty and occasionally with
their lives. The documents usually, as in the instant case, are copies and notduly
perhaps prove the documents may or may not be available. Immediate fall out is
discounted. Their reports are the vital key, which is used by investigators and
prosecutors togatherandcollectmaterialandevidenceinaformacceptabletothe
Court so that the facts can be ascertained and the law applied thereto.
Investigativejournalistsarenotasubstituteforinvestigatorsandprosecutors.
55. In the instant case, upon release of the Panama Papers, the
Opposition Parties and the Civil Society started demanding that the allegations
against the Members of the Sharif Family arising from the Panama Papers be
inquired into and the facts be ascertained. It was understood between the
Government andtheOppositionthattheallegationsemanatingthePanamaPapers
Court be appointed to conduct an inquiry, gather the evidence and ascertain the
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facts. The Government, in principle, perhaps reluctantly, accepted the demand.
However, a serious dispute arose as to the Terms of Reference (TORs) for such
Commission. Despite many a meetings and photo opportunity, the matter of the
bepossible.
parties concerned that the contents of the Panama Papers raised serious issues
andsuchallegationsneededtobeinquiredintoandestablishedsothatanactionin
prosecutionforacriminaloffence.
responsible therefor, legally, at best, would form the basis of allegations until
and 4 others v. Election Petitions Tribunal, West Pakistan and others [PLD 1957
817), (5) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD2010SC828),
Mehmood v. Mian Imran Masood (PLD 2010 SC 1089), (8) Malik Iqbal Ahmad
309
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Langrial v. Jamshed Alam and others (PLD 2013 SC 179), (9) Mian
Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97), (11)
Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689), (12) Rai
Hassan Nawaz v. Haji Muhammad Ayub and others (PLD 2017 SC 70), (13)
MuddasarQayyumNahrav.Ch.BilalIjazandothers(2011SCMR80),(14)Mian
NajeebudDin Owaisi v. Aamir Yar and 7 others (2011 SCMR 180), (15) Sadiq
AliMemonv.ReturningOfficer,NA237ThattaIandothers(2013SCMR1246),
through Secretary, M/o Law, Justice and Parliamentary Affairs and others (2013
SCMR 1328), (18) Dilawar Hussain v. The State (2013 SCMR 1582), (19)Allah
Dino Khan Bhayo v. Election Commission of Pakistan (2013 SCMR 1655), (20)
Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), (21)
Muhammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmed Tarar and others (2016
SCMR 1), (22) Muhammad Ahmed Chatta v. Iftikhar Ahmed Cheema (2016
PB15MusaKhailandothers(2013CLC1583).
unseated on the basis of allegations alone without such allegations being duly
provedortherelevantfactsdulyascertainedbeforetheCompetentLegalForum.
resultorientedTORs.ProposedTORswerefiledby
partiesthataCommissionwouldbeappointed,as
ease of reference:
2. Be that asitmay,wedeemitappropriate
to direct all the parties to these proceedings to
place on record all the documents on which
they intend to rely in support of their
respective cases. No further opportunity inthis
regard will be available to them during the
proceedings before the Commission. It is all
the more necessary for the reason that this
Court may also be able to go through these
documents before deciding the question of
appointment of Commissionorotherwise.Itis,
however, clarified here that in case the
Commission is appointed, this order will not
prejudice or curtail its authority to call for any
recordfromanysource.
belligerent tone, stated that a Commission by a Judge of this Court was not
acceptable and the matter be decided by this Court on the existing record. The
relief of the opposite side could barely be concealed. One of the unsolved
mysteries of the case is this sudden change of heart by the Petitioners and more
mereallegationsemanatingoutofthePanamaPapers.
under Section 9(a)(v) of the NAB Ordinance, the allegations seriously leveled
the High Court may direct initiation of such criminal proceedings. Obviously,
neither this Court nor the High Court can directly convict a person, while
exercising its Constitutional original jurisdiction that too without recording any
evidence.
of Respondent No.1 Mian Muhammad Nawaz Sharif. The main thrust of the
judgment of this Court in Syed Zafar Ali Shahs case, reported asSyedZafarAli
Shah and others v. General Pervaiz Musharaf, Chief Executive of Pakistan and
others (2000 SCMR 869). It was contended that the allegations, in this behalf,
were leveled by the State against Respondent No.1 Mian Muhammad Nawaz
Sharif but his counsel Mr. Khalid Anwar, learned Sr. ASC did not controvert the
said allegations. The record of the said case was summoned and examined andit
was discovered that Mr. Khalid Anwar, learned Sr. ASC was not the counsel of
Respondent No.1 Mian Muhammad Nawaz Sharif in the aforesaid case, hence,
theentirecontentionofthelearnedcounselisbasedonamisunderstanding.
were or could have been recorded. A mere mention that a large number of
cannotformthebasisofhisdisqualification.
inConstitutionPetitionNo.29of2016couldnotsucceedastheallegationstherein
could not be proved to the satisfaction of this Court. However, in view of the
nature of the jurisdiction invoked i.e. under Article 184(3) of the Constitution of
merely adversarial the Petitioners cannot be tied down merely to their pleadings.
The entire material available on the record must necessarily be examined in the
contextoftheapplicablelaw.
legal propositions and complicated facts. We cannot afford the luxury of over
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.
floated to the surface, it is necessary to avoid being distracted by the sound and
fury raised by all sides in equal measures both inside and outside of the
Courtroom. Having distanced ourselves from the irrelevant, the illogical and the
nonlegal, we must now come to the grips with the real matterinissuebeforeus,
fact between the parties that the said four Flats are owned by two Offshore
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Companies i.e. M/s. Nielsen Enterprises Limited and Nescoll Limited registered
in the British Virgin Islands (BVI). It is also evident from the record and not
disputed betweenthepartiesthatthesaidFlatswereacquiredbythetwoaforesaid
BVI Companies, between the years 19931995 for a total consideration of US$
1.9million.
