Special Bench of Supreme Court to Supervise JIT Probe, JIT to investigate assets of PM Nawaz Sharif Children (Home & Abroard)


Special Bech of Supreme Court to Supervise JIT Probe, JIT to investigate assets of PM Nawaz Sharif Children (Home & Abroard)

Chairman NAB in the Dock

ORDER OF THE COURT

By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into 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 their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required.

2. In normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, we are constrained to look elsewhere and therefore, constitute a Joint Investigation Team (JIT) comprising 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;

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;

iv) a nominee of the State Bank of Pakistan (SBP);

v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and

vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.

3. 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.

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.

JUDGE

Justice Asif Saeed 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 Benamidars of 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.

(Asif Saeed Khan Khosa)

Judge

EJAZ AFZAL KHAN, J.- Petitioner in Const. P. No. 29 of 2016 seeks: disqualification of respondents No. 1, 9 and 10; recovery of money laundered alongwith properties purchased through the British Virgin Islands Companies and Companies in other safe havens; issuance of a direction against respondent No. 2 to discharge his obligation under Section 9 and 18 of the National Accountability Ordinance, 1999 by taking the investigation in mega corruption cases to their logical end; placement of the name of Mian Nawaz Sharif and his family members named in the Panama Leaks on the Exit Control List (ECL); issuance of an order to initiate claims on behalf of the Government of Pakistan for recovery of properties in question and direction against the Chairman Federal Board of Revenue to scan and scrutinize the tax returns and assets declaration of respondent No. 1 and his family.

2. The case of the petitioner, so to speak, is that respondent No. 1 in his address to the nation on 05.04.2016 and to the Parliament on 16.05.2016 made false statements which are not only contradictory but also in conflict with the statements made by his sons, respondent No. 7 and 8 herein; that he tried to explain the assets of his family members but omitted to mention what they invested and earned in Dubai; that a tripartite agreement witnessing the sale of 75% shares in Gulf Steel Mill at Dubai has been brought on the record but a look at the said agreement would reveal that the sale did not bring them any cash, as its proceeds amounting to AED 21 Million were adjusted against the debt liability of BCCI Bank; that the remaining 25% shares were sold subsequently to the same vendee but how its proceeds swelled up to AED 12 Million is anybody’s guess; that how did this money, irrespective of its source, reach Jeddah, Qatar and the U.K. is again anybody’s guess; that respondent No. 7 pretended to become the owner of flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London in 2006 but according to the order of the High Court of Justice, Queen’s Bench Division in the case of Al-Taufeeq Company for Investment Funds Limited. Vs. Hudaibia Paper Mills Limited and three others, 2nd, 3rd and 4th defendants had a beneficial interest in the assets specified in the schedule thereto; that respondent No. 1 has consistently evaded income tax on the sums remitted to him as gift by his son Hussain Nawaz, respondent No. 7 herein, with the connivance of the Chairman FBR; that frank admission of respondent No. 6 in her interview that she is still dependent on her father and the fact that she is husbanded by a person who has neither any source of income nor pays any taxes leave no doubt that she is a dependent of respondent No. 1 for all legal and practical purposes; that the correspondence between Mr. Errol George, Director FIA, British Virgin Islands and Mossack Fonseca & Co. (B.V.I.) Limited shows that respondent No. 6 is the beneficial owner of the flats in London; that when it has been established on the record that respondent No. 6 is a dependent of respondent No. 1 and the correspondence between Mr. Errol George, Director FIA and Mossack reveals that respondent No. 6 is the beneficial owner of the flats, respondent No. 1 was duty bound to disclose her assets in his tax returns and that his failure to do so would expose him to disqualification under Articles 62(1)(f) and 63(1)(o) of the Constitution of the Islamic Republic of Pakistan; that even if it is assumed that respondent No. 6 by virtue of owning the flats worth millions cannot be termed as a dependent of respondent No. 1, the latter cannot lay his hands off the ownership of the flats as respondent No. 6 had no means to purchase them in 1993-1994; that it would still be a case of concealment of assets which would expose respondent No. 1 to disqualification in terms of the provisions of the Constitution mentioned above; that how did the Sharif family establish Azizia Steel Mill at Jeddah, where did they get the means of investment from, how long did it remain functional and when did the Sharif family dispose it of are the questions shrouded in mystery inasmuch as they have not been witnessed by anything in black and white; that how did its sale proceeds reach the U.K. without involving any banking channel is another dark spot of the story where no light has been shed by respondents No. 1, 7 and 8; that the other sums running into millions gifted by respondent No. 7 to respondent No. 1 also raise questions about the legitimacy of their source and vulnerability of respondent No.1 to tax liability notwithstanding the sums have been transmitted through banking channels; that the tax and the wealth tax statements of respondent No. 6 for the years 2011-2012 reflect her shareholding in six companies without disclosing the source enabling her to acquire them; that expenses incurred by respondent No. 6 on travelling and acquisition of a valuable car have not been accounted for; that it has never been the case of respondent No. 6, nor can it be that her husband catered therefor when he paid no tax prior to 2013; that where no explanation for her princely extravagance is coming forth it can safely be deduced that she is still a dependent of respondent No. 1; that even the purpose of establishing offshore companies in the British Virgin Islands is no other but to protect the looted and laundered money which is an offence of the gravest form and that the people indulging in such activities have no right to hold the highest office of the Prime Minister; that the document purported to be the trust deed showing respondent No. 7 as beneficiary and respondent No. 6 as the trustee does not fit in with the story set up by respondent No.1 when considered in the light of the orders passed by the High Court of Justice Queen’s Bench Division in the case cited above; that respondents No. 6, 7 or 8 could not claim the ownership of flats purchased in 1993 when they being 20, 21 and 17 years old respectively at the time had no independent sources of income; that interview of respondent No. 8 with Tim Sebastien in November, 1999 belies the story thus set up in the trust deed; that nothing would turn much on establishment of the Jeddah Steel Mill, its sale and transmission of its sale proceeds to the U.K. in 2005 when none of the events has been witnessed by any documentary evidence; that the report of
Mr. A. Rehman Malik, he submitted as Additional Director General, FIA to the then President of Pakistan is replete with details as to how the Sharif family laundered money, how it opened foreign currency accounts in the names of fake persons for converting black money into white and what was the design behind forming offshore companies in the British Virgin Islands and Jersey Island; that the confessional statement of Mr. Ishaq Dar respondent No.10 herein is another piece of evidence giving the details of the money laundered by the Sharif family; that the case involving respondents No. 1 and 10 has been quashed by the Lahore High Court on flimsy and fanciful grounds; that respondent No. 2 despite knowing that the case has been quashed on flimsy and fanciful grounds did not file an appeal against the judgment of the Lahore High Court and thus failed to do what he was required by law to do; that where did the Working Capital Fund provided to Flagship Investments Limited come from as is indicated in its financial statement for the period ending on 31st March, 2002 has neither been explained by respondent No. 1 nor respondent No. 8; that the stance of respondent No. 1 that the money went to the hands of respondents No. 7 and 8 after the sale of Jeddah Steel Mills is also belied by the financial statements of the aforesaid company as it already had sufficient capital in its accounts before the said sale; that even the bearer share certificates cannot bring respondents No. 1 and 6 out of the slimy soil unless they are proved to have been registered in conformity with Section 41 of the BVI Business Companies Act, 2004; that a bearer share in a company is disabled for a period during which it is held by a person other than a custodian who is approved by the Commission in terms of Section 50-A(1) and 50-B of the Financial Services Commission Act, 2001; that transfer or purported transfer of an interest in the bearer share certificate is void if effected during the period it is disabled as it does not carry any of the entitlement which it would otherwise carry subject to sub-section 3 of Section 68 of the Act; that whether the bearer share was transferred to Hussain Nawaz or any other person in accordance with Section 68 of the BVI Business Companies Act is for him to prove and that where he fails to prove it, transfer of any interest in the bearer share certificates shall be void.

3. The case of the petitioner in Civil Petition No. 30 of 2016 in nutshell is that respondent No. 1 looted and laundered the money, formed British Virgin Island Companies, purchased as many as four flats at Avenfield House Park Lane London in the names of his dependents who at that time had no source of income; that he failed to declare their assets in his tax returns; that in his speech addressing the nation and the speech addressing the Parliament he stated many things which being false, incorrect and in conflict with the statement of respondent No. 7 expose him to disqualification under Articles 62(1)(f) and 63(1)(o) of the Constitution of the Islamic Republic of Pakistan; that the letter of Hamad Bin Jassim Bin Jaber Al-Thani being concocted and based on hearsay cannot come to his rescue nor can it save him from disqualification in terms of the Articles mentioned above. To support his contentions the petitioner placed reliance on the cases of Imtiaz Ahmed Lali. Vs. Ghulam Muhammad Lali (PLD 2007 SC 369), Mian Najeeb-ud-Din Owasi and another. Vs. Amir Yar Waran and others (PLD 2013 SC 482), Muhammad Rizwan Gill. Vs. Nadia Aziz and others (PLD 2010 SC 828), Muddasar Qayyum Nahra. Vs. Ch. Bilal Ijaz and others (2011 SCMR 80), Malik Umar Aslam. Vs. Mrs. Sumaira Malik and others (2014 SCMR 45) and Sadiq Ali Memon. Vs. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246).

4. Case of respondent No. 1 is that prayers made in the petition are vague and generalized; that issuance of a direction is sought against the Chairman NAB to discharge his obligations under the NAB Ordinance, 1999 but the cases pending investigation in mega corruption events have not been mentioned; that direction against respondent No. 4 for placing the name of Mian Nawaz Sharif and his family members named in Panama Leaks on the ECL is sought but no argument has been addressed in support of this prayer; that an order is sought to be passed against respondents No. 2 and 3 directing them to initiate claims on behalf of the Government of Pakistan for recovery of the properties but none of them has been identified; that yet another direction is sought to be issued against respondent No. 5 to probe and scrutinize the tax returns and assets declaration of respondent No. 1 and his entire family but none of its members has been named in the petition; that the last prayer tends to stretch the gamut of controversy to an extreme which is unworkable altogether; that with the prayer of this nature nothing can be pinned on respondent No. 1 when he has no BVI Company or any other company of the sort; that respondent No. 1 cannot be dragged in the controversy stirred in the petition stemming from the Panama Leaks when he is neither a director nor a shareholder nor a beneficial owner nor a guarantor in any of the BVI Companies; that the speeches addressing the nation and the Parliament respectively giving broad outlines of the business established and pursued by late Mian Muhammad Sharif cannot be construed like pleadings nor could they be considered as item-wise replies to the allegations sworn on an affidavit; that conflict between the statements of respondent No. 1 and that of respondents No. 7 and 8 cannot be blown out of proportion so long as the latter have not been proved to be correct; that respondent No. 1 giving the outlines of the business of his father in his speech may have made errors or omissions, but when there is nothing on the record to show that intention behind them was suppression of truth, they cannot be used to his detriment in any proceeding; that after the amendment in clause 1(f) of Article 62 of the Constitution, every person shall be deemed to be sagacious, righteous, non-profligate, honest and ameen unless a declaration to the contrary has been given by a court of law; that since no such declaration has been given by any court of law it cannot be given by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution, that too, when it is sought on the basis of the facts which are seriously disputed; that no finding about disqualification under Article 62(1)(f) of the Constitution or Sections 78(1)(d) or 99(1)(f) of the Representation of the People Act, 1976 could be given unless the facts constituting such disqualification are proved or admitted; that this is what has been held by this Court in the judgments rendered in the cases of Muhammad Ijaz Ahmad Chaudhry. Vs. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Malik Iqbal Ahmad Langrial. Vs. Jamshed Alam and others (PLD 2013 SC 179), Muhammad Khan Junejo. Vs. Federation of Pakistan through Secretary, M/o Law Justice and Parliamentary Affairs and others (2013 SCMR 1328), Allah Dino Khan Bhayo. Vs. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Abdul Ghafoor Lehri. Vs. Returning Officer, PB-29, Naseerabad-II and others (2013 SCMR 1271) Muhammad Siddique and another Vs. Federation of Pakistan (2013 SCMR 1665), Sadiq Ali Memon Vs. Returning Officer, NA-237, Thatta-1 and others (2013 SCMR 1246), Mian Najeeb-ud-Din Owasi and another Vs. Amir Yar Waran and another (PLD 2013 SC 482), Mudassar Qayyum Nahra Vs. Ch. Bilal Ijaz and others (2011 SCMR 80), Rana Aftab Ahmad Khan Vs. Muhammad Ajmal and another (PLD 2010 SC 1066), Haji Nasir Mehmood Vs. Mian Imran Masood and others (PLD 2010 SC 1089), Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817), Muhammad Rizwan Gill Vs. Nadia Aziz and others (PLD 2010 SC 828), Muhammad Siddique Baloch Vs. Jehangir Khan Tareen (PLD 2016 SC 97), Rai Hassan Nawaz Vs. Haji Muhammad Ayub and another (Civil Appeal No.532 of 2015 decided on 25.5.2016) and Ishaq Khan Khakwani Vs. Mian Muhammad Nawaz Sharif (PLD 2015 SC 275); that where Article 63(2) of the Constitution itself provides a mode and even a forum for deciding about the fate of a person who has become disqualified from being a member, this Court while exercising jurisdiction under Article 184(3) of the Constitution could not usurp the functions of such forum; that where no nexus of respondent No. 1 has been established with the Panama Leaks, his disqualification cannot be sought on the basis of his speech in the parliament or an omission therein, as it being privileged by virtue of Article 66 of the Constitution cannot be used against him in any proceeding of any court; that there is no equation between this case and that of Syed Yousuf Raza Gillani, Prime Minister of Pakistan. Vs. Assistant Registrar, Supreme Court of Pakistan and others (PLD 2012 SC 466) as in the latter case the charge of defying the judgments of this Court against the then Prime Minister, culminating in his disqualification, was proved to the hilt whereas nothing of that sort is available against respondent No.1 in this case; that where no documentary or any other aboveboard evidence pointing to the involvement of respondent No. 1 in acquisition of the flats is available on the record nothing can be fished out of his speech delivered in the Parliament; that the privilege extended to the Members of Parliament has been recognized the world over and even in the neighbouring countries as is evident from Section 6 of the Constitution of the USA and Article 105 of the Constitution of India notwithstanding they are phrased and punctuated a bit differently; that Erskine May in his monumental work titled as the Law, Privileges, Proceedings and Usage of Parliament cites a line of precedents recognizing such a right; that what is the stature of this treatise in our jurisprudence can well be gathered from the words used by his lordship Mr. Justice A. R. Cornelius, as he then was, in the judgment rendered in the case of Pakistan. Vs. Ahmed Saeed Kirmani (PLD 1958 SC 397) when he said “I, therefore, need make no apology for referring to this work in this judgment as an authority upon point of procedure in the conduct of Parliament or legislative Assembly, which are not dealt with in detail in the Rules of Procedure of that Parliament or Assembly”; that this privilege has to be respected notwithstanding it is an exemption from the general law because the House cannot perform its functions without unimpeded use of the services of its Members; that even the Constitution of Bangladesh recognizes the unqualified and absolute privilege of a Member of Parliament in respect of any speech made by him in Parliament or any Committee thereof; that such privilege is not lost merely because the speech is telecast or published in newspapers; that the Court has no jurisdiction to proceed against him for what he said in Parliament or any Committee of Parliament, whether the statement is true or false and whether the statement is made in good faith or maliciously; that case of Owen Robert Jennings. Vs. Rojer Edward Wyndham (2004 UK PC 36), Regina. Vs. Chaytor [2011] 1 A.C. 684] A. Vs. United Kingdom [2003] 36 E.H.R.R. 51and Prebble Vs. Television New Zealand Ltd. [1995] 1 AC 321are the luminous examples from the U.K. jurisdiction; that the dicta rendered in the cases of The Commissioner of Income Tax, Kolkata Vs. Padam Chand Ram Gopal (AIR 1970 SC 1577) and In re Under Article 143 of the Constitution of India (AIR 1965 SC 745) radiate recognition of this privilege; that the words used in Article 66 being clear and unambiguous need no precedent, all the same the judgment rendered in the case of Syed Masroor Ahsan and others. Vs. Ardeshir Cowasjee and others (PLD 1998 SC 823) is quite illustrative and enlightening on the subject; that the petitioner failed to make out a case for disqualification of respondent No. 1 in terms of Articles 62(1)(f) and 63(1)(o) of the Constitution as he neither defaulted nor delayed payment of any wealth tax; that if at all any part of the wealth of respondent No. 1 escaped assessment, the Wealth Tax Officer on receipt of a definite information could reopen the matter in accordance with Section 17 of the Wealth Tax Act, 1963; that the petitioner has no locus standi to say even a word in this behalf before this Court when it has never been his case that the competent officer despite receipt of a definite information in this behalf remained unmoved; that prayers No. 1 and 6 being inconsistent with each other cannot be countenanced when the fate of the former is dependent on the fate of the latter; that para 18(xi) of Constitution Petition No. 29 of 2016 is incorrect when the amounts remitted and received through gifts are fully reflected in the debit and credit entries of the respective accounts; that the amount remitted through gifts by respondent No. 7 to respondent No. 1 is not liable to be taxed when it clearly and squarely falls within the purview of Section 39(3) of the Income Tax Ordinance, 2001; that when respondent No. 6 has been living on her own and has independent sources of income none of the definitions given in the Black’s Law Dictionary, Oxford English Dictionary, Workman’s Compensation Act, 1923, Provident Funds Act, 1925, Prevention of Corruption Act, 1947, Employees Social Insurance Ordinance, 1992, Immigration Ordinance, 1979, Federal National Foundation Ordinance, 2002 or any other law could make her a dependent; that reference to the judgments rendered in the cases of Fahim ud Din Farhum Vs. Managing Director Member WAPDA, WAPDA House, Lahore and another (2001 SCMR 1955), Hand. Vs. Ball and others [1947](1) Chancery 228) andRe Baden’s Deed Trusts Baden and others. Vs. Smith and others (1969 1 ALL. E.R. (1016) are instructive and advantageous on the point; that where the controversy emerging in this case is factual and cannot be resolved without recording evidence, this Court in view of the dictum rendered in the case of Pakistan Muslim League (N) Vs. Federation of Pakistan (PLD 2007 SC 642) would desist from giving any decision on it while hearing a petition under Article 184(3) of the Constitution; that in the case of Muhammad Asif. Vs. Federation of Pakistan (PLD 2014 SC 206) this Court, no doubt, intervened and handed down a verdict but on the basis of the documents and the record which went undisputed; that this Court in view of Articles 184(3) and 187 of the Constitution has power to issue such direction, order or decree as may be necessary for doing complete justice in any case or matter pending before it but where a matter involving the same issue is pending before a forum having power and competence to grant the desired relief, this Court does not interfere; that the matter raised in this petition also calls for the same treatment where Writ Petition No. 31193/16 filed in the Lahore High Court and as many as four petitions raising the same issues filed in the Election Commission against respondent No. 1 and one against respondent No. 9 are pending adjudication and the fora mentioned above have the power and competence to grant the desired relief.

5. The case of the petitioner in Const. P. No. 03/2017 is that where respondent No. 4 in the said petition admitted that he and his family members set up Gulf Steel Mill in Dubai, disposed it of, set up Azizia Steel Mill in Jeddah and disposed that of, it is for him to prove the trail of money and legitimacy of means whereby he and his dependents purchased flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London; that where he did not prove either of them nor did he disclose the assets of his dependents, he is liable to be disqualified under Articles 62(1)(f) and 63(1)(o) of the Constitution; that where respondent No. 4 has also violated the Oath of his Office in his capacity as MNA as well as the Prime Minister, he is no more honest and ameen, therefore, he is also liable to be disqualified on this score; that respondent No. 4 in CP. No. 03 of 2017 cannot claim any privilege or even immunity under Articles 66 and 248 of the Constitution respectively when his speech is studded with lies and distortions and related to the matters which are essentially personal; that respondent No.4 while explaining the assets of his family used first person plural in his speeches in and outside the Parliament but while defending himself in the Court he denied to have any nexus with the assets of respondents No. 6, 7 and 8; that where respondents No.6, 7 and 8 have no sources of income, it is for respondent No.4 to explain where did they come from and what was the channel they were taken through for investment abroad; that where no evidence comes forth it shall be presumed that the flats were purchased with the money having spurious origin; that an inquiry in this behalf can be undertaken by this Court even while hearing a petition under Article 184(3) of the Constitution in view of the judgments rendered in the cases of Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief Election Commissioner, Islamabad and others (PLD 2010 SC 817), Muhammad Yasin Vs. Federation of Pakistan through Secretary Establishment Division Islamabad and others (PLD 2012 SC 132), Workers Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others Vs. Federation of Pakistan and two others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others Vs. Federation of Pakistan and others (PLD 2012 SC 774), Watan Party and another Vs. Federation of Pakistan and another (PLD 2011 SC 997) and Muhammad Azhar Siddique and others Vs. Federation of Pakistan and others (PLD 2012 SC 660).

