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IMRAN AHMAD KHAN NIAZI versus MIAN MUHAMMAD NAWAZ SHARIF

r Arts 62 (l) (f), 63 (2), 184 (3) and 225 - illegal before the Supreme Accountability Ordinance (XVIII of 1999), Sections 9 (a) (v) and 14 (c) of the Supreme. Appeal disclosed to property owned by Prime Minister's Children's Offshore Companies in the Panama Papers Court to disclose properties owned by Prime Minister's children overseas. Court to disclose immovable property owned by the Prime Minister's children. Corrupt " [Documents related to foreign law firm were disclosed, including detailed financial and attorney client information of thousands of foreign companies] - State agencies investigating the case Failure to do so or to send the matter to the Election Commission against the Minister of Peace - The Prime Minister was the Chief Executive of the Federation and in fact he appointed the heads of all the institutions of the country who could inquire or inquire into the allegations. - On the basis of the Panama Papers against him and his family, the national ven speaker, who could send the Election Commission to the Election Commission, was related to the Prime Minister's political party and he was his nominee. It was entertained by the Supreme Court in the backdrop of denial / failure by all relevant institutions of the country such as National Accountability Bureau, Federal Investigation Agency, State Bank of Pakistan, Federal Board of Revenue, Securities. And the Exchange Commission of Pakistan and the Assembly for inquiries or inquiries regarding the Speaker of the National Assembly or sending the matter against the Prime Minister to the Election Commission Article Article 225 How to file an election petition before the Election Tribunal. Was not available

P L D 2017 Supreme Court 265

Present: Asif Saeed Khan Khosa,

Ejaz Afzal Khan, Gulzar Ahmad, Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

IMRAN AHMAD KHAN NIAZI—Petitioner

versus

MIAN MUHAMMAD NAWAZ SHARIF, PRIME ‘ MINISTER OF PAKISTAN/MEMBER NATIONAL ASSEMBLY, PRIME MINISTER’S HOUSE, ISLAMABAD and 9 others—Respondents

(Panama Papers Scandal)

Constitution Petitions Nos. 29, 30 of 2016 and 03 of 2017, decided on 20th April, 2017.

Per Asif Saeed Khan Khosa, J; Ejaz Afzal Khan, J, dissenting [Minority view]

(a) Constitution of Pakistan —

—Arts. 62(l)(f), 63(2), 184(3) & 225—National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(v) & 14(c)—Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering— Maintainability—Properties situated abroad owned by the Prime Minister's children through offshore companies were revealed in the Panama Papers” [leaked documents belonging to a foreign law firm that detailed financial and attorney-client infÓrm;ation of thousands of offshore entities]—Failure on the part of state institutions to investigate the matter or to refer the matter to the Election Commission against the Pfime Minister—Prime Minister was the Chief Executive of the Federation and it was practically he who appointed the heads of all the institutions in the country which could have inquired into or investigated the allegations levelled against him and his family on the basis of the Panama Papers'—Even the Speaker of the National Assembly who could refer the matter to the Election Commission belonged to the Prime Minister's political party and was his nominee— Present petitions had been entertained by the Supreme Court in the backdrop of refusal/failure on the part of all the relevant institutions in the country like the National Accountability Bureau, the Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the .  Speaker of the National Assembly to inquire into or investigate the natter or to refer the matter to the Election Commission against the Prime Minister—Remedy of filing an Election Petition before an Election Tribunal under Art. 225 of the Constitution was not available to the petitioners—Speaker of the National Assembly could have referred the matter to the Election Commission of Pakistan under Art. 63(2) of the Constitution but he had already dismissed various petitions filed before hint in such regard by as many as twenty-two members of the National Assembly—Supreme Court entertained present petitions in view of such background, therefore, it could not turn around and shy away from deciding the matter simply because it purportedly involved some disputed or intricate questions of fact, which it did not—His Lordship observed that if the Supreme Court stopped short of attending to the issue merely because it involved some disputed or intricate questions of fact then the message sent would be that if a powerful and experienced Prime Minister of the country/Chief Executive of the Federation appointed his loyalists as heads of all the relevant institutions in the country which could inquire into or investigate the allegations of corruption, etc. against such Prime Minister then a brazen blocking of such inquiry or investigation by such loyalists would practically render the Prime Minister immune from touchability or accountability.[Minority view], [p. 347] A & B

(b) Constitution of Pakistan—

—Arts. 62(l)(f) & 184(3)—National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(v) & 14(c)—Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution—‘Disputed questions of fact’—Petitioner seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering— Properties situated abroad owned by the Prime Minister’s children through offshore companies were revealed in the “Panama Papers” [leaked documents belonging to a foreign law firm that detailed financial and attorney-client infÓrm;ation of thousands of offshore entities]—Question as to whether disputed questions of fact were involved in the present case which the Supreme Court could not decide in its jurisdiction under Art. 184(3) of the Constitution—Present petitions did not involve any disputed and intricate questions of fact which the Supreme Court could not attend to or adjudicate upon in the present proceedings under Art. 184(3) of the Constitution—Ownership and possession of the relevant properties situated aboard were not denied by the Prime Minister’s family and the only question relevant to the issue before the Supreme Court was as to whether the Prime Minister’s denial of any connection with acquisition of those properties was honest or not—Properties situated aboard were not in issue before the Supreme Court but what was at issue was Prime Minister’s honesty

for the purposes of a disqualification under Art. 62(1 )(f) of the Constitution, therefore, in order to attend to the said core issue, the material produced by the petitioners regarding the properties was not being taken into account, and the primary considerations were the explanations offered and the material supplied by Prime Minister and his children in order to see whether their explanations vis-a-vis acquisition of the said properties were on the face of it honest or not— Adopting such approach left the court with no disputed or intricate questions of fact on the issue and the court focused solely on the issue of honesty of Prime Minister with reference to the explanations advanced by him and his family—Prime Minister and his family could not claim that their explanations offered on the issue were themselves disputed or intricate questions of fact. [Minority view], [p. 348] C

Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculutre, Government of West Pakistan Lahore PLD 1970 SC 98; Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 ref.

