Huzaima Bukhari and Dr Ikramul Haq
And do not mix the truth with falsehood or conceal the truth while you know [it]—Al-Quran (2:42)
Heads of Pakistan Muslim League-Nawaz (PML-N) and Pakistan Tehreek-e-Insaf (PTI) entangled in legal battles levelling allegations against each other of concealment of assets/liabilities and hiding behind offshore companies has taken a bizarre turn. Muhammad Nawaz Sharif, three-times elected Prime Minister of PML-N, is already found guilty by Supreme Court and fate of PTI’s Chairman Imran Khan may be the same—after 10 months of hearing his counsel reportedly has failed to satisfy the queries raised by the apex court regarding allegation filed in Constitution Petition No. 35 by Muhammad Hanif Abbasi of PML-N.
Ousted Prime Minister, Nawaz Sharif, facing trial under the National Accountability Ordinance, 1999 is to be indicted by Accountability Court on October 2, 2017. Few hours after his first appearance in the Accountability Court on September 26, 2017, with an emperor-like attitude, Nawaz Sharif at a press conference (in fact reading off a written speech) once again criticised Supreme Court for disqualifying him on what he called “wrong reason”. He repeated the same rhetoric of “conspiracy” by ‘hidden hands’ against him. He said that the case against him was about Panama but ended on Iqama, and that non-receipt of salary from son was used as a pretext to disqualify him.
Both Nawaz Sharif and Imran Khan must be aware of the case of Lt-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) wherein the Supreme Court held that where the question was of a right to continue in public office, it could interfere.
‘Public office holders’ (this term includes all legislators sitting in National Assembly, Senate and provincial assemblies) cannot continue to represent people after lying and cheating. Supreme Court in Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd, Takht Bhai and 10 others (PLD 1975 SC 244) held that the expression “public office” is much wider than “service of Pakistan” and it includes all those who perform legislative function. A similar view was taken in Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089). Imran Khan, though never held any position in any government, is covered in the definition of “holder of public office” as per section 5(m) of the National Accountability Ordinance, 1999 being “legislator”. The PTI stalwarts who defend omissions by Imran Khan in his declarations saying he was never held any governmental position should keep it in mind that his case is that of alleged false declaration in nomination papers for which disqualification is attracted in the same way as applied in the case of Nawaz Sharif.
Who will tell Nawaz Sharif (who keeps on saying that 200 million Pakistanis alone can disqualify an elected member) and other political leaders (of course their sycophants are never going to do it) that the most foundational of all the constitutional rights of the people of Pakistan is exercise of authority on their behalf by their chosen representatives? If a disqualified person usurps such role and thereafter becomes the Prime Minister (even for three times) surely such right of the people would be affected and Supreme Court is duty bound to interfere. This was explained aptly by Justice Asif Saeed Khosa in Imran Khan v Mian Nawaz Sharif & others in the following words:
“All the other courts in this country are courts of law whereas this Court is not just a court of law but also the court of ultimate justice. It is obvious that when it comes to exercise of the said jurisdiction of this Court to do complete justice a strict application of the black letter law may not stand between this Court and the noble cause of justice if the circumstances of the case so warrant.”
Justice Sh. Azmat Saeed in Para 19 of his note in Imran Khan v Mian Nawaz Sharif & others very aptly observed:
“………..Even, if a delinquent person offers a perfect, legally acceptable explanation for the source of funds for acquiring the undeclared assets, he cannot escape the penalty of rejection of his Nomination Papers or annulment of his election. Such is the law of the land and as has been repeatedly and consistently interpreted by this Court, including in the judgments, reported as (1) Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC 24), (2) Khaleefa Muhammad 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 (2016 SCMR 763)”.
