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Petitioner: Dr. Arsalan Iftikhar VS Respondent: Malik Riaz Hussain, etc
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Jawwad S. Khawaja Title: Dr. Arsalan Iftikhar vs Malik Riaz Hussain, etc. Case No.: C.R.P. No, 167 of 2012 in Suo Motu Case No, 5 of 2012 Date of Judgment:2012-08-30 Reported As: 2012 PSC (Crl.) 807 Result: Order accordingly.
JUDGMENT
JUDGMENT JAWWAD S. KHAWAJA, J, --- This petition has been filed to seek review of our judgment dated 14.6.2012 passed in S.M.C. No, 5 of 2012. The petition is focused on the allegation of partiality and bias of the leamed Attorney General, National Accountability Bureau (NAB) and a Joint Investigation Team (JIT) constituted by the Chairman, NAB to probe into the culpability of individuals including the petitioner Dr. Arsalan and respondent No, 1, namely, Malik Riaz Hussain. After hearing learned counsel for the parties and the Prosecutor General NAB and for reasons discussed below, we have transferred the inquiry and investigation from NAB to a Commission. 2. (3ur judgment dated 14.6.2012 had been passed after considering the concise statements submitted by the parties and after hearing their learned counsel. The relevant part of our judgment on which the hearing of this petition is mainly focused is para 22 which, for ease of reference, is reproduced as under:-- While this suo motu action has been brought to an end in view of the material considered above, the learned Attorney General who has assisted us in this case is fully abreast of all aspects of this case, it is our expectation that he will set the machinery of the State in motion so that all those who may have committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan, Salman AH Khan etc. are pursued and brought to book with the full force and rigour of the law*. 3. It has been brought to "bur notice through the present proceedings that the attorney General wrote a letter to the Chairman, NAB on 18.6.2012, purporting to be in furtherance of para 22 our judgment of 14.8.2012. Learned counsel for the petitioner has taken us through the said letter which was placed on record by the learned Deputy Attorney General. According to learned counsel, instead of abiding by para 22 ibid the learned Attorney General has transgressed the terms thereof
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and has exerted illegal and unwarranted influence over NAB. The contents of the letter dated 18.6.2012 written by the Attorney General will be considered shortly, it may be noted that the learned Attorney General was not a contesting party in the case and was only assigned the limited function, as an officer of the Court and as the principal law officer of the Federation, of setting the machinery of state in motion. 4. The main allegation levelled by the petitioner against the Attorney -General is that he acted in a partisan manner and influenced NAB to favour the respondent Mask Riaz Hussain. To support his contention, learned counsel far the petitioner drew our attention to Writ Petition No, 256 of 2007 which was filed in the Lahore High Court by nine petitioners against a number of respondents including Malik Raiz Hussain who was arrayed as respondent No, 7. The Writ Petition and other documents filed in the case have been placed on record. Mr. Irfan Qadir (now Attomey - General) represented Malik Riaz Hussain in the said Writ Petition. He filed parawise comments and appeared in Court on various dates of hearing on behalf of Malik Riaz. The. teamed DAG, upon being questioned, stated that as per his information, the Attorney General did act as counsel for the respondent MaUk Riaz Hussain ln die said Writ Petition. Learned counsel representing Malik Riaz Hussain interjected at this point and contended that mere was nothing wrong or improper if Mr. Irfan Qadir represented the respondent as his client in the case. He added that even Sardar Muhammad Ishaq leamed counsel for the petitioner had represented MaUk Riaz Hussain in certain cases as his counsel. 14.6.2012There is indeed no impropriety if an Advocate represents a client in any given case. Learned counsel for the respondent is, however, missing the point of the petitioner's objection. The objection is not to the fact that the Attorney General, in his private professional capacity represented the respondent. The allegation being made is that neither during the course of hearing of S.M.C. No, 5 of 2012 nor when our judgment was announced in Court on nor at any time thereafter the Attorney General disclosed to the Court his association or professional relationship with the respondent. lt is quite clear that we would not have tasked the Attorney General with any responsibility in this matter if he had made disclosure to us as to his profession a association with the respondent Malik Riaz Hussain, lt is of concern to us that the learned Attorney General did not make the requisite disclosure. 