6. The case of respondent No. 6 as set up in her concise statement, supplementary concise statement and yet another statement is that she, ever since her marriage, has been living on her own with her husband in one of the houses in Shamim Agri Farms, Raiwind owned by her grandmother; that whatever she received, purchased, spent gifted or disposed of has been fully indicated in her tax returns, therefore, nothing adverse could be fished therefrom to make out a case of disqualification of respondents No. 1 and 9; that whatever her father gifted to her in any form was out of his abundant love and affection for her; that she has never been a beneficial owner of any of the flats at Avenfield House Park Lane London; that she independently owns assets, pays taxes thereon and holds a National Tax Number as is fully evident from her tax returns; that respondent No. 1 disclosed in column 12 of his wealth statement for the year 2011, an immovable property purchased in her name but that could not be construed to make her a dependent as no other column for mentioning such property was available in the relevant forms till the issuance of SRO No. 841(1) of 2015 dated Islamabad the 26th August, 2015; that failure of respondent No. 9 to disclose in his tax returns the gift of Rs.31,700000/- to respondent No. 6 would not entail anything adverse to him when he annexed the wealth statement of respondent No. 6 with his nomination papers; that no relief whatever has been sought against respondent No. 6; that when respondent No. 6 is not a dependent of respondent No. 1, the latter’s failure to disclose her assets in his wealth tax returns would not entail any liability against him; that her contribution to the Shamim Agri Farms can well be noticed from the returns for tax years 2013, 2014 and 2015 submitted by Mst. Shamim Akhtar would also go a long way to prove her status as being independent; that she lent and not borrowed from Chaudhry Sugar Mills Ltd; that her assets even on 30th June, 2010 were Rs.73,510431/- and that if the figures mentioned have not been read by the petitioner in their correct perspective, she could not be blamed for that; that she paid the amount to respondent No.1 in the tax year, 2012 for the land he purchased for her in tax year 2011 through a banking channel as is evident from the entries made at page Nos. 251 and 258 of CMA. No. 7530 of 2016; that if at all there has been any misstatement or tax evasion it could be inquired into by the competent forum and not by this Court; that respondent No. 6 in her interview with Sana Bucha denied to have owned anything in and outside the country but this statement cannot be treated as an admission or denial aimed at concealing anything when she has disclosed all of her income and assets in her tax returns; that the documents filed by the petitioner in CMA. No. 7511 of 2016 appearing to be a company resolution sent through as an email with the purported signature of respondent No. 6 is forged on the face of it as the signature thereon does not tally with any of the admitted signatures of respondent No. 6; that the correspondence between Mr. Errol George, Director FIA, British Virgin Islands and Mossack Fonseca & Co. (B.V.I.) Limited also appears to be a fabrication when respondent No. 6 at no stage has been a beneficial owner of the flats; that in all matters relating to public interest litigation this Court has to guard against entertainment of a petition on the basis of an information whose authenticity is open to serious doubt; that since the expression dependent has not been defined by Income Tax Ordinance, Representation of People Act or NAB Ordinance recourse could be had to Black’s Law Dictionary which defines it as ‘one who relies on another for support or is not able to exist or sustain oneself’ and that respondent No. 6 does not fall within the definition of the word ‘dependent’ when she lives on her own and has independent means of sustenance; that if at any rate the question whether she lives on her own and has independent means of existence is disputed it being disputed cannot be inquired into in a proceeding under Article 184(3) of the Constitution of Pakistan; that there is nothing baffling in the gift of a BMW car by respondent No. 8 to respondent No. 6 costing her Rs.35,000,00/- in the form of Customs Duty and Taxes and bringing her a profit of Rs.19,664,955/- on its having been traded in; that where many documents brought on the record to justify initiation of an inquiry are fake and forged, the petitioner is liable to be proceeded against under Section 469 of the Cr.P.C.; that when respondent No. 6 has disputed the document purported to have been signed by her it is worth nothing unless proved in accordance with law; that even the opinion of the handwriting expert given on comparison of her disputed and admitted signatures is worth nothing unless he affirms his opinion on oath in the Court and faces the test of cross-examination; that where the petitions appear to be malafide and the purpose behind them is to settle personal score or to gain a political mileage they cannot be entertained under Article 184(3) of the Constitution in view of the judgments rendered in the cases of Hafeez-ud-Din. Vs. Abdur Razzak (PLD 2016 SC 79), Janta Dal. Vs. H.S. Chowdary (AIR 1993 SC 829), S.P. Gupta. Vs. President of India (AIR 1982 SC 149), T.N.Godavarman Thirumulpad. Vs. Union of India and others (AIR 2006 SC 1774); that the principles and the provisions of law regulating the jurisdiction of different courts and their hierarchies shall disappear where a lis which could adequately be decided by such courts is entertained and inquired into by this Court under Article 184(3) of the Constitution simply because it has been given the garb of public importance with reference to the enforcement of fundamental right.

7. The case of respondent No. 10 is that the confessional statement attributed to him is a result of inducement, coercion and torture spread over a period of almost six months; that it is by no stretch of imagination willed and voluntary; that the criminal transaction sought to be reopened through the confessional statement is past and closed as the same matter has been set at rest by the Lahore High Court in its judgment rendered in the case of Hudabiya Engineering (Pvt) Limited. Vs. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and six others (PLD 1998 Lahore 90); that even if the confessional statement is assumed to have been made voluntarily, it cannot be used against respondent No. 10 when it was recorded pursuant to the pardon granted to him by the Chairman NAB under Section 26 of the National Accountability Ordinance, 1999; that his status would remain that of an approver unless the pardon granted is forfeited which is not the case here; that a re-investigation of the case or yet another trial of respondent No. 10 shall be barred by Article 13 of the Constitution of Pakistan and Section 403 of the Cr.P.C.; that no parallel can be drawn between this case and the case of Muhammad Yasin. Vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) as in that case the core issue was not discussed and decided by the High Court; that where this case has been set at rest by a Bench of the Lahore High Court in the case of Messrs Hudaibya Paper Mills Ltd and others. Vs. Federation of Pakistan and others (PLD 2016 Lahore 667) and the Chairman NAB has not filed an appeal against the judgment of the High Court, even in the second round of litigation, it cannot be reopened through a proceeding under Article 184(3) of the Constitution of Pakistan.

8. The case of respondent No. 7 is that neither respondent No. 1 has any nexus with flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London, nor any documentary evidence has been brought on the record to establish it; that where no such documentary evidence has been brought on the record to establish his nexus with the aforesaid flats, the assertion that the statement of respondent No. 1 runs counter to the statements of respondents No. 7 and 8 would prove nothing; that there is nothing in the tax returns, wealth statement or even in the nomination papers of respondent No. 1 to show that he defaulted or delayed the payment of any taxes or concealed any of his assets, therefore, the prayer of the petitioner to disqualify respondent No. 1 is just a cry for the Moon; that as the entire business inside and outside the country was in the hands of late Mian Muhammad Sharif, it is impossible for respondent No. 7 to trace the trail of money; that it is all the more impossible when more than three decades have passed and the record of such transactions has either been lost or taken away by the mercenaries of General Pervez Musharraf in the wake of October, 1999 coup d’etat; that whatever trail he could trace to is, that the Gulf Steel Mill was established by late Mian Muhammad Sharif in early seventies by availing loan from a Bank and land from the Municipality; that since the Mill hardly proved to be a success, its 75% shares were sold in 1978 through a tripartite agreement; that the money thus obtained was adjusted against its outstanding liabilities; that the remaining 25% shares were sold in 1980 against a sum of AED 12 millions; that the money so received by Tariq Shafi, as per his statement sworn on an affidavit, was entrusted to Sheikh Fahad Bin Jasim Bin Jabir Al-Thani on the instructions of late Mian Muhammad Sharif in view of his longstanding business relations with the Al-Thani family; that Mian Muhammad Sharif, after his exile from Pakistan in December, 2000, advised Althani family to credit the amount so entrusted together with its cumulative returns in the account of respondent No. 7; that eventually the needful was done and pursuant thereto Hamad Bin Jassim Bin Jaber Al-Thani delivered the bearer shares of Neilsen and Nescoll to respondent No. 7; that the money as per the available record may not have been sent through the banking channel but there is nothing unusual about it as an amount to the tune of AED 12 millions could be carried in a small handbag; that the orders passed by the High Court of Justice Queen’s Bench Division do not tend to negate the version set forth by respondent No. 7 as the orders bringing the flats under the charge were passed on the basis of a statement sworn on an affidavit by Shezi Nackvi as is clear by the tenor of the orders mentioned above; that the affidavit of the said Mr. Shezi Nackvi dated 13.01.2017 gives added strength to the version; that the documents relied upon by the petitioner are disputed and so are the facts averred in the petition, therefore, no sweeping opinion, one way or the other, could be given unless the documents are proved in accordance with law and statements of the petitioner and his witnesses, if any, are recorded on oath and subjected to the test of cross-examination; that where the petitioner failed to prove the accusation, failure of respondents No. 7 and 8 to substantiate any of their stances would not expose them to any liability under any law; that the judgment rendered in the case of The State. Vs. Muhammad Hanif and 5 others (1992 SCMR 2047) would be quite relevant to the case in hand; that this Court in the case of Dr. Arsalan Iftikhar. Vs. Malik Riaz Hussain and others (PLD 2012 SC 903) while dealing with a similar situation left determination of the disputed questions of fact to a competent Court of law; that there is nothing in the version set up by respondents No. 7 and 8 as could be held to be incapable of having happened; that the bearer shares remained with Al-Thani and the day they were delivered to respondent No. 7 he became owner of the flats; that there is no missing link in the trail of money; that if at all there is any that was supplied by the letters written by Hamad Bin Jassim Bin Jaber Al-Thani; that respondents No. 7 and 8 cannot be equated with a person who travelled from rags to riches overnight as they belong to a family which has been deep in business ever since late 30s and made fortune in it, therefore, none of the assets acquired or owned by any member of the Sharif family can be held to be out of proportion to their known means and resources; that at times respondents No. 6 and 7 may fall short of the documents witnessing business transactions at different stages but that is partly due to lapse of time and partly due to loss of the record in the pandemonium of the coup d’état; that whatever record is available does not show that respondent No. 6 ever held any proprietary interest in the property; that the documents showing her to be the beneficial owner are not worthy of reliance firstly because the signature thereon neither appears to be of respondent No. 6 nor it tallies with her admitted signature and secondly because it has not been owned by Minerva; that the letter dated 6.2.2006 of Arrina Limited addressed to respondent No. 7 shows that the former would liaise on his behalf with service providers for Nescol Limited and Neilson Enterprises Limited; that the correspondence between Arrina Limited and Minerva Trust and Corporate Services Limited shows that the documents projecting respondent No. 6 as beneficial owner of the flats is not believed to be the latter’s authorship; that there are gaps in the version set up by respondents No. 7 and 8 but they cannot be used to make up the deficiencies in the case of the petitioner; that none of the respondents on the basis of the documents produced by the petitioners could be condemned when they have neither come from proper custody nor they have been authenticated; that this Court in the cases of Air Marshal (Retd.) Muhammad Asghar Khan. Vs. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), Watan Party and another. Vs. Federation of Pakistan and others (PLD 2011 SC 997) and Moulvi Iqbal Haider and others. Vs. Federation of Pakistan through Secretary M/o Law and Justice and others (2013 SCMR 1683) gave a declaration in a proceedings under Article 184(3) of the Constitution chiefly because the material forming basis of judgments was admitted; that where no such material is available and the dispute raised before this Court requires a probe, it could well be made by a machinery or a Court of law provided by the normal law of the land as was held in Suo Motu Case No. 05 of 2012 (PLD 2012 SC 664) regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process.

9. The learned Attorney General appearing on behalf of the Federation contended that form of the petition and the forum chosen by the petitioner have to be looked at with reference to the context; that the form of the petition may suggest that it is in the nature of quo warranto but it partakes more of an election petition; that the issues raised in the petitions being interconnected and intertwined with personal political issues take it outside the scope of Article 184(3) of the Constitution; that this Court can entertain a petition under Article 184(3) of the Constitution if it involves a question of public importance with reference to the enforcement of a fundamental rights but in that event it has to be shown that the question raised in fact involves a question of public importance and that one of the fundamental rights guaranteed by the Constitution has been breached; that when it has not been averred in any of the petitions as to what is the question of public importance and where has the breach of any of the fundamental rights taken place, all of them would merit outright dismissal; that it has been settled in the case of Ishaq Khan Khakwani and others Vs. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) that the expression honest and ameen being incapable of being defined in clear terms cannot be left to the determination of a court where except allegations and counter allegations, no undisputed material in oral or documentary form is available; that every person is sagacious, righteous, non-profligate, honest and ameen unless a declaration to the contrary is given by a Court of law; that such declaration can neither be given under Article 199 nor Article 184(3) of the Constitution as was held in the case of Aftab Ahmed Khan. Vs. Muhammad Ajmal (PLD 2010 SC 1066); that where this dispute has already been raised before the Election Commission and could also be raised in terms of Article 63 of the Constitution before an appropriate forum, this Court cannot step in; that even if a Member of Parliament incurs a disqualification on account of his failure to submit a statement of his assets and liabilities or those of his spouse and dependents, he could be proceeded against under Section 42-A and punished under Section 82 of the Representation of the People Act; that where disqualification of a Member of Parliament is sought on the basis of a material which is disputed, this Court as a matter of course leaves it to the determination of a Court of law; that in no situation this Court will act as an investigator or a Trial Court by arrogating to itself a power or jurisdiction which has not been conferred on it by the Constitution or an act of the Parliament.

10. The learned ASC for the petitioner in CP. No. 29 of 2016 while exercising the right of rebuttal reiterated that respondents No. 6, 7 and 8 in view of their tender ages could not acquire the flats nor could they know anything about the trail of money, its growth, tripartite agreement and its implications, therefore, their statements explaining the events culminating in the acquisition of the flats do not deserve any serious consideration; that where respondent No. 1 in his speeches in and outside the Parliament himself undertook to explain the acquisition of the flats he was bound to explain it, and that when he did not, it could well be gathered that he is not honest and ameen, therefore, he is liable to be disqualified.

11. Sheikh Rashid Ahmed, petitioner in Civil Petition No.30 of 2016 reiterated the same argument by submitting that Qatri letter being outcome of an afterthought cannot be taken into account especially when it is based on hearsay; that this Court has ample power to do complete justice and as such can pass an order even beyond what has been averred and prayed in the petitions. The petitioner to support his contentions placed reliance on the judgments rendered in the cases of Ch. Zahur Ilahi, M.N.A. Vs. Mr. Zulfikar Ali Bhutto and 2 others (PLD 1975 SC 383), Syed Masroor Ahsan and others. Vs. Ardeshir Cowasjee and others (PLD 1998 SC 248), Miss Benazir Bhutto. Vs. Federation of Pakistan and another (PLD 1988 SC 416), Ch. Nisar Ali Khan. Vs. Federation of Pakistan and others (PLD 2013 SC 568), Muhammad Ashraf Tiwana and others. Vs. Pakistan and others (2013 SCMR 1159), Muhammad Yasin. Vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Pir Sabir Shah. Vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another (PLD 1995 SC 66), Hitachi Limited and another. Vs. Rupali Polyester and others (1998 SCMR 1618), Sindh High Court Bar Association through its Secretary and another. Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others (PLD 2007 SC 642) and Mian Muhammad Nawaz Sharif. Vs. The State (PLD 2010 Lahore 81). With regard to the privilege claimed by respondent No.1 the petitioner urged that it could only be claimed when the speech or the subject matter of speech relates to the businesses of the Parliament and the person of the speaker. He to support his contention placed reliance on the cases of Canada (House of Common) Vs. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30)and R Vs. Chaytor and others (2010 UKSC 52).

12. Learned ASC appearing for the petitioner in Civil Petition No.3 of 2017 also reiterated the same arguments. He while defining the expression ‘honest’ referred to the definitions reproduced in the case ofFazal Muhammad. Vs. Mst. Chohara and others (1992 SCMR 2182).

13. We have gone through the record carefully and considered the submissions of learned ASCs for the parties as well as the learned Attorney General for Pakistan.

14. The controversy urged before us relates to the ownership of flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London acquired under the aegis of offshore entities. It came to the limelight in the wake of the Panama Leaks. The leaks kicked off a storm the world over which also spilled over the shores of this country. The immediate reaction of respondent No. 1 to the leaks was that he delivered a speech inside and another outside the Parliament. He in the said speeches admitted the ownership of the flats and alluded to the means whereby he and his family purchased them. However, in his concise statement he denied to have owned the flats. Respondent No. 7 in his concise statement claimed to have owned them. To explain the trail of money he introduced the letters of Hamad Bin Jassim Bin Jaber Al-Thani. But how did it end up in the ownership of the flats still clamors for an explanation. A bulk of unauthenticated documents brought on the record by the petitioners is pitched against another bulk of unauthenticated documents brought on the record by the respondents. The questions arising out of the petitions, the bulk of documents and the arguments addressed at the bar are summed up as under :-

i) whether respondent No. 6 could be held to be a dependent of respondent No. 1 on 30th June, 2013 and whether respondent No. 1 has failed to disclose his assets and liabilities and those of his spouse and dependents in Form-XXI of the nomination papers as required by Section 12(2)(f) of the Representation of the People Act and as such is liable to be disqualified;

  1. 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;
  1. what a person is required to do and whether Articles 62, 63 of the Constitution or Section 99 of the Representation of People Act requires any member of Parliament to account for his assets or those of his dependents disproportionate to his known means of income and whether his failure to account for such assets calls for his disqualification;
  1. what would be liability of a holder of public office if he or any of his dependents or benamidars owns, possesses or has acquired right or title in any assets or pecuniary resources disproportionate to his known means of income which he cannot account for;
  1. what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1)(f) and 63(2) of the Constitution; and

vi) whether a case for disqualification of respondent No. 1 in terms of Article 62(1)(f) of the Constitution is spelt out by the speeches he delivered in and outside the Parliament and whether such speeches in view of the provision contained in Article 66 of the Constitution could be used to his detriment in any proceeding in any Court of law.

15. We would take up the first question first. What the petitioners sought to canvass at the bar is that respondent No. 6 being a dependent of respondent No. 1, is the beneficial owner of the flats at Avenfield House Park Lane London, that the latter was bound to disclose her assets and liabilities in his nomination form submitted on 30th June, 2013 in terms of Section 12(2)(f) of the ROPA and that when he did not do he is liable to be disqualified. This question on the face of it is a disputed question of fact. At the very outset, we asked the learned ASC for the petitioners whether this question could be decided by this Court under Article 184(3) of the Constitution of Pakistan when no undisputed evidence has been brought on the record to show that respondent No. 1 or respondent No. 6 owns the flats mentioned above. The learned ASC to answer the question cited the judgment rendered in the case of Syed Yousuf Raza Gillani, Prime Minister of Pakistan. Vs. Assistant Registrar, Supreme Court of Pakistan and others (supra). But a huge difference lies between this case and that of Syed Yousuf Raza Gillani. In this case the allegations leveled against respondent No. 1 are yet to be proved while in the latter case, Syed Yousuf Raza Gillani was proceeded against and convicted under Article 204(2) of the Constitution of the Islamic Republic of Pakistan read with Section 3 of the Contempt of Court Ordinance for defying not only paragraphs No. 177 and 178 of the judgment rendered in the case of Dr. Mobashir Hassan and others. Vs. Federation of Pakistan and others (PLD 2010 SC 265), but many other orders of this Court directing him to write a letter for the revival of the Government’s request to the Swiss Authorities. When despite the conviction of Syed Yousuf Raza Gillani the Speaker declined to refer the question to the Election Commission within 30 days, this Court in the case of Muhammad Azhar Siddique and others Vs. Federation of Pakistan and others (supra) held that since no appeal was filed by Syed Yousuf Raza Gillani against the said judgment, the conviction attained finality; therefore, he has become disqualified from being a Member of the Parliament in terms of Article 63(1)(g) of the Constitution. The ratio of the cases of Imtiaz Ahmed Lali. Vs. Ghulam Muhammad Lali, Muhammad Rizwan Gill. Vs. Nadia Aziz and others, Muddasar Qayyum Nahra. Vs. Ch. Bilal Ijaz and others, Malik Umar Aslam. Vs. Mrs. Sumaira Malik and others and Sadiq Ali Memon. Vs. Returning Officer, NA-237, Thatta-I and others (supra) cited by petitioner in CP. No. 30 of 2016 is not applicable to the case in hand as in those cases disqualification of the candidates or the Members of Parliament was established through evidence on the record. The case of Ch. Zahur Ilahi, M.N.A. Vs. Mr. Zulfikar Ali Bhutto and 2 others (supra) too has no relevance to the case in hand as no issue relating to Articles 204 or 248 of the Constitution of Pakistan has been raised in this case. The case of Mian Najeeb-ud-Din Owasi and another. Vs. Amir Yar Waran and others (supra)deals with implementation of the judgment rendered in the case of Muhammad Rizwan Gill Vs. Nadia Aziz and others (supra), therefore, it does not apply to this case. In the cases of Muhammad Ijaz Ahmad Chaudhry. Vs. Mumtaz Ahmad Tarar and others, Malik Iqbal Ahmad Langrial. Vs. Jamshed Alam and others, Muhammad Khan Junejo. Vs. Federation of Pakistan through Secretary, M/o Law Justice and Parliamentary Affairs and others, Allah Dino Khan Bhayo. Vs. Election Commission of Pakistan, Islamabad and others, Abdul Ghafoor Lehri. Vs. Returning Officer, PB-29, Naseerabad-II and others,Muhammad Siddique and another Vs. Federation of Pakistan, Sadiq Ali Memon Vs. Returning Officer, NA-237, Thatta-1 and others, Mian Najeeb-ud-Din Owasi and another Vs. Amir Yar Waran and another, Mudassar Qayyum Nahra Vs. Ch. Bilal Ijaz and others, Rana Aftab Ahmad Khan Vs. Muhammad Ajmal and another, Haji Nasir Mehmood Vs. Mian Imran Masood and others, Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief Election Commissioner, Islamabad and others, Muhammad Rizwan Gill Vs. Nadia Aziz and others, Muhammad Siddique Baloch Vs. Jehangir Khan Tareen, Rai Hassan Nawaz Vs. Haji Muhammad Ayub and another and Ishaq Khan Khakwani Vs. Mian Muhammad Nawaz Sharif (supra) this Court proceeded to disqualify a good number of persons under Articles 62(1)(f) and 63(1)(c) of the Constitution where the facts constituting such disqualification were proved and admitted on the record. The judgments rendered in the cases of Nawabzada Iftikhar Ahmed Khan Bar Vs. Chief Election Commissioner, Islamabad and others, Muhammad Yasin Vs. Federation of Pakistan through Secretary Establishment Division Islamabad and others, Muhammad Azhar Siddiqui and others Vs. Federation of Pakistan and others,Watan Party and another Vs. Federation of Pakistan and anotherand Muhammad Azhar Siddique and others Vs. Federation of Pakistan and others (supra) cited by learned ASC appearing in C.P. No. 03 of 2017 too are not applicable to the case in hand when the decisions in the said cases were based on undisputed material on the record. The case of Workers Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others Vs. Federation of Pakistan and two others (supra) dealing with different questions has no perceptible relevance to the case in hand. We, therefore, have no hesitation to hold that a question of this nature in the absence of an undisputed evidence cannot be decided by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution.

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 aforesaid 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 14.10.2011 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 correspondence 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 proving 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 clamor for answers to be found by the investigation agency and then by the Accountability Court established under the National Accountability Bureau Ordinance.

17. The third question requiring consideration of this Court is what a person is required to do under the Constitution and the law and whether Articles 62, 63 of the Constitution and Section 99 of the Representation of People Act require any member of Parliament to account for his assets or those of his dependents if they are disproportionate to his known means of income and whether his failure to account for such assets could call for his disqualification. Before we answer this question it is worthwhile to refer to Articles 4, 62 and 63 of the Constitution and Section 99 of the Representation of the People Act which read as under:

4.To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.—

(2) In particular

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not required him to do.”

“62. Qualifications for membership of Majlis-e-Shoora (Parliament).—(l) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless­—

(a) he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any -electoral roll in­—

(i) any part of Pakistan, for election to a general seat or a seat reserved for a non-Muslims; and

(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.

(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins;

(f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and

(g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan:

(2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.]