66. ItisthecaseofRespondentsNo.1and6to8thattheaforesaidtwo
the Flats) are owned by Respondent No.7 Hussain Nawaz since June 2006. Prior
of any particular person and the Companies, (and the Flats) vested in the
and 6 to 8 that Respondent No.7 had acquired the two Companies in June, 2006
from the AlThani Family of Qatar, which had the custody of the Bearer Share
Certificates. It was their case that an investment had been made by Mian
as perthewishesofMianMuhammadSharif,uponsettlementofaccountsofsuch
investment, the Bearer Share Certificates of the two Companies, hence, the Flats
in question were given to Respondent No.7. It is also their case that upon
No.7 Hussain Nawaz Sharif nominated his sister i.e. Respondent No.6 Maryam
Safdar,asaTrusteeofthetwocompaniesinJune,2006.
available some of the documents pertaining to the two BVI Companies i.e. M/s.
Nielson Enterprises Limited and Nescoll Limited. It appears from the record
appended with the said CMA that M/s. Nielson Enterprises Limited was
22.11.1994, one Bearer Share Certificate was issued i.e. Bearer Share Certificate
share Certificate bearing No.0002 was issued in the name of M/s. Minerva
was issued in the name of M/s. Minerva Services Limited. On 09.6.2014, Share
ofM/s.TrusteeServiceCorporation.
68. WithregardtoM/s.NescollLimited,thedocumentsappendedwith
CMA No.7531of2016revealthatitwasincorporatedon27.01.1993asisevident
On 29.4.1993, one Bearer Share Certificate was issued bearing No.1. The said
04.7.2006, yet another Share Certificate No.0003 was issued in the name ofM/s.
bearing Certificate No.4 was issued in the name of M/s. Trustee Service
Corporation.
Nominees Limited and Minerva Services Limited. It was obvious and not
disputed by the parties that M/s. Minerva is a service provider. Such relationship
continued till 2014, when M/s. Minerva was replaced by M/s. Trustee Service
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Corporation, obviously another service provider for Offshore Companies. In the
circumstances, it is clear and obvious that the person, who instructed M/s.
Trustee Service Corporation in June 2014 to provide services for the two
companies M/s. Nielsen Enterprises Limited and Nescoll Limited, is the real
beneficial owner of two companies. The said documents were not provided.This
aspect of the matter was pointed out to the learned counsel for the Respondents,
moreparticularly,RespondentNo.7.
70. In the above backdrop, CMA No.432 of 2017 was filed on behalf
during pendency of the case originating from M/s. Minerva, Trustee Service
Corporation and JPCA Limited indicating that they were providing services for
the two companies M/s. Nielsen Enterprises Limited and Nescoll Limited.
Reference was also made to some meetings with Respondent Hussain Nawaz
Sharif but what was not filed were the agreements or any other document
provide the services in respect of the said Offshore Companies, which should
haveindentifiedtherealbeneficialownerofthesaidCompanies.
signatory qua of two Companies rather than its beneficial owner or trustee. The
record,inthisbehalf,wasalsoappendedwithCMANo.432of2017.
shareholder i.e. owner of the two BVI Companies. The Trust Deed dated 2nd/4th
admissioninonesownfavour,whichislegallyirrelevant.
funds for acquisition thereof. In the instant case, it has been presented before us
that the father of Respondent No.1, Mian Muhammad Sharif setup Gulf Steel
1980. The funds realized therefrom were invested with the AlThani Family in
Qatar and the proceeds of such funds and the profit therefrom upon mutual
Respondent No.7 and accounted for the Flats in question the Steel
of Gulf Steel Mills and Agreement dated 14.4.1980 for sale of remaining 25%
theAlThaniFamilywerefiledandreliedupon,inthisbehalf.
74. A perusal of the aforesaid documents reveals that the Gulf Steel
Mills, Dubai, the alleged mother source of all the assets, had a negativeequityat
the time of its sale i.e. its liabilities exceeded its assets. A fact mentioned in
Agreement, 75% of the shares allegedly held by Mian Muhammad Sharif in the
remaining liability of the company was taken over by said Tariq Shafi,theproxy
was claimed, were invested with the AlThani Family in Qatar. However, no
explanation forpaymentoftheremainingobviouslyoutstandingliabilitiesofGulf
Steel Mills has been offered. The learned counsel for Respondents Nos.7 and 8
frankly conceded that there are gaps, in this behalf, which could not be
explained.
disclosedincrementallybyRespondentsNo.1and7.
Muhammad Sharif with AlThani Family of Qatar has been filed. No formal
documentofallegedsettlementofaccounts,inthisbehalf,hasbeenfiled.
course involved investment, withdrawal and transfer of large amounts from one
transactions have made available. The failure to underpin even one of the
transactionsthroughbankingdocumentsisneitherstrange.
onthebasisofsaidcounternarrativewereinitiated,firstlyinyear1994,whentwo
vide judgment dated 27.5.1997 passed in Writ Petitions Nos.12172 & 12173 of
proceedings under the NAB Ordinance were initiated through Reference No.5 of
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2000. However, the said Reference was quashed on the ground that since
Respondent No.1 and his family were not in Pakistan and, therefore, theyhadno
opportunity to explain the source of funds for the assets in question, which,inter
alia, included the four Flats in question. The two learned Judges of the Lahore
High Court, having concurred in this aspect of the matter, differed on the future
course of action available to the NAB. One was of the view that in future, the
investigation could take place, while the other expressed his opinion that the
matter stood concluded. The case was referred to a third learned Judge,whoalso
held vide judgment dated 11.3.2014, reported as M/s. Hudaibya Papers MillsLtd
and others v. Federation of Pakistan and others (PLD 2016 Lahore 667) that
further investigations were not legally possible. We have examined the said
judgments, which have been placed on record and are surprised by the
conclusions drawn but we are not surprised by the failure of NAB to file an
appeal against the aforesaid judgments before this Court. The Chairman, NAB
are filed by the NAB before this Court in routine but not inthiscase.Webelieve
Pakistan would be more or less 200 million. If out of the 200 million people of
Pakistan the only person, we can find to head over Premier Anticorruption
InstitutionisRespondentNo.2,wemightaswelllegalizecorruption.