Nawaz Sharif, who is continuously complaining about denial of right of appeal and alleged violation of Article 10A of the Constitution in his case, should read Para 77 of the order in Panama Case [Petition No 29 of 2016—Imran Khan v Mian Nawaz Sharif & others] by Justice Asif Saeed Khan Khosa that says:
“It was also contended by the learned counsel for the private respondents that in exercise of this Court’s jurisdiction under Article 184(3) of the Constitution ordinarily no evidence is recorded, no right of cross-examination 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 may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process. Article 10A of the Constitution provides as follows:
“10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”
There is hardly any “determination” of civil rights of the private respondents involved in the present proceedings and no “trial” of the said respondents on any “criminal charge” is being conducted in these proceedings and, therefore, the said contention has failed to impress us. The case in hand is akin to the cases of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388) clarified in Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) and Air Marshal Muhammad Asghar Khan (retd) v. General Mirza Aslam Beg (retd), former Chief of Army Staff and others (PLD 2013 SC 1) wherein the constitutional aspects of the cases were decided by this Court under Article 184(3) of the Constitution whereas the criminal aspects of the matters were left to be attended to by the appropriate investigation agencies or criminal courts”.
It needs to be highlighted that jurisdiction under Article 184(3) of the Constitution is inquisitorial in nature rather than adversarial and while exercising such jurisdiction the Supreme Court can ascertain, collect and determine facts where needed or found necessary. Thus the repeated argument by Nawaz Sharif that he could not have been disqualified for merely omitting Iqama/Salary in nomination paper is not sustainable. He should realise that lying on oath was sufficient ground for disqualifying him as per law of the land as held by Supreme Court in Muhammad Siddique Baloch v Jehangir Khan Tareen PLD 2016 Supreme Court 97 that a person who was 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”. Implementing command of law, the Supreme Court rightly invoked section 99(1)(f) of the Representation of People Act, 1976 [ROPA] as Nawaz Sharif deliberately concealed fact of employment, salary income from Capital FZE along with omitting closing balance of account maintained in UAE. Section 99(1)(f) of the ROPA reads as under:
“99. Qualifications and disqualifications.- (1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless- ——————————-
(f) he is sagacious, righteous and non-profligate and honest and ameen”.
From Tax Year 2008 onwards, Nawaz Sharif was resident (the term as defined in section 82 of the Income Tax Ordinance, 2001). He was thus liable to tax for both Pakistan and foreign source income. He was bound by law to offer for tax salary income from Capital FZE-Dubai, on due or receipt basis, whichever matures earlier [section 12 read with section 69(c) of the Income Tax Ordinance, 2001]. He did not declare any such income in his tax returns and nomination papers filed on 31 March 2013. He also concealed the bank account maintained in UAE in which salary was credited. Judgement of Supreme Court for disqualifying Nawaz Sharif is based on report of Joint Investigation Team (JIT), which was confronted to him, and in response, he also filed reply. How can he say that no opportunity was given to explain his position? Those claiming that no case is proved against Nawaz Sharif should read this part of JIT report which says:
“Further, evidence thus procured reveals that Mian Nawaz Sharif, Respondent No 1, was the chairman of the board for Capital FZE-Dubai from August 7, 2006 until April 20, 2014 at a salary of AED 10,000. Further, evidence revealed that this salary was revised on February 02, 2007 vide Employment Contract Amendment-Form 9, duly signed by Respondent No 1, filed with JAFZA. On the basis of this employment Respondent No 1 was able to procure “Iqama” dated 5-7-2009 and valid up to 4-6-2015 to work and reside in Dubai (Annex G)”.
In its order of July 28, 2017, the Supreme Court noted that Nawaz Sharif “denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance”. Rule 11(7) says:
A Client shall be registered in WPS and shall transfer the Employees’ salaries through the WPS to confirm that all emoluments due have been paid between the 1st and 15th of every month. A Client failing to register in the WPS, as required by Jafza, may suffer penalties. A Client is required to keep certified copies of certificates of payments - duly signed by both the Employee and the authorised signatory of the Client approved by Jafza. A Client shall have available for inspection such certified copies of the certificate of payment.
