PANAMA JUDGMENT POINTS:

 

ASIF SAEED KHAN KHOSA

 

 

136. On the basis of the declarations made above the following directions are hereby issued by me:

(i)        The Election Commission of Pakistan is directed to issue a notification of disqualification of respondent No. 1 namely Mian Muhammad Nawaz Sharif from being a member of the Majlis-e-Shoora (Parliament) with effect from the date of announcement of the present judgment.

(ii)        The President of Pakistan is required to take necessary steps under the Constitution to ensure continuation of the democratic process through parliamentary system of government in the country.

(iii)        The National Accountability Bureau is directed to proceed against respondent No. 1 and any other person connected with him in respect of the offence of corruption and corrupt practices under section 9(a)(v) of the National Accountability Ordinance, 1999 and during such proceedings  the evidence and material collected by the Federal Investigation Agency in connection with FIRs No. 12 and 13 dated November 10, 1994 and November 12, 1994 respectively and by the National Accountability Bureau in connection with its Reference No. 5 of 2000 besides the report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency in September 1998 and the evidence and material appended therewith or referred to therein may also be utilized by the National Accountability Bureau if any such evidence or material is relevant to or has nexus with possession or acquisition of the relevant properties in London.

(iv)        The National Accountability Bureau is also directed to probe into the other assets acquired and businesses set up by respondent No. 1’s children in Pakistan and abroad to find out whether respondent No. 1’s children have acted as Benamidarsof respondent No. 1 in those assets and businesses or not and if so whether respondent No. 1 can satisfactorily account for those assets and businesses or not if he is discovered to be their actual owner.

(v)        As neutrality and impartiality of the incumbent Chairman, National Accountability Bureau Mr. Qamar Zaman Chaudhry has been found by me to be compromised in the matters of respondent No. 1, therefore, he is directed not to exercise any power, authority or function in respect of the matters directed above. The Honourable Chief Justice of Pakistan is requested to constitute an Implementation Bench of this Court in the above mentioned regard and in the interest of doing complete justice it is ordered that all the powers, authority and functions of the Chairman, National Accountability Bureau in the above mentioned matters of respondents No. 1 shall henceforth be exercised by the said Implementation Bench and the relevant officials of the National Accountability Bureau shall seek all the necessary orders in those matters from the Implementation Bench till Mr. Qamar Zaman Chaudhry completes his current non-extendable term of office. The Implementation Bench shall also monitor the progress made by the National Accountability Bureau in the matters referred to above and it shall also supervise the investigation being conducted by it in the matters as and when found necessary and called for besides issuing any order deemed expedient in the interest of justice.

(vi)        The National Accountability Bureau is directed to proceed against respondent No. 10 namely Mr. Muhammad Ishaq Dar in connection with its Reference No. 5 of 2000 wherein the said respondent was not an accused person when the said Reference was quashed by the Lahore High Court, Lahore and reinvestigation against the accused persons therein was barred because after quashing of that Reference against the accused persons therein and after setting aside of the confessional statement of respondent No. 10 his status in that Reference stood revived as an accused person against whom no Reference had been quashed and reinvestigation qua him was never ordered to be barred.

 

JUSTICE EJAZ AFZAL KHAN

 

23. Having thus considered we sum up the case as under:

 

no aboveboard or undisputed documentary evidence has been brought on the record to show that respondent No. 1 defaulted in the payment of tax as far as his assets as declared in the tax returns are concerned; nothing significant has come forth against respondents No. 9 and 10 as could justify the issuance of the direction asked for. However, sufficient material, as highlighted in para 16 above, has surfaced on the record which prima facie shows that respondent No. 1, his dependents and benamidars acquired assets in the early nineties and thereafter which being disproportionate to his known means of income call for a thorough investigation. In the normal circumstances this job could well be done by NAB, but when its Chairman, in view of his conduct he has demonstrated in Hudaibya’s case by not filing an appeal against a split verdict of the Lahore High Court, appears to be indifferent and even unwilling to perform his part, we are constrained to constitute a joint investigation team (JIT) which would consist of the following members:

1. a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters;
2. ii)        a representative of the National Accountability Bureau (NAB);

iii)         a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes;

1. iv)        a nominee of the State Bank of Pakistan (SBP);
2. v)        a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and  
3. vi)        a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.