79. In this day and age, when Offshore Companies and Special
Purpose Vehicles are employed to disguise ownership as in the instant case, the
This Court in the case, reported as Rai Hasan Nawaz v. Haji Muhammad Ayub
andothers(PLD2017SC70)observedasfollows:
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The instant case involves various properties not only the four Flats in
Azizia Steel Mills near Jeddah and the Hill Metal Establishment, which is
currentlyfunctioninginJeddah.
80. A clear cut explanation for the title thereof and all the obvious
who claims to be the owner. Such documents have been deliberately withheld
from this Court. The Flats have been in occupation of the Sharif Family since
the various properties were acquired is shrouded in mystery and no clear cut
benefitted from such assets, including Hill Metal Establishment through various
2017. The stand of Respondent No.7, in this behalf, was also interesting and is
reproducedhereinbelow:
givenhisfulltimeinvolvementinpolitics.
the assets in question, more particularly, the four flats i.e. Flats No.16, 16A, 17
and 17A, Avenfield House, Park Lane, London, businesses in London and Hill
No.1 and the possibility of his equitable or beneficial interest therein cannot be
ruledout.
82. We are dealing with the first Family of the country. Respondent
No.1 is the Prime Minister of Pakistan. The questions regarding properties ofhis
toknowthetruth.
Article 184(3) of the Constitution tends to avoid deciding the disputed questions
Courtonmorethanoneoccasionhasundertakensuchanexercise.
84. Inthecase,reportedasSyedMehmoodAkhtarNaqviv.Federation
order todeterminewhethertheRespondentParliamentarianshelddualnationality,
summoned and examined the various official records and reports, in this behalf,
and gave a finding of fact that some of such Parliamentarians were foreign
Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642),
this Court while examining the nature of jurisdiction of this Court under Article
321
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184(3)observedasfollows:
General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra,
wasbeingpolluted,whichfactwasdisputedbetweentheparties.
whereby an election can be called into question only through the Election
them. The legal possibility of referring the matter to the Election Commission of
Pakistan under Article 63(2) of the Constitution, was also considered. The
aforesaidprovisionreadsasunder:
A bare readingoftheaforesaidprovisionmakesitclearandobviousthatthesame
provision has been interpreted by this Court in the case, reported as Muhammad
Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC
774)inthefollowingterms:
In the instant case, the allegations against Respondent No.1 primarily pertain to
the alleged nondeclaration of his assets in the Nomination Papers. Even though
such allegations surfaced after the elections, the same would not qualify as a
postelection disqualification, hence, the matter cannot bereferredtotheElection
CommissionofPakistanthroughtheSpeakerorotherwise.
However, it is now settled law and has been
87. In the instant case, the allegations against Respondent No.1 were
can 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
business deal between Malik Riaz Hussain and Dr. Arsalan Iftikharattemptingto
influencethejudicialprocess(PLD2012SC664).
88. When the matter relates to the persons in high places, special
andinquiry.Toachievesuchend,inunexceptionalcircumstances,theCourtkeeps
a vigilant eye over the investigation by keeping itself abreast of the progress
thereof.ThemostsignificantcaseinhandistheHawalacaseofIndianSupreme
Court, reported as Vineet Narain and others v. Union of Indian and another(AIR
1998 SC 889). This Court also on more than one occasion has passed similar
orders withregardtotheinvestigation,includingthecases,reportedasCorruption
in Hajj Arrangementsin2010(PLD2011SC963)andSuoMotuactionregarding
able nor willing to fulfill its legal obligations, we are constrained to look
came up before its Supreme Court in the case, reported as Ram Jethmalani and
others v. Union of India and others [(2011) 8 Supreme Court Cases 1]. The
easeofreference:
In theinstantcase,inordertoensurethateverypossibleeffortismadetodiscover
thetruthandplaceitbeforethepeopleofPakistanandalsotoensurethatthelegal
consequences, if any, follow. It appears that the help and assistance must be
AntiTerrorism,Act,1997.
Joint Investigating Team (JIT) headed by a Senior Officer not below the rank of
Military Intelligence (MI), State Bank of Pakistan (SBP), Security & Exchange
Commission ofPakistan(SECP)andNationalAccountabilityBureau(NAB).The
Heads of the aforesaid Institutions shall nominate the Members of the Joint
requireintheinstantinvestigationisnotconfined
Papers,moreparticularly,theflatsinquestioni.e.
SaudiArabia.Thesourcesoffundsforacquisition
ofsuchpropertieswouldalsoneedtobeidentified
ownership of thepropertyandassets,andifsuch
withinsixtydaysfromitsconstitution.ThisCourt
passed.
may be.
Judge
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IJAZ ULAHSAN,J.Ihavehadtheprivilegeofgoing
my own opinion.
seek inter alia a declaration from this Court to the effect that
Islands (BVI)andarespecialpurposesvehiclesforownershipof
when Respondents No.6 & 7 were in their early 20s and had
of facts, it isaverredmustleadtohisdisqualificationintermsof
wrongdoing and took the stance that his children were doing
when required.
and considered.ThestancetakenbyRespondentsNo.1,6,7&
takenbyRespondentNo.1inhisaforesaidspeeches.However,
also producedbeforeusclaimingthatRespondentNo.6wasa
respective pleadings.
cancelled.Likewiseabearercertificatewasalso
issued by Nescol Limited which was also
cancelled. Subsequently, in 2006 shares were
issued in favour of Minerva Nominees Limited
which became the shareholder of both BVI
Companies. He has argued that holding of
shares inthesaidcompanieswaschangedfrom
time to time in order to hide the real ownership
of the companies beneath layers of shadow
companies.