6. Learned counsel for the petitioner contended that the above facts provide substantiation in respect of a number of allegations which have been made against the Attorney General in this petition and which were reterated during the course of arguments. The primary objection in this respect Is that the learned Attorney General through his letter of 18-6.2012 sent to NAB, went much beyond the scope of our order of 14.6.2012 and this amounted to interference with and unlawful influence on the inquiry by NAB and also constituted failure on his part, to abide by our order. To examine this objection we revert to para 22 ibid wherein the Attorney General had only been asked to "set the machinery of the State in motion it is evident from the contents of his letter of 18.6.2012 addressed to the Chairman, NAB that the Attorney General went well beyond setting the machinery of the State in motion. The Attorney General's letter dated 18.6.2012 is reproduced below in extenso: -- "My dear Admiral Fasih Bokhari, This is to bring to your notice the order of the Supreme Court of Pakistan dated 14th of June, 2012. ' The relevant extract thereof is reproduced below:-- 'While this suo motu action has been brought to an end in view of "the material Considered above, the learned Attorney General who has assisted us in this case is fully abreast of all aspects of this case, It is our expectation that he will set the machinery of the State in motion so that all those who may have committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan, Salman Ali Khan etc. are pursued and brought to book the with the hill force and rigour of the law'.
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' Having regard to the aforesaid desire of the Supreme Court, I take this opportunity to request you to kindly proceed in this matter in exercise of the powers conferred upon you by the National Accountability Ordinance, 1999, for the purposes of an inquiry or investigation so that all those found involved in the acts of corruption or corrupt practices are proceeded against in accordance With law. ' As the responsibility for inquiry into and investigation of an offence alleged to have been committed under this Ordinance rest on the National Accountability Bureau to the exclusion of any other agency or authority. I am therefore referring this matter to you with the expectation that you in your capacity as Chairman of our country's apex anti- corruption agency may constitute a broad based team by including therein competent and honest officers from NAB, FIA and Islamabad Police. The desirability of inclusion of experts on financial crime from within your Bureau or any banker with expertise in forensics may also be considered to form a part of the said team. ' It is hoped that the needful will be accomplished at your earliest convenience in line with the letter and spirit of the aforesaid order of the Supreme Court. You are also requested to send a fortnightly progress report to this office. Sd/- Irfan Qadir Attorney General for Pakistan 18.6.2012" (underlirung is ours for emphasis) ' The parts of the letter highlighted by us show the extent to which the Attorney General transgressed the terms of our order of 14-6.2012. 7. Secondly, we also find it odd that the Attorney General adopted a position and used words in his letter which should have been objectionable to a truly independent investigator but have, to date, remained unanswered and unattended. The Attorney General stated that he was "referring this matter to {Chairman, NAB] with the expectation that [he in his] capacity as Chairman of our country's apex anti-corruption agency may contribute a broad based team by including therein competent and honest officers from NAB, FIA and Islamabad Police". This "expectation" on the part of the Attorney General also went beyond the terms of para 22 of our judgment ibid, and appears to have influenced the Chairman, NAB in the performance of his duties which he was required by law to undertake without outside influence. We are fortified in this conclusion by the fact that pursuant to the Attorney General's letter the Chairman, NAB obediently followed the Attorney General's instruction as if it were an obligatory and binding command coming from his superior, thus giving rise to the perception the NAB's independence* appears to have been ^compromised. Surprisingly, this Was done without consulting the learned Prosecutor General, ^rho is the top legal within NAO. 8. The foregoing facts which are floating on the surface of this record provide prima facie evidence that NAB may have wilted under the outside influence of the Attorney General and may, therefore, not be in a position to conduct an impartial inquiry in the matter. We may add that when we passed our order dated 14.6.2012, we had no reason to believe that the Attorney General will go beyond the simple and limited act of "setting the machinery of the State in motion", It is, therefore, disturbing to see that he chose to write a letter in terms reproduced above thus overstepping the remit of our order. 9. In addition to the above, the unusual conduct of-the learned Attorney General in these proceedings has previously been subject of comment by us. In our order dated 24.7.2012, we noted that Mr Shafi Muhammad Chandio, learned DAG had undertaken on 17.7.2012 that he will file in Court the letter sent by the learned Attorney General to the Chairman, NAB. The DAG failed to file the same despite the lapse of several days. We also noted that such failings impeded the administration of justice and could not be approved. Expressing our disappointment, we h ad asked Mr. Chandio, learned DAG to appear and inform us of the reasons, if any, for not abiding by