 

24. The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required. The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution. The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.
25. It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered and appropriate orders, in this behalf, be passed, if so required.
26. We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.

 

 

JUSTICE GULZAR AHMED

 

 

18. I may also observe here that this Court while dealing with Constitution Petition under Article 184(3) of the Constitution neither acts as a Civil Court conducting trial of the case nor does it act as a Criminal Court conducting trial of an accused person in a criminal offence rather the Court purely decide such Constitution Petition on matters and facts stated and brought before this Court purely on the basis of constitutional provision that being a case of public importance with reference to enforcement of Fundamental Rights as conferred in Chapter 1 Part II of the Constitution.
19. This being the legal position, Mian Muhammad Nawaz Sharif against whom in the very Constitution Petitions before us allegation was made that he and his family own four London Flats and the sources of acquiring all these properties have not been declared, to me as is said earlier, there was a duty cast upon Mian Muhammad Nawaz Sharif as holder of Public Office to satisfy this Court and the Nation of the country (which being their Fundamental Right) about the true facts regarding four London Flats, which he miserably failed to do so and thus what emerges is that he has not been Honest and Ameen in terms of Article 62(1)(f) of the Constitution.  Being faced with this scenario, the Court cannot be expected to sit as a toothless body and become a mere spectator but it has to rise above screen of technicalities and to give positive verdict for meeting the ends of justice and also to safeguard the Fundamental Rights of the people of Pakistan.  It is thus declared that Mian Muhammad Nawaz Sharif has not been Honest and Ameen in terms of Article 62(1)(f) of the Constitution and thus rendered himself disqualified from holding the office of a Member of National Assembly of Pakistan and ceasing to be the Prime Minister of Pakistan.  I will accept the three Constitution Petitions to the above extent.

1. JUSTICE SH. AZMAT SAEED:

“102. Above are the reasons for our short order of even date whereby the instant petitionwas disposed of as under:—

“The Constitution of the IslamicRepublic of Pakistan commandsthat it is the will of the people ofPakistan to establish an orderwherein the State shall exercise itsMpowers and authority through thechosen representatives of thepeople, wherein the principles ofdemocracy, freedom, equality,etc., shall be fully observed, sothat the people of Pakistan mayprosper and attain their rightfuland honoured place amongst thenations of the world, and maketheir full contribution towardsinternational peace and progress

And happiness of humanity.People of Pakistan had beenstruggling to establish aparliamentary and democraticorder since long within theframework of the Constitution andnow they foresee a strong systemwhich is established by thepassage of time without any threatand which is subject to theconstitution and rule of law.

 

2. The essence of this HumanRights case is based on the fundamental right of citizensenshrined in Article 17 of the Constitution. It raises animportant question of publicimportance to enforce thefundamental rights, inter alia,noted hereinabove, therefore, inaccordance with the provisions ofArticle 184(3) of the Constitution,jurisdiction has been assumed andexercised to declare, for thereasons to be recorded later, asunder:-

 

(1) That citizens ofPakistan as a matter ofright are free to electtheir representatives inan election processbeing conductedhonestly, justly, fairlyand in accordance withlaw. …”We are confronted with a matter consisting of rather interestinglegal propositions and complicated facts. We cannot afford the luxury of oversimplification or intellectual lethargy. The questions raised will need to beanalyzed in their true, factual and legal perspective. Even the question of thesource of funds may become relevant but in a totally different context andperspective.

 

82. We are dealing with the first Family of the country. RespondentNo.1 is the Prime Minister of Pakistan. The questions regarding properties of hisfamily members outside Pakistan have remained unanswered. Such aninconclusive state of affairs is not acceptable. The people of Pakistan have a rightto know the truth.