63. Disqualifications for membership of Majlis-e-Shoora (Parliament).—

(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if­—

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release; or

h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or

i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or

j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or

k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person­—

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XL VII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest;

Explanation.–-In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation supply; or

(m) he holds any office of profit in the service of Pakistan other than the following offices, namely:­—

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or

(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or

(p) he is for the time being disqualified from being elected or chosen as a member of a Majlis-e-Shoora (Parliament) or of Provincial Assembly under any law for the time being inforce.

Explanation.-For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. .

(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

AND

99. Qualifications and disqualifications.–(1)A person shall not be qualified to be elected or chosen as a member of an Assembly unless

(a) he is a citizen of Pakistan;

[(b) he is, in the case of National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll:

(i) in any part of Pakistan, for election to a general seat and minority seat;

and

(ii) in a Province, from where such person seeks membership for election to a seat reserved for women];

(c) he is, in the case of Provincial Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll [as a voter in any area in a Province from where he seeks membership for ] that Assembly;

[(cc) xxxxxxx]

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions ;

(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins ;

(f) he is sagacious, righteous and non-profligate and honest and ameen ;

(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; and

(h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: Provided that the disqualifications specified in clauses (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.

(IA) A person shall be disqualified from being elected as, and from being, a member of an Assembly, if

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an un-discharged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act,1951(11 of 1951),he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, or

[(h) has been convicted by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or

(i) has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a local government on grounds of misconduct or moral turpitude;
or

(j) has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a local government on grounds of misconduct
or moral turpitude; or ]

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or

[(m) Omitted.

(n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family has any share or interest in a contract, not being a contract
between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this clause shall not apply to a person—

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance,1984 (XLV II of 1984),of which he is a shareholder but is not a director holding an office of profit
under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or

Explanation.-In this section “goods ” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty
or obligation to supply;

(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;.

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(p) having, whether by himself or by any person in trust for him or for his benefit or on his account, any share or interest in a contract for

(i) the supply of goods to, or

(ii) the execution of any work, or the performance of any service, undertaken by, the Government, or a local authority or an autonomous body in which the Government has a controlling share or interest, he does not, after
his election as a member but within thirty days of his making oath as such make a declaration in writing to the Commission that he has such share or interest, unless a period of five years has elapsed since his failure to do so; or

(q) being a managing agent, manager or secretary of, or holding any other office carrying the right to remuneration in, any company or corporation (other than a cooperative society)in the capital of which the Government has
not less than twenty-five per cent share or which is managed by the Government, he does not, after his election as a member but within thirty days of his making oath as such, make a declaration in writing to the Commissioner that he is such managing agent,
manager or secretary, or holds such office, unless a period of five years has elapsed since his failure to do so; or

[(r) has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or

(s) has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which
remains unpaid for more than one year from the due date, or has had such loan written off; or

(t) he or his spouse or any of his dependents is in default in payment of government dues or utility expenses, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over
six months, at the time of filing of nomination papers of such person.]

Explanation l.-In this sub-section, service of Pakistan has the same meaning as in Article 260.

(2) Omitted].”

A reading of Article 4 of the Constitution would reveal that no person shall be compelled to do that which the law does not require him to do. While a reading of Articles 62 and 63 of the Constitution and Section 99 of the ROPA would reveal that none of them requires any member of Parliament to account for his assets or those of his dependents even if they are disproportionate to his known means of income. Section 12(2)(f) of the ROPA requires him to disclose his assets and those of his spouse and dependents and not the means whereby such assets are acquired. Where none of the provisions of the Constitution or the Act dealing with disqualifications requires a member of Parliament to account for his assets and those of his dependents, even if they are disproportionate to his known means of income, how could this Court on its own or on a petition of any person under Article 184(3) of the Constitution require him to do that, and declare that he is not honest and ameen if he does not account for such assets. Given Section 9(a)(v) of the Ordinance requires him to account for his assets and those of his dependents and benamidars if they are disproportionate to his known means of income in a trial before an Accountability Court but not in a proceeding under Article 184(3) of the Constitution. Therefore, failure of respondent No. 1 to do that which he is not required by law to do would not be of any consequence. It, thus, cannot call for his disqualification at least at this stage.

18. The fifth question focuses on the liability of a holder of public office if he or any of his dependents or benamidars owns, possesses or has acquired right or title in any assets or pecuniary resources disproportionate to his known means of income which he cannot account for. The answer is provided by Sections 9(a)(v), 10 and 15 of the National Accountability Bureau Ordinance which read as under:-

S.9… Corruption and Corrupt Practices:(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:

i) ………………

ii) ………………

iii) ………………

iv) ……………….

v) if he or any of his dependents or benamidars owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot [reasonably] account for [or maintains a standard of living beyond that which is commensurate with his sources of income].

10.Punishment for corruption and corrupt practices.–(a) [A holder of public office or any other person] who commits the offence of corruption and corrupt practices shall be punishable with [rigorous] imprisonment for a term which may extend to 14 years, [and with fine] and such of the assets and [pecuniary sources] of such [holder of public office or person as are] found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be [***] forfeited to the appropriate government, [or the concerned bank or financial institution as the
case maybe].

[(b) The offences specified in the Schedule to this Ordinance shall be punishable in the manner specified therein.

(c) The Federal Government may, by notification in the official Gazette, amend the Schedule so as to add any entry thereto or modify or omit any entry therein.

(d) Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence.]

15.Disqualification to contest elections [or to hold public office]:– (a) [Where an accused person is convicted [of an offence under Section 9 of this Ordinance], he shall forthwith cease to hold public, office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province :

Provided that any accused person who has availed the benefit of [sub-section (b) of Section] 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.]

(b) Any person convicted of an offence [under Section 9 of the Ordinance] shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances [or other financial accommodation by] any Bank or Financial Institution [owned or controlled by Government], for a period of 10 years from the date of conviction.”

Any liability arising out of these Sections has its own trappings. Any allegation leveled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated. We must draw a line of distinction between the scope of jurisdiction of this Court under Article 184(3) of the Constitution and that of the Accountability Court under the Ordinance and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of the Ordinance lest we condemn any member of Parliament on assumptions by defying the requirements of a fair trial and due process. We cannot make a hotchpotch of the Constitution and the law by reading Sections 9 and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99 of the Act and pass a judgment in a proceeding under Article 184(3) of the Constitution which could well be passed by an Accountability Court after a full-fledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the member of Parliament so proceeded against is not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority. If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the Accountability Court and other Courts in the hierarchy take their own course. Let respondent No. 1 go through all the phases of investigation, trial and appeal. We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and the soul of the rule of law. We also don’t feel inclined to arrogate to ourselves a power or exercise a jurisdiction which has not been conferred on us by any of the acts of the Parliament or even by Article 184(3) of the Constitution. Who does not know that making of a statement on oath in a trial lends it an element of solemnity; cross-examination provides safeguards against insinuation of falsehood in the testimony; provisions of Qanoon-e-Shahadat Order regulate relevancy of facts, admissibility of evidence and mode of proof through oral and documentary evidence and thus ensure due process of law. We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.

19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer. But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice. Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the law and the book. Let us stay and act within the parameters of the Constitution and the law as they stand, till the time they are changed or altered through an amendment therein.

20. The next question emerging for the consideration of this Court is what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1)(f) and 63(2) of the Constitution. To answer this question we will have to fall back upon Articles 62 and 63 of the Constitution. A careful reading of the said Articles would reveal that the one deals with qualifications of a person to be elected or chosen as a member of Parliament while the other deals with disqualifications of a person not only from being elected or chosen but also from being a member of Parliament. If a candidate is not qualified or is disqualified from being elected or chosen as a member of Parliament in terms of Articles 62 and 63 of the Constitution, his nomination could be rejected by the Returning Officer or any other forum functioning in the hierarchy. But where the returned candidate was not, on the nomination day, qualified for or disqualified from being elected or chosen as a member, his election could be declared void by the Election Tribunal constituted under Article 225 of the Constitution. While election of a member whose disqualification was overlooked, illegally condoned or went unquestioned on the nomination day before the Returning Officer or before the Election Tribunal, could still be challenged under Article 199(1)(b)(ii) or Article 184(3) of the Constitution of Pakistan, 1973 as was held in the cases of Lt. Col. Farzand Ali and others. Vs. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) and Syed Mehmood Akhtar Naqvi. Vs. Federation of Pakistan through Secretary Law and others (PLD 2012 S.C. 1054). However, disqualifications envisaged by Article 62(1)(f) and Article 63(2) of the Constitution in view of words used therein have to be dealt with differently. In the former case the Returning Officer or any other fora in the hierarchy would not reject the nomination of a person from being elected as a member of Parliament unless a court of law has given a declaration that he is not sagacious, righteous, non-profligate, honest and ameen. Even the Election Tribunal, unless it itself proceeds to give the requisite declaration on the basis of the material before it, would not disqualify the returned candidate where no declaration, as mentioned above, has been given by a court of law. The expression “a court of law” has not been defined in Article 62 or any other provision of the Constitution but it essentially means a court of plenary jurisdiction, which has the power to record evidence and give a declaration on the basis of the evidence so recorded. Such a court would include a court exercising original, appellate or revisional jurisdiction in civil and criminal cases. But in any case a court or a forum lacking plenary jurisdiction cannot decide questions of this nature at least when disputed. In the latter case when any question arises whether a member of Parliament has become disqualified it shall be dealt with only by the Election Commission on a reference from the Speaker of the Parliament in terms of Article 63(2) and 63(3) of the Constitution. (Emphasis supplied). We would have sent this case to the Speaker in terms of 63(2) or the Election Commission in terms of Article 63(3) of the Constitution but we do not think a question of such nature has arisen in this case as respondent No. 1 has been alleged to be disqualified even on the nomination day on account of having failed to disclose his assets and those of his dependents.

21. Now we take up the question whether a case for disqualification of respondent No. 1 in terms of Article 62(1)(f) of the Constitution is spelt out by the speeches he delivered inside and outside the Parliament and whether such speeches in view of the provisions contained in Article 66 of the Constitution could be used to his detriment. The case of the petitioners is that speeches delivered by respondent No. 1 inside and outside the Parliament are false because of their being in conflict with the statements of respondents No. 7 and 8 and contradictory to his own stance taken in his concise statement and that the privilege in terms of Article 66 of the Constitution is not available to him when the matter addressed in his speech delivered in the Parliament was essentially personal. But mere contradiction between the speeches of respondent No. 1 and statements of respondents No. 7 and 8 does not prove any of his speeches false or untrue unless it is determined after examining and cross-examining both of them that their statements are correct and true. Where it is not determined that statements of respondents No. 7 and 8 are correct and true, no falsity could be attributed to the speeches of respondent No. 1. If at all, the speeches of respondent No. 1 are sought to be used to incriminate him for declaring that he is not honest and ameen, he has to be confronted therewith. Where no effort was made to prove the statements of respondents No. 7 and 8 to be true and correct, nor was respondent No. 1 confronted with his speeches, it would be against the cannons of law of evidence to use such speeches against him. Once we hold that neither of the speeches of respondent No. 1 could be used against him, the question of availability of privilege under Article 66 of the Constitution shall become irrelevant.

22. Many other arguments have been addressed and many other judgments have been cited at the bar by the learned ASCs for the petitioners as well as the respondents but as we have held above that the allegations leveled against respondent No. 1 require investigation by the investigation agency and determination by an Accountability Court, we need not comment on them at this stage lest it prejudices the case of any of the parties.

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;

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;

iv) a nominee of the State Bank of Pakistan (SBP);

v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and

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.

JUDGE

Gulzar Ahmed, J.— I have read the proposed judgment authored by my learned brother Asif Saeed Khan Khosa, J. and observe that his lordship in his usual way has very elaborately and eloquently dealt with all the matters and points raised during hearing of these Constitution Petitions and has given a very able and well reasoned judgment to which I agree. I, however, wish to add my own note dealing with singular point which in my estimation is the most crucial and much central to all the questions which have been raised during the course of arguments before us.

2. I may, at the outset, clarify and emphasize that this Court under Article 184(3) of the Constitution has all the jurisdiction to give any sort of declaration and to pass any consequential order that may be the need of the case which may arise out of any of the given facts and circumstances. In this regard, this Court has given its judgments time and again in which this matter has specifically been dealt with and answered to which I will be making reference and discussing them herein below.

3. What is the nature of jurisdiction that has been conferred upon this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called “the Constitution”). Such Article is reproduced as follows:-

“184(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

On reading of this very Article, it is clear that this Court has been conferred with a power to make an order of nature mentioned in Article 199 of the Constitution and such power is without prejudice to the said Article meaning that this Court is not constrained with any of the technicalities or any of the conditions that may have been imposed on the High Court for exercising jurisdiction under Article 199 of the Constitution. This Court has been given free and unbridled powers to make an order of a nature, as mentioned above, if it considers that the question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved. In the case of Shahid Pervaiz & others v Ejaz Ahmad & others [2017 SCMR 206], this Court has held that where any of the provisions of law made by the Parliament or otherwise comes in direct conflict with the Fundamental Rights of the citizen conferred by Chapter 1 Part II of the Constitution, the same can be declared as non-est. In the case of Lahore Bachao Tehrik v Dr. Iqbal Muhammad Chauhan & others [2015 SCMR 1520] this Court has held that the rules of acquiescence, waiver, estoppels and past and closed transaction or any other rule having nexus to such concepts would not at all be relevant when this Court is exercising jurisdiction under Article 184(3) of the Constitution. In the case of Anjum Aqeel Khan & others v National Police Foundation through M.D & others [2015 SCMR 1348], while considering power of the Chairman, National Accountability Bureau, this Court observed that under Article 184(3) of the Constitution it has very wide and vast powers and if the Court considers that a question of public importance with reference to the enforcement of the Fundamental Rights conferred by the Constitution was involved it has jurisdiction to pass appropriate orders. In the case of Ali Azhar Khan Baloch & others v Province of Sindh & others [2015 SCMR 456], this Court has observed that in order to exercise jurisdiction under Article 184(3) of the Constitution, requirement of the Constitution is that this Court has to consider that question of public importance with reference to enforcement of Fundamental Rights conferred by Chapter 1 Part II of the Constitution is involved, it has jurisdiction to pass appropriate orders notwithstanding that there might be an alternate remedy. Observing that the word “consider” being related to the subjective assessment of this Court and this Court is the final authority upon the matter affecting judicial determination on the scope of constitutional provisions thus once the Supreme Court arrived at a conclusion that the question of public importance, having nexus with the Fundamental Rights guaranteed by the Constitution, has been raised the exercise of its jurisdiction under Article 184(3) of the Constitution cannot be objected to either by the Government or by any other party. This Court , in the case of Khalid Iqbal & 2 others v Mirza Khan & others [PLD 2015 Supreme Court 50] has observed that power of the Supreme Court to revisit its earlier decision or depart from it and while dealing with the scope stated that the Constitution did not impose any restriction or bar on the Supreme Court to revisit its earlier decisions or even to depart from them nor the doctrine of stare decisis would come in its way so long as revisiting of the judgment was warranted in view of the significant impact of the Fundamental Rights of the citizen or in the interest of public good. This Court has absolute powers to revisit, review or set aside its earlier judgments and orders by invoking its suo motu jurisdiction under Articles 184(3), 187 or 188 of the Constitution and that for exercising such inherent jurisdiction, the Court is not dependent upon an application being made by a party. In the case of Jamshoro Joint Venture Limitted & others v Khawaja Muhammad Asif & others [2014 SCMR 1858], this Court has held that under Article 184(3) of the Constitution, the scope of powers of the Court is that suit pending before a Court containing a matter raised in the Constitution Petition this Court has held as follows:

“This Court while exercising jurisdiction under Article 184(3) of the Constitution has ample power to adjudicate upon and consider the question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by the Constitution and the jurisdiction of this Court will not be fettered or restricted merely for the reason that some suit is pending on any of the questions involved in the matter for that would be of subordinate consideration when dealing with the question of public importance with reference to the enforcement of any of the Fundamental Rights which are of supreme importance and have a much wider connotation and implication to the public at large.”

In the case of Asaf Fasihuddin Khan Vardag v Government of Pakistan & others [2014 SCMR 676], while dealing with the question of appointments made by the Government without adverting to the merits, this Court has observed that under Article 184(3) of the Constitution it has wide powers to ensure that acts, actions of other organs of the State namely executive, legislature did not breach the Fundamental Rights guaranteed by the Constitution under the principle of trichotomy of powers, the judiciary was entrusted with the responsibility of enforcement of Fundamental Rights which called for independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights were nullified and the rule of law was upheld in the society. In Human Rights case No.14392 of 2013 etc [2014 SCMR 220], this Court exercising jurisdiction under Article 184(3) of the Constitution on newspaper clipping regarding unprecedented load-shedding in the country and increase in electricity prices, lack of availability of gas for production of electricity, gas load management policy of the Government, priority of supply of gas to different sectors, supply of gas to fertilizer companies on subsidized rates in bulk, under Article 184(3) of the Constitution gave directions to the Government for regularizing supply of gas etc. In the case of Abdul Wahab & others v HBL & others [2013 SCMR 1383], this Court has dealt with the scope under Article 184(3) of the Constitution and held that the restraints, constraints and limitations, if any, in Article 199 of the Constitution might not stricto sensu be attracted to the jurisdiction of the Supreme Court under Article 184(3) of the Constitution in view of the expression “without prejudice” appearing at the very opening of Article 184(3) meaning thereby “without any detriment” (i.e. without being harmed or damaged or hurt). However, the Supreme Court has the powers and jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and apply to rules of restraints besides Article 184(3) of the Constitution itself has its own limitations and conditions which are that matter before the Supreme Court should be for the enforcement of any of the Fundamental Rights conferred by Chapter 1 Part-II of the Constitution and the question involved should be of public importance and that they are sine qua non i.e. both conditions must be first established and the case must be established by the petitioner in the case and shown to co-exist before enabling the Court to exercise its jurisdiction in terms of Article 184(3) of the Constitution. In the case of Maulana Abdul Haque Baloch & others v Government of Balochistan through Secretary Industries & Mineral Development & others [PLD 2013 Supreme Court 641], this Court dealt with the matter of Cooper and Gold reserves in Reko Diq area of the Province of Balochistan and examined the Joint Venture Exploration agreement between the Provincial Development Authority and respondent company and highlighted irregularities and ille

SH. AZMAT SAEED, J.- I have had the privilege of reading the judgments of my learned brothers Ejaz Afzal Khan and Ijaz ul Ahsan, JJ. I find myself, in principle, in agreement with the conclusions drawn in the said judgments. However, in order to elaborate the reasons, which have prevailed with me, I have added my following additional note.

2. The instant matter attracted more public interest and media attention than anyone expected. Some of such attention unfortunately was contaminated with factually incorrect opinions, legally fallacious concepts and predicted decisions, which were bounced around on the airwaves every evening.The temptation to restrain such media coverage and public comments was resisted. Freedom of expression and press is a right enshrined in Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 and this Court is bound to defend the same. An open Court is the essence of our Legal System. Restraining comments on the Court proceedings would perhaps negate the very concept of an open Court. Being insulted from all criticism, it can do more harm to an Institution than a little unfair criticism. In the instant cases, strong emotions were unleashed from both sides of the aisle but this Court cannot allow itself to succumb to populism and must remain steadfast to its oath. We cannot be tempted to pronounce a popular decision but must decide all cases in accordance with law without fear or favour, affection or ill-will.

3.Tragically, some of such legal fallacies of the often ill-informed and misguided public debate penetrated into the Courtroom, hence, it has become imperative to address the same even at the risk of stating the obvious.

4. Constitution Petitions Nos.29 and 30 of 2016, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, have been variously filed by the two Members of the National Assembly, who are also the Heads of their respective Political Parties currently in the Opposition. It has been alleged that in the first week of April, 2016, documents, purportedly the record of a Panama based Law Firm, Mossack-Fonseca were leaked, released and published in the International Media, the world over. The said Law Firm was apparently involved in establishing, structuring and managing Offshore Companies on behalf of its clients from all over the world, including Pakistan. It is in the above backdrop, the Petitioners filed the aforesaid two Constitution Petitions.

5.In pith and substance, it is the case of the Petitioners in Constitution Petitions Nos.29 and 30 of 2016 that, primarily, as per the information in the public domain, purportedly emanating from the aforesaid leaks, commonly referred to as the Panama Papers, various assets, properties and businesses held in the name of Offshore Companies and other entities are, in fact, owned by Respondent No.1 i.e. the Prime Minister of Pakistan and the members of his family, including Respondents Nos.6 to 8. It is alleged that such assets have neither been declared in the Nomination Papers of Respondent No.1 nor the source of funds for the acquisition thereof disclosed.

6.Initially, the Respondents did not take any objection to the maintainability of the instant petitions under Article 184(3) of the Constitution. This Court vide its order dated 03.11.2016 passed in Constitution Petition No.29 of 2016 held that the questions raised were of public importance and involved, the enforcement of Fundamental Rights. The precedent law on the subject as laid down by this Court was cited and relied upon. However, during the course of the proceedings, on behalf of the Attorney General for Pakistan, a question was raised to the effect that there is no issue regarding the enforcement of Fundamental Rights involved in these proceedings. Furthermore, the learned counsels for Respondents also contended that disputed questions of facts had emerged, which could not be adjudicated upon by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution.

7. The foundation of our Constitutional dispensation as is evident from the Constitutional provisions, more particularly, the opening lines of its Preamble is that the Sovereignty vests in Almighty Allah and authority is to be exercised by the people of Pakistan through their chosen representatives. This is the heart and soul of our Constitution, which is also reflected in Article 17, the Fundamental Right of “Freedom of association”. It is an unalienable right of the people of Pakistan to be governed by and under the authority of their chosen representatives. A right on which the entire edifice of our Constitutional and Legal Framework rests. This aspect of the matter in the context of the jurisdiction of the Court under Article 184(3) of the Constitution has been considered in various judgments of this Court, including the judgment, reported as Air Marshal (Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), wherein it has been observed, inter alia, as follows:-

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

“The Constitution of the Islamic Republic of Pakistan commands that it is the will of the people of Pakistan to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people, wherein the principles of democracy, freedom, equality, etc., shall be fully observed, so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world, and make their full contribution towards international peace and progress and happiness of humanity. People of Pakistan had been struggling to establish a parliamentary and democratic order since long within the framework of the Constitution and now they foresee a strong system which is established by the passage of time without any threat and which is subject to the constitution and rule of law.