(c) Constitution of Pakistan —

—-Art. 184(3)—Constitutional jurisdiction of Supreme Court under ArtJ84(3) of the Constitution—Scope—'Disputed questions of fact — Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution was inquisitorial in nature rather than adversarial and while exercising such jurisdiction the Supreme Court could ascertain, collect and determine facts where needed or found necessary, [p. 349] D

Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistna through Secretary Ministry of Interior and others PLD 20067 SC 642; Air Marshal (Retd.) Muhammad ASghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1; General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore 1994 SCMR 2061; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292 ref.

(d) Constitution of Pakistan—

—Art. 184(3)—Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution—Scope—Pendency of same subject natter before another forum—Effect—Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution was an independent and original jurisdiction which was not affected by pendency of any matter on the same subject before any other court or forum or even by a prior decision of the same issue by any other court or forum below, Ip. 350] E

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Suo Motu Case No. 10 of 2009 (2010 SCMR 885); Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad PLD 2011 SC 365; Muhammad Yasin v, Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 13.2; Khawaja Muhammad Asif v. Federation of Pakistan and others PLD 2014 SC 206 and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others 2014 SCMR 1858 ref.

(e) Constitution of Pakistan—

—Arts. 10A, 62(l)(f) & 184(3)—National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(v) & 14(c)—Proceedings before the Supreme Court under Art. 184(3) of the Constitution—Scope—Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering— Contention of Prime Minister and his children that in exercise of the Supreme Court’s jurisdiction under Art. 184(3) of the Constitution ordinarily no evidence was recorded, no right of cross-examination of witnesses was available and no right of appeal existed against the decision rendered and, therefore, rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Art.lOA of the Constitution regarding fair trial and due process—Validity—Present proceedings/petitions under Art. 184(3) of the Constitution hardly involved any “determination" of civil rights of the Prime Minister and his children and no “trial" of theirs on any “criminal charge* was being conducted—Only Constitutional aspects of the present case were being decided by the Court under Art. 184(3) of the Constitution — Contention was . dismissed accordingly. [Minority view]. Ip. 350] F

Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Mohtarma Benazir Bhutto v. President of Pakistan and 2 others PLD 2000 SC 77 and Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1 ref.

(f) Constitution of Pakistan —

—Art. 51(1)—Public office—Scope—Member of National Assembly—

Words ‘public office’ included those who perfÓrm;ed legislative functions —Member of National Assembly did hold a 1public office’, [p. 351] G

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 ref.

(g) Constitution of Pakistan —

•‘••Art. 184(3)—Constitutional jurisdiction of Supreme Court under Art.l84(3) of the Constitution—Scope and procedure for exercise of such jurisdiction—-Exercise of jurisdiction by the Supreme Court under Art. 184(3) of the Constitution kept evolving and no specific procedure for exercise of such jurisdiction had been laid down by the Supreme Court—Cases dealt with by the Supreme Court under its Constitutional jurisdiction varied vastly in their subject and content and, therefore, the Supreme Court consciously avoided to shut the door to any procedural modality which may be best suited to an effective and proper determination of an issue competently brought to the Court under such jurisdiction—No hard and fast rule had been laid down by the Supreme Court regarding the mode, mechanism or modality through which the jurisdiction under Art. 184(3) of the Constitution may be exercised and it had been left to the Court to decide as to which lawful procedure would suit the requirements of a given case best—Nature of the issue and the circumstances of the case determined the procedure to be adopted, [p. 351] H

(h) National Accountability Ordinance (XVIII of 1999)—

—Ss. 9(a)(v) & 14(c)—Representation of the People Act (LXXXV of 1976), S. 99(l)(f)—Constitution of Pakistan, Arts. 62(l)(f) & 184(3)— Qualification for being Member of Majlis-e-Shoora (Parliament)— ‘Honest’ and ‘ameen’—Scope—Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering—Properties situated abroad owned by the Prime Minister’s children through offshore companies were revealed in the "Panama Papers ” Peaked documents belonging to a foreign law firm that detailed financial and attorney-client infÓrm;ation of thousands of offshore entities]—Question as to whether the incumbent Prime Minister was not “honest* and *ameen * within the purview of Art. 62(l)(f) of the Constitution and was thus disqualified from being a member of the Majlis-e-Shoora (Parliament)—Explanations advanced by the Prime Minister in respect

disproportionate to his known means of income. Respondents Nos. 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.

4. 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. If found necessary 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 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.

(Sd.)

Asif Saeed Khan Khosa JUDGE

(Sd.)

Ejaz Afzal Khan JUDGE

(Sd.)

Gulzar Ahmad, JUDGE

(Sd.)

Sh. Azmat Saeed, JUDGE

(Sd.)

Ijaz-ul-Ahsan,

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