 

83. No doubt, ordinarily this Court in exercise of its jurisdiction underArticle 184(3) of the Constitution tends to avoid deciding the disputed questionsof facts. However, this is not an absolute rule. In exceptional circumstances, thisCourt on more than one occasion has undertaken such an exercise.In the instant case, the allegations against Respondent No.1 werenot conclusively established, yet, sufficient suspicious circumstances, detailedabove, have come to light, which require to be investigated to facilitate thediscovery of the true facts. Such investigation appears to be necessary before wecan proceed further in the matter. Despite the jurisdiction to determine thedisputed questions of facts and the tools, in this behalf, available to this Courtmentioned above, this Court does not have the powers under Article 184(3) of theConstitution to investigate a matter. Reference, in this behalf, may be made to thejudgment of this Court, reported as Suo Motu Action regarding allegation ofbusiness deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting toinfluence the judicial process (PLD 2012 SC 664).

 

We have been constrained to cast a widenet as regard to the institution, the Officeswhereof are to form the Members of the JIT. Theattitude of NAB has gone a long way in pushingus in this direction. Furthermore, it has beenalleged that some of other investigatinginstitutions are also under the influence ofRespondent No.1 and under his direct or indirectcontrol. Such sweeping allegations may or maynot be wholly true but do not appear to beunfounded. Furthermore, the nature of expertiserequire in the instant investigation is not confinedto any one institution and the several institutionsmay be able to supplement such expertise.

 

1. JUSTICE SH. AZMAT SAEED:

“102. Above are the reasons for our short order of even date whereby the instant petitionwas disposed of as under:—

“The Constitution of the IslamicRepublic of Pakistan commandsthat it is the will of the people ofPakistan to establish an orderwherein the State shall exercise itsMpowers and authority through thechosen representatives of thepeople, wherein the principles ofdemocracy, freedom, equality,etc., shall be fully observed, sothat the people of Pakistan mayprosper and attain their rightfuland honoured place amongst thenations of the world, and maketheir full contribution towardsinternational peace and progress

And happiness of humanity.People of Pakistan had beenstruggling to establish aparliamentary and democraticorder since long within theframework of the Constitution andnow they foresee a strong systemwhich is established by thepassage of time without any threatand which is subject to theconstitution and rule of law.

 

2. The essence of this HumanRights case is based on the fundamental right of citizensenshrined in Article 17 of the Constitution. It raises animportant question of publicimportance to enforce thefundamental rights, inter alia,noted hereinabove, therefore, inaccordance with the provisions ofArticle 184(3) of the Constitution,jurisdiction has been assumed andexercised to declare, for thereasons to be recorded later, asunder:-

 

(1) That citizens ofPakistan as a matter ofright are free to electtheir representatives inan election processbeing conductedhonestly, justly, fairlyand in accordance withlaw. …”We are confronted with a matter consisting of rather interestinglegal propositions and complicated facts. We cannot afford the luxury of oversimplification or intellectual lethargy. The questions raised will need to beanalyzed in their true, factual and legal perspective. Even the question of thesource of funds may become relevant but in a totally different context andperspective.

 

82. We are dealing with the first Family of the country. RespondentNo.1 is the Prime Minister of Pakistan. The questions regarding properties of hisfamily members outside Pakistan have remained unanswered. Such aninconclusive state of affairs is not acceptable. The people of Pakistan have a rightto know the truth.

 

83. No doubt, ordinarily this Court in exercise of its jurisdiction underArticle 184(3) of the Constitution tends to avoid deciding the disputed questionsof facts. However, this is not an absolute rule. In exceptional circumstances, thisCourt on more than one occasion has undertaken such an exercise.In the instant case, the allegations against Respondent No.1 werenot conclusively established, yet, sufficient suspicious circumstances, detailedabove, have come to light, which require to be investigated to facilitate thediscovery of the true facts. Such investigation appears to be necessary before wecan proceed further in the matter. Despite the jurisdiction to determine thedisputed questions of facts and the tools, in this behalf, available to this Courtmentioned above, this Court does not have the powers under Article 184(3) of theConstitution to investigate a matter. Reference, in this behalf, may be made to thejudgment of this Court, reported as Suo Motu Action regarding allegation ofbusiness deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting toinfluence the judicial process (PLD 2012 SC 664).