2. The essence of this Human Rights case is based on the fundamental right of citizens enshrined in Article 17 of the Constitution. It raises an important question of public importance to enforce the fundamental rights, inter alia, noted hereinabove, therefore, in accordance with the provisions of Article 184(3) of the Constitution, jurisdiction has been assumed and exercised to declare, for the reasons to be recorded later, as under:-

(1) That citizens of Pakistan as a matter of right are free to elect their representatives in an election process being conducted honestly, justly, fairly and in accordance with law. …”

8. If the authority is exercised by an alien body i.e. other than the chosen representatives of the people of Pakistan then will the laws made by some alien body qualify as “law” in terms of Article 5 of the Constitution and will the citizens of the Pakistan be under any legal obligation to obey the same?

9.Thus, to exercise authority on their behalf by their chosen representatives is the most foundational of all the Constitutional rights of the people of Pakistan, if a disqualified person, as alleged, usurps such role and thereafter becomes the Prime Minister surely such right of the people is effected and is liable to be enforced by this Court. The contentions of the learned Attorney General for Pakistan to the contrary cannot be accepted and it is reiterated that these Petitions under Article 184(3) of the Constitution are maintainable.

10. A close scrutiny of the case of the Petitioners, more particularly, as is obvious from the contents of Constitution Petitions No.29 & 30 of 2016 and the prayers made therein reveals that a two pronged attack has been made. On the one hand, it is the case of the Petitioners that Respondent No.1 Mian Muhammad Nawaz Sharif is disqualified from being a Member of the Majlis-e-Shoora in view of non-disclosure of the properties i.e. Flats. No 16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London owned by him through his dependent daughter Maryam Safdar i.e. Respondent No.6, in his Nomination Papers. It is also prayed that Respondents Nos.9 and 10 are also disqualified from holding such public office and liable to be prosecuted for abetting the other private Respondents.

11. Furthermore, it is alleged that Respondent No.1 and the other private Respondents in their various public statements and interviews have neither honestly nor successfully explained the source of funds for the acquisition of the properties in question i.e. Flats No.16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London, hence, are guilty of an offence under Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999, hence, they are liable to be prosecuted and punished thereunder.

12. Disqualification from being a Member of the Majlis-e-Shoora on account of non-declaration or false declaration of assets and prosecution and punishment for inability to explain the source of funds for acquisition of such assets have their genesis in two separate sets of Statutes with different principles of law involving distinct and separate jurisprudence, hence, intermingling the two would be illogical, patently illegal and may lead to a gross miscarria

IJAZ UL AHSAN, J-. I have had the privilege of going through the scholarly judgments handed down by my learned brothers Ejaz Afzal Khan and Sh. Azmat Saeed, JJ. I agree with the conclusions drawn by them. However, considering the importance of the issues raised in the matter, I have recorded my own opinion.

2. Through these petitions filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), the Petitioners seek inter alia a declaration from this Court to the effect that Respondents No.1, 9 and 10 are disqualified to be Members of the National Assembly. Directions are also sought to Respondents No.2, 3, 4 & 5 to discharge their legal obligation with reference to the allegations of involvement of Respondents No.1, 9 & 10 in corruption, money laundering and owning assets beyond their known means.

3. The allegations stem from information coming into public domain on the basis of documents recovered from the database of Mossack Fonseca, a law firm operating in Panama. It appears to be engaged in the business of setting up and structuring offshore companies. The documents were placed on the website of International Council of Investigative Journalists (ICIJ) and are commonly referred to as the ‘Panama Papers’. The case of the petitioners is primarily based on information and documents downloaded from the said website. It is alleged that Respondent No.1 who is the Prime Minister of Pakistan and members of his family i.e. Respondents No.6, 7 & 8 namely Mrs. Maryam Safdar, Mr. Hussain Nawaz Sharif and Mr. Hasan Nawaz Sharif own various offshore companies including Nescol Limited and Nielsen Enterprises Limited. These companies are registered in the British Virgin Islands (BVI) and are special purposes vehicles for ownership of four residential flats bearing Nos.16, 16-a, 17 & 17-a, Avenfield House No.118, Park Lane, London (Mayfair Properties). It is also alleged that the properties in question, ostensibly owned by Respondent No.6, are in fact owned by Respondent No.1, in addition to other businesses being run by Respondents No.6 & 7. Such assets and businesses having been acquired / started when Respondents No.6 & 7 were in their early 20’s and had no independent sources of income. Respondent No.6 is the daughter of Respondent No.1 and is his dependent and has been so declared in his Wealth Tax Returns of 2011. However, Respondent No.1 had failed to declare assets of his dependent daughter in the Nomination Papers filed by him for his election to the National Assembly his annual Statement of Assets and Liabilities required to be filed under the Representation of People Act, 1976 (RoPA) and the Rules framed thereunder as well his Tax Returns. Such concealment of facts, it is averred must lead to his disqualification in terms of the RoPA read with Article 62 of the Constitution. It is further alleged that Respondents No.7 & 8 who are sons of Respondent No.1 are also conducting businesses through offshore companies. The sources of funding for the Mayfair Properties as well as other businesses of the children of Respondent No.1 has been questioned.

4. Additionally, it has been alleged that Respondent No.1 is involved in tax evasion and has failed to declare/pay tax on amounts received by way of purported gifts in foreign exchange from Respondent No.7. It has also been alleged that when the aforesaid information was highlighted by the local as well as the international media, Respondent No.1 addressed the Nation on the television on 05.04.2016 and also delivered a speech in the National Assembly on 16.05.2016 to clear his position. He denied having committed any wrongdoing and took the stance that his children were doing legitimate businesses with legitimate funds and that the Mayfair Properties had been acquired with funds generated from business transactions in Dubai/Saudi Arabia. He also stated that all requisite information/records were available and will be produced before the appropriate fora as and when required.

5. Considering that ownership of the offshore companies/Mayfair Properties had not been denied and prima facie questions of public importance had been raised, we entertained these petitions.

6. Notices were issued to the Respondents who filed their concise statements/supplementary concise statements and a large number of documents during the course of proceedings before us. These have been carefully examined and considered. The stance taken by Respondents No.1, 6, 7 & 8 with regard to their businesses, Mayfair Properties/offshore companies and source of funds was more or less the same as taken by Respondent No.1 in his aforesaid speeches. However, during the course of proceedings before us, the above stated position was abruptly changed and a position was taken that Mayfair Properties had been acquired by Respondent No.7 by way of a business settlement with Al Thani Family of Qatar (Thani Family) with whom the late father of Respondent No.1 had longstanding personal and business relationship. It was therefore stated that proceeds of sale of family business of Respondent No.1 in Dubai (Gulf Steel) had been invested in the real estate business of the Thani Family in Qatar which culminated in the afore-noted settlement/acquisition of shares in the offshore companies/Mayfair Properties. A letter dated 05.11.2016 purportedly written by Sheikh Hamad bin Jassim bin Jaber Al Thani (Sheikh Hamad) was initially produced before us. This was followed by another letter dated 22.12.2016. Likewise, to counter the allegation that Respondent No.6 owned the Mayfair Properties and that Respondent No.1 had failed to disclose the same in his nomination papers, a ‘declaration of trust document’ dated 2/4 February, 2006 was also produced before us claiming that Respondent No.6 was a trustee of Respondent No.7 to hold bearer shares in the Nescol Limited andNielsen Enterprises Limited, the special purposes vehicles which own the Mayfair Properties. The parties have attached copies of various other documents with their respective pleadings.

7. Syed Naeem Bukhari, learned ASC, appearing for the petitioner in Constitution Petition No.29 of 2016 has made the following submissions to support his case:-

  1. That Respondent No.1 (Mian Muhammad Nawaz Sharif) addressed the Nation on 05.04.2016 in response to the allegations that he and his family had indulged in money laundering & corruption and had illegally acquired assets and properties including Mayfair Properties which were the subject matter of Panama Papers. In the said speech, he had stated that when he and his family were forcibly exiled, his father (Mian Muhammad Sharif) had set up a Steel Mill in Saudi Arabia. Funds for the said project were provided by the Saudi Banks by way of loans. A few years later the said Steel Mills along with all its assets, was sold and the funds thus generated were utilized by his two sons namely Hussain Nawaz Sharif and Hassan Nawaz Sharif i.e. Respondents No.7 & 8 herein, for setting up their new businesses. It was disclosed by Respondent No.1 that Respondent No.8 had been residing in London since 1994 while Respondent No.7 was residing in Saudi Arabia since the year 2000. In this regard, the learned counsel has pointed out that although it was claimed by Respondent No.1 that the factory in Saudi Arabia was set up with loans obtained from Saudi Banks, no documentation to substantiate such assertion has been placed on record. Further, there is neither any mention of the sale price for which the factory in Saudi Arabia was sold nor has any document been placed on record in this regard. He has also emphasized the fact that there is no mention of any investment in Dubai in the afore-noted address of Respondent No.1. He has also stressed the point that no money trail has been shown either orally or through any documentation.
  1. That Respondent No.1 thereafter addressed the National Assembly on 16.05.2016. In this address, he (Respondent No.1) improved upon his earlier speech and gave further details regarding the sources of funds allegedly generated from business of his family. It was stated by Respondent No.1 that in April, 1980 a Steel Mill operating under the name and style of Gulf Steel Mill which had earlier been established by his father with funds obtained from Banks in Dubai was sold for a sum of Rs.33.37 Million Dirhams equivalent to 9 Million US$. Respondent No.1 stated that funds generated from the sale of Gulf Steel Mill also helped his family in setting up the factory at Jeddah, Saudi Arabia.
  1. That it was claimed by Respondent No.1 that the factory at Jeddah was sold in June, 2005 for a sum of 64 Million Riyals equivalent to 17 Million US$. The Respondent No.1 also claimed that all records regarding Dubai and Jeddah factories were available and would be presented as and when required by the competent authorities. He further claimed that the above were the sources and means from which the Mayfair Properties were purchased.
  1. That Respondent No.7 in an interview, transcript whereof has been placed on record through CMA No.7319 of 2016 filed on 07.11.2016, took the stance that the source of funds for purchase of the Mayfair Properties was the investment made by his late grandfather (Mian Muhammad Sharif) in the year 1980 from the sale proceeds of his steel business in Dubai. The petitioner urges that there is a clear contradiction between the statements of Respondent No.1 and Respondent No.7 in so far as Respondent No.1 claims that the funds generated from sale of Gulf Steel Mill were utilized in setting up of the Steel Mill in Jeddah while Respondent No.7 claims that the said funds were invested and utilized for purchase of the Mayfair Properties.
  1. Learned ASC has vehemently argued that neither Respondent No.1 nor Respondents No.6 to 8 have disclosed the true facts before this Court. He maintains that the documents presented before this Court including the Tripartite Contract of 1978 for sale of shares clearly indicate that Gulf Steel Mill was a financial disaster, there were huge outstanding dues and the entire sale price received from sale of 75% shares in the company was utilized in clearing the amounts owed to the creditors. He further submits that even after settlement of dues of BCCI, there were other liabilities in substantial amounts which were required to be cleared by the family of Respondent No.1. It appears that the said liabilities may have been cleared, however, the resources which were utilized for such clearance are shrouded in mystery. The learned counsel maintains that the only logical explanation for settlement of the dues is that this was done through undeclared wealth.
  1. That the Mayfair Properties were held in the names of two offshore companies namely Nescol Limited and Nielsen Enterprises Limited. The beneficial owner of the properties in question was Respondent No.6 who is the daughter of Respondent No.1 and she at all relevant times was and continues to be a dependent of the latter. As such he was obliged to declare her beneficial ownership of the Mayfair Properties not only in his Wealth Statements but also in his Nomination Papers filed with the Election Commission of Pakistan for contesting the General Election, 2013 and his annual Statement of Assets and Liabilities. Adds that by concealment, withholding and mis-declaration made by him in his Nomination Papers, the Respondent No.1 had been proved to be neither “sadiq” nor “Ameen” and rendered himself liable to be disqualified in terms of Article 62 read with Article 63 of the Constitution.
  1. Learned counsel submits that Nescol Limited was incorporated in British Virgin Islands (BVI) as an International Business Company on 27.01.1993. It holds Flats No.17 & 17-a, and Nielsen Holdings Limited later renamed as Nielsen Enterprises Limited was registered on 04.08.1994 and holds Flats No.16 & 16-a. On 22.11.1994 bearer certificate of Nielsen Enterprises Limited was issued in the denomination of 1US$ which was subsequently cancelled. Likewise a bearer certificate was also issued by Nescol Limited which was also cancelled. Subsequently, in 2006 shares were issued in favour of Minerva Nominees Limitedwhich became the shareholder of both BVI Companies. He has argued that holding of shares in the said companies was changed from time to time in order to hide the real ownership of the companies beneath layers of shadow companies.
  1. Learned counsel has vehemently questioned the letters produced on behalf of Respondents No.6 to 8. The said letters which were purportedly issued by Sheikh Hamad on 05.11.2016 and 22.12.2016 (Qatari Letters) state that since his father had a business relationship with the father of Respondent No.1 and grandfather of Respondents No.6 to 8 (Mian Muhammad Sharif), the funds generated from sale of 25% shares in the Gulf Steel in the sum of 12 Million Dirhams, were invested in the business of the Thani family in Qatar which had instructions from Mian Muhammad Sharif that the beneficiary of these funds will be his grandson namely Respondent No.7. According to the Qatari letters, in the year 2006 accounts of the business were settled, and by way of settlement it is claimed that bearer certificates of Nescol Limited and Nielsen Enterprises Limited, the two companies which held the Mayfair Properties, were handed over to the representative of Respondent No.7. He further submits that the letters of the Sheikh Hamad are fabrications and concoctions, the same have been produced by way of an afterthought in order to cover up the illegalities and money laundering. He has been pointed out that even otherwise, there was no mention of any business in Qatar either in the address of the Respondent No.1 to the Nation or in his speech in the National Assembly a month later.
  1. The learned ASC submits that the Mayfair Properties were purchased by the family of Respondent No.1 between the period from 1993-96 through funds which were not legitimate and were the result of corrupt and illegal practices including money laundering. He has also drawn our attention to the Wealth Statements of Respondent No.6 for the year 2011, in Column No.12 at page 68 of CP#29 of 2016 under title “Assets, if any, standing in the name of spouse, minor children & other dependents” whereof Respondent No.1 had mentioned that there was land in the name of his daughter Maryam Safdar (Respondent No.6) valuing Rs.24,851,526/-. He has further pointed out that Respondent No.1 by way of gift received a sum of Rs.129,836,905/- in the year 2011 from Respondent No.7. Out of the said amount, a sum of Rs.31,700,000/- was gifted by Respondent No.1 to Respondent No.6 while an amount of Rs.19,459,440/- was presumably gifted to his son Hasan Nawaz. Further stated that 13 Crores of Rupees were received by Respondent No.1 from his sons between 2011 to 2016. He submits that the sources of funds to finance business of Respondents No.7&8 are also shrouded in mystery. It has nowhere been explained how Respondents No.7&8 had such large sums of money available to them which could finance the steel business of Respondent No.7 in Saudi Arabia and real estate business of Respondent No.8 in the UK.
  1. That neither the Respondent No.6 nor Respondent No.9 who is her husband have any independent source of income and are solely dependent upon funds made available to them by Respondent No.1 and Respondents No.7 & 8 by way of gifts. He therefore maintains that for all intents and purposes, Respondent No.6 continues to be a dependent of Respondent No.1. Adds that having concealed the said 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. That between the years 2011-15 Respondent No.1 received an aggregated sum of Rs.741,298,44/- by way of gifts from Respondents No.7 & 8. He argues that the said gifts constituted income from other sources and were taxable. But he did not pay any taxes on the said gifts which exposes him to the mischief of Article 63 of the Constitution. He further maintains that there is no indication regarding the sources and the accounts from which Respondents No.7 & 8 remitted such huge amounts to Respondent No.1. In this regard, reference has been made to Section 39(3) of the Income Tax Ordinance, 2001.
  1. As far as Respondent No.6 is concerned, learned counsel has reiterated that neither she nor her husband have any independent source of income. Her Income Tax Returns/Wealth Statements show ownership of assets either by way of gifts or loans without disclosing any other source of income. He therefore relies on the meaning of word “dependent” as defined in Oxford English Dictionary and submits that a person who relies on another for support and sustenance falls within the definition of “dependent”.
  1. That since Respondent No.6 is a dependent of Respondent No.1 he was obliged to disclose her beneficial ownership of Nescol Limited and Nielsen Enterprises Limited, BVI Companies which own the Mayfair Properties. He relies on a letter issued by Errol George dated 12.06.2012 and the replies sent by Mossack Fonseca which state that the beneficial ownership of both Companies is with Respondent No.6.
  1. Learned counsel has raised serious doubts about the Trust Deed dated 02.02.2006 signed by Respondent No.6 on the same date and Respondent No.7 on 04.02.2006 according to which Respondent No.7 is the beneficial owner of both Companies and hence the Mayfair Properties are held by Respondent No.6 on trust for Respondent No.7. Further submits that the said document is fake, fabricated and not worthy of any reliance.
  1. Learned ASC has also drawn our attention to an interview given by Respondent No.8 namely Hassan Nawaz to a British Journalist in November, 1999. In the said interview, Respondent No.8 allegedly stated that he was residing in one of the Mayfair Properties on rent; was a student and earning nothing; was not aware who was the real owner; and rent for the said properties was sent to him by his family from Pakistan. Submits that Respondent No.8 became a Director of Flagship Investments Limited on 12.04.2001 much before the sale of Al Azizia Steel Mills, Jeddah in June 2005 injecting substantial sums of money in his company.
  1. Learned counsel has vehemently argued that while Respondent No.1 asserts that it was the sale of Saudi factory in June 2005 which provided funds for his sons to start their businesses yet the interview given by his son to the British Journalist completely negates that story. Adds that even otherwise, there is no explanation of funds becoming available to Respondent No.8 for setting up of Flagship Investments Limited and availability of funds to undertake real estate business in the UK. He therefore submits that stories given by Respondent No.1 in his first and second addresses and the interviews given by members of his family to various media outlets clearly contradict each other.
  1. Referring to the Trust Deed whereby Respondent No.6 has been shown as trustee on behalf of Respondent No.7, it is argued that the document in question has neither been stamped nor attested as required by law. Further, creation of the Trust was never communicated to Mossack Fonseca which on 22.06.2012 confirmed, after making the requisite inquiries that Respondent No.6 was the beneficial owner of Nescol Limited and Nielsen Enterprises Limited.
  1. Learned ASC has also drawn our attention to a copy of judgment and decree passed by the London High Court on 18.03.1999 against Hudaibiya Paper Mills Limited (HPML). He submits that Respondents No.6 to 8 are included in the list of Directors of the said Company which borrowed funds from Al-Tawfeeq Investment Company in London. HPML defaulted on its loan which led Al-Tawfeeq Investment Company to file a suit for recovery of its dues which was decreed. Under the decree, Mian Muhammad Sharif, Mian Muhammad Shahbaz Sharif, Mian Muhammad Abbas Sharif and HPML were required to pay about 34 Million US$ to the decree holder. The said amount was not paid which led to an order dated 05.11.1999 whereby attachment of the Mayfair Properties was ordered for recovery of the decretal amount. Further, the record indicates that the attachment was not implemented in so far as the amount of 34 Million US$ was apparently paid which led to an application for withdrawal of caution / attachment on the aforesaid flats by the Bank. Learned counsel submits that in case the family of Respondent No.1 did not have any right, title or interest in the flats in question why and from what source the decretal amount was paid leading to withdrawal of the caution and release of charge on the Mayfair Properties.
  1. That the debacle of HPML also led to filing of a Reference by the National Accountability Bureau (NAB) against the family of Respondent No.1 in the Accountability Court. However, the said Reference lay dormant for about 10 years. In the said Reference, a statement was made by Respondent No.10 disclosing details of money laundering on part of Respondent No.1 and his family. However, the said Reference was quashed by the Lahore High Court without leaving an option with the NAB to reinvestigate the matter. He maintains that the Chairman, NAB Respondent No.2 herein in connivance with the private Respondents did not challenge the order of the Lahore High Court before this Court and deliberately allowed the judgment of the High Court to remain in the field in order to help the accused. He therefore seeks a direction to the Chairman, NAB to perform his duties in accordance with law.
  1. Learned counsel maintains that Respondent No.1 has neither been just nor honest to the Nation either in his speech on the electronic media or on the floor of the National Assembly. That a series of false statements made by the Prime Minister stand established which shows that he is neither just nor honest and is disqualified to be a Member of the Parliament or to hold the office of the Prime Minister. In support of his contention, the learned counsel relies on Workers’ Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681), Watan Party v. Federation of Pakistan (PLD 2011 SC 997) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1).
  1. That the Prime Minister has evaded taxes which were payable on gifts received by him from his sons. He is therefore hit by the provisions of Article 63 of the Constitution. Further, that Respondent No.1 has been untruthful in denying that Respondent No.6 was his dependent and has failed to disclose his beneficial ownership of the Mayfair Properties. He points out that Respondents No.6 to 8 repeatedly contradicted Respondent No.1 and have come out with totally contradictory versions in the matter. He maintains that the letters issued by the Sheikh Hamad dated 05.11.2016 and 22.12.2016 are desperate attempts to cover up money laundering and acquisition of assets with such money. Even otherwise, the document in question is not worthy of reliance.
  1. That the Mayfair Properties were purchased by the Prime Minister and his family in 1993/96, their purchase could only materialize through money laundering which stands established from the record. He finally submits that Respondent No.1 has evaded taxes on a sum of Rs.74 Crores which was admittedly received as gifts from his sons which renders him ineligible to be Member of the Parliament or to hold the office of the Prime Minister.
  1. Lastly, he submits that the Federal Board of Revenue (FBR) as well as the NAB should be directed to proceed against Respondent No.1 in accordance with law.