viii. Learned counsel has vehemently questioned
the letters produced on behalf of Respondents
No.6 to 8. The said letters which were
purportedly issued by Sheikh Hamad on
05.11.2016 and 22.12.2016 (Qatari Letters) state
that since his father had a business relationship
with the father of Respondent No.1 and
grandfather of Respondents No.6 to 8 (Mian
Muhammad Sharif), the funds generated from
sale of 25% shares in the Gulf Steel in the sum of
12 Million Dirhams, were invested in the business
of the Thani family in Qatar which had
instructions from Mian Muhammad Sharif that
the beneficiary of these funds will be his
grandson namely Respondent No.7. According
to the Qatari letters, in the year 2006 accounts
of the business were settled, and by way of
settlement it is claimed that bearer certificates
of Nescol Limited and Nielsen Enterprises
Limited, the two companies which held the
Mayfair Properties, were handed over to the
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xiv. Learned counsel has raised serious doubts
about the Trust Deed dated 02.02.2006 signed
by Respondent No.6 on the same date and
Respondent No.7 on 04.02.2006 according to
which Respondent No.7 is the beneficial owner
of both Companies and hence the Mayfair
Properties are held by Respondent No.6 on trust
for Respondent No.7. Further submits that the
said document is fake, fabricated and not
worthy of any reliance.
xv. Learned ASC has also drawnourattentiontoan
interview given by Respondent No.8 namely
Hassan Nawaz to a British Journalist in
November, 1999. In the said interview,
Respondent No.8 allegedly stated that he was
residing in one of the Mayfair Properties on rent
was a student and earning nothing was not
aware who was the real owner and rentforthe
said properties wassenttohimbyhisfamilyfrom
Pakistan. Submits that Respondent No.8
became a Director of Flagship Investments
Limited on 12.04.2001muchbeforethesaleofAl
Azizia Steel Mills, Jeddah in June 2005 injecting
substantial sums of money in his company.
xvi. Learned counsel has vehemently argued that
while Respondent No.1 asserts that it was the
sale of Saudi factory in June 2005 which
provided funds for his sons to start their
businesses yet the interview given by his son to
the British Journalist completely negates that
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62readwithArticle63oftheConstitutionofIslamicRepublicof
submissions:
i. ThatthecontentsofspeechofRespondentNo.1
in the National Assembly on 16.05.2016 were
misleading and incorrect. That twice in the said
speech it was stated that he (RespondentNo.1)
and his family had been sent into forced exile
against their will and that subsequent events
had proved that he (Respondent No.1) had left
the country voluntarily as a result of a deal. At
this juncture, it was pointed out to the learned
counsel that the question whether or not
Respondent No.1 had been sent into exile
against his will had beendealtwithbythisCourt
in a judgment reported as Muhammad Nawaz
Sharif v. State [PLD 2002 SC 814] in which while
dealing with the question of condonation of
delay this Court recorded a finding that
Respondent No.1 had been exiled against his
will and wasnotallowedtoreturn.Thisbeingthe
position, in collateral proceedings, we were not
inclined to revisit and reexamine the aforesaid
findings of this Court.
ii. That Respondent No.1 had made certain
admissions in his speech insofarasheadmitted
that Gulf Steel was established in UAE and the
same was sold in 1980 forasumofUS$9Million.
He submits that no explanation has been
forthcoming regarding source of the funds
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inquest TribunalssetupindifferentcountriesincludingSpainfor
following arguments:
i. He referredtothespeechesofRespondentNo.1
to submit that he had not disclosed the correct
information either before the people of the
country or before this Court.Hemaintainedthat
there were contradictions in the statements
made by Respondent No.1, his sons and wife
which show that he had been untruthful and
was liable to be disqualified in terms of Article
62(1)(f) of the Constitution. He further submitted
that the privilege claimed by Respondent No.1
in terms of Article 66 of the Constitution was not
available to him in view of the fact that he had
raised a private matter on thefloorofthehouse
which was neither in the agenda nor a part of
the business of the house. In this context, he
relied upon Chaytor v. House of Lords (2010 UK
SC 52 (paras 62, 118, 121 & 122) andCanadav.
Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30(paras29,
37 to 40 & 46 to 48). He also referred to Masroor
Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823 @
1018] and Zahur Ilahi v. Mr. Zulfikar Ali Bhutto
[PLD 1975 SC 383]. He made reference to a
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xxvi. Concluding his arguments on the question of
tax evasion, the learned counsel submits that
disqualification of Respondent No.1 is being
sought interaliaonthebasisofArticle63(1)(o)of
the Constitution read with relevant provisions of
the RoPA. Both the said provisionsrequireliability
of a person being determined by a competent
forum and such determined liability remaining
unpaid. He submits that it is neither alleged nor
established from the record that any
determination of tax liability of Respondent No.1
has beenmadebyacompetentforumandthat
the same has remained unpaid. The learned
counsel submits that even otherwise in prayer
clause 6, the petitioner he has admitted that no
determination has so far been made by the
competent authorities against RespondentNo.1.
As a necessary corollary, it can safely be said
that in the absence of determination of liability
regarding payment of Government dues the
provisions of Article 63(1)(o) of the Constitution
cannot be invoked.
xxvii. The learned ASC for Respondent No.1 has
read paragraph 18 (ix) and (xxiii) of the petition
to point out that it has been asserted in the said
paragraphs that, admittedly Ms. Maryam
Nawaz is a dependent of Respondent No.1. By
alleging that Respondent No.1 had failed to
disclose the said fact in his nomination papers
for the General Election, 2013, Respondent No.1
was guilty of concealment and signing a false
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aforesaid contentions.
xxviii. He further submits that the price / value of the
land in question (Rs.24,851,526/) was
subsequently paid by Respondent No.6 to
Respondent No.1throughbankingchannelsand
the said transaction was duly reflected in the
wealth statementofRespondentNo.6forthetax
years 201113. Likewise since the agricultural
property in question had been purchased by
Respondent No.6 on payment of sale
consideration, the said property was not
mentioned in the wealth statement of
Respondent No.1 for the years 201213.