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his undertaking, but were informed that he was unavailable. We, therefore, recorded in our order that we were "surprised and somewhat taken aback when the! earned Attorney General became agitated at this and made remarks that the Court was taking undue interest in this case, implying that this was not appropriate, In the same agitated state he also remarked that there were sensitivities to this case. We are in particular surprised at the attitude of the learned Attorney General because he was not present on the last date of hearing. Instead of putting his own office in order, it is clear that he had not been briefed by the learned DAG in respect of what transpired at that hearing". We had also commented that "the learned Attorney General may be careful in maintaining the decorum of these proceedings being an officer of he Court in addition to being the principal I aw officer of the Federation". Perhaps the above facts which have now been brought to our attention, can help explain the Attorney General's unusual conduct in the case. 10.The effect prima fade, of the foregoing circumstances whether taken independently or cumulatively is that there is a reasonable and well-founded prima facie basis for the petitioner's allegation that the Attorney General did not act fairly and impartially while purporting to act in furtherance of para 22 ibid reproduced above. Since these are matters of serious concern to us and also would be to the Attorney General as a member of our bar, it would be in the interest of fairness and justice if he is provided an opportunity of hearing to explain his conduct. The office shall, therefore, create a file and issue notice to the Attorney General. 11.In the absence of the Attorney General, learned counsel for the respondent took up cudgels on his behalf and contended that these were bald and unsubstantiated allegations being levelled by the petitioner ,,and if accepted, would create a precedent where any accused person could level such allegations to impugn the integrity of an investigating officer or agency. Learned counsel need not have any apprehension on this score. His contention has no merit firstly, because the allegations are not frivolous or without substance by are supported by judicial record. The submission of learned counsel for the respondent Malik Riaz Hussain is based on a misconception of established legal, norms. It overlooks the fundamentally distinction between judicial review of the investigative process to ensure fairness therein as opposed to interference in an investigation itself which otherwise may not, suffer from bias, dishonesty, partially etc. Although the legal distinction is well-settled in our jurisprudence, it will be useful to refer to some recent pronouncements of this Court. Firstly, in the case of Tariq Aziz-ud-Din (2010 SCMR 1301), it has been clearly, stated that functions of executive bodies cannot be exercised "at there whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. The National Accountability Ordinance (NAO) has also attempted to insulate NAB from external influence in an attempt to ensure its impartiality and professionalism, this, has been done inter alia, by providing security of tenure to the Chairman and Prosecutor General of NAB. In the case titled Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we have highlighted the nature of judicial review of executive actions or decisions and the grounds on which Courts will interfere in the same. These principles have been further elaborated in the case of Tariq A ziz-ud-Din supra wherein it has been held that "if the action or decision ... has been arrived at by [an] authority misdirecting itself by adopting a wrong approach or has been approached by irrelevant or extraneous matters, the Court would be justified in interfering with the same". Recently, in a number of cases, we have transferred the investigation of criminal cases where we have found the investigation to be tainted by bias or lack of competence. Thus the contention of learned counsel for the respondent is without force and is, therefore, rejected. 12. In our order dated 26.7.2012, we have made note of and commented on two letters dated 23.7.2012 and which were addressed by NAB to the Registrar of this Court in his official capacity. The two letters simply state that the Registrar is "acquainted with the facts andcircumstances