8. Mr. Muhammad Taufiq Asif, learned ASC for the petitioner in Constitution Petition No.3 of 2017, has submitted that a declaration was being sought to the effect that Respondent No.1 was not sadiq and ameen in terms of Article 62 read with Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, he has made the following submissions:-

  1. That the contents of speech of Respondent No.1 in the National Assembly on 16.05.2016 were misleading and incorrect. That twice in the said speech it was stated that he (Respondent No.1) and his family had been sent into forced exile against their will and that subsequent events had proved that he (Respondent No.1) had left the country voluntarily as a result of a deal. At this juncture, it was pointed out to the learned counsel that the question whether or not Respondent No.1 had been sent into exile against his will had been dealt with by this Court in a judgment reported as Muhammad Nawaz Sharif v. State [PLD 2002 SC 814] in which while dealing with the question of condonation of delay this Court recorded a finding that Respondent No.1 had been exiled against his will and was not allowed to return. This being the position, in collateral proceedings, we were not inclined to revisit and reexamine the aforesaid findings of this Court.
  1. That Respondent No.1 had made certain admissions in his speech in so far as he admitted that Gulf Steel was established in UAE and the same was sold in 1980 for a sum of US $ 9 Million. He submits that no explanation has been forthcoming regarding source of the funds which were utilized to set up the said project. He further submits that there is no money trail showing how the sale proceeds were moved from UAE to Qatar and Saudi Arabia.
  1. The learned counsel has pointed out that Respondent No.1 had made a categoric statement that the funds generated from sale of Steel Mill in Saudi Arabia were utilized for purchase of the Mayfair Properties. In this regard, he (Respondent No.1) also made a statement in the National Assembly during his address on 16.05.2016 that all relevant records regarding sale of Gulf Steel and Jeddah business were available and will be produced before the competent fora. However, according to the learned counsel, the said record has not been produced by the Respondent No.1.
  1. The learned ASC has contended that the Prime Minister in his address had stated that neither he nor his family would claim any immunity before any forum. However, contrary to his commitment, he has claimed privilege under Article 66 of the Constitution. In this regard, he has relied on Zahur Ilahi v. Mr. Zulfikar Ali Bhutto [PLD 1975 SC 383 @ 395] and Masroor Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823] to argue that immunity/privilege can be claimed in accordance with law and the Constitution; no one is above the law; and in case, the Respondent No.1 had committed any illegality or made a false statement during his address in the National Assembly, he can neither claim any immunity nor privilege.
  1. Learned counsel has further contended that Respondent No.1 had opted to defend himself and his family against the allegations coming to light on the basis of documents discovered through the Panama Papers. That Respondent No.1 had claimed that all transactions including purchase of Mayfair Properties were legitimate and all requisite record would be produced which has not been done by him or his family. He maintains that after having lied to the Parliament he cannot claim immunity or privilege. In addition privilege can be claimed only in situations where a statement is made while participating in the parliamentary business. However, in the instant case, the statement was made by the Prime Minister in his personal capacity to explain transactions involving his family which had nothing to do with any matter involving parliamentary business. He, therefore, submits that no privilege can be claimed by Respondent No.1 for his private actions.
  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 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.
  1. Learned ASC has also produced a copy of the order of the day issued by the Secretariat of National Assembly for 16.05.2016 to point out that the speech of Respondent No.1 was not on the agenda of the National Assembly for that day. He has also referred to Rules 31 (1), 50 & 51 of the Rules of Procedure & Conduct of Business in the National Assembly, 2007 to argue that since the speech of the Prime Minister was not a part of the order of the day it cannot be termed as participation in the parliamentary business. Secondly, no privilege can be claimed for a statement made by Respondent No.1 of his own accord and volition before the National Assembly. Reliance in this regard has been placed on Zahur Ilahi v. Mr. Zulfikar Ali Bhutto [PLD
    1975 SC 383]; Masroor Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823] and Iftikhar Ahmad Khan Bar v. Chief Election Commissioner [PLD 2010 SC 817 @ 826 (para 14)]. He also submits that it has repeatedly been held by this Court that there is sanctity attached to the parliamentary proceedings and business but such sanctity does not extend to personal matters voluntarily discussed in the Assembly chambers without being part of the parliamentary business.
  1. 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)].
  1. It is further contended that under Article 184(3) of the Constitution, the jurisdiction of this Court is in the nature of inquisitorial proceedings and this Court can delve into the arena of any fact finding so as to promote public interest. In support of his contention, the learned counsel has relied on Watan Party v. Federation of Pakistan [PLD 2011 SC 997 @ paras 50 & 52]; Philips Electrical Industries of Pakistan Ltd. V Pakistan [2000 YLR 2724]; People’s Union for Democratic Rights v. Union of India [AIR 1982 SC 1473]; Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681]; Muhammad Azhar Siddiqui v. Federation of Pakistan [PLD 2012 SC 774 @ 806 (paras 14 & 15)]; and Watan Party v. Federation of Pakistan [PLD 2012
    SC 292 @ 365].
  1. The learned ASC has also referred to Articles 53 & 122 of the Qanun-e-Shahadat Order, 1984 to argue that facts within the special knowledge of a person need to be proved by him. He maintains that admittedly, the Mayfair Properties are held by offshore companies which are owned and controlled by the children of Respondent No.1. Documents and records relating to the said properties are not and cannot be available to the petitioner. However, the Respondents have access to such records and documents and are therefore liable to produce the same before this Court. He further submits that this Court is neither averse to nor is its jurisdiction restricted in relation to undertaking factual inquiries or even recording evidence in order to uncover the truth to do complete justice. Reliance in this regard has been placed on Pakistan Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642].
  1. The learned counsel for the petitioner has referred to Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan [PLD 2000 SC 869] and read certain portions appearing at page 1207 thereof to argue that although there were specific allegations relating to ownership of the Mayfair Properties, Mr. Khalid Anwar, learned Sr.ASC, who allegedly represented Respondent No.1 in the said matter did not specifically rebut the said allegations. He submits that failure to rebut the allegations amounts to admission and necessary legal consequence for the same should follow. At this stage, the record of the case was summoned and seen by the Court and it was observed that Respondent No.1 was neither a party to the said proceedings nor was Mr. Khalid Anwar representing him in the said case. Although in one of the related matters, Respondent No.1 was a party, however, the judgment in Zafar Ali Shah’s case (supra) did not contain any finding recorded by this Court regarding the allegations involving ownership of the Flats in question. Confronted with this position, the learned counsel for the petitioner did not further press the point.
  1. The learned ASC has argued that it was an admitted position that the London High Court had passed a decree in the case of HPML as well as Mian Muhammad Sharif, Mian Muhammad Shahbaz Sharif and Mian Muhammad Abbas Sharif. He further submits that documents available on record also indicate that the said properties were attached under orders of the London High Court. However, such attachment was removed apparently on satisfaction of the decree. He maintains that there is no evidence on record or money trail explaining how the decree in access of US$ 34 Million was satisfied. He further submits that this raises a serious question which needs to be answered by Respondent No.1. The learned counsel has also submitted that in his speech in the National Assembly on 16.05.2016, Respondent No.1 had given certain facts relating to sale of the Gulf Steel at Dubai and thereafter setting up and sale of Steel Mills at Jeddah. However, no further details were provided either in the National Assembly or before this Court to indicate how the sale proceeds were utilized and whether or not the amount generated from the said sales were utilized for purchase of the Mayfair Properties.
  1. The learned ASC further maintains that the petitioner has discharged the onus by alleging that the Mayfair Properties are owned by Respondent No.1 and now the onus is on him to establish either that the properties in question were not owned by him or that the same were not procured with funds which were illegally transferred from Pakistan to other countries. He also maintains that in order to establish the truth, this Court has the power to record evidence and even summon the Prime Minister if the need arises in exercise of its powers under Article 184(3) of the Constitution.

9. Mr. Ehsan ud Din Sheikh, learned ASC was allowed on his request to make certain additional submissions on behalf of the petitioner. He submitted that the powers being exercised by this Court were inquisitorial in nature and the Court was expected to act as Prosecutor, Defender and Judge at the same time. He was, however, reminded that inquisitorial jurisdiction of this Court was to be understood in the context of being different from adversarial proceedings and the same was not necessarily to be equated with the inquest Tribunals set up in different countries including Spain for special reasons. He, however, referred to the definition of inquisitorial proceedings as given in Black’s Law Dictionary to argue that the jurisdiction of this Court extends to taking such steps as may be necessary to uncover the true facts. He further argued that Respondent No.6 was a dependent of Respondent No.1 who had failed to disclose her status in his Nomination Papers filed with the Election Commission during the General Elections of 2013. He was therefore liable to be disqualified. The learned counsel placed on record photocopies of the definition of ‘dependent’ taken from Oxford English Dictionary, Merriam Webster Dictionary and some legal treatises.

10. Sheikh Rashid Ahmed, petitioner in person in Constitution Petition No.30 of 2016 also addressed the following arguments:

  1. He referred to the speeches of Respondent No.1 to submit that he had not disclosed the correct information either before the people of the country or before this Court. He maintained that there were contradictions in the statements made by Respondent No.1, his sons and wife which show that he had been untruthful and was liable to be disqualified in terms of Article 62(1)(f) of the Constitution. He further submitted that the privilege claimed by Respondent No.1 in terms of Article 66 of the Constitution was not available to him in view of the fact that he had raised a private matter on the floor of the house which was neither in the agenda nor a part of the business of the house. In this context, he relied upon Chaytor v. House of Lords (2010 UK SC 52 (paras 62, 118, 121 & 122) and Canada v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 (paras 29, 37 to 40 & 46 to 48). He also referred to Masroor Ahsan v. Ardeshir Cowasjee [PLD 1998 SC 823 @ 1018] and Zahur Ilahi v. Mr. Zulfikar Ali Bhutto [PLD 1975 SC 383]. He made reference to a portion of the judgment handed down by Hamdoor ur Rehman, J in Masroor Ahsan’s case spelling out the parameters of immunity / privilege.
  1. He further submitted that in terms of Article 184(3) of the Constitution, this Court can mold the relief and can grant the reliefs which have not even been prayed for. He maintained that this Court has to be dynamic in rendering a judgment to do complete justice in the facts and circumstances of this case. He places reliance on Benazir Bhutto v. Federation of Pakistan [PLD 1988 Supreme Court 416], Nasir Ali Khan v. Federation of Pakistan [PLD 2013 Supreme Court 568], Muhammad Ashraf Tiwana v. Pakistan (2013 SCMR 1159), Muhammad Yasin v. Federation of Pakistan (PLD 2012 Supreme Court 132) and Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 Supreme Court 1054).
  1. Sheikh Rashid Ahmed further submitted that the letters allegedly issued by Sheikh Hamad are contradictory and it is apparent that by issuing successive letters an attempt has been made to fill the gaps and answer the questions raised by this Court. He pointed out that in an earlier case reported as Muhammad Nawaz Sharif v. State (PLD 2010 Lahore 81), the same person had come to the rescue of Respondent No.1. He further submitted that Mian Muhammad Tariq Shafi had also improved his statement as in his first affidavit there was no mention of the Qatari investment while in the second one after certain questions were raised by this Court, the story of investment of 22 Million Dirhams in Qatar and names of the persons to whom the said money had allegedly been handed over for investment in the real estate business of Thani Family in Qatar were added. He maintained that if the two letters were to be disbelieved the entire defence of the Respondents would fall to the ground. He also submitted that burden of proof that the Mayfair Properties were acquired through lawful means was upon the Respondents who have failed to discharge such onus.

11. Mr. Makhdoom Ali Khan, learned ASC appearing for Respondent No.1 (Mian Muhammad Nawaz Sharif), made the following submissions:-

  1. At the very outset, learned counsel has read the prayer clauses of Constitution Petition No.29 of 2016 and submitted that Respondent No.1 does not and never had any company registered in the BVI or any other safe heaven. Further, he was not a Director / Shareholder or beneficial owner of any such company. He submits that the grounds on which disqualification of Respondent No.1 is sought can be broadly categorized into following categories:
  1. Address of Respondent No.1 to the Nation on television on 05.04.2016;
  1. Speech made by Respondent No.1 on the floor of the National Assembly on 16.05.2016.
  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.
  1. 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. iv.The learned counsel points out that the treatment of any amount received by way of gift is different depending upon whether or not the donor has a tax number in terms of Section 39 of the Income Tax Ordinance, 2001. He submits that the petitioner has incorrectly stated that Respondent No.7 does not have a tax number. The factual position is that Respondent No.7 has a tax number and therefore any amount received from him by Respondent No.1 by way of gift was exempt from payment of income tax. He further submits that Article 63 (1)(o) of the Constitution is attracted only where default/non-payment of government dues is determined either by the competent authorities or by a Court of law and after such determination it remains unpaid.
  1. v.The third ground for seeking disqualification is that Respondent No.6 (Maryam Safdar) is a dependent of Respondent No.1. Therefore, assets of Respondent No.6 should have been declared by Respondent No.1 in his nomination papers for election to a seat in the National Assembly from NA.120. In view of the fact that Respondent No.1 had failed to declare Respondent No.6 as his dependent and to disclose her assets in his nomination papers and annual statement of assets, the disqualification clause of Article 62(1)(f) of the Constitution was attracted. He submits that Respondent No.6 has independent sources of income and owns valuable immovable property. Therefore, she cannot be termed as a dependent of Respondent No.1.
  1. vi.Learned counsel for the Respondent No.1 while responding to the aforesaid allegations has read the speech made by Respondent No.1 to the Nation as well as his speech made on the floor of the House. He has vehemently denied the allegation that Respondent No.1 had lied either to the Nation or during his address on the floor of the House. He submits that the contents of the speeches are factually correct in all respects including statements relating to setting up of Gulf Steel Mill at Dubai, its sale, the sale price, setting up of a Steel Mill in Saudi Arabia in the year 2000, the same having been set up from finances provided by the Saudi Banks and sale of the same at a price stated by Respondent No.1 in his address. He has however stated that in both the addresses, Respondent No.1 had given a broad overview of the activities of his family regarding a business which was set up in the year 1937 prior to his birth on which, as long as his father Mian Muhammad Sharif was alive, he was Incharge and solely running the business. He has further submitted that the speeches made by Respondent No.1 were not in the nature of an item wise response or an affidavit of facts setting out in detail, in a chronological order generation and use of the funds as they were utilized and invested in the lifetime of his father. The learned counsel has also referred to the affidavit of Mian Muhammad Tariq Shafi which has been placed on record through CMA No.735 of 2016 narrating substantially the same facts. He submits that Mian Muhammad Tariq Shafi has in his affidavit stated that the business in Dubai had been set up by Mian Muhammad Sharif in the name of Mian Muhammad Tariq Shafi. The Tripartite Agreement for sale of Gulf Steel was signed on behalf of Mian Muhammad Tariq Shafi who received the sale price in various tranches from Dubai and had utilized the funds received according to the instructions of Mian Muhammad Sharif. The learned counsel has categorically stated that Respondent No.1 was not a Shareholder/Director/Guarantor of Gulf Steel nor was he a recipient of the whole or any part of the sale proceeds.
  1. vii.It is further submitted that in the case of Al Azizia Steel Mill in Saudi Arabia, the position was the same. Respondent No.1 was not a Director or Shareholder of the said company nor did he receive any part of the sale proceeds. He has stated that the facts known to Respondent No.1 were shared in order to give a broad overview of the business activities of his family in which he was not personally involved. Further, in case there was any omission in the speeches the same was not deliberate and could not furnish basis for disqualification. There was neither any reason nor intention to misstate the facts or provide incorrect or wrong information either to the Members of National Assembly or to the citizens of the country.
  1. viii.Learned counsel submits that in case an elected Prime Minister is to be removed from office, the Constitution and the law provide a procedure for doing so namely a ‘vote of no confidence’ or a declaration by a Court of competent jurisdiction in terms of Article 62(1)(f) of the Constitution or on a judgment/order to that effect being passed by the relevant fora under the provisions of the RoPA. He further submits that in terms of Article 63(2) of the Constitution where a question arises whether a Member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker may refer the question to the Election Commission by way of a Reference within 30 days, where after the Election Commission has the jurisdiction to decide whether or not the Member has become disqualified to be a Member of the Parliament. He submits that an application in this regard relating to Respondent No.1 was moved before the Speaker of the National Assembly which was rejected on 02.09.2016. The ruling of the Speaker has been challenged before the Lahore High Court by way of Writ Petition No.31193 of 2016 which is being heard by the said High Court.
  1. ix.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, non-profligate, 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.
  1. x.The learned counsel has relied upon Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar (2016 SCMR 1); D.G. Customs Valuation v. Trade International Lahore (2014 SCMR 15); Iqbal Ahmad Landrail v. Jamshed Alam (PLD 2013 SC 179); Muhammad Khan Junejo v. Federation of Pakistan (2013 SCMR 1328); 2013 SCMR 1279; Allah Dino Khan Bhayo v. Election Commission of Pakistan (2013 SCMR 1655); PLD 2013 SC 282; Mudassar Qayyum Nahra v. Bilal Ijaz (2011 SCMR 80); Nasir Mehmood v. Imran Masood (PLD 2010 SC 1089); Iftikhar Ahmad Khan Bar v. Chief Election Commissioner (PLD 2010 SC 817); Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828); Muhammad Khan Junejo v. Fida Hussain Junejo (PLD 2004 SC 452) and Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066).
  1. xi.On the basis of the afore-noted judgments, the learned counsel has vehemently argued that a prior declaration / determination is required before the holder of a public office can be disqualified by this Court in exercise of its powers under the Constitution. Referring to the case of Mr. Yousuf Raza Gillani, Former Prime Minister, he submits that the said case originated from the NRO case reported as Mobashir Hassan v. Federation of Pakistan (PLD 2010 Supreme Court 265) in which a direction was issued to the Federal Government to write a letter to certain Swiss authorities which was not complied with. A five member Bench of this Court therefore issued a notice to Mr. Gillani for contempt of this Court where after, he was convicted and sentenced to imprisonment till rising of the Court vide order dated 02.02.2012. However, in view of the fact that the Speaker of the National Assembly refused to send the matter to the Election Commission for denotification of Mr. Gillani, he was disqualified by this Court. He therefore submits that the said case is distinguishable on facts as well as the law and cannot be used as a precedent in the instant case.
  1. xii.The learned counsel further submits that another set of cases arose out of dual nationality held by certain holders of public offices, Tassaduq Hussain Jillani, J as he then was in his judgment reported as Umar Ahmad Ghumman v. Government of Pakistan (PLD 2002 Lahore 521) had held that a person holding dual nationality could not hold a public office. On the basis of aforesaid judgment which had been upheld by this Court, various petitions were entertained and holders of public offices were either disqualified on admitted facts and official documents or where there was no written denial of the allegations of dual nationality. In none of the cases, did this Court investigate the matter/held a factual inquiry, conduct a trial and record findings of fact.
  1. xiii.Making his submission with reference to powers of this Court under Article 184(3) of the Constitution, the learned counsel submits that bulk of authorities and previous judgments of this Court point towards prior declaration by a Court of competent jurisdiction before this Court can proceed to disqualify the holder of a public office. He further submits that in the limited number of cases where such powers have been exercised directly, the said course was adopted either because there were admitted facts / documents or there was no need to go into an exercise of recording voluminous evidence.
  1. xiv.Learned counsel for Respondent No.1 submits that the petitioner seeks disqualification of Respondent No.1 on the basis of speeches made on the television and on the floor of the House. He maintains that in the first place it has not been established that Respondent No.1 had lied in either of the two speeches or had made a false statement. If at all there was any omission, the same cannot be termed as a misstatement. He further submits that if a comparison is to be made between the facts narrated by Respondent No.1 in his speeches and those disclosed by other members of his family in their interviews which have appeared on the Electronic and Print Media, the said exercise cannot be undertaken by this Court in exercise of its jurisdiction under Article 184 of the Constitution because the same would require examination of voluminous record and an opportunity being provided to all concerned to meet the allegations against them.
  1. xv.Without prejudice to the fact that Respondent No.1 did not lie or make any false statement in his speeches, the learned counsel submits that the speech made by him before the National Assembly is covered by the privilege available to members of Parliament provided under Article 66 of the Constitution. He submits that the Constitution provides for freedom of speech in the Parliament and protects speeches made on the floor of the House against liability in any proceedings in any Court in respect of anything said by such Member. Learned counsel maintains that parliamentary privilege is a concept recognized all over the world and it is an accepted norm all over the world that speeches made in the Parliament cannot be used as evidence before any Court, authority or Tribunal against the maker of such speeches. In this regard, the learned ASC has referred to Halsbury’s Laws of England, Wade & Bradley on Constitution and Administrative Law; and case of Regina v. Chaytor [2010] UK SC 52].
  1. xvi.The learned counsel has also referred to various judgments of the Indian Courts to stress that parliamentary privilege protects speeches made on the floor of the House which cannot be used against the maker of such speeches as evidence in any Court or Tribunal. He further maintains that parliamentary privilege is equally available to all members of the Parliament and no exception applies to the Prime Minister by reason of his office.
  1. xvii.The learned ASC for Respondent No.1 has next taken up the allegation of tax evasion. He submits that disqualification of Respondent No.1 is sought on the basis of provisions of Article 63(1)(o) of the Constitution read with Section 99 (1)(a)(d) of the RoPA. In this regard, he submits that the petitioners have leveled the following allegations against Respondent No.1:-
  1. That a sum of US$ 9 Million had been received from sale of Gulf Steel Mill. Respondent No.1 should have declared the said sum in his Wealth Tax Statement and paid wealth tax on the same.
  1. The Wealth Tax Statements for the years 2011-15 were filed late by Respondent No.1. The said act is an offence which must lead to his disqualification.
  1. Respondent No.1 had given gifts in the sum of Rs.31,700,000/- to Respondent No.6 and Rs.19,459,400/- to Respondent No.8 which were sham transactions and were not given through normal banking channels.
  1. That the gifts received by Respondent No.1 from Respondent No.7 should have been treated as income from other sources and tax should have been paid on the same.
  1. As far as late filing of Wealth Tax Statements is concerned, the learned counsel for Respondent No.1 submits that the allegation was utterly baseless in view of the fact that the Wealth Tax Statements were filed on 29.11.2011 & 09.12.2012 which were well within time. Even otherwise, he submits that the said grounds were not pressed by the learned counsel for the petitioner in his arguments and had abandoned the same. As far as the question of disqualification in terms of Article 63(1)(o) of the Constitution is concerned, the learned counsel submits that it is settled law that such disqualification cannot be pressed into services unless there is a finding by a Court of competent jurisdiction that the holder of a public office had defaulted in payment of government dues. He maintains that there is nothing on record nor a finding handed down by any Court, Tribunal or authority that Respondent No.1 had committed default of any nature involving payment of government dues. In support of his contentions, the learned counsel has relied on National Bank of Pakistan v. SAF Textile Mills Ltd (PLD 2014 SC 283); Summit Bank Limited v. Qasim and Co. (2015 SCMR 1341) and Agril D. B. of Pak v. Sanaullah Khan (PLD 1988 SC 67).
  1. The learned counsel has further submitted that the petitioner seeks disqualification of Respondent No.1 in terms of clause 1 of his prayer. However, in clause 6 of the prayer, he seeks a direction to the FBR to reopen the Tax Returns of Respondent No.6 and scrutinize the same. On the basis of prayer clause 1 and prayer clause 6, the learned counsel for Respondent No.1 submits that if prayer clause 6 of the petitioner is granted, prayer No.1 cannot be granted. Likewise, he maintains that prayer clause 6 itself shows that no determination of government dues has been undertaken by any competent Court, authority or Tribunal. Further, if prayer clause 6 is denied, the prayer clause 1 cannot be granted either.
  1. As far as payment of wealth tax is concerned, the learned counsel has argued that the Wealth Tax Act, 1963 was repealed in 2003. In terms of Sections 17 & 17A of the Wealth Tax Act, a limitation of 4 to 5 years has been provided within which Wealth Tax Officer can reopen the Returns and make a determination regarding short payment / default, if any. The learned counsel submits that the period of limitation has since expired and no officer or machinery is available for implementation of the Act. Even otherwise, relying on Section 6(a) of the General Clauses Act, the learned counsel maintains that once a statute has been repealed and during its subsistence no liability has been determined, no such liability can now be determined especially so where a period of limitation as provided in the Act itself has expired. He further maintains that Respondent No.1 is to be judged on the same standards as other citizens of the country and he cannot be judged on any higher standard by reason of the fact that he is the Prime Minister of the country.
  1. Learned counsel further submits that it is an admitted fact that Gulf Steel was set up from funds generated through loans obtained from Banks. The Respondent No.1 was not a Shareholder or Director or Guarantor of the said business. Even otherwise, according to the case of the petitioner himself, the sale of said business did not generate any profits which could have necessitated disclosure of the same by the Respondent in any of his Returns. He maintains that this is without prejudice to the stance of Respondent No.1 that he had no nexus or connection with the said businesses.
  1. The learned counsel for Respondent No.1 refers to paragraph No.18 (xxi) of Constitution Petition No.29 of 2016 and submits that there were assertions in the said paragraph, that a sum of Rs.31,700,000/- had been gifted by Respondent No.1 to Maryam Safdar (Respondent No.6) and a sum of Rs.19,459,400/- had been gifted by him to his son Hassan Nawaz (Respondent No.8). He further submits that Respondent No.1 admits the said transactions and the same have duly been reflected in the Return filed by him for the financial year 2011. He also submits that corresponding entries in the accounts statement have been made which are being placed on record. The said transactions were undertaken through banking channels and the allegation that the transactions were merely devices to evade payment of income tax is patently incorrect. He also submits that various sums of money including a sum of US$1,914,054/- received by Respondent No.1 from his son Hussain Nawaz which was duly reflected in the Tax Returns of Respondent No.1 for the year 2011. He submits that the argument of the learned counsel for the petitioner that amounts received by Respondent No.1 by way of gift should have been treated as income from other sources and were therefore, liable to be taxed is not supported by the law. In this regard the learned counsel has drawn our attention to Section 39(3) and (4) of the Income Tax Ordinance, 2001 which provides that where a person receives a gift through banking channels from a person who has a National Tax Number (NTN), he is not required to pay tax on the amount received. He states that Mr. Hussain Nawaz, despite being a non-resident, possesses an NTN, therefore, the said gift from him to Respondent No.1 is neither liable to be treated as ‘Income from Other Sources’ nor is it taxable. Explaining the transaction, the learned counsel submits that the funds originated from Saudi Arabia which were sent through banking channels to the account of Respondent No.1 who encashed the same at the official exchange rate of the State Bank of Pakistan and the concerned Bank duly issued a certificate of encashment to claim the benefit of Section 111 of the Income Tax Ordinance, 2001 (the Ordinance). He has also referred to Section 111(4) of the Ordinance to argue that no tax is payable on foreign remittances received through banking channels. Referring to the Tax Returns filed by Respondent No.1, the learned counsel submits that under the new tax regime under the Ordinance a scheme of self-assessment was introduced. An assessee can file his Return on the basis of self-assessment with the Taxation Officer under Section 114 of the Ordinance. On expiry of the statutory period, the Return so filed is treated as a Final Assessment Order of the Commissioner by operation of law. He submits that although the Taxation Officer has the jurisdiction on receipt of definite information regarding tax evasion to reopen the matter, no such, “definite information” was provided to the Taxation Officer that may have furnished justification to reopen, reexamine or re-scrutinize the Returns filed by Respondent No.1. In support of his contention, the learned counsel has relied on the cases of Commissioner of Income-Tax v. Sindh Engineering (Pvt.) Ltd. [2002 SCMR 527 at 535(F)], Income-tax Officer v. Chappal Builders [1993 SCMR 1108
    at 1112 and 1113]; and Commissioner of Income-Tax v. Sindh Engineering (Pvt.) Ltd. [2002 SCMR 527].
  1. The learned counsel further submits that according to the law laid down by this Court, tax evasion has to be specifically alleged and proved, whereas the same cannot be presumed. Reliance has been placed on the case Federation of Pakistan v. Sindh High Court Bar Association [PLD 2012 SC 1067 at 1071, 1072 and 1074]. He further submits that the law discourages fishing and roving inquiries and insists upon definite information regarding tax evasion before the tax record of an assessee can be reopened. Reference has been made to the cases of Assistant Director, Intelligence and Investigation v. M/s. B.R. Herman [PLD 1992 SC 485 at 491 (C)] and Re State of Norway’s Application (No. 1) [1989 1-AER 661 at 684, 685 and 691].
  1. xxiv.The learned counsel for Respondent No.1 further submits that the following amounts were received by Respondent No.1 from Mr. Hussain Nawaz from 2011 to 2014: –