Nawaz Sharif and Hassan Nawaz even after getting ample opportunity did not produce any evidence before JIT or in Supreme Court that Capital FZE-Dubai violated the above rule, and was penalized for not transferring salary as required under law. If salary was transferred by the company but not withdrawn by Nawaz Sharif, it could not escape taxability under section 12 read with section 69(c) the Income Tax Ordinance, 2001. Nawaz Sharif also failed to show closing balance of the account maintained in the UAE in wealth statement and in nomination papers filed in 2013.
It is also worth mentioning that the deadline for implementing WPS for firms with more than 100 workers was before November 30, 2009, companies with a workforce of 15 to 99 by February 28, 2010 and companies with less than 15 workers before May 31, 2010. Companies failing to meet the said deadlines were to be denied new work permits. It is evident from record that Nawaz Sharif was issued second Iqama [7104231/201/06 expiring on June 4, 2015]—earlier one was issued on July 6, 2009 that expired on July 5, 2012. Had salary not been transferred to his account, Capital FZE-Dubai could not get second Iqamah for him as per laws of Jebel Ali Free Zone Authority.
Nawaz Sharif is misleading the masses by alleging that Supreme Court disqualified him without justification. It has been proven beyond any doubt that he lied on oath and concealed his assets. The JIT in Volume IX of its report [‘Assets beyond Means: Mian Muhammad Nawaz Sharif] has produced the following startling facts in Para 7 about which Nawaz Sharif has not uttered a single word since disqualification (strangely media and experts invited by them in Talk Shows also failed to highlight these):
“Respondent No. 1 (Mian Muhammad Nawaz Sharif)
7. The available record shows that Respondent No. 1 started filing returns from year 1983-84. Complete record of tax returns/wealth statements were not furnished by FBR as for assessment years 1997/98 - 2001/02 & from 2004/05-2007/08, wealth statements were not filed by Respondent No. 1, more so, IT return for the year 2007 was not provided (details are at Annex A). In his statement made before the JIT on 15 June 2017, Respondent No.1 categorically stated that, initially, he had been a shareholder and/or director in a few of the companies established by his late father in Pakistan. However, he had not been actively involved in the business of any of those companies since the year 1985. He also stated that he had been actively involved in politics since 1981 and has devoted his entire life to his occupation as a politician. The same stance has been taken by him in various public speeches. His stance has also been reinforced by Respondents 6, 7, and 8 in their concise statements filed before the Honourable Supreme Court, that their father (Respondent No. 1) has no concern/ role in their business and properties. The JIT, during the course of investigation, analysis of available tax returns and available financial details of his companies with SECP and State Bank of Pakistan (SBP) has come across the following facts:
a. Opening of accounts as CEO of Chaudhary Sugar Mills. During evaluation of evidences and record collected from different banks by the JIT, it was noted that he opened 5 PKR bank accounts and 3 Foreign Currency accounts in four different banks during the period from 1-7-2009 till date. In the bank account opening forms submitted to the bank, he mentioned his occupation as ‘self-employed’ and name of the employer/ business as ‘Chaudhry Sugar Mills Limited’ (CSML) in all the account opening forms. In two of the accounts opened at Standard Chartered Bank (Pakistan) Limited, he showed himself as CEO of the Chaudhary Sugar Mills Limited (Annex B) while in an account opened at ABL, he had showed his designation as a shareholder, In addition to the individual accounts of Respondent No. l, the account opening form of his joint account with Ms. Shamim Akhtar Sharif also reflect the above details. Further, the Taxpayer Registration Certificate of the Respondent No.1 printed on 26-09-2009 (Annex C) reflected his business has been named as Chaudhry Sugar Mills Limited and address of taxpayer as ‘c/o Chaudhry Sugar Mills Limited, 146, Abu Bakar Block, Garden Town, Lahore’. It may be noted that as on 31-12-2008, Respondent No. 1 held 1,600,000 shares of CSML, which increased to 2,012,538 shares on 31-1-13 and 12 million on 31-1-16 (Annex D).