However, the cash received in lieu of transfer of
the property was duly reflected in the accounts
statement of Respondent No.1.
xxix. On the question whether or not Respondent
No.6 is a dependent of Respondent No.1,
learned counsel submits that Respondent No.6
has independent sources of income and
notwithstanding gifts made by Respondent No.1
in favour of RespondentNo.6involvingcashand
immovable properties, status of Respondent
No.6 as an independent adult has remained
unchanged. In this regard, he has placed
reliance on M. A. Faheemuddin Farhum v.
Managing Director/Member(Water)[2001SCMR
1955], in which the definition of dependent as
given in the Blacks Law Dictionary was cited
with approval. The learned counsel alsorefersto
Ball, Decd., In re. Hand v. Ball [1947 1 Chancery
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385
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submissions:
ii) Supplementary concise statement
(CMA#7531 of 2016);
iii) Letter issued by Sheikh Hamad
(CMA#7638 of 2016);
iv) Response to CMA#7511 of 2016 filed by
the petitioner (CMA#7646 of 2016);
v) Trust Deed dated 02.02.2006 relating to
London Flats (CMA#7661 of 2016);
vi) Copies of land record Registry relating to
London Flats (CMA#7953 of 2016) [total
cost of the Four Flats was amounting to
1.905 Million at the relevant time];
vii) Tax Returns of Respondent No.6 from
201116;
viii) Tax Returns of Mst. Shamim Akhtar,
grandmother of Respondent No.6
(CMA#8116 of 2016);
ix) Wealth Tax Statements of the father of
Respondent No.6, Bank Statements and
related documents (CMA#2519 of 2017);
x) Copies of five References pending before
the Election Commission of Pakistananda
Constitutional Petition pending before the
Lahore High Court (CMA#320 of 2017);
and
xi) Documents in support of establishing that
Respondent No.6 was not beneficial
owner of the London Flats (CMA#394 of
2017).
m) Wealth Tax Statements of Respondent
No.1 and that of Mst. Shamim Akhtar for
the year 2010 (CMA#2519 of 2016); and
n) Accounts Statements of Respondent No.1
relating to his accounts with Standard
Chartered Bank and Habib Bank Limited
showing entries dated 15.02.2011
indicating debit and credit entries to
reflect payment by Respondent No.6 to
Respondent No.1 for price of land held in
the name of Respondent No.6.
viii. Learned counsel appearing on behalf of
Respondents No.6, 9 & 10 has submitted that
the allegation that Respondent No.9 had not
disclosed the gift of Rs.31,700,000/ received
by his wife (Respondents No.6) in his Tax
Returns is misconceived.Hehasstatedthatin
the first place, Respondent No.9 did not file
his Tax Returns during the period between
201114, in view of the fact that he did not
have an NTN till 28.01.2014 and tax payable
by him was deducted at source. However,
the gift received by Respondent No.6 from
her father was disclosed in her Returns and
copies of her Returns were filed with the
nomination papers of Respondent No.9. This
being the situation, there was no question of
any concealment on the part ofRespondent
No.9 or violation of any laws on his part,
attracting the penalty of disqualification. He
submits that even if for the sake of argument
it is admitted that for the years 201114,
Respondent No.9 was required to fileIncome
Tax Returns and having failed to do so was
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xiv. Italsoappearsthatinparagraph5(c)atpage
6 of the concise statement, Respondent No.6
has stated that she is only a Trustee for
Respondent No.7 in relation toNescolLimited.
Learned counsel was asked to explain why
there is no mention of Nielsen Enterprises
despite the fact that Respondent No.6 also
claims to be a Trustee for the said company.
The learned counsel attempted to argue that
the lapse was on account of bona fide
error/lapse in view of the fact that Trust Deed
dated 02.02.2006 clearly indicates that
Respondent No.6 is a Trustee for both
companies.
xv. ThelearnedcounselforRespondentsNo.6,9&
10 while addressing arguments on the
question of dependency of Respondent No.6
on Respondent No.1 submitted that she had
indeed received gifts from Respondent No.1
i.e. her father from time to time in various
amounts and in the form of immovable
property, but there was nothing unusual
about it. In our society, it is a common
practice for fathers to give gifts to their
married daughters. The said fact does not
make her dependent on Respondent No.1.
He maintained that the term dependency is
not defined in the Ordinance. In this context,
he referred to Section 2(33) which defines a
minor child Section 19(8)(b) which states that
a minor child shall not include a married
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i) ThedisqualificationofRespondentNo.10
is being sought on the basis of
allegations leveled in 1992 i.e. over 25
years ago. It would, therefore, neither
be just nor proper to reopen the matter
at this stage.
ii) The allegations against Respondent
No.10 pertain to a period of time when
he did not hold a public office. In 1992,
Respondent No.10 was the Chief
Executive of First Hajveri Modaraba
which was a nonbanking financial
institution. He further submits that he
held a public office for the firsttimewith
effect from 15.09.1992 when he was
appointed as Chairman, Pakistan Board
of Investment. He resigned fromthesaid
post on 19.04.1993.
iii) Over the past 25 years many superior
Courts adjudicated upon the matters
directly or indirectly involving
Respondent No.10. He was not
convicted of any wrongdoing..
xxix. Onourquery,thelearnedcounselconceded
that the acquittal order passed by a learned
Division Bench of the Lahore High Court and
the orderpassedbyafiveMembersBenchof
the Lahore High Court were passed in
proceedings in which Respondent No.10 was
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submissions:
interviews of RespondentNo.1andRespondents
No.6, 7&8 inwhichanefforthasbeenmadeto
show that contradictions exist with relation to
ownership of the properties,sourceoffundsand
identity of the person whoownssuchproperties
(ii) official records including Tax Returns,
Nomination Forms etc. Although an effort has
been made to show that there is tax evasion or
misdeclaration in Nomination Forms, the
petitioners have not been able to make out a
case either for disqualification of Respondent
No.1 or any wrongdoing on the part of
Respondents No.6, 7 & 8 and (iii) discovery of
acts or omissions on the part of Respondent
No.1 which could lead to legal consequences
including disqualification intermsofArticles62&
63 of the Constitution.
xxii. He submitted that during the course of hearing
of these petitions, the focus of this Court has
been on the following eight questions:
1) How was the outstanding debt liability of
Gulf Steel settled?