i) Rs.129,836,905/- (Tax Year 2011);

ii) Rs.26,610,800/- (Tax Year 2012);

  1. Rs.190,445,024/- (Tax Year 2013); and

iv) Rs.197,499,348/- (Tax Year 2014)

  1. He submits that all the aforesaid gifts were sent and received through banking channels, were duly declared to the authorities by filing the requisite Returns and were not liable to any tax in view of the fact that the same had been sent by holder of a National Tax Number. Consequently, there was neither concealment nor tax evasion on the part of Respondent No.1.
  1. Concluding his arguments on the question of tax evasion, the learned counsel submits that disqualification of Respondent No.1 is being sought inter alia on the basis of Article 63(1)(o) of the Constitution read with relevant provisions of the RoPA. Both the said provisions require liability of a person being determined by a competent forum and such determined liability remaining unpaid. He submits that it is neither alleged nor established from the record that any determination of tax liability of Respondent No.1 has been made by a competent forum and that the same has remained unpaid. The learned counsel submits that even otherwise in prayer clause 6, the petitioner he has admitted that no determination has so far been made by the competent authorities against Respondent No.1. As a necessary corollary, it can safely be said that in the absence of determination of liability regarding payment of Government dues the provisions of Article 63(1)(o) of the Constitution cannot be invoked.
  1. The learned ASC for Respondent No.1 has read paragraph 18 (ix) and (xxiii) of the petition to point out that it has been asserted in the said paragraphs that, “admittedly” Ms. Maryam Nawaz is a dependent of Respondent No.1. By alleging that Respondent No.1 had failed to disclose the said fact in his nomination papers for the General Election, 2013, Respondent No.1 was guilty of concealment and signing a false declaration and was therefore, liable to be disqualified. The learned counsel submits that in the first place it is not admitted that Respondent No.6 was / is a dependent of Respondent No.1. He has taken us through the Wealth Statement filed by Respondent No.1 for the tax year 2011 which shows that land worth Rs.24,851,526/- was shown to be held in the name of Ms. Maryam Safdar, Respondent No.6 in the column for spouse, minor children and other dependents. He submits that the land in question was owned by Respondent No.1 and was held in the name of Respondent No.6. In the absence of any specific column to disclose Benami transactions, the name of Respondent No.6 was mentioned in Column No.12 which deals with assets owned by spouse, minor children and other dependents. He however, maintains that merely by reason of the name of Respondent No.6 being mentioned in Column No.12 would not make her a dependent especially so where the property was clearly mentioned as being held “in the name of” Respondent No.6. In order to substantiate his contention, the learned counsel has drawn our attention to Notification dated 26.8.2015 issued by the Federal Board of Revenue through which the anomaly in the Wealth Statement Form was removed by inserting a column for assets held in the name of others. He has also referred to an opinion rendered by A.F. Ferguson & Company, Chartered Accountants which supports the aforesaid contentions.
  1. xxviii.He further submits that the price / value of the land in question (Rs.24,851,526/-) was subsequently paid by Respondent No.6 to Respondent No.1 through banking channels and the said transaction was duly reflected in the wealth statement of Respondent No.6 for the tax years 2011-13. Likewise since the agricultural property in question had been purchased by Respondent No.6 on payment of sale consideration, the said property was not mentioned in the wealth statement of Respondent No.1 for the years 2012-13. However, the cash received in lieu of transfer of the property was duly reflected in the accounts statement of Respondent No.1.
  1. xxix.On the question whether or not Respondent No.6 is a dependent of Respondent No.1, learned counsel submits that Respondent No.6 has independent sources of income and notwithstanding gifts made by Respondent No.1 in favour of Respondent No.6 involving cash and immovable properties, status of Respondent No.6 as an independent adult has remained unchanged. In this regard, he has placed reliance on M. A. Faheemuddin Farhum v. Managing Director/Member (Water) [2001 SCMR 1955], in which the definition of dependent as given in the Black’s Law Dictionary was cited with approval. The learned counsel also refers to Ball, Decd., In re. Hand v. Ball [1947 1 Chancery 228] and In re Baden’s Trusts [1973 Chancery 9]. In the earlier judgment, it was held that the word “dependent” was a vague term and the Court declined to define the same, however, in the subsequent judgment it was held that dependency was a question of fact which was required to be decided on case to case basis.
  1. xxx.As far as legal value of the Trust Deed produced by Respondent No.6 is concerned, the learned counsel submits that the said document was governed by the English Law. He maintains that it is settled law that questions arising out of foreign law are to be treated as questions of fact which need to be proved through the various modes provided in law including production of expert witnesses. In this regard, he refers to Articles 52, 94 & 112 of the Qanun-e-Shahadat Order, 1984. Reference was also made to Order VII Rule 1(e) of the Code of Civil Procedure, 1908. The learned counsel also relies upon Atlantic Steamer’s Supply Co. v. M.V. Titisee [PLD 1993 SC 88 @ 94(B) and
    97].
  1. xxxi.The learned ASC submits that this Court has, over time set standards and criteria which may be applied by it while dealing with questions of disqualification of elected holders of public offices in exercise of powers under Article 184(3) of the Constitution. In this regard, he made the following submissions:-

i) In most cases where elected Parliamentarians were disqualified in exercise of powers under Article 184(3) of the Constitution, this Court relied on material which was either admitted or not denied or decisions of Courts / Tribunals were not appealed against. In some cases, involving fake degrees and dual nationality, the material/documents available before this Court were either undisputed or undisputable, therefore, this Court relied on such material and recorded its findings on the same;

ii) Where there were disputed questions of fact requiring recording of evidence, or there was voluminous record that needed to be proved, involving intricate questions of law and facts this Court declined to interfere. In support of his contention, the learned counsel has placed reliance on Farzand Ali v. Province of West Pak [PLD 1970 SC 98 @ 113]; Khuda Bakhsh v. Zafarullah Khan Jamali [1997 SCMR 561]; Mehmood Akhtar Naqvi v. Federation of Pakistan [PLD 2012 SC 1089].

  1. xxxii.Referring to the material placed by the petitioner on the record, the learned counsel submits that the petitioner has relied upon certain passages of a book titled Capitalism’s Achilles Heel authored by Raymond W. Booker. He submits that at best the text of the book represents an opinion of the author and unless the said author appears before this Court, is examined and subjected to cross-examination, his opinion cannot be read in evidence or taken as gospel truth. In this regard, reference has been made to Article 78 of the Qanun-e-Shahadat Order, 1984 to argue that unless the author/ signatory of a document appears as a witness and is subjected to cross-examination, such document cannot be read in evidence. He further stated that in a few exceptional cases where this Court has recorded findings on the basis of unproved documents, such documents had been admitted by both sides on the basis whereof the Court recorded its findings. In this regard, reference has been made to Muhammad Asif v. Federation of Pakistan [PLD 2014 SC 206 @ 227].
  1. xxxiii.As far as the use of newspaper clippings and articles are concerned, the learned counsel submits that the general law on the subject is that such cuttings, reports and news items cannot be read as evidence. He has referred to Aftab Shaban Mirani v. President of Pakistan [1998 SCMR 1863 @ 1874(E)] and Muhammad Azam v. Khalid Javed Gillan [1981 SCMR 734 @ 736(B)] and Pakistan Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642 @ 668(H) and 669]. He maintains that although in some cases, this Court relied upon newspaper clippings and articles, such cases were exceptions to the general rule in so far as in such cases, this Court was called upon to examine the validity of executive actions to see whether there was any material available before the executive authority to take executive action and whether such executive actions had not been taken arbitrarily and without any justifiable basis. In such case, this Court had held that it was not sitting in appeal against exercise of powers by the executive authority but was examining the validity of such exercise to see whether or not there was any material before the executive authority which furnished basis for exercise of such authority. He further maintains that most of these cases related to exercise of executive powers by the President of Pakistan under the erstwhile Article 58(2)(b) of the Constitution. In this regard, he referred to Islamic Republic of Pakistan v. Abdul Wali Khan [PLD
    1976 SC 57 @ 112 (LL)]; Begum Nusrat Bhutto v. Chief of Army Staff [PLD 1977 SC 657]; and Wattan Party v. Federation of Pakistan [PLD 2006 SC 697].
  1. xxxiv.He further maintains that the general policy of law as well as the view of this Court has been that efforts should be made to uphold executive actions. Unless it is shown that such actions were taken maliciously, arbitrarily and without sufficient and adequate material, this Court has desisted from interference in such cases. Reference has been made to Chairman, Railways Board v. Abdul Majid Sardar [PLD 1966 SC
    725 @ 730]; Lahore Improvement Trust v. Custodian of Evacuee Property [PLD 1971 SC 811 @ 837(J)]; Saghir Ahmed v. Province of Punjab [PLD 2004 SC 261 @ 267(B)]; and Benazir Bhutto v. President of Pakistan [PLD 2000 SC 77 @ 84].
  1. xxxv.In the case of Benazir Bhutto v. President of Pakistan [PLD 2000 SC 77], the matter arose out of dismissal of the Government of Mohtarma Benazir Bhutto by the then President of Pakistan in exercise of powers conferred on him under Article 58(2)(b) of the Constitution. This Court dismissed the petitions challenging the executive action taken by the President of Pakistan in which inter alia allegations of corruption were also leveled. However, on an application moved by the petitioner in the said case, this Court clarified that the material and evidence examined and findings recorded by it were limited to the legality and validity of an executive action under Article 58(2)(b) of the Constitution and the same would not be used against the petitioner in any other proceedings initiated against her on charges of corruption.
  1. xxxvi.The learned counsel for Respondent No.1 specifically stated that he did not challenge the maintainability of the petition or the powers of this Court in terms of Article 184(3) of the Constitution to entertain the same. Relying on the cases of Murree Brewery Co. Ltd v. Pakistan [PLD 1972 Supreme Court 279] as well as CIT v. Eli Lilly Pakistan (Pvt) Ltd [2009 SCMR 1279], the learned counsel submits that by now it is settled law that even if an alternate remedy is available this Court may in exercise of its constitutional jurisdiction entertain the matter. He, however, pointed out that it has also been held by this Court that where a party has chosen to avail an alternate remedy, and is in the process of doing so, this Court will exercise powers (despite availability of alternate remedy and the fact that it is being availed) only in cases where the matter involves fundamental rights and has been pending in the High Court for a number of years without any effective order having been passed. He further submits that on the doctrine of “effective pendency” mere pendency would not preclude this Court from exercising its jurisdiction under Article 184(3) of the Constitution. Reference in this regard has been made to Benazir Bhutto v. Federation of Pakistan [PLD 1988 SC 416]. He, however, maintains that the aforesaid preconditions for exercise of jurisdiction by this Court are not present in the instant case.
  1. xxxvii.In the above context, the learned counsel has referred to CMA#320 of 2017 which provides details of a number of References filed by the Members of Political Parties headed by the petitioners and others which are presently pending before the Election Commission. It is also pointed out that a constitutional petition (Writ Petition No.31193 of 2015) filed by a Member of the Political Party headed by the petitioner is also pending before the Lahore High Court which raises identical questions of law and fact. Other References have been filed before the Speaker of the National Assembly which are presently pending before him.
  1. xxxviii.The learned counsel for Respondent No.1 submits that in matters involving disqualification, this Court has set standards of evidence which are required to be met in order to disqualify an elected Member of the Parliament. He maintains that one such standard is that the evidence must meet the requirements of a criminal trial and the benefit of any doubt that may arise must go to the accused. In this regard, he has referred to Muhammad Saeed v. Election Tribunal, West Pakistan, etc [PLD 1957 SC 91 @ 123 & 124]; Saeed Hassan v. Pyar Ali [PLD 1976 SC 6 @ 25] and Hafeezuddin v. Abdul Razzaq [PLD 2016 SC79 @ 93].
  1. xxxix.The learned counsel submits that in order to disqualify a holder of public office under Article 62(1)(f) of the Constitution a declaration of a Court of law is required. Although, this Court is a Court of law, the declaration visualized under Article 62 of the Constitution has to be given effect by complying with the requirements of Articles 10A, 17 & 25 of the Constitution. He maintains that unless provisions of Article 10A of the Constitution are adhered to, the requirements of justice and equality before the law would not be met. He therefore maintains that the allegations against Respondent No.1 must be judged on the same standards as set by this Court for disqualification of ordinary Members of the Parliament as there are no separate and / or special rules for disqualification of the Prime Minister of the country.

12. Mr. Shahid Hamid, learned Sr.ASC, appearing on behalf of Respondents No.6, 9 & 10 made the following submissions:-

  1. At the very outset, the learned counsel stated that he adopts the arguments of Mr. Makhdoom Ali Khan, learned Sr.ASC for Respondent No.1. He has also placed on record a statement of Respondent No.6 which was duly signed by him on her behalf. He submitted that the petitioners had alleged that the Respondents had not submitted any documents in order to substantiate their defence. He pointed out that Respondents No.6 to 8 had submitted a number of documents and if necessary more documents would be submitted on behalf of Respondents No.7 & 8. In this regard, he gave a list of documents that had been submitted on behalf of Respondents No.6 to 8 in view of the fact that at the relevant time all three Respondents were being represented by one learned counsel (Mr. Muhammad Akram Sheikh). However, on a subsequent stage the team of Lawyers representing the said Respondents was changed and now Respondents No.6, 9 & 10 were being represented by him (Mr. Shahid Hamid, Sr.ASC) while Respondents No.7 & 8 were being represented by Mr. Salman Akram Raja, ASC. The list of documents is as follows:-

i) Concise statement on behalf of Respondents No.6 to 8 (CMA#7391 of 2016);

ii) Supplementary concise statement (CMA#7531 of 2016);