b. Drawing of Salary from Chaudhary Sugar Mills. While analyzing an account statement of Respondent No.1 (Annex E), it was noted that during 2010 to 2013, he has been receiving regular salary from CSML on a monthly basis (Rs.24.372 million in aggregate). It was observed that during 2010-11, an amount of Rs. 560,000/- per month was received by Respondent No.1 from CSML for nine months while the amount was increased to Rs.800,000/ per month during 2011-12. Similarly, Rs.820,417/- per month was received during the first 11 months of 2012-13. Contrary to his publicly held stance that he had no role or involvement with the family business; he was drawing monthly salary from CSML. The drawing of salary from CSML is also disclosed in the Income Tax returns filed by him.
c. Transaction showing involvement with CSML affairs. In addition, a couple of financial transactions of respondent No.1 with CSML were also observed. On 28-06-2010, CSML transferred Rs.5.670 million in his account. Similarly, on 23-09-2015, Rs.18.019 million was transferred by respondent No.1 to CSML (Annex F).
d. Capital FZE-Dubai: The Honourable Justice Ijaz-ul-Ahsan in his separate judgment specifically raised the issue of Capital FZE-Dubai. The relevant para(s) are reproduced below:
“87. It is also an admitted position that Respondent No.8 set up a company under the name and style of Flagship Investments Limited which received substantial sums of money in the year 2001 when the said Respondent had no source of income. Over the course of the next few years, a number of other companies were set up/taken over by Respondent No.8 allegedly for the purpose of his real estate business. The sources from which the said companies/businesses were funded are also shrouded in mystery. There is yet another company under the name and style of Capital FZE-Dubai presumably registered under the laws of the UAE. Funds also appear to have been routed through the said company from time to time by/and on behalf of Respondent No.7. The real ownership and business of the said company is unclear from the record which needs to be explained. No effort has been made on the part of the Respondents to answer the questions on the afore-noted matters.
89. Further, the source(s) of funding for Azizia Steel Mills and Hill Metals Establishment in Saudi Arabia, Flagship Investments Limited and a number of other companies set up/taken over by Respondent No.8 also need to be established. In addition to the affairs of Capital FZE-Dubai which also appears to be owned by Respondent No. 7 need an inquiry.
90. Evidence shall also be collected by the JIT regarding source(s) of funding of Capital FZE-Dubai; its business activities and role in transfer of fiends to different entities owned or controlled by Respondents No.7 & 8.”
e. As also pointed out by Honourable Justice Ijaz-ul-Ahsan, the real ownership and business of the said company is unclear from the record, which needs to be explained. No effort has been made on the part of the Respondents. The Honourable Justice also desired that evidence to be collected by JIT regarding Capital FZE-Dubai; its business activities and role in transfer of funds to different entities owned or controlled by Respondents No. 7 and 8. These questions were posed to the aforesaid Respondents in their appearances before the JIT; however, despite repeated requests, no satisfactory evidence was produced by them.
f. However, JIT in the course of its investigations was successful in collecting evidence directly from the concerned Regulatory Authority i.e. Jebel Ali Free Zone Authority (JAFZA), in Dubai. The evidence provided revealed that Capital FZE-Dubai was granted a Trading License, bearing Registration No. 561, on October 1, 2001. The license shows Respondent No. 8 as Manager. The authorized activities included Metal Ores Trading, Basic Steel Products Trading, Basic Non Ferrous Metal Product Trading, Fencing and Barbed Wire Trading, Metal Cans and Containers Trading, Metal Alloys Trading and Metal Drums and Barrels Trading. Further, evidence thus procured reveals that Mian Nawaz Sharif, Respondent No. 1, was the Chairman of the Board for Capital FZE-Dubai from August 7, 2006 until April 20, 2014 at a salary of AED 10,000. Further, evidence revealed that this salary was revised on February 02, 2007 vide Employment Contract Amendment – Form 9, duly signed by Respondent No. 1, filed with JAFZA. On the basis of this employment, Respondent No. 1 was able to procure “Iqama” dated 5-7-2009 and valid up to 4-6-2015 to work and reside in Dubai (Annex G).