2) Why did Tariq Shafi not stateinhisaffidavit
that he received 12MillionDirhamsincash
from Mr. Ahli?
3) Why did Mian Muhammad Sharif cause
cash deposits to be made with the Al
Thani Family when heusedbankaccounts
to obtain business loans?
4) Where is the record of the
communications between Mian
Muhammad Sharif and Shaikh Jassim bin
Jaber (father of Sheikh Fahad and Sheikh
Hamad) over the period 1980 to 1999?
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xxiv. Elaborating the above arguments, the learned
ASC submits that any culpability of the
Respondents would have to be examined in
light of the following circumstances:
i) Even if the Respondents were charged
under Section 9 (a)(v) of the Ordinance,
they are not required to prove without
reasonable doubt that the assets owned
by them are not beyond their known
sources of income. Even if they offer a
plausible and reasonable explanation
regarding the source of funds from where
such assets were acquired, the onus then
shifts on the petitioners to establish a case
of possession of assets beyond known
sources of income. In this context, he
relied uponKhalidAzizv.State(2011SCMR
136).
ii) Secondly, the learned ASC submits that
even if the Respondents were treated as
accused in a criminal trial and their
statements were to be treated as
statements under Section 342 Cr. P.C, it is
settled law that such statements are tobe
taken as awholeincludingtheinculpatory
and exculpatory portions. On the basis of
such criteria, the learned counsel submits
that there is no evidence to record a
conviction against Respondent No.1 or
Respondents No.6, 7 & 8. Reliance in this
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xxv. The learned counsel submits that the first
question on the factual aspect of the case is
whether the Mayfair Properties were acquired
by Respondent No.7. He submits that in the first
place it has to be kept in mind that the
Respondent No.7 belongs to a family which has
a long history of being in the Steel business.
Father/grandfather of Respondents was running
a big and successful business even prior to
partition and the entire family had substantial
financial resources. He further submits that the
Mayfair Properties were acquired by
Respondent No.7 by way of a settlement in
2005/2006 and prior to that the same were held
by AlThani Family through bearer certificates in
two offshore companies namely, Nescol Limited
and Nielsen Enterprises. He pointed out that the
only document relied upon by the petitioners to
establish that the properties in question were
owned by Respondent No.7 in 1999 is the
judgment of the London High Courtonthebasis
of which the said properties were attached. He
further pointed out that it is evident that the
order oftheLondonHighCourtwasbasedupon
an affidavit of Mr. Shezi Nackvi in which it had
categorically been stated that according to his
information certain members oftheSharifFamily
had proprietary interests in the said properties.
He further submits that the affidavit was based
upon the information contained in a report
prepared by Mr. RehmanA.Malikinhispersonal
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xxxix. Thelearnedcounselnextcontendedthataright
to due process and fair trial is enshrined in the
Constitution and any finding recorded or
declaration given by this Court under Article
184(3) of the Constitution or by any Commission
appointed by this Court for the said purpose
would seriously violate such right. He maintains
that in the limited number of cases where
declarations have been issued in exercise of
powers under Article 184(3) of the Constitution,
such declarations have invariably been issued
on the basis of admitted facts and or
documents.
xl. The learned ASC has referred to various
judgments rendered by US Courts to argue that
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14. Onconclusionoftheargumentsoflearnedcounsel
wasfiledon16.11.2000whichwasquashedbytheLahoreHigh
submits that the judgment of the Lahore High Court was not
verifiable sourcesofincomeandtherewereseriousallegations
submitted that the same stance was taken by him before the
had sought opinion of its own Law Officers who had opined
that in view of the fact that since two Judges of the Lahore
Attorney GeneralforPakistan.Attheveryoutset,weaskedthe
constantfootdraggingontheirpartshowscompleteandutter
order to haveaccesstosuchpersons.Further,sincetherecord
the matter had not been closed and if any material came to
RespondentNo.7claimedtohaveanNTNwhenthesamewas
itself, all Tax Numbers issued upto 1998 stood cancelled and
Chairman, FBR submitted that she had also filed her response
on his behalf.
matter.
submissions:
and
(b) Should this Court exercise jurisdiction even
ifthecasefallswithinthepurviewofArticle
184(3) of the Constitution.
iv. He further states that although in Farzand Ali v.
Province of West Pakistan (PLD 1970 Supreme
Court 98) and Muhammad Nawaz Sharif v.
President of Pakistan (PLD 1993 Supreme Court
473), this Court had held that jurisdiction under
Article 184(3) of the Constitution can be
exercised to issue orders in the nature of quo
warranto, the person seeking such
disqualification must prove the same in
adversarial proceedings. In this context, he has
also referred to the cases reported as Ishaq
Khan Khakwani v. Mian Muhammad Nawaz
Sharif (PLD 2015 Supreme Court 275) as well as
Mahmood Akhtar Naqviv.GovernmentofSindh
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in viewofthefactthatsuchdeclarationrequires
an evidentiary hearing. He pointed out that ina
few cases where such declarations were issued
by this Court, the same were issued on thebasis
of admitted facts or undisputed material
available on record. In this context, he referred
tothecasesreportedasIshaqKhanKhakwaniv.