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connected to the case". The Registrar was also asked to bring "all original documentary and other evidence to the NAB Headquarter", However, no information or particulars were given as to the nature of the documentary and other evidence or the facts and circumstances of-the case. This form of letter has been strongly deprecated by the Courts and is in clear breach of settled law as enunciated by precedent. 13.The clear and unambiguous pronouncements given in the case titled Ghulam Hussain Balocri and another v. Chairman. National Accountability Bureau. Islamabad and 2 others (PLD 2007 Karachi 469) were violated by NAB in its two letters, In the cited precedent NAB has been given express guidelines as to its responsibilities while summoning or requiring the attendance of persons/witnesses in an inquiry. As per ratio of the case, before summoning a person to attend, NAB was duty bound to identify and particularize the information sought from any witness etc. and to state the nexus between such information and the subject of the inquiry being conducted by NAB. It was observed by the Court that while calling [for] the information from any person, the person must be informed of the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters ... in the notice so that the person can furnish such information". None of this was done by NAB. The Sindh High Court also laid down the principle that if the specified information can be otherwise furnished, then the person "should not normally be called to appear in person* The case of Ghutam Hussairr Bakhsh supra gave further clarity to NAB by declaring that "normally a person should not be asked t o appear ...fort he simple reason hat when t he document or thing is received by the investigating officer [it] will serve the purpose and if for any reason attendance of such person is [still] required then he can be called by assigning valid and cogent reasons which will appear in the case diary". None of these guidelines, reiterated in a number of subsequent cases [e.g. Muhammad Younus Arain v. Chairman. NAB and another (2008 MLD 1431), Niaz A. Baloch V. Chairman. NAB and 4 others (2008 MLD 1451) and Raia Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary. Ministry of Cabinet Division and 2 others (PLD 2007 Karachi 597)] was followed by NAB. Instead an imperious and pernicious "that a" mentality is apparent from the letter, which NAB persisted with obdurately, as discussed below. This raises serious questions, prima facie, as to the. fairness, competence and professionalism of the members of file JIT. 14.We are not in any doubt that the letter dated was in flagrant breach the law laid down by binding precedent. What is even more egregious is that the same error and violation of legal norms and principles was repeated by NAB on 25.7.2012 through another letter to the Registrar, purporting to be "a second notice for appearance*. In our order dated 26.7.2012 we observed that the Registrar being the executive head of the office of this Court had been asked in his official capacity to appear before the JIT along with all original documentary and other evidence but without informing him of the nature of such evidence, ln the 'circumstances we had observed teat NAB Should act with due care and ensure transparency to avoid an impression of absence of due diligence or lack of competence. On the same date i,e, 26.7.2012, the learned Prosecutor General NAB stated that he had been "offended" by the reply received from the Registrar. 15. It seems that instead of looking at and correcting the failure of NAB to abide by the directions/guidelines given in the case of Ghulam Hussain Baloch supra, and other precedents referred to above, NAB took offence to the response given by the Registrar based on his justified assumption that he was being summoned in his official capacity. We were then informed by the Prosecutor General Court, that the Registrar had not been summoned in his official capacity. This surprising statement, however, is wholly inconsistent with tee contents of tee two letters which were written to the Registrar of this Court and were clearly addressed to him in his official capacity. The oral submission, therefore, that NAB was purporting to seek some evidence/information which was personal to tee Registrar and not in his official capacity is, on its face, not tenable. This stance