g. As discussed in detail under the Sections covering Hill Metals Establishment and “gifts” between the Respondents, a payment of USD 1,000,000 from the accounts of Hill Metals Establishment to Capital FZE was noted in the documents procured depicting an evidence of rotation of money between family businesses.
h. Another example of rotation of funds between the accounts of Respondents discussed in detail under the Section on Hill Metals Establishment that Respondent No. 1 instructed the Bank Manager Al Rahji-Jeddah to transfer SAR 750,000 from his account No. 462 60801 3344552 to Respondent No. 7 Account No. 462 60801 000 6782. Thereafter, Respondent No. 7, on the same day, through an Advice dated Sept 20, 2010 instructed Al Rajhi Bank to transfer SAR 750,000 from his account 462 60801 006782 to Hill Metals Establishment (Annex H).
i. Flow of transactions between Respondents No. 1 and 6 in Pakistan. Significant inter-linkages have been observed during detailed scrutiny of bank accounts of Respondents No. 1 and 6. Between the period of 2009 to May 2017, approximately Rs. 1.4 Billion landed in Respondent No. 1’s bank account mainly from Respondent No. 7. Of these inflows, Respondent No. 1 transferred Rs. 822.726 million to the account of Respondent No. 6. For details, reference to the Section covering the issue of gifts/remittances is made.
j. Mis-declaration in Wealth Statement for the Tax Year 2013 and concealment of Rs 45 million by Mian Nawaz Sharif. As per Wealth Statement submitted by the Respondent No.1 for the tax year 2013, an amount of Rs.100 million was shown as donation given to PML(N). This fact was corroborated by the JIT from the statement of Wealth of the respondent (Annex I). During analysis of account statement, it was also observed that an amount of Rs.45 million was transferred back by the PML(N) on 10-6-2013 to Respondent No.1 (Annex J). This inflow of Rs.45 million, although reflected in the account statement, was not disclosed in the Wealth Statement. Hence, it appears that the Respondent No.1 not only concealed his assets to the tune of Rs.45 million but also misreported in the Wealth Statement for the tax year 2013 submitted under Section 116 of the Income Tax Ordinance, 2001”.
For above allegations and many others contained in JIT report, Nawaz Sharif will have to prove his innocence in references filed by National Accountability Bureau (NAB) on the directions of Supreme Court of Pakistan. When Supreme Court ordered JIT to investigate the financial matters of Nawaz Sharif and his offspring, no objection was raised but now they are unjustifiably criticising Supreme Court for directing NAB to file references on the basis of report of JIT. It is known to all that before Supreme Court, Chairman of NAB expressed his inability to proceed against Nawaz Sharif and family, including Ishaq Dar. As assured by Supreme Court during hearing of Review Petitions by Nawaz and others, they would be given fair opportunity of defence and fair trial as guaranteed in Article 10A of the Constitution. Nawaz Sharif should stop maligning the institutions as he is NOT victim of any conspiracy as he alleges. In reality, he is trapped in his own lies.
Undoubtedly, Nawaz Sharif was guilty of concealing the fact of employment with Capital FZE, tax evasion and continuing employment even after taking oath of Prime Minister on June 5, 2013. Those who say he is not removed on corruption charges must read section 78(3) of Representation of People Act, 1976 that defines filing of false declaration as “corrupt practice”. The disqualification of Nawaz Sharif by Supreme Court for filing false declaration is strictly in accordance with the law of this land. The same treatment should be meted out to all those who have lied on oath in their declarations. The law should be the same for all as Article 25(1) of the Constitution says: “All citizens are equal before law and are entitled to equal protection of law”.
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)
