Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Asif Saeed Khan Khosa, Gulzar Ahmed, Sh. Azmat Saeed, Ejaz

Afzal Khan Title:(1) Mian Muhammad Nawaz Sharif (2) Senator Muhammad Ishaq Dar (3) Maryam Nawaz Sharif and others (4) Sheikh Rasheed Ahmed vs (1) Imran Ahmed Khan Niazi (2) Sheikh Rasheed Ahmed and others (3) Siraj ul Haq and others (4) Federation of Pakistan and others. Case No.:(1) CIVIL REVIEW PETITION NO. 297 OF 2017 IN CONST. PETITION NO. 29 OF 2016 (2) CIVIL REVIEW PETITION NO. 298 OF 2017 IN CONST. PETITION NO. 30 OF 2016 (3) CIVIL REVIEW PETITION NO. 299 OF 2017 IN CONST. PETITION NO. 03 OF 2017 (4) CIVIL REVIEW PETITION NO. 303 OF 2017 IN CONST. PETITION NO. 29 OF 2016 (5) CIVIL REVIEW PETITION NO. 308 OF 2017 IN CONST. PETITION NO. 29 OF 2016 (6) CIVIL REVIEW PETITION NO. 309 OF 2017 IN CONST. PETITION NO. 29 OF 2016 (7) CIVIL REVIEW PETITION NO. 310 OF 2017 I Date of Judgment:2017-11-07 Reported As: 2017 SCP 978 Result: Petition dismissed Judgment EJAZ AFZAL KHAN, J.- These review petitions have arisen out of the judgment dated 28.07.2017 of this Court whereby Constitution Petitions No. 29, 30 of 2016 and 03 of 2017 have been disposed of in the terms as under:- "FINAL ORDER OF THE COURT The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References , on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to dif ferent jurisdictions:- a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A,

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17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier , as indicated in the detailed judgments; b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment; c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr . Justice Ijaz ul Ahsan; e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income; f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for , is discovered; g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law . 2. It is hereby declared that having failed to disclose his un withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination pape rs filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROP A), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muham mad Nawaz Sharif is not honest in terms of Section 99(f) of ROP A and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament). 3. The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with imme diate effect, whereafter he shall cease to be the Prime Minister of Pakistan; 4. The President of the Islamic Republic of Pakistan is required to take all necess ary steps under the Constitution to ensure continuation of the democratic process. 5. The Hon'ble Chief Justice of Pakistan is requested to nominate an Hon'ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters. 6. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon'ble Chief Justice of Pakistan. 7. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams. 8. These petitions are thus disposed of in the terms mentioned above."

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2. Learned Sr. ASC appearing on behalf of the petitioner in CRPs. No. 297 to 299 and 310 to 312 of 2017 contended that the five-member bench was not properly constituted after the submission of the report of the JIT as two of its members (Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Gulzar Ahmed) having given their final verdicts on 20.04.2017 became functus of ficio. Their judgments, the learned Sr. ASC added, could not be treated as part of the majority judgments written by Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan, therefore, it would be the latter that would prevail and hold the field and that it is in view of this anomaly that two sets of review petitions, one before the five-member bench and the other before the three-member bench have been filed. The learned Sr. ASC next contended that unwithdrawn salary could never constitute an asset even if entitlement of the petitioner thereto stemmed from a written agreement, the more so, when he on account of an understanding between him and his son opted not to receive it. The learned Sr. ASC next contended that salary as defined in Section 12(2) of the Income Ordinance, 2001 means an amount received by an employee from any employment, therefore, it cannot be extended to cover unwithdrawn salary . The learned Sr. ASC further contended that even if it is assumed, that the unwithdrawn salary constitutes an asset, omission to disclose it, involving violation of Sections 12 and 13 of the Representation of the People Act, calls for the rejection of the nomination papers or at worst removal of the petitioner from the public office he held, therefore, his disqualification in terms of Sections 99(1)(f) of ROP A and 62(1)(f) of the Constitution of the Islamic Republic of Pakistan is unwarranted. Such disqualification, the learned Sr. ASC maintained, is all the more unwarranted when the petitioner has not been given a fair chance to vindicate his position. Much greater care, the learned ASC maintained, has to be exercised in upholding the order disqualifying the petitioner in terms of Sections 99(1)(f) of ROP A and 62(1)(f) when no appeal lies against it. The learned Sr. ASC went on to argue that where an omission to disclose assets in the circumstances of the case appears to be unintentional, it would be rather presumptive to impute dishonest intention to him. To support his contention, the learned Sr. ASC placed reliance on the cases of Muhammad Saeed and 4 others. Vs. Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 S.C. (Pak.) 91), Khan Muhammad Yusuf Khan Khattak. Vs. S. M. Ayub and 2 others (PLD 1973 SC 160), Syed Saeed Hassan. Vs. Pyar Ali and 7 others (PLD 1976 SC 6), Muhammad Siddique Baloch. Vs. Jehangir Khan Tareen and others (PLD 2016 SC 97), Rai Hassan Nawaz. Vs. Haji Muhammad Ayub and others (PLD 2017 SC 70) and Sheikh Muhammad Akram. Vs. Abdul Ghafoor and 19 others (2016 SCMR 733). The learned Sr. ASC next contended that the directions given by this Court to the NAB to file References against respondents in Constitution Petition No. 29 of 2016 are on the face of the record per incuriam as they amount to assuming the functions of the Chairman NAB and the Judge Accountability Court which is not only against the law but also repugnant to the provisions of the Constit ution. Assumption or exercise of such powers, the learned Sr. ASC maintained, is also repugnant to the principle of tricotomy of powers which is an unchangeable feature of the Constitution. Another direction to the NAB, the learned Sr. ASC contended, to file References on the basis of the material collected and referred to by the JIT and such other material as may be available with the FIA and NAB or the one which may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions is an encroachment on the autho rity of the NAB and violation of Article 175(2) of the Constitution. Learned ASC went on to argue that the direction to the NAB to file supplementary reference if and when any other asset, which is not reasonably accounted for, is discovered has also been issued without jurisdiction as no provision of the Constitution including Article 187 empowers this Court to issue a direction of this nature. This direction, the learned Sr. ASC added, implies unambiguous approval of the material collected by the JIT whose probative worth is yet to be established. He next contended that the direction to the Trial Court to decide the References within six months from the date of filing them also tends to prejudice the fair trial of the petitioners. Power to superintend the proceedings of the Accountability Court, the learned Sr. ASC maintained, has not been conferred on the Supreme Court, therefore, nomination of one of the Judges of this Court to superintend them is also violative of Article 175(2)(3) of the Constitution. The petitioner, the learned Sr. ASC contended, could not be disqualified in terms of Section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution for non disclosure of his unwithdrawn income from Capital FZE in his nomination papers for the 2013 General