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taken in Court on 26.7.2012 is nowhere even remotely indicated in the two letters of 23.7.2012 and sent to the Registrar. This is also apparent from the Registrar's reply as an officer of this Court, It is for this reason we had stated that instead of being needlessly touchy and offended, NAB should issue a letter if necessary, setting out the particulars of information/evidence which were being sought from Dr. Faqir Hussain (not as Registrar) and "if that information has nothing to do with his official duties, [it would] be for Dr. Faqir Hussain to respond to the same in his individual capacity". It appears that no such letter had been issued by NAB until the previous date of hearing. We may add at this point that it is not open for investigating agencies (funded by public taxes) to take offence or umbrage when a citizen asserts his rights. The investigating agency has to act dispassionately, objectively and strictly in accordance with law. The fact that a senior functionary of NAB namely, the Prosecutor General who is the highest officer of NAB on the legal side got offended due to a legitimate concern raised by the Registrar, further creates the perception that it may not be possible for NAB to conduct its investigation in a dispassionate and objective manner. ROLE OF FAISAL BASHIR MEMON. SP (RURAL). MEMBER JIT: 16.On 31.7.2012, CCTV footage was screened in the Court Room as per our directive, in circumstances set out in our order of the same date. This was necessitated on account of a probe into the breach of security procedures of the Court on 12.6.2012 when Malik Riaz Hussain first appeared in Court in SMC 5 of 2012. The Hon'ble Judge of the Court In charge of security had initially directed the. IGP Islamabad to conduct an inquiry. However, the report of the IGP was perfunctory and was found unsatisfactory, It was, thereafter, that the Secretary, Ministry of Interior was directed to look into the matter and submit a report. The Secretary was inter alia, required to probe as to "why the SP Rural, Bashir Memon [a member of the JIT] and DSP Rural, Malik Tahir in uniform received Malik Riaz at the Court entrance and accompanied him? Why these two Police Officers were there when the regular court time was over and there was no court functioning? I f these two Police Officers were deputed for security reasons, it was not notified/informed to the Supreme Court. The inquiry should look in this matter as to why these two Police Officers were there?". Faisal Bashir Memon, it may be mentioned, was nominated as a member of the JIT by the Chairman NAB although he neither belonged to NAB nor was he under NAB discipline. A three- Member inquiry committee constituted by the Secretary Interior, has concluded that Faisal Bashir Memon " ... has over stepped just to please the litigant Malik Riaz at the cost of his duty and lied all the way to deceive the committee by concealing the facts'. The inquiry committee also recommended that "the competent authority may be moved to initiate departmental action under Efficiency and Discipline Rules as well as under police rates against the said officer". 17.The relevance of Faisal Bashir Memon and his presence in the C CTV footage can be gathered from our order dated 31.7.2012 wherein we noted that "we have seen in Court the footage of the entry of Malik Riaz Hussain in the Supreme Court premises and. have also observed from the said footage that Faisal Bashir Memon was indeed "sticking close" to Malik Riaz Hussain and was also seen making a few protective/sheltering gestures while walking closely with and escorting the respondent Malik Riaz Hussain, ln 'this view of the matter and even if, for the time being, we do not take into account the other submissions made on behalf of the petitioner alleging serious bias and partiality in. the inquiry, it would, in our opinion, be prudent to stay the investigation ... so that Faisal Bashir Memon can explain his position". 18.Pursuant to the above order, Faisal Bashir Memon has submitted his explanation. The same is full of inconsistencies and the prima facie, riddled with untruths. To demonstrate these un truths/inconsistencies, we may point out that he has not even attempted to explain his apparent conduct seen on CCTV as noted in our order of 31.7.2012. Secondly, his security duty at the Supreme Court (which was proffered by way of explanation) was related to the hearing by a nine-member larger Bench before whom eleven Constitution Petitions (Memo Case) were listed. As per report of
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the Court Associate, the hearing in the said case concluded around 10 a.m. Therefore, there was no further justification for Faisal Bashir Memon to be escorting Malik Riaz inside the Court building between 2:15 p:m. to 2:32 p.m. 19.In his reply Faisal Bashir Memon has also tried to explain his meeting with Malik Riaz on 12.6.2012 by saying that he only greeted Malik Riaz Hussain by saying satam by way of Islamic tradition and that he was "proceeding to [his] place of duty outside the Supreme Court building after attending the proceedings before the Bench headed by Hon'ble Chief Justice of Pakistan"'. This statement is belied, prima facie, by the CCTV footage seen in Court which shows Faisal Bashir Memon escorting and extending protocol to Malik Riaz seemingly as a "personal security employee of Malik Riaz". Furthermore, it is relevant, to note that the DIG Security, Islamabad…
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