 

We have been constrained to cast a widenet as regard to the institution, the Officeswhereof are to form the Members of the JIT. Theattitude of NAB has gone a long way in pushingus in this direction. Furthermore, it has beenalleged that some of other investigatinginstitutions are also under the influence ofRespondent No.1 and under his direct or indirectcontrol. Such sweeping allegations may or maynot be wholly true but do not appear to beunfounded. Furthermore, the nature of expertiserequire in the instant investigation is not confinedto any one institution and the several institutionsmay be able to supplement such expertise.

 

 

1. JUSTICE IJAZ UL AHSAN:

 

 

89. Regrettably, most material questions haveremained unanswered or answered insufficiently byRespondent No.1 and his children. I am also constrained tohold that I am not satisfied with the explanation offered byRespondent No.1 (Mian Muhammad Nawaz Sharif, the PrimeMinister of Pakistan) and his children regarding the mode andmanner in which the said properties came in their possessionand what were the sources of funds utilized for acquisition ofthe same. Further, the source(s) of funding for Azizia Steel Millsand Hill Metals Establishment in Saudi Arabia, FlagshipInvestments Limited and a number of other companies setup/taken over by Respondent No.8 also need to beestablished. In addition to the affairs of Capital FZE, Dubaiwhich also appears to be owned by Respondent No.7 needan inquiry. The aforesaid investigation and inquiry undernormal circumstances should have been conducted by NAB.However, it has become quite obvious to us during theseproceedings, Chairman NAB is too partial and partisan to besolely entrusted with such an important and sensitiveinvestigation involving the Prime Minister of Pakistan and hisfamily. Further owing to the nature and scope of investigationa broader pool of investigative expertise is required which maynot be available with NAB.

 

90. In the afore-noted circumstances, I would order asfollows:-

 

1. i) A Joint Investigation Team (JIT) shall beconstituted, which shall investigate thematter, collect all relevant record andmaterial in order to determine and establishthe real title and ownership of the MayfairProperties, the source(s) of funds utilized forpurchase of the said properties and themode, manner and time when such fundswere transmitted to the United Kingdom forpurchase of the Mayfair Properties;

 

1. ii) Likewise, the JIT shall also collect evidence todetermine the source(s) of funds forestablishing Hill Metals Establishment in SaudiArabia as well as the mode, manner andsource(s) of funding for Flagship InvestmentsLimited and all other companies owned andcontrolled by Respondent No.8 from time totime;

 

iii) Evidence shall also be collected by the JITregarding source(s) of funding of Capital FZE,Dubai; its business activities and role intransfer of funds to different entities owned orcontrolled by Respondents No.7 & 8;

 

1. iv) The JIT is also directed to investigate and findout if Respondent No.1 (Mian MuhammadNawaz Sharif, the Prime Minister of Pakistan)directly or indirectly or through benamidars orauthorized agents owns any otherproperties/assets/financial resources of anynature including but not limited to sharesthrough offshore companies/bank accounts,which have not been disclosed to theconcerned authorities.

 

1. v) The JIT shall consist of the following members:-

 

1. a) A senior Officer of the FederalInvestigation Agency (FIA) not belowthe rank of Additional Director Generalheading the Team. He shall havefirsthand experience of investigation ofwhite collar crime and related matters;
2. b) A representative of the NationalAccountability Bureau (NAB);
3. c) A nominee of the Securities andExchange Commission of Pakistanfamiliar with issues of money launderingand white collar crime;
4. d) A nominee of the State Bank ofPakistan familiar with internationalbanking transactions involving moneylaundering and matters relevant to theinvestigation;
5. e) A senior Officer nominated by theDirector General, ISI; and
6. f) A senior Officer appointed by theDirector General, MI.

 

1. vi) Heads of the aforesaid Departments/Agencies/ Institutions shall communicate thenames of their nominees within seven (07)days hereof which shall be placed before theSpecial Bench for perusal/approval.

 

vii) Respondents No.1, 7 & 8 are directed toassociate and render full cooperation to theJIT, provide any and all record(s),document(s) and material(s) sought by it andappear before the JIT, if and when required.

 

viii) The JIT may also examine the evidence andmaterial available with the FIA and NAB, ifany, relating to or having any nexus with thepossession or acquisition of the MayfairProperties and the source(s) of funding forthe same.