  1. Letter issued by Sheikh Hamad (CMA#7638 of 2016);
  1. Response to CMA#7511 of 2016 filed by the petitioner (CMA#7646 of 2016);
  1. Trust Deed dated 02.02.2006 relating to London Flats (CMA#7661 of 2016);
  1. Copies of land record Registry relating to London Flats (CMA#7953 of 2016) [total cost of the Four Flats was amounting to £1.905 Million at the relevant time];
  1. Tax Returns of Respondent No.6 from 2011-16;
  1. Tax Returns of Mst. Shamim Akhtar, grandmother of Respondent No.6 (CMA#8116 of 2016);
  1. Wealth Tax Statements of the father of Respondent No.6, Bank Statements and related documents (CMA#2519 of 2017);
  1. Copies of five References pending before the Election Commission of Pakistan and a Constitutional Petition pending before the Lahore High Court (CMA#320 of 2017); and
  1. Documents in support of establishing that Respondent No.6 was not beneficial owner of the London Flats (CMA#394 of 2017).
  1. The learned counsel submits that there were mainly three allegations against Respondent No.6 as spelt out in paragraph 18(ix), (xi) & (xiii) of Constitution Petition No.29 of 2016. He further submits that the first allegation is that Respondent No.1 did not declare the assets of Respondent No.6 in his Nomination Form filed for NA-120 during General Election, 2013. The second allegation is that the amounts gifted by Respondent No.1 to Respondent No.6 were not through a crossed cheque. And the third allegation (xiii) is that Respondent No.1 had declared Respondent No.6 as his dependent in his Wealth Tax Statements for the year 2011.
  1. The learned counsel submits that there is no prayer against Respondent No.6 made in the petition. He further points out that neither in Constitution Petition No.30 of 2016 filed by Sheikh Rashid Ahmed nor in Constitution Petition No.3 of 2017 filed by Ameer, Jamaat-e-Islami, Respondents No.6 to 10 have been impleaded.
  1. As far as Respondent No.9 is concerned, the learned counsel states that in paragraph 18(xii) of Constitution Petition No.29 of 2016, it has been alleged that he had not disclosed the gift of Rs.31,700,000/- received by his wife (Respondent No.6) in his Tax Returns and on this basis alone disqualification of the said Respondent was being sought as a Member of the National Assembly.
  1. Giving an outline of his submissions, the learned counsel for Respondents No.6, 9 & 10 has submitted that he would focus his arguments on the following aspects:-
  1. That on the basis of pleadings before the Court, no case is made out against Respondent No.6. Further no relief is sought against her;
  1. That he would submit arguments with reference to the Income Tax Ordinance, 2001 (the Ordinance); Representation of People Act, 1977 (the RoPA); and Section 5(e) of the Prevention of Corruption Act, 1947 (the Act);
  1. That he would make submissions relating to the concept of dependent / dependency with reference to the provisions of the RoPA and the Ordinance;
  1. That arguments would be addressed by him with reference to CMA No.2519 of 2017 to establish that neither in fact nor in law was Respondent No.6 a dependent of Respondent No.1;
  1. That he would discuss and analyze the interview of Respondent No.6 with Sana Bucha an Anchor Person of Geo Television Network;
  1. That the concept of beneficial ownership would be discussed and arguments would be addressed to establish that Respondent No.6 is and never was a beneficial owner of the Mayfair Properties (CMA#394 of 2017); and
  1. That arguments would be addressed relating to the scope and extent of jurisdiction of this Court under Article 184(3) of the Constitution and exercise of such powers against private parties.
  1. The learned counsel submits that during the course of his arguments, he would also rely on the following documents:-
  1. Income Tax Returns of Respondent No.6 from 2011-12 (CMA#7319 of 2016);
  1. Income Tax Returns of Respondent No.6 for the year 2011-12; and
  1. An opinion rendered by A.F. Ferguson & Company, Chartered Accountants CMA#7531 of 2016.
  1. He states that the following documents have been placed on record with the aforesaid CMA which would be relied upon:-
  1. License issued in favour of Gulf Steel by the Dubai Municipality;
  1. Lease Agreement in favour of Gulf Steel;
  1. Land Rent Agreement with Gulf Steel;
  1. Contract for sale of 75% share of Gulf Steel in favour of Al-Ahli;
  1. Agreement to Sell for transfer of remaining 25% share in Gulf Steel;
  1. Photographs showing inauguration of Gulf Steel by the Ruler of Dubai;
  1. Affidavits of Mian Muhammad Tariq Shafi;
  1. Incorporation Certificates of Nescol Limited and Nielsen Enterprises Limited;
  1. Shares Certificate issued from time to time regarding ownership of Nescol Limited and Nielsen Enterprises Limited (pages 65 to 70);
  1. Trust Deed dated 02.02.2006 relating to Coomber Enterprises;
  1. Income Tax Returns of Respondent No.6 from 2011-16 [CMA#8116 of 2016 (pages 2 to 100)];
  1. Income Tax Returns of Mst. Shamim Akhtar, grandmother of Respondent No.6 for the years 2011-16 (pages 100 to 177);
  1. Wealth Tax Statements of Respondent No.1 and that of Mst. Shamim Akhtar for the year 2010 (CMA#2519 of 2016); and
  1. Accounts Statements of Respondent No.1 relating to his accounts with Standard Chartered Bank and Habib Bank Limited showing entries dated 15.02.2011 indicating debit and credit entries to reflect payment by Respondent No.6 to Respondent No.1 for price of land held in the name of Respondent No.6.
  1. Learned counsel appearing on behalf of Respondents No.6, 9 & 10 has submitted that the allegation that Respondent No.9 had not disclosed the gift of Rs.31,700,000/- received by his wife (Respondents No.6) in his Tax Returns is misconceived. He has stated that in the first place, Respondent No.9 did not file his Tax Returns during the period between 2011-14, in view of the fact that he did not have an NTN till 28.01.2014 and tax payable by him was deducted at source. However, the gift received by Respondent No.6 from her father was disclosed in her Returns and copies of her Returns were filed with the nomination papers of Respondent No.9. This being the situation, there was no question of any concealment on the part of Respondent No.9 or violation of any laws on his part, attracting the penalty of disqualification. He submits that even if for the sake of argument it is admitted that for the years 2011-14, Respondent No.9 was required to file Income Tax Returns and having failed to do so was liable to pay penalties in terms of Section 114(2) read with Section 82 of the Ordinance, neither a show cause notice was issued to him by the Income Tax authorities nor were any penalties imposed on him which may have remained unpaid. Therefore, Respondent No.9 cannot by any stretch of language be termed as a defaulter.
  1. Learned counsel has also informed us that a number of References on the same subject as this petition are pending before the Election Commission of Pakistan. In one case where the Speaker of the National Assembly had declined to forward a Reference to the Election Commission, the order of the Speaker is under challenge before the Lahore High Court under Article 199 of the Constitution. He submits that although he does not challenge the maintainability of these petitions, this fact needs to be kept in mind while adjudicating these petitions.
  1. The learned counsel has formulated the following questions with reference to the scope of jurisdiction of this Court under Article 184(3) of the Constitution:-
  1. Enforcement of which Fundamental Rights requires a declaration that Respondent No.6, who is a private citizen, is a dependent of her father and the owner of a property in a foreign country;
  1. How a question whether Respondent No.6 is a dependent of her father is a matter of public importance;
  1. Can disputed questions of fact i.e. whether Respondent No.6, a private citizen, is a dependent of Respondent No.1 and whether she is the owner of a foreign property, be determined by this Court in exercise of its powers under Article 184(3) of the Constitution without recording evidence; and
  1. Whether the petition is bona fide or based upon political animosity and forged documents. If it is found that the petition is based upon forged documents, what is the effect?
  1. Learned counsel has drawn our attention to the document produced by the petitioner and appended with CMA#7511 of 2016 which is a board resolution purportedly passed on 07.02.2016 bearing the signatures of Respondent No.6 (Mrs. Maryam Safdar). He submits that the document in question is patently a forged document as the signatures appearing on the said document are not those of Respondent No.6. He refers to the admitted signatures of Respondent No.6 (Mrs. Maryam Safdar) on the documents available on page 244 of CMA#7530 of 2016 and page 5 of CMA No.7661 of 2016. He submits that even to a naked eye, it is apparent that the admitted signatures of Respondent No.6 differ in material aspects from the signatures appearing on the afore-noted board resolution. Likewise, he has referred to the personal information form produced by the petitioner appended with CMA#4 of 2016 at page 17 and submitted that the said signatures are ex facie not those of the Respondent No.6 as the same are clearly different from her admitted signatures. In this context, the learned counsel has relied on Hafeezuddin v. Abdul Razzaq [PLD 2016 SC 79 @ 95]. He has also referred to, “the law relating to handwriting, signatures etc by Dr. B. R. Sharma”.
  1. He further submits that the document in question is a forged document, as there was neither reason nor occasion for Respondent No.6 to appoint LZ Nominee Limited as a Nominee Director of Nescol Limited retrospectively with effect from 13.05.2004.
  1. At this stage, the learned counsel read the concise statement filed on behalf of Respondent No.6. It was noticed that the said concise statement was filed on 07.11.2016. It may be noted that the letter sent by Sheikh Hamad was dated 05.11.2016, while the concise statement was filed two days later, yet there was no mention in the concise statement filed on behalf of Respondents No.6 to 8 that a part of the funds generated from sale of Gulf Steel was invested in the real estate business of Thani Family in Qatar (as has been stated in the letter of Sheikh Hamad). No explanation has been offered by the learned counsel for Respondent No.6 for the said omission.
  1. It also appears that in paragraph 5(c) at page 6 of the concise statement, Respondent No.6 has stated that she is only a Trustee for Respondent No.7 in relation to Nescol Limited. Learned counsel was asked to explain why there is no mention of Nielsen Enterprises despite the fact that Respondent No.6 also claims to be a Trustee for the said company. The learned counsel attempted to argue that the lapse was on account of bona fide error/lapse in view of the fact that Trust Deed dated 02.02.2006 clearly indicates that Respondent No.6 is a Trustee for both companies.
  1. The learned counsel for Respondents No.6, 9 & 10 while addressing arguments on the question of dependency of Respondent No.6 on Respondent No.1 submitted that she had indeed received gifts from Respondent No.1 i.e. her father from time to time in various amounts and in the form of immovable property, but there was nothing unusual about it. In our society, it is a common practice for fathers to give gifts to their married daughters. The said fact does not make her dependent on Respondent No.1. He maintained that the term ‘dependency’ is not defined in the Ordinance. In this context, he referred to Section 2(33) which defines a minor child; Section 19(8)(b) which states that a minor child shall not include a married daughter; and Section 116(1)(b) of the Ordinance, which refers to other dependents. He submitted that in the absence of any specific definition of dependent one would have to rely on the ordinary meaning of the said word. In this regard, he referred to Black’s Law Dictionary as well as a judgment of this Court reported as M. A. Faheemuddin Farhum v. Managing Director/Member (Water) [2001 SCMR 1955] in which the definition of dependent as given in Black’s Law Dictionary have been relied upon.
  1. The learned counsel further referred to Section 116(2) of the Ordinance read with Rule 36 of the Income Tax Rules and the form of Wealth Tax Statement as given in part 4 of the 2nd Schedule of the Income Tax Rules which provide for filing of Wealth Statements and Wealth Reconciliation Statements. He submitted that Item#12 of the said form requires a disclosure of assets held in the name of spouse, minor children and other dependents. In view of the fact that immovable property was purchased by Respondent No.1 in the name of Respondent No.6 and there was no separate column to disclose the same, it was mentioned in the only available column provided in the form. He, however, emphasized the fact that mere mentioning of Respondent No.6 in the said column did not mean that she was a dependent of Respondent No.1. In fact it was bona fide disclosure of a property held by Respondent No.1 in the name of Respondent No.6. He has substantiated his argument by referring to SRO No.184/2015 through which a new column was added to the aforesaid form by substituting Column#12 with Column#14 which provides for disclosure of assets held in, “others names”. He further maintains that in view of the fact that price of the said property was paid by Respondent No.6 to Respondent No.1 through banking channels, the said property was not mentioned in the Wealth Tax Returns or the nomination papers of Respondent No.1 in the year 2013. He has further pointed out that copies of the accounts statements of Respondent No.6 as well as Respondent No.1 indicate that a sum of Rs.24,851,526/- was debited from the account of Respondent No.6 and credited to the account of Respondent No.1 during the tax year 2012. He therefore submits that there is no substance in the argument of the learned counsel for the petitioner that Respondent No.6 was a dependent of Respondent No.1.
  1. Learned counsel submits that the word ‘dependency’ has different connotations in different laws and the definition used in one law cannot be transposed / transferred to another law. He maintains that the question of dependency along with its extent is to be determined keeping in view the facts and circumstances of each case.
  1. Learned counsel has referred to the Wealth Statements filed by Respondent No.1 and Respondent No.6 to show that as of 31st March 2013 when Respondent No.1 filed his nomination papers, Respondent No.6 had sufficient income and assets of her own, generated from various sources including agricultural income, sale of assets and receipt of gifts from various sources and therefore she could not be termed as a dependent of Respondent No.1. The learned counsel also took us through four sale deeds on the basis of which agricultural land was purchased by Respondent No.1 in the name of Respondent No.6. He emphasized the fact that at the relevant time, consideration for said sale deed was paid by Respondent No.1 while ostensible owner was Respondent No.6. However, subsequently the entire sale consideration of Rs.24,851,526/- was paid by Respondent No.6 to Respondent No.1 through banking channels where-after she became real owner of the said assets which were duly reflected in her Wealth Statements and Wealth Reconciliation Statements.
  1. The learned counsel also drew our attention to various documents indicating that she and her family had been contributing their due shares in the pool of household expenses maintained by Mst. Shamim Akhtar, the grandmother of Respondents No.6, 7 & 8 who owns all five properties in the compound in which Respondent No.6 resides along with her family.
  1. While rebutting the allegation of the petitioner that the gifts received by Respondent No.1 and thereafter partly transferred to his children including Respondent No.6 constituted income from other sources and was therefore taxable, the learned counsel for the Respondents pointed out that the funds were sent by Respondent No.7 who holds an NTN, in favour of Respondent No.1 who also holds a Tax Number therefore the same did not constitute income from other sources and was not liable to be taxed. He further pointed out that the amounts given by Respondent No.1 to Respondent No.6 were transferred through banking channels and were not liable to be taxed. He further maintains that according to Wealth Statements of Respondent No.6, she owned assets in access of 200 Million Rupees between 2013-16 therefore by no stretch of the language she could be termed as a ‘dependent’.
  1. Learned counsel maintained that while exercising jurisdiction under Article 184(3) of the Constitution, this Court must establish the bona fides of the petitioners. He argued that the present petitions were the result of political differences and rivalries, the petitioners had approached this Court with unclean hands and were therefore not entitled to any relief in the present proceedings. In this context, he also referred to T. N. Godavarman Thirumulpad v. Union of India (AIR 2006 SC 1774); Janata Dal v. H. S. Chowdhry (AIR 1993 SC 892); and S.P. Gupta and others v. President of India and others (AIR 1982 SC 149).
  1. Learned counsel also made submissions regarding the case against Respondent No.10. Referring to paragraph 18(xvi) of Constitution Petition No.29 of 2016, he submitted that the allegation against Respondent No.10 is that he had admitted to the charge of money laundering to the tune of US$ 14.886 Million in a confessional statement made by him before the Judicial Magistrate on 25.04.2000. Further, that Respondent No.1 and his brother, the current Chief Minister of the Province of Punjab had instructed Respondent No.10 to open foreign currency accounts in the names of Mst. Sikandra Masood Kazi, etc and Mr. Talat Masood Kazi in the Bank of America and many other banks with foreign currency/funds provided by Respondents No.1 and his brother. He pointed out that it is alleged that in order to meet financial needs of HPML, fake foreign currency accounts were opened in Emirate Banks with US$ 3.725 Million, and Al Faysal Bank with US $ 8.539 Million and US$ 2.622 Million. In this regard, the learned counsel submits that the confessional statement constituted basis for lodging of two FIRs, one bearing No.12 of 1994 lodged on 10.11.1994 and the other bearing No.13 of 1994 dated 12.11.1994 with FIA and SIU, Islamabad. He submits that Respondent No.10 was arrested on 15.10.1999 and the confession was forcibly procured from him while he was in custody on 25.04.2000. Even after the confession, he remained in custody till September, 2001. He submits that in the first place, the statement has nothing to do with the Panama Papers. Further, the FIRs were quashed and all the accused were acquitted by a Bench of Lahore High Court in Writ Petitions No.12172 of 1997 and 12173 of 1997 vide a judgment reported as Hamza Shahbaz Sharif v. Federation of Pakistan (1999 P. Cr. L. J 1584).
  1. Subsequently, a Reference was filed by the NAB on the same facts which were narrated in the FIRs in the year 2000. However, the proceedings in the Reference were adjourned sine die in view of the fact that the accused had in the meantime left the country and were not available to face the Reference. However, pursuant to a Writ Petition filed before the Lahore High Court, a learned Division Bench of the High Court quashed the Reference. There was disagreement between Members of the Bench on the question whether or not the matter could be reinvestigated by the NAB. One learned Member of the Bench held that despite quashment of the Reference, NAB was not barred from reinvestigating the matter and proceeding further in accordance with the law. However, the other learned Member of the Bench held that the matter could not be reinvestigated. In order to resolve the difference of opinion, the matter was referred to a Referee Judge who agreed that the matter could not be reinvestigated. The learned counsel pointed out that since the said judgment of the High Court was never challenged before this Court, the same had attained finality and the confessional statement on which the Reference was based had lost its legal value. He maintained that even otherwise, the confession of Respondent No.10 had been procured under coercion and was not worthy of any reliance.
  1. The learned counsel was asked whether this Court could pass an appropriate order to interfere in the judgment of the Lahore High Court whereby the Reference against Respondent No.10 and others was quashed and the NAB was restrained from reinvestigating the matter on the principles laid down in Tauqeer Sadiq’s case (PLD 2012 SC 132), the learned counsel submitted that the allegation against Respondent No.10 had withstood scrutiny before various superior Courts of the country and it would be unjust and unfair to reopen the matter after a lapse of more than 16 years.
  1. The learned counsel further pointed out that when Respondent No.10 was elected as a Senator in 2014, his election was challenged by way of a constitutional petition before the Islamabad High Court raising the same allegations as earlier leveled in the FIRs and the References. The Islamabad High Court dismissed the Writ Petition No.4818 of 2014 and the Intra Court Appeal filed against the judgment of the learned Single Judge was also dismissed. The matter was never agitated before this Court, which therefore also attained finality.
  1. As far as the questions of money laundering and fake foreign currency accounts are concerned, the learned counsel also drew our attention to a judgment of Full Bench of the Lahore High Court reported as Hudabiya Engg. (Pvt) Ltd. v. Pakistan [PLD 1998 Lahore 90 (paragraph 30)] in which relying on the Economic Reforms Ordinance, 1992 the Full Bench had held that foreign currency accounts and transactions undertaken by the petitioner therein enjoyed complete immunity and protection in terms of the said Ordinance. He, therefore, maintained that the relief sought against Respondent No.10 could not be granted.
  1. The learned counsel further submitted that disqualification of Respondent No.10 is sought on grounds which have already been repelled by the Islamabad High Court as well as the Lahore High Court where a learned Division Bench unanimously quashed the Reference and one of the grounds which prevailed with the learned Division Bench was that the alleged confession of Respondent No.10 was not admissible having been made before the wrong forum. He contended that although there was disagreement amongst the learned Judges of the Division Bench on the question whether or not NAB could reinvestigate the matter and proceed thereafter, such disagreement was resolved by the learned Referee Judge who held that the matter could not be reinvestigated for reasons recorded by one of the Members of the Division Bench. He, therefore, submitted that the matter stood settled and could not be reopened at this stage, especially so, where the judgment of the Lahore High Court was not challenged before this Court. He further submitted that the prayer of the petitioner that NAB be directed to file an appeal against the judgment of the Lahore High Court and the order of the Referee Judge in Writ Petition No.2617 of 2011 could not be granted because the same was barred by time.
  1. The learned counsel for Respondent No.10 summarized his formulations as follows:-
  1. The disqualification of Respondent No.10 is being sought on the basis of allegations leveled in 1992 i.e. over 25 years ago. It would, therefore, neither be just nor proper to reopen the matter at this stage.
  1. The allegations against Respondent No.10 pertain to a period of time when he did not hold a public office. In 1992, Respondent No.10 was the Chief Executive of First Hajveri Modaraba which was a non-banking financial institution. He further submits that he held a public office for the first time with effect from 15.09.1992 when he was appointed as Chairman, Pakistan Board of Investment. He resigned from the said post on 19.04.1993.
  1. Over the past 25 years many superior Courts adjudicated upon the matters directly or indirectly involving Respondent No.10. He was not convicted of any wrongdoing..
  1. On our query, the learned counsel conceded that the acquittal order passed by a learned Division Bench of the Lahore High Court and the order passed by a five Members Bench of the Lahore High Court were passed in proceedings in which Respondent No.10 was not a party. He, however, submitted that both judgments emerged from the same set of facts and a five Members Bench of the Lahore High Court held that FIA had no jurisdiction to investigate transactions and foreign currency accounts which were protected by the Economic Reforms Ordinance, 2002.
  1. Making his submissions regarding validity of the confessional statement allegedly made by Respondent No.10, the learned counsel submitted that it had repeatedly been held by different Courts that the confessional statement of Respondent No.10 had no evidentiary value, firstly because it was not made before the competent forum and secondly, because he was not an accused in the Reference filed against Directors/Shareholders of Hudaibiya Paper and Board Mills Limited. The record indicates that Respondent No.10 was granted pardon under Section 26 of the National Accountability Bureau Ordinance, 1999 (NAB Ordinance) on 21.04.2000 where-after his confessional statement was recorded under the NAB Ordinance. The learned ASC submits that in terms of Section 26(b) of the NAB Ordinance in its original form an accused was required to be examined as a witness. He, however, submits that the said Section of the NAB Ordinance was subsequently amended to incorporate a provision that the accused was required to be produced before a Magistrate to make a confessional statement. He submits that it is settled law as was held by a learned Division Bench of the Lahore High Court that amendment in the law could not be given retrospective effect. Therefore, the confessional statement allegedly made by Respondent No.10 before a Magistrate had no legal value. He further submits that since after the grant of pardon Respondent No.10, was no longer an accused and was not named as an accused in the Reference, as such, his confessional statement can neither be used against him nor any 3rd party. He also submits that the confessional statement can only be used as a statement of a witness if he appears as a witness in the trial of others. He submits that since no trial was conducted, there is no question of confessional statement being used against the Respondent No.10 or any 3rd party.
  1. The learned counsel contended that Respondent No.10 was arrested on 15.10.1999 and his confessional statement was recorded while he was in custody in Attock Fort in April, 2000. It is clear and obvious from the surrounding circumstances that the confession had not been made freely, was obtained while Respondent No.10 was under duress, and as such, it cannot constitute basis for any conviction. He further points out that no Court has so far assigned any value to the said alleged confession. He has referred to the provisions of Article 13 of the Constitution, Section 403 of the Code of Criminal Procedure (Cr.PC) and Section 26 of the General Clauses Act to argue that said provisions provide protection against double jeopardy. The learned counsel however did not press this point any further.
  1. The attention of the learned counsel was drawn to a judgment reported as Muhammad Yasin v. Federation of Pakistan (PLD 2012 Supreme Court 132) in which this Court had held that even if a judgment of a High Court is not challenged before this Court, it can in exercise of its jurisdiction under Article 184(3) of the Constitution interfere in the matter in public interest and for enforcement of Fundamental Rights. The learned counsel referred to paragraph 8 of the judgment to argue that the judgment in question was distinguishable in so far as this Court has held that the Islamabad High Court had only examined transfer orders passed by the Chairman, OGRA and had not examined the validity of his appointment which is not the case before this Court. He emphasized the fact that the judgment was distinguishable and this was not a fit case for this Court to exercise its jurisdiction under Article 184(3) of the Constitution to resurrect a matter which had been laid to rest in 2014 by a judgment of the Lahore High Court.