Mian Muhammad Nawaz Sharif (PLD 2015
Supreme Court 275) and Mahmood Akhtar
Naqvi v. Government of Sindh (2015 SCMR 810).
xi. The learned Law Officer also submitted that in
the event of an allegation of corrupt or illegal
practices, Sections 42A and 82 of the RoPA
provideaprocedureoffilingacomplaintandits
trial by a District & Sessions Judge. He further
submits that matters being agitated before this
Court are already pending before the Election
Commission of Pakistan. As such, exercise of
jurisdiction by this Court under Article 184(3) of
the Constitution in the facts and circumstances
of the case is not called for. He maintains that
there are factual controversies involved which
require evidentiary hearings and the law
provides the mode, manner and forum for such
hearings. He, therefore, concluded by
submitting that special care is to be taken in
exercise of jurisdiction. He maintains that a
declaration issued by this Court would have
serious and farreaching consequences and a
stigma will be attached to the name of
Respondent No.1 who is the head of the largest
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that:
interest over and above the national interest and had made
submitthatRespondentNo.1didnotmeetthecriteriaofbeing
Constitution.
his full confidence in the Court and prayed that the petition
may be accepted.
toacquireassetsinLondon.Hemaintainedthatitisincumbent
xii. Whether Respondent No.6is/wasattherelevant
time adependentofRespondentNo.1andifso,
whether Respondent No.1 had renderedhimself
liable to disqualification by making a
misstatement in his Nomination Papers for the
general elections of 2013 and concealing the
same from the tax authorities?
xiii. Whether Respondent No.1 had been guilty of
tax evasion in consequence of which he was
liable to be disqualified in terms of Article 62 (1)
(o) of the Constitution of Islamic Republic of
Pakistan, 1973?
xiv. Whether the affidavits submitted on behalf of
Mr. Tariq Shafi can be relied upon and believed
in order to establish generation andtransmission
of funds in the manner claimed byRespondents
No.1 & 7?
xv. Whether sufficient material has been placed on
record explaining the source of funds for
establishing Azizia Steel Mills in Jeddah, Saudi
Arabia and its sale in 2005?
xvi. What were the sources of funds utilized by
Respondent No.8 to set up Flagship Investments
Limited and a number of other companies, set
up/taken over by Respondent No.8?
xvii. Whether Respondent No.7 adequately
explained the mode and manner and the
financial resources utilized for setting up Hill
Metal Establishment in Saudi Arabia.
xviii. DoesRespondentNo.1haveanydirect,indirect,
legal, beneficial or equitable right, title or
interest in Hill Metals Establishment, considering
that he has regularly received amounts
ostensibly by way of gifts for amounts in excess
of US $ 7,612,350 from Respondent No.7? In the
year 201516 alone a sum of approximatelyUS$
2.3 Million were received from the account of
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of other questionswhichhavearisenduringtheseproceedings
before us.
controversy werefourresidentialflatsbearingNo.16,16a,17&
British Virgin Islands (BVI). It was alleged that the real owner of
his electiontotheNationalAssemblyandhisyearlyStatements
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the year 2000, he and his family had set up a Steel Mill in
that the business in question was sold in 2005 and the funds
received from such sale were utilized by his sons for their
of Respondent No.1 and his family. There were calls for his
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that he hadnothingtohide,hispastandpresentconductwas
any forum.
family businessesin1972hislatefatherMianMuhammadSharif
his family were sent into exile in 2000 his father set up a Steel
Mill in Jeddah for which the amount received from sale of the
17 Million.Hestatedthatthesewerethesourcesandresources
himtoappointaCommissionofInquiry.However,suchrequest
thematter.Itisthereforeclearthattherewasconsensusacross
the boardamongstallpartiesthattherewasaneedforinquiry
made byhislategrandfatherMianMuhammadSharifinDubai
2006 with funds received from sale of the Azizia Steel Mills at
1980 (12 Million Dirhams against sale of 25% stake in Gulf Steel
Family of Qatar.
agreementshowssaleof75%sharesinGulfSteelinfavourofAl
Steel. Theagreementalsoshowsthatatthetimeofsaleof75%
repeatedqueriesbyusastowhetherthebalanceoutstanding
Muhammad Sharif through Mr. Tariq Shafi was also sold for an
25% stake was sold. Therefore, the entire amount was utilized
Muhammad Sharif.
behalfoftheThaniFamilyinDubaiduringhisfrequentvisits.This
to note that Mr. Tariq Shafi did not appear before this Court
Qatar.
The entire story has been woven around two letters and two
transmitted to theaccountofRespondentNo.8tohelphimset
claimed tohavebeengiventoRespondentNo.7forsettingup
however indicate that Respondent No.8 who till the year 1999
has notbeendisownedordenied)notearninganything,atall,
marks, owing to the fact that these were being received from
Minister of Pakistan and has held high public offices since 1985.
that the Thani Family owned the said offshore companies and
the MayfairProperties.Onaccountoftheirfamilyrelationswith
the lateMianMuhammadSharif,theThaniFamilyhadallowed
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rental basis and rent for the same came from Pakistan, every
ownershipoftheMayfairProperties,andpurchaseofthesame
etc for which no answers have been found nor has any
16 Million, bypaymentofaclaimedsettlementamountofUS$
available with the Sharif Family were taken over by the NAB,
lightofthedayforthefirsttimeintheseproceedingsbeforeus.
investigation.
Nominees werereappointedasNomineeDirectoron15.5.2004
have found no reason either for the petitioner or for any other
in favour ofTrusteeServicesCorporation.Thereafter,itappears
thesepropertiesremainsshroudedinmystery.Anothermaterial
income of Respondent No.1 (if his income tax returns are kept
have beenleftinalurch.Thiswasdespitetallandunequivocal
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claimsonthepartofRespondentsNo.1,6,7,othermembersof
Regrettably, therehasbeencompleteutterandtotalfailureto
hold that most of the material questions have either not been
Propertieswerepurchased/acquiredwithlegitimatefundsand
verifiable sources.