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Elections when it was not specifically averred in any of the Constitution Petitions. The learned Sr. ASC next contended that where the material collected by the JIT is not worthy of reliance and the report submitted by it is full of infirmities, commendation of JIT and its report reflected in the concluding part of the judgment under review would tend to prejudice the case of the petitioner, therefore, it needs to be qualified. The learned Sr. ASC lastly contended that the word 'judgments' used in sub-para (a) and (b) of paragraph 1 of the Order of the Court dated 28 July, 2017 requires clarification whether it refers to the minority or the majority judgments lest it misleads the National Accountability Bureau or the Accountability Court. 3. Learned Sr. ASC appearing on behalf of petitioner in CRP. No. 303 of 2017 contended that where rise in the assets of the petitioner has been explained by the relevant documents including the returns filed by him, issuance of the direction to the NAB to file a Reference against him does not appear to be well founded. He next contended that where nothing significant appeared against the petitioner during the proceedin gs of the Constitution Petitions, the JIT could not have collected any material against him nor could this Court direct the NAB to file a Reference against him on the basis of the material so collected, therefore, the direction to file the Reference merits a second thought. 4. Learned ASC appearing on behalf of the petitioner in CRPs. No. 308 and 309 of 2017 contended that when no material has come on the record to show any nexus between respondent No. 10 in C. P. No. 29 of 2016 and the Avenfield Apartments, the direction to the NAB to file a Reference against him is not sustainable. The learned ASC next contended that observations in the judgment under review commending the JIT and its report, also need to be diluted lest they are accepted by the NAB and the Accountability Court as being unquestionable. 5. We have carefully gone through the record and considered the submissions of the learned Sr. ASCs and ASC for the parties. 6. The first argument of the learned Sr. ASC for the petitioner in CRPs. No. 297 to 299 and 310 to 312 of 2017 is that the five-member bench was not properly constituted after the submission of the report of the JIT as two of its members (Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Gulzar Ahmed) having given their final verdicts on 20.04.2017 became functus officio and that their judgments could not be treated as a part of the majority judgments written by Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan, therefore, it would be the latter that would prevail and hold the field and that it is in view of this anomaly that two sets of review petitions one before the five-member bench and the other before the three-member bench have been filed. It was mainly because of this argument that these petitions, in the first instance, were listed before a three-member bench but on the request of the learned Sr. ASC for the petitioner they were listed before a five- member bench. But when during the hearing before the five-member Bench it was pointed out that the three- member bench judgment has to prevail and hold the field, if maintained and that the objection being academic would not have much effect, the learned Sr. ASCs and ASC for the petitioners opted not to press the review petitions filed before the three-member bench which were disposed of accordingly . 7. Next comes the question whether unwithdrawn salaries could constitute an asset when entitlement of the petitioner thereto stemmed from a written agreement. W e while dealing with this aspect held as under :- "13. The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, ("ROPA"), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black's Law Dictionary means and contemplates "an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill". The definition of the word receivable as used in the above mentioned definition as given in the Black's Law Dictionary is also relevant which means and contemplates "any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable as a claim against a debtor usually arising from sales or servicesth