 

1. ix) The JIT shall submit its periodical report(s)before the Special Bench of this Court everyfortnight. The JIT shall complete and submit itsfinal report before such Bench within a periodof sixty (60) days from the date of receipt of acopy of this judgment.

 

1. x) I would request the Honourable Chief Justiceof Pakistan to constitute a Special Bench toensure implementation of this judgment inletter and spirit.

 

91. On receipt of report of the JIT, the Bench shall passappropriate orders in exercise of powers under Article 184(3)read with Articles 187 & 190 of the Constitution relating todisqualification of Mian Muhammad Nawaz Sharif, the PrimeMinister of Pakistan, Respondent No.1 as a member of Majlis-eConstitutionShoora (Parliament), if necessary. In this regard, it may, ifconsidered necessary or expedient, summon RespondentsNo.1 (Mian Muhammad Nawaz Sharif), 7 (Hussain Nawaz) and8 (Hassan Nawaz) or any of the said Respondents and anyother person having any direct or indirect connection with orhaving knowledge about the matters relevant to theseproceedings, to appear before it for being examined. Further,if so justified by law and on the basis of material placed beforethe Bench, orders may also be passed for filing of a Referencebefore the Accountability Court against Respondent No.1, theprivate Respondents and any other person having nexus withthe offence.

 

92. During hearings of these matters and whileexamining the various pleas raised by the parties and thedocuments and other material placed before us, I have foundit imperative to pass orders and take steps to ensure that thetrue facts should come before the people of Pakistan whohave a fundamental right to be governed in accordance withlaw, by those who fulfill the requirements of the Constitutionand the law and whose financial dealings, earnings andexpenditures are open to public scrutiny to show that theymeet the test of honesty, integrity, financial probity and bonafide dealings. It is high time that standards were set andsystems were put in place to develop a culture ofaccountability at all levels in order to cleanse our system andinstitutions from the evils of corruption, money laundering, lootand plunder of national resources by a few, irrespective oftheir rank or status in the system.

 

93. As a Nation, we need to heed the words of thegreat poet and philosopher Dr. Allama Muhammad Iqbal, ifwe aspire to reach our true potential and hold our heads highamongst the comity of Nations:-

 

94. Before parting with this judgment, I wouldacknowledge and appreciate Syed Naeem Bukhari, learnedASC; Mr. Taufiq Asif, learned ASC; Sh. Rashid Ahmed, petitionerin person; Mr. Makhdoom Ali Khan, learned ASC forRespondent No.1; Mr. Shahid Hamid, learned Sr.ASC forRespondents No.6, 9 & 10; Mr. Ashtar Ausaf Ali, learnedAttorney General for Pakistan; Mr. Muhammad Waqar Rana,ASC; and Mr. Waqas Qadeer Dar, Prosecutor General, NABand their respective teams for rendering valuable assistance inthe matter.

 

OVER ALL NOTCE:

 

4. The Parliament of any country is one of its noblest, honorable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation — posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating — cheating not only his own constituents but the nation at large.”

63(1) (a)]. Similarly, a father cannot be disqualified if his son has been convicted for an offence involving moral turpitude or such son has been dismissed from the service of Pakistan (Article 63(1) (h) & (i). Thus, obviously a father cannot be disqualified if his son is allegedly dishonest [Article 62(1) (f)]. facts and failed to disclose beneficial ownership of the Mayfair Properties, Respondent No.1 has been guilty of concealment, mis-declaration and dishonesty, and is therefore liable to be disqualified from being Member of the Parliament and holding the office of Prime Minister.