Constitution.
conduct electionsandtomakesucharrangementsasmaybe
reads as under:
such memberispunishablewithimprisonmentforatermwhich
Constitution.
requirementnorpowervestinginthehierarchyprovidedunder
accountable fordisclosureofsourcesforacquisitionofassetsis
the sources with which such assets were acquired and on his
conviction under NAO or any other law for the time being in
done without stretching the letter of the law and the scheme
indicatethat,primafacieitrelatestopreelectionqualification
as is evidentfromthewords,apersonshallnotbequalifiedto
the RoPAstartingfromtheReturningOfficerandculminatingin
CommissionthataCourtoflawhasissuedadeclarationthata
suffersfromanyofthedisqualificationsmentionedinArticles62
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Constitution and the law clearly cater for situations like these.
under the Constitution or any law for the time being in force
Election Commission.
legallyorfactuallyincorrectitcansetasidesuchdecision,and
Pakistan.
justice andanorderforthepurposeofsecuringattendanceof
Mehmood AkhtarNaqviv.FederationofPakistan(PLD2012SC
the MajliseShoora(Parliament).Theaforenotedorderpassed
by the SpeakeroftheNationalAssemblyhasbeenchallenged
should prejudice the case of either party. The High Court shall
validlybeenelectedandwasnotinexistence(whetherknown
did not qualify at the time of filing his nomination papers, but
66. As notedabove,thepowertodisqualifyamember
exercisedbytheHighCourtunderArticle199andbythisCourt
meaning of Article62(1)(f)oftheConstitutionintheearlierpart
of the judgment.
Respondent No.1.Assuch,hewasrequiredtodisclosethesaid
Sharif was with him in the said business (as is evident from the
that he addressed the Nation in 2016 and even after that till
the time that he filed his concise statement before this Court,
RoPA.Further,RespondentNo.1isaholderofpublicofficeand
positiontodecideifthereissufficientmaterialavailablebefore
firstplace,wearenotconvincedatthisstageandonthebasis
Article62(1)(f)oftheConstitutiongetsattractedinthiscase.As
Constitution.
his wealth statement for the tax year 2011. It has been
Assembly in 2013.
counsel forRespondentNo.1hasarguedthatmerementionof
No.1 for all intents and purposes but was bona fide declared
was alsoshowninhisTaxReturns.InthesubsequentWealthTax
his returns/declarationsfiledafter2012.Thelearnedcounselfor
pointofviewofseekingdisqualificationofRespondentNo.1on
rupees.
view of the fact that the said Article is attracted only where
Parliament.
below:
held a National Tax Number (NTN) at the time when the gifts
department,and/ortaxauditors,reopenthetaxhistoryofthe
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law.
and from where the funds originated and were routed to the
of allegations againstthemraisesanumberofquestionswhich
No.7, who are its shareholders, what was the source of funds
which were used to set up this business and why such huge
disqualification of RespondentNo.1.Further,thevalueofthese
hisknownsourcesofincomeandRespondentNo.1,beingtheir
has also come to our notice that Respondent No.1 and his
who agreed with the finding that the NAB could not be
challenge was based upon the fact that the parties involved
evidence.
which werealsoquashedbyaBenchoftheLahoreHighCourt
alsopleadedlackofjurisdiction.TheFBRtookthestancethatit
country and its people have been captured, taken over and
bystanders and close our eyes to this stark, painful and grim
be conducted inexerciseofpowersunderArticle184(3)ofthe
that this is not a hard and fast, inflexible and rigid principle of
Pakistan MuslimLeague(N)v.FederationofPakistan[PLD2007
SC 642] may be cited. In this case, this Court held that that
necessary.
at least 26 hearingsspreadovermonths,ithasnotbeenmade
ruled out. The position that emerges is that it is not possible for
the propertiesandtherebyrequirehimtoexplainthesourceof
9(a)(v) read with Section 14(c) of the NAO are prima facie
From theaccountsofthesaidbusiness,hugeamountsoffunds
said business.
87. ItisalsoanadmittedpositionthatRespondentNo.8
levelled bythePetitionersandthelocalaswellasinternational
place the true facts and relevant record before us and the
their names once and for all. This was not done and an
the same. Further, the source(s) of funding for Azizia Steel Mills
a broaderpoolofinvestigativeexpertiseisrequiredwhichmay
follows:
concerned authorities.
v) The JIT shall consist of the following members:
a) A senior Officer of the Federal
Investigation Agency (FIA) not below
the rank of Additional Director General
heading the Team. He shall have
firsthand experience of investigation of
white collar crime and related matters
b) A representative of the National
Accountability Bureau (NAB)
c) A nominee of the Securities and
Exchange Commission of Pakistan
familiar with issues of money laundering
and 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.
viii) The JIT may also examine the evidence and
material available with the FIA and NAB, if
any, relating to or having any nexus with the
possession or acquisition of the Mayfair
Properties and the source(s) of funding for
the same.
ix) The JIT shall submit its periodical report(s)
before the Special Bench of this Court every
fortnight. The JIT shallcompleteandsubmitits
finalreportbeforesuchBenchwithinaperiod
of sixty(60)daysfromthedateofreceiptofa
copy of this judgment.
x) I would request the Honourable Chief Justice
of Pakistan to constitute a Special Bench to
ensure implementation of this judgment in
letter and spirit.
if so justifiedbylawandonthebasisofmaterialplacedbefore
the offence.
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the matter.
Judge
ORDER OF THE COURT
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By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar
directions, 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,
QatarandtheU.K.whetherrespondentsNo.7and8inviewoftheir
tender ages had the means in the early nineties to possess and
bearer shares crystallized into the flats who, in fact, is the real and
where did the money for Flagship Investment Limited and other
shall recommend the names of their nominees for the JIT within
caseandcollectevidence,ifany,showingthatrespondentNo.1or
required. The JIT may also examine the evidence and material, if
any, already available with the FIA and NAB relating to or having
a period of sixty days from the date of its constitution. The Bench
underArticles184(3),187(2)and190oftheConstitutionincludingan
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
periodic or final of the JIT, as the case may be, the matter of
examined.
JUDGE
JUDGE
JUDGE
JUDGE
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JUDGE
JUDGE