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rendered". The word 'receivable' also has similar ring and connotation according to Business Dictionary which reads as under:- "Accounting term for amount due from a customer , employee, supplier (as a rebate or refund) or any other party . Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm". The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary. This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:- "So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an "asset" for the respondent No. 1." It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un withdrawn salary from being receivable, hence an asset. When the un withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan." We held in the paragraph reproduced above that the unwithdrawn salary of the petitioner is an asset. Petitioner 's entitlement to salary stems from a written employment contract. Salary in this case, it may be noted, is not salary of the future which was yet to accrue. It was salary of the past six and a half years which had already accrued and accumulated. There is nothing in oral or written form, from July 2006 to January 2013 as could stop the accrual and accumulation of salary or prevent it from becoming an asset. There is also nothing in oral or written form in between July 2006 to January 2013 as could stop the withdrawal of the salary thus accrued and accumulated. Therefore, the argument that the salary even if agreed upon under the employment contract, would not be an asset if not withdrawn is not correct. 8. Now let us examine what stance the petitioner has taken with regard to the salary in the written arguments and the memorandum of the review petition. His stance is that "when respondent No. 8 in CP. No. 29 of 2016 showed his decision to wind up the company in January 2013 the petitioner categorically stated that he did not intend to nor would claim any salary from the company". The words reproduced above would unmistakably show that the salary thus accrued and accumulated till January 2013 was all along the asset of the petitioner; that the power to withdraw or waive it lay exclusively with the petitioner and that he instead of withdrawing it waived it in favour of the company. Granted, it ceased to be an asset of the petitioner from January 2013 but it remained an asset till then and the more so on 30 June, 2012 which is the crucial date in terms of Section 12(2)(f) of ROP A. Where the salary has already accrued and accumula ted from July 2006 to January 2013 and there is absolutely nothing in oral or written form in between the said dates as could stop its withdrawal, it was an asset out and out. It was thus required to be disclosed in the nomination papers of the petitioner for the 2013 General Election. The expression 'asset' as defined in Black' s Law Dictionary has rightly been relied upon when it has not been defined in the ROP A and the Constitution. The expression salary as defined by Section 12(2) of the Income Tax Ordinance, 2001 would be just irrelevant for the purposes of this case when the salary having already accrued and accumulated could be withdrawn at any stage without any hindrance before January , 2013. Even if we ignore the definition of the expression "asset" as given in Black' s Law Dictionary for a while, the very admission of the petitioner that heth

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waived the salary so accrued and accumulated in January , 2013 in favour of the company speaks for itself. Had there been no admission we would not have stepped in as we did not step in when the document issued by Mossack Fonseca showing respondent No. 6 in C. P. No. 29 of 2016 as the beneficial owner of the Avenfield apartments, was disputed by her. We also did not step in when many other documents disclosing several other assets purportedly owned by the children of the petitioner were disputed as is evident from paragraph 16 of the judgment dated 20.04.2017 which reads as under:- "16. The second question in the seriatim is whether respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired any assets or pecuniary resources disproportionate to his known means of income? The learned ASCs for the petitioners in their efforts to persuade us to answer this question in affirmative referred to a number of documents showing the establishment of Gulf Steel Mill at Dubai, its sale, establishment of Azizia Steel Mill at Jeddah, its sale and incorporation of Nescol Limited and Neilson Enterprises Limited in British Virgin Islands. Under the veil of the afores aid companies, respondent No. 1 has been alleged to have acquired flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London. The personal information form dated 14.10.201 1 purportedly issued by Minerva Trust and Corporate Services Limited shows respondent No. 6 as the beneficial owner of the flats. This document has been purportedly signed by the said respondent, but she disputed its genuineness and even her signatures thereon. Another document showing respondent No. 6 as the beneficial owner of the flats is the alleged correspon dence between Mr. Errol George, Director FIA, British Virgin Islands and Money Laundering Reporting Officer of Mossack Fonseca & Co. (B.V.I.) Limited. A photocopy of an extract from the clients register of Director , Minerva Trust and Corporate Services Limited, according to the learned ASC for the petitioner , is yet another document provin g respondent No. 6 as the beneficial owner of the flats. In any case, the questions how did Gulf Steel Mill come into being; what led to its sale; 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 had the means in the early nineties to purchase the flats; whether sudden appearance of letters of Hamad Bin Jassim Bin Jaber Al- Thani is a myth or a reality; how bearer shares crystallized into the flats; how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and where did its Working Capital Fund come from and where did the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from clamor for answers to be found by the investigation agency and then by the Accountability Court established under the National Accountability Bureau Ordinance. " It is also evident from paragraph 9 of the judgment dated 28.07.2017 which reads as under:- "9. A…

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