1. The learned counsel for the petitioner has further argued that Respondent No.1 had taken two Oaths. One as a Member of the National Assembly and the other as Prime Minister of Pakistan. In both the said oaths, he had sworn to perform his functions honestly, to the best of his ability, faithfully, in accordance with the law and the Constitution and the Rules of Business of the National Assembly. Further he had sworn to preserve, protect and defend the Constitution. He further maintains that in terms of Article 5 of the Constitution loyalty to the State is the basic duty of every citizen. He, therefore, submits that by failing to disclose the correct facts and producing the relevant records before the Parliament or before this Court, Respondent No.1 had been guilty of dishonesty giving Constitution preference to his personal interests over and above the national interests and as such he has not only violated his oath of office but has also been guilty of dishonesty which attracts the penal consequences of Article 62 read with Article 63 of the Constitution.

viii. Learned counsel has drawn our attention to Article 119 of the Qanun-e-Shahadat Order, 1984 to argue that burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any other person. He submits that as a whistleblower the only responsibility on the shoulders of the petitioner was to bring to the notice of this Court certain facts of public importance where-after the burden of proof was on the Respondent No.1 to establish that he had neither acted dishonestly nor in any other manner that would expose him to the penal consequences of Article 62 read with Article 63 of the Constitution. Reference in this regard has been placed on Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681 (para 32)].

26. The loss of qualification under Article 62(1) (f) of the Constitution has been visited with removal from elected office under the Constitution in a number of cases including Weighty reasons have been assigned for adopting and implementing the constitutional mandate as a bar on membership in Parliament. Firstly, the qualifications of a candidate set out in Article 62 of the Constitution are a sine qua non for eligibility to be elected as a Member of Parliament. No time limit for eligibility on this score is given in the Constitution.

A person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office. Such faults in character or disposition, if duly established, cannot be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution. The trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial is a universally recognized norm. However, our Constitution emphasizes upon it expressly for an elected parliamentary office. The Constitutional norm must be respected and therefore implemented.

Mr. Imran Ahmad Khan Niazi, petitioner in Constitution Petition No.29 of 2016 sought permission of the Court to make a few submissions, which was granted by us. He submitted that the Prime Minister amongst other capacities is the custodian of the treasury of the country. A person who is not truthful, dishonest or corrupt cannot be expected to enjoy the trust of the people. He maintained that this is one reason why people of Pakistan are unwilling to pay taxes as they do not trust the custodians of their tax money. He further submitted that a leader is a role model and leadership by its example uplifts the moral values of the society as has been seen in the history of Islam as well as the world. He expressed his full confidence in the Court and prayed that the petition may be accepted.

 

97) Mr. Khan maintained that affirmative evidence is required to establish dishonesty for the purposes of electoral disqualification Constitution Petition No. 29 of 2016, and that the threshold has to be very high for disqualifying a person on the basis of qualifications which are obscure and vague. He also contended that no declaration about honesty can be made without there being a prior adjudication made by a court on the subject and in this regard he relied upon the cases of Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) some persons were declared to be disqualified in exercise of the constitutional jurisdiction on the ground of holding dual nationality in the absence of a prior adjudication in that regard but in those cases the facts were either admitted/undisputed or the same were conveniently ascertainable with minimum inquiry. Healso referred to the case of Sadiq Ali Memon v. Returning Officer,NA-237, Thatta-I and others (2013 SCMR 1246) wherein dual nationality was not disputed and was in fact admitted. He also referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under article 62 of the Constitution. It was, however, conceded by Mr. Khan that a decision of the Election Commission of Pakistan is not binding upon this Court.

1. That the petitioner alleges that in the said speeches Respondent No.1 had lied to the Nation, in consequence of which he had ceased to be honest and ameen in terms of Article 62(1) (f) of the Constitution and was

Therefore liable to be disqualified.

iii. That the second ground on which disqualification has been sought is that Respondent No.1 had received large sums of money as gifts from Respondent No.7. The said amounts were required to be treated as other

Income within the contemplation of Section 39 of the Income Tax Ordinance. The said amount was neither declared as such nor was the

Requisite income tax paid on it. Consequently, he was liable to be disqualified in terms of Article 63(2) (o) of the Constitution.

1. The learned counsel has further stated that in terms of Article 62(1)(f) of the Constitution read with various provisions of the RoPA, a declaration issued by a Court of competent jurisdiction is required to the effect that a holder of public office is not sagacious, righteous, nonprofligate, honest or ameen. He submits that there is no declaration against Respondent No.1

In the field therefore, he cannot be disqualified. He further submits that in a large number of cases this Court has upheld the decisions of Election Tribunals and / or other Courts which have issued declarations but has seldom entertained matters in exercise of its powers under Article 184(3) of the Constitution and proceeded to issue declarations and then disqualified the holder of public office.