13. Respondents No.7 & 8 are represented by Mr. Salman Akram Raja, learned ASC. He made the following submissions:-

  1. The case against Respondents No.7 & 8 has three broad aspects. Firstly, the speeches and interviews given by Respondent No.1 and members of his family including Respondents No.7 & 8 and the inconsistencies which are being attempted to be shown. He submits that statements of Respondents No.7 & 8 are being taken as a standard against which correctness of statements and speeches made by Respondent No.1 are sought to be judged. Secondly, the official records, Income Tax Returns and Nomination Papers filed by Respondent No.1 are being used to build a case of default / nonpayment of government dues / evasion of taxes on the part of Respondent No.1. He submits that an attempt is being made to show that Respondent No.7 had made gifts to Respondent No.1 which should have been treated as, “income from other sources” and tax was required to be paid on such income. He stated that it was being argued by petitioners’ learned counsel that since neither the gifts were disclosed as income from other sources nor was tax paid on the same, Respondent No.1 was liable to be disqualified.
  1. Thirdly, this Court is being called upon to determine facts, compare the speeches, statements and interviews of Respondent No.1 with such facts and on the basis thereof disqualification of Respondent No.1 is being sought under Articles 62 & 63 of the Constitution.
  1. He further submits that status of Respondents No.6 & 7 is being canvassed as that of beneficiaries holding assets acquired through illegal means by Respondent No.1. He further submits that this requires a detailed factual inquiry which cannot be undertaken by this Court in exercise of its powers under Article 184(3) of the Constitution. He also submits that even if for the sake of argument, Respondents No.7 & 8 are beneficiaries in terms of Section 9(a)(v) of the NAB Ordinance or Section 5 of the Prevention of Corruption Act, 1947, the said exercise requires a full trial before a Court of competent jurisdiction and is beyond the scope of Article 184(3) of the Constitution.
  1. The learned counsel has read prayer clause 2 of Constitution Petition No.29 of 2016 to point out that it seeks direction for recovery of looted/laundered money along with properties purchased through BVI Companies. He submits that since Respondent No.7 is the beneficial owner of the Mayfair Properties through offshore companies, the prayer can be interpreted to be against him. He further submits that the prayer as well as the averments made in the Constitution Petition are vague and without an evidentiary hearing, the said prayer cannot be granted. He maintains that it would have to be established through cogent and reliable evidence that the properties in question have been acquired through looted money which was then laundered and utilized to purchase the said properties. He contends that grant of such prayer inherently requires investigation and trial which cannot be undertaken under Article 184(3) of the Constitution. He further submits that prayer clauses 1 & 6 are self-contradictory as on the one hand disqualification of Respondents No.1, 9 & 10 is sought while on the other a direction to probe and minutely scrutinize the Tax Returns and Assets Declarations of Respondent No.1 and his entire family is prayed for. He, therefore, submits that prayer clause 1 cannot be granted unless the process sought in prayer clause 6 is completed.
  1. He further submits that the offence of money laundering is covered under the Prevention of Money Laundering Act, 2002 which provides a mechanism for its investigation and trial. He maintains that although the jurisdiction of this Court under Article 184(3) of the Constitution is vast, it does not take away the jurisdiction of the statutory authorities to exercise their functions. He further maintains that hearing before this Court cannot be termed as an evidentiary hearing, as such, no convictions / declarations can be recorded in the facts and circumstances of the present case. He also refers to Article 19A of the Constitution to argue that the right to have access to information is defined and structured. Since Respondents No.7 & 8 are not public servants nor do they hold public offices their private affairs are not subject to scrutiny under the provisions of Article 19A of the Constitution.
  1. As far as the question of burden of proof is concerned, the learned ASC has relied upon a judgment of this Court reported as Khalid Aziz v. State [2011 SCMR 136]. He argued that in cases where a departure is made from the general rule (i.e. the onus of proof lies upon the prosecution) and the onus is placed on the accused (by legislative instrument), the standard of proof is considerably reduced and if he provides a plausible explanation, the same is deemed to be sufficient. In such situations, he submits that an accused is not required to prove his innocence beyond reasonable doubt. He further maintains that where a person is accused of holding properties beyond his means or holding properties through “ostensible owners/Benami”, the initial onus is on the prosecution to prove that the properties are being held Benami and the same have been purchased with funds which are in excess of known means of the accused and the said factors have to be established beyond reasonable doubt. The onus then shifts to the accused who is required to provide a plausible explanation and if he succeeds in doing so, the onus of proof stands discharged. He has emphasized the fact that benchmark of onus of proof is much higher on the prosecution which is beyond reasonable doubt while the benchmark of onus of proof on the accused is much lower and is confined to provision of plausible explanation. He maintains that the explanation being provided by Respondents No.7 & 8 regarding Mayfair Properties and the funds utilized to purchase the said properties constitutes a plausible explanation within the realm of possibilities, therefore, this Court should hold that they have successfully discharged the onus of proof placed on them.
  1. Learned counsel also read paragraphs 2 and 11 of the petition which contain allegations against Respondents No.7 & 8. As far as paragraph 2 is concerned, the learned counsel submits that the said paragraph consists of general allegations as there is no specific allegation leveled against Respondents No.7 & 8. As regards paragraph 11, he submits that the same consists of an interview of Respondent No.7 in which he allegedly stated the properties in London were purchased from the sale of Steel Mills in Jeddah which had been set up with loans from Banks and friends. He submits that the said statement was a general statement regarding the family businesses of Respondent No.1 and did not constitute a misstatement. He further maintains that the statement of Respondent No.8 in the BBC Program “Hard Talk” was being misinterpreted and taken out of context. He has pointed out that a statement has been attributed to the first lady, who allegedly stated that her family had purchased the Mayfair Properties in 2000 for its children. He submits that remarks attributed to the first lady are part of an article and it is not even claimed that the article correctly and faithfully reflects what the first lady had allegedly said. He further submits that the said article cannot be relied upon in order to place any responsibility or liability on the first lady, who in any event is not a party before this Court.
  1. The learned ASC further referred to paragraph 18 (vii & viii) of the Petition to point out that generalized allegations had been made regarding setting up of Gulf Steel Mills in 1980, the amounts received on sale of the same and the alleged non-disclosure of the sum US $ 9 Million which was allegedly received from such sale. The learned counsel further pointed out that the said assertion is self-contradictory in view of the fact that according to the petitioners the entire sale price of Gulf Steel was utilized towards settlement of liabilities of BCCI and as such, no disclosure in the Wealth Tax Statements was required. He further submits that even if any disclosure was required to be made, the same had to be made by the father of Respondent No.1 and not Respondent No.1 or his family. Likewise it was being alleged without any proof that the Mayfair Properties were purchased between 1993-96 and Respondent No.1 did not disclose the source of such funds.
  1. Learned counsel submits that in first place, the properties were not purchased by any of the present Respondents during the period 1993-96 and secondly, the same were received by Respondent No.7 by way of a business settlement with Thani Family of Qatar where funds had been invested by his late grandfather (Mian Muhammad Sharif). In this view of the matter, he contends that neither Respondents No.7 & 8 nor Respondent No.1 can be held liable or responsible on any count.
  1. Going to the factual narration of his case, the learned counsel submitted that Gulf Steel was established in 1973 in the backdrop of losses suffered by the family of Mian Muhammad Sharif after the fall of Dhaka and nationalization of Ittefaq Foundry in 1972. In the year 1973, Mian Muhammad Sharif decided to set up a business in Dubai and offered his services to set up a steel manufacturing Unit in Dubai. The Royal Family of Dubai agreed to grant a lease of land and a licence to Mian Muhammad Sharif to conduct such business which was set up with a loan given by the Banks including BCCI. He has frankly conceded that no documents have been placed on record to show how, when and against what security the loan was obtained. He further submits that the loan was taken as far back as 1974 and when the factories and houses of Respondent No.1 and his family were raided in 1999 all records and documents were taken away by various agencies, the same were never returned.
  1. The learned ASC has pointed out that in 1978 Mian Muhammad Sharif decided to sell 75% of his shareholdings in the company in favour of Muhammad Abdallah Kaid Ahli (Ahli Family) for a consideration of AED 21,375,000. In this regard, a Tripartite Sale Agreement was executed which has been placed on record. He submits that it is an admitted position that the entire sale price was paid directly to BCCI which was the main creditor of the company to settle its outstanding dues. He further submits that subsequently a partnership agreement was executed between the Ahli Family and Mian Muhammad Tariq Shafi through which a new set up called Ahli Steel Mills Company was established having 25% shareholding of Mian Muhammad Tariq Shafi who was acting on behalf of Mian Muhammad Sharif. The said 25% shareholdings were subsequently sold on 14.04.1980 by Mian Muhammad Tariq Shafi to Ahli Family for an aggregated sum of AED 12 Million which was to be paid over a period of 6 months in installments. In this regard, he referred to the affidavits filed by Mian Muhammad Tariq Shafi, the first of which was sworn on 12.11.2016 stating the facts and mentioning that AED 12 Million received by way of sale price of 25% shareholdings was used by him as per instructions of Mian Muhammad Sharif. He further submits that in a subsequently filed affidavit before this Court with CMA No.434 of 2017 on 20.1.2017, Mr. Tariq Shafi stated that he had handed over various installments to Sheikh Fahad Bin Jassim bin Jaber (Sheikh Fahad), who was the brother of Hamad bin Jassim bin Jaber, for investment in the real estate business of the Thani Family in Qatar. It was further stated that he delivered the funds in cash on instructions of Mian Muhammad Sharif and that such amounts were handed over to Sheikh Fahad in Dubai, the place which he frequently visited in connection with his business activities. He, therefore, submits that since the transactions were made in cash and were handed over in person to Sheikh Fahad, no account statements or money trail is available to establish transfer of such funds.
  1. The learned ASC for Respondents No.7 & 8 submitted that admittedly, the sale price of 75% share in Gulf Steel was AED 21,375,000 while it owed AED 27,664,584 to BCCI. There was an obvious shortfall. He also admits that other than the amounts owed to BCCI there were amounts owed to Dubai Electric Company and others. He further submits that he is unaware of the source of funds from where the above liabilities may have been settled. He, however, submits that there is nothing on record to suggest that the amount of AED 12 Million which was received by Mian Muhammad Tariq Shafi in 1980 from sale of the remaining 25% shareholdings in Ahli Steel Mills was used for the purpose of settlement of the aforesaid liabilities. He has frankly admitted that he can offer no definitive information as to how the above liabilities were settled.
  1. The learned counsel also submits that in 1980 Ittefaq Foundries were returned to the Sharif Family. He points out that not only Ittefaq Foundries once again became profitable earning huge profits between the period 1981-90 but during this period the Sharif Family became one of the most established business groups in the country having multiple Units involving Textiles, Sugar and Steel Manufacturing. He further submits that in 1990 Sharif Family was victimized by the new government which disallowed a ship containing scrap meant to be used in Steel Factories of Sharif Family. To offload its cargo at the Karachi Port, it remained anchored at sea for over a year which caused a loss of about Rs.500,000,000/- to the Sharif Family. The family was however able to absorb the said loss and continued to operate as a viable and profit bearing Group. Therefore, the allegation that the Sharif Family could ill afford to purchase four Flats at a price of £1.905 Million which translated into about Rs.70,000,000/- at the then prevalent exchange rates has no basis. He further submits that although Respondents No.7 & 8 did not own the Mayfair Properties, they occupied the same because the properties in question were owned by Thani Family with which their grandfather (Mian Muhammad Sharif) had longstanding personal and business relations. On our query, the learned counsel informed us that Respondent No.7 completed his education in 1996 from the UK while Respondent No.8 graduated from the London School of Economics in 1999 and continued to live in the same properties.
  1. The learned counsel referred to the report prepared by Mr. Abdul Rahman Malik in 1998 and pointed out that according to the said report a company titled Ansbacher & Company was managing Nescol Limited andNielsen Enterprises Limited in 1993-96 when the properties appeared to have been purchased by Thani Family through two offshore companies namely Nescol Limited andNielsen Enterprises Limited. He further submits that Respondents No.7 & 8 had nothing to do with Ansbacher & Company, Nescol Limited orNielsen Enterprises Limited at the relevant time and were merely occupying the properties in question as students.
  1. The learned counsel further submits that one of the pillars of the case built by the petitioners is that the Mayfair Properties were placed under a charge by the High Court of London in the year 2000. He maintains that in the first place, the said properties were never mortgaged with Al-Tawfeeq Investment Company. The said company had managed to obtain an ex parte decree against members of Sharif Family who were Directors / Guarantors of HPML and were at the relevant time incarcerated in Pakistan. In execution proceedings, Mr. Shezi Nackvi filed an affidavit stating that Mian Muhammad Sharif, Mian Muhammad Shahbaz Sharif and Mian Muhammad Abbas Sharif who were defendants in the said suit had beneficial interests in the properties in question and sought their attachment. This was done by the London High Court on the basis of affidavit in question and in the absence of any counter affidavit on record. He has also referred to the affidavit of Mr. Shezi Nackvi which has been filed before this Court through CMA No.432 of 2017 (page 17) to show that Mr. Nackvi had no independent information regarding ownership and title of the defendants in the properties in question and had filed the affidavit merely on the basis of the report of Mr. Rahman A. Malik in which it was alleged that the Mayfair Flats were owned by the Sharif Family. He maintains that the charge on the properties was removed in February / March, 2000 when the liability of HPML was settled on payment of US $ 8 Million. This amount was paid by the Al-Thani Family out of the amounts owed to Mian Muhammad Sharif from an investment made by him on the basis of sale price of 25% shareholdings in the Ahli Steel Mills amounting to AED 12 Million.
  1. The learned counsel also referred to the financial statements of HPML (attached at pages 80, 84, 93 and 98 of CMA No.432 of 2017) which indicated the liability of the company towards Al-Tawfeeq Investment Company and its settlement through payment of US $ 8 Million. He further submits that the decree of the London High Court has wrongly been considered to mean that the decree was for a sum of US $ 34 Million which figure has been arrived at by aggregating the amounts appearing against the name each of the defendants in the suit. He states that the decree was in the sum of around US $ 16 Million and the defendants No.3, 4 and 5 were required in their respective capacities as guarantors to pay the said sums in accordance with the Guarantees executed by them in favour of Al-Tawfeeq Investment Company. However, in view of the fact that the principal liability was that of the company which discharged the said liability through a settlement sum of US $ 8 Million, there was no personal liability enforceable against the guarantors. Learned counsel further submits that there is nothing on record to show that prior to 2006 there was any ownership/proprietary links of Respondents No.6 or 8 with the Mayfair Properties.
  1. Learned ASC next made submissions regarding the nature of fact finding proceedings under Article 184(3) of the Constitution. He submitted that a substantial body of jurisprudence had developed in the past few years in which this Court had delivered various judgments in exercise of powers under Article 184(3) of the Constitution. He further submits that although in some cases factual inquiries were undertaken but such exercise was limited to reliance on admitted facts or admitted documents. He also submits that the jurisdiction of this Court under Article 184(3) read with Article 187 is subject to Article 175 of the Constitution and the jurisdiction of other Courts or Government Agencies charged with performance of certain functions cannot be taken away in exercise of such powers. In support of his contention, the learned counsel has placed reliance on Suo Motu Case No.5 of 2012 (PLD 2012 Supreme Court 664); Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2013 Supreme Court 195); Contempt of Court against General (Retd) Mirza Aslam Beg (PLD 1994 Supreme Court 574); and Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 Supreme Court 642) in which it was held that evidence could be recorded provided it did not involve voluminous record and intricate questions of law.
  1. Learned counsel submitted that in the facts and circumstances of the present case a trial cannot be conducted and a conviction cannot be recorded either against Respondents No.1, 7 or 8 without proper investigation. In this regard, he referred to Arslan Iftikhar case to point out that even in that case the matter was referred to NAB for investigation which shows that investigative machinery of the State cannot be ignored to proceed in a matter where an exercise of investigation and collection of evidence is required. He further submits that the doctrine of continuous mandamus can also be resorted to where State functionaries/ investigative machinery can be adverted to for investigation and collection of evidence while remaining under the continuous supervision of this Court.
  1. Learned counsel for Respondents No.7 & 8 submits that on the material available on record, this Court has to determine whether there are irreconcilable differences between the speeches made by Respondent No.1 and the material on record and on that basis decide the question whether or not the difference are fatal/irreconcilable and what would be consequences of the same. He further submits that there is no undisputed record available against Respondents No.6 & 7 on the basis of which such decision could be taken or a conclusion arrived at.
  1. Learned counsel further submits that in the worst case scenario the speeches of Respondent No.1 can be treated at par with a statement under Section 342 Cr.P.C in a situation where the prosecution has failed to produce any evidence to convict the accused. He further submits that it is settled law that if the prosecution evidence is rejected, the defence evidence cannot be relied upon to convict an accused. Another principle in this regard is that the defence evidence is to be accepted or rejected as a whole. He therefore maintains that in the absence of any positive evidence produced by the petitioners to establish any wrongdoing on the part of the Respondents their defence ought to be accepted. He further maintains that unless the defence set up by Respondents No.1 or 7 and 8 is inherently defective and beyond the realm of probabilities or possibilities, their version cannot out rightly be rejected.
  1. Mr. Salman Akram Raja, learned ASC, appearing on behalf of Respondents No.6, 7 & 8 submitted that there are three main aspects of the case set up by the petitioners namely, (i) verbal aspects which include speeches and interviews of Respondent No.1 and Respondents No.6, 7 & 8 in which an effort has been made to show that contradictions exist with relation to ownership of the properties, source of funds and identity of the person who owns such properties; (ii) official records including Tax Returns, Nomination Forms etc. Although an effort has been made to show that there is tax evasion or mis-declaration in Nomination Forms, the petitioners have not been able to make out a case either for disqualification of Respondent No.1 or any wrongdoing on the part of Respondents No.6, 7 & 8; and (iii) discovery of acts or omissions on the part of Respondent No.1 which could lead to legal consequences including disqualification in terms of Articles 62 & 63 of the Constitution.
  1. He submitted that during the course of hearing of these petitions, the focus of this Court has been on the following eight questions: –
  1. How was the outstanding debt liability of Gulf Steel settled?
  1. Why did Tariq Shafi not state in his affidavit that he received 12 Million Dirhams in cash from Mr. Ahli?
  1. Why did Mian Muhammad Sharif cause cash deposits to be made with the Al Thani Family when he used bank accounts to obtain business loans?
  1. Where is the record of the communications between Mian Muhammad Sharif and Shaikh Jassim bin Jaber (father of Sheikh Fahad and Sheikh Hamad) over the period 1980 to 1999? Was the family aware of the entrustment/deposit by Mian Muhammad Sharif?
  1. Is there any record of the ownership of the shares of Nielsen and Nescol that could have been made available to the Hon’ble Court by Respondent No.7?
  1. What is the basis of Respondent No.7’s beneficial ownership of the shares of Nielsen and Nescol? What was the role of Respondent No.6? What is nature of beneficial ownership, as opposed to legal title, under English law? What are the requirements for a valid trust?
  1. Why was the balance amount that was payable by the Al Thani Family to Mian Muhammad Sharif not made a part of the estate of Mian Sharif for distribution amongst his heirs?
  1. If the Mayfair Properties were purchased by the Al Thani Family from the proceeds of the real estate business in which Mian Muhammad Sharif had invested, could Mian Sharif be said to have acquired a proprietary interest in these flats at the time of the purchases by Nielsen and Nescol in 1993, 1995 and 1996?

xxiii. Learned counsel submits that although an effort has been made to answer all questions, it has to be understood that the Respondents are being asked to account for a period of more than forty years, and every act and transaction undertaken by their grandfather cannot be established through documentation. He frankly conceded that there are records which are missing and there are gaps in the narration of facts and events which are on account of lapse of time and death of grandfather of the Respondents who was the patriarch of the family and sole Incharge of its businesses as well. Further, he was at the helm of affairs when misfortunes befell the family of the Respondents including nationalization of family business in 1972 and the military takeover of 1999 when Respondent No.1 as well as Respondent No.7 and various other members of their family were incarcerated, their houses and offices taken over and all relevant records taken away. He further submits that nevertheless every possible effort has been made to produce before this Court the relevant records which do not establish any wrongdoing either on the part of Respondents No.6, 7 & 8 or Respondent No.1. He maintains that no relief has been sought against the Respondents No.6, 7 & 8 and even otherwise, Respondent No.1 cannot be penalized for any alleged wrongdoing on the part of Respondents No.1, 7 or 8. He further maintains that even if Respondents No.6, 7 & 8 are charged with the offence of having assets beyond their known means in terms of Section 9 (v) of the National Accountability Ordinance, 1999 read with Section 45 of the Prevention of Corruption Act, 1945, they cannot be held liable on the basis of evidence and material available on record. Further, even if, for the sake of argument the Respondents were held liable such liability cannot be used against Respondent No.1.

  1. xxiv.Elaborating the above arguments, the learned ASC submits that any culpability of the Respondents would have to be examined in light of the following circumstances:-

i) Even if the Respondents were charged under Section 9 (a)(v) of the Ordinance, they are not required to prove without reasonable doubt that the assets owned by them are not beyond their known sources of income. Even if they offer a plausible and reasonable explanation regarding the source of funds from where such assets were acquired, the onus then shifts on the petitioners to establish a case of possession of assets beyond known sources of income. In this context, he relied upon Khalid Aziz v. State (2011 SCMR 136).

ii) Secondly, the learned ASC submits that even if the Respondents were treated as accused in a criminal trial and their statements were to be treated as statements under Section 342 Cr. P.C, it is settled law that such statements are to be taken as a whole including the inculpatory and exculpatory portions. On the basis of such criteria, the learned counsel submits that there is no evidence to record a conviction against Respondent No.1 or Respondents No.6, 7 & 8. Reliance in this regard has been placed on State v. Muhammad Hanif (1992 SCMR 2047).

iii) Thirdly, the learned counsel submits that jurisdiction of this Court in terms of Article 184(3) and Article 187 of the Constitution is inquisitorial in nature. However, this Court has desisted from recording findings of guilt or innocence on its own accord and has traditionally left the matters of investigation and inquiry to appropriate State organs and trial Courts which may record their findings after hearing all sides and fulfilling the requirements of a fair trial as enshrined in Article 10A of the Constitution. He maintains that there is precedent to follow such course of action by directing State functionaries to undertake inquiry and investigation under the direct supervision of this Court. In this regard, he referred to the cases of NICL (Suo Motu Case No.18 of 2010) and Hajj Corruption (Corruption in Hajj Arrangements in 2010). He, however, maintains that even a commission cannot undertake the job of investigator and thereafter record findings of guilt or innocence. The right of a fair trial and requirements of Article 10A of the Constitution would be violated if a commission is empowered to conduct an investigation and record a conviction.

  1. The learned counsel submits that the first question on the factual aspect of the case is whether the Mayfair Properties were acquired by Respondent No.7. He submits that in the first place it has to be kept in mind that the Respondent No.7 belongs to a family which has a long history of being in the Steel business. Father/grandfather of Respondents was running a big and successful business even prior to partition and the entire family had substantial financial resources. He further submits that the Mayfair Properties were acquired by Respondent No.7 by way of a settlement in 2005/2006 and prior to that the same were held by Al-Thani Family through bearer certificates in two offshore companies namely, Nescol Limited and Nielsen Enterprises. He pointed out that the only document relied upon by the petitioners to establish that the properties in question were owned by Respondent No.7 in 1999 is the judgment of the London High Court on the basis of which the said properties were attached. He further pointed out that it is evident that the order of the London High Court was based upon an affidavit of Mr. Shezi Nackvi in which it had categorically been stated that according to his information certain members of the Sharif Family had proprietary interests in the said properties. He further submits that the affidavit was based upon the information contained in a report prepared by Mr. Rehman A. Malik in his personal capacity. He maintains that the report contained baseless and unsubstantiated allegations and even otherwise it was not an official report prepared under any authorization from any quarter. In this regard, he referred to paragraphs 12 and 26 of the affidavit of Mr. Nackvi. The learned counsel further submitted that other than the affidavit there was nothing on record to show that any member of the Sharif Family owned the said flats prior to 2006. He further maintains that the case set up against the Sharif Family on the basis of allegations of money laundering and acquisition of assets in London was quashed in 1999 by the Lahore High Court in a case reported as Hamza Shahbaz Sharif v. Federation of Pakistan (1999 P. Cr. L. J 1584).
  1. xxvi.The learned counsel further submits that the Mayfair Properties were originally acquired by Al-Thani Family through two offshore companies namely Nescol Limited andNielsen Enterprises Limited. The said family was in possession of bearer certificates of the said companies which were subsequently handed over to a representative of Respondent No.7 pursuant to settlement of accounts of the investment of AED 12 Million made by the grandfather of the Respondents in 1980 in the business of Al-Thani family in Qatar. These funds were received pursuant to sale of 25% shares held by Mr. Tariq Shafi on behalf of Mian Muhammad Sharif in Gulf Steel (later renamed as Ahli Steel). Settlement of accounts of the said investment in the business of the Thani Family took place in 2006 and as a part of settlement, Al-Thani Family paid US$ 8 Million to Al-Tawfeeq Investment Bank to settle the liabilities of HPML, handed over bearer certificates of two companies as well as title document of the London properties to representative of Respondent No.7. Certain sums were earlier paid by the Thani family as returns on the said investment during the life time of Mian Muhammad Sharif which were utilized by Respondent No.7 for his business in Saudi Arabia and Respondent No.8 for