Page-459,

     Therefore not truthful and ameen. He further maintained that despite having categorically stated that all relevant records regarding acquisition of assets in London will be produced, Respondent No.1 has consistently failed to do so which has rendered him liable to be disqualified. He referred to Nasir Mehmood v. Imran Masood [PLD 2010 SC 1089 @ 1117] to submit that Respondent No.1 did not meet the criteria of being truthful and ameen as provided in Article 62(1)(f) of the Constitution.

 

ORDER OF THE COURT

 

By a majority of 3 to 2 (Asif Saeed Khan Khosa and GulzarAhmed, JJ) dissenting, who have given separate declarations anddirections, we hold that the questions how did Gulf Steel Mill comeinto being; what led to its sale; what happened to its liabilities;where did its sale proceeds end up; how did they reach Jeddah,Qatar and the U.K.; whether respondents No. 7 and 8 in view of theirtender ages had the means in the early nineties to possess andpurchase the flats; whether sudden appearance of the letters of

Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; howbearer shares crystallized into the flats; who, in fact, is the real andbeneficial owner of M/s Nielsen Enterprises Limited and NescollLimited, how did Hill Metal Establishment come into existence;where did the money for Flagship Investment Limited and othercompanies set up/taken over by respondent No. 8 come from, andwhere did the Working Capital for such companies come from andwhere do the huge sums running into millions gifted by respondentNo. 7 to respondent No. 1 drop in from, which go to the heart of thematter and need to be answered. Therefore, a thoroughinvestigation in this behalf is required.

 

2. In normal circumstances, such exercise could beconducted by the NAB but when its Chairman appears to beindifferent and even unwilling to perform his part, we areconstrained to look elsewhere and therefore, constitute a JointInvestigation Team (JIT) comprising of the following members:

 

1. ii) A senior Officer of the Federal InvestigationAgency (FIA), not below the rank of

Additional Director General who shall headthe team having firsthand experience of

Investigation of white collar crime andrelated matters;

1. ii) A representative of the NationalAccountability Bureau (NAB);

iii) a nominee of the Security & ExchangeCommission of Pakistan (SECP) familiar withthe issues of money laundering and whitecollar crimes;

1. iv) A nominee of the State Bank of Pakistan(SBP);
2. v) A seasoned Officer of Inter-ServicesIntelligence (ISI) nominated by its DirectorGeneral; and
3. vi) A seasoned Officer of Military Intelligence(M.I.) nominated by its Director General.

 

3. The Heads of the aforesaid departments/ institutionsshall recommend the names of their nominees for the JIT withinseven days from today which shall be placed before us inchambers for nomination and approval. The JIT shall investigate thecase and collect evidence, if any; showing that respondent No. 1 orany of his dependents or benamidars owns, possesses or hasacquired assets or any interest therein disproportionate to his known

Means of income. Respondents No. 1, 7 and 8 are directed toappear and associate themselves with the JIT as and whenrequired. The JIT may also examine the evidence and material, ifany, already available with the FIA and NAB relating to or havingany nexus with the possession or acquisition of the aforesaid flats orany other assets or pecuniary resources and their origin. The JIT shallsubmit its periodical reports every two weeks before a Bench of thisCourt constituted in this behalf. The JIT shall complete theinvestigation and submit its final report before the said Bench withina period of sixty days from the date of its constitution. The Benchthereupon may pass appropriate orders in exercise of its powersunder Articles 184(3), 187(2) and 190 of the Constitution including anorder for filing a reference against respondent No. 1 and any otherperson having nexus with the crime if justified on the basis of thematerial thus brought on the record before it.

 

4. It is further held that upon receipt of the reports,periodic or final of the JIT, as the case may be, the matter ofdisqualification of respondent No. 1 shall be considered. If foundnecessary for passing an appropriate order in this behalf,respondent No. 1 or any other person may be summoned and

Examined.

 

5. We would request the Hon’ble Chief Justice toconstitute a Special Bench to ensure implementation of thisConstitution Petition No. 29 of 2016,judgment so that the investigation into the allegations may not beleft in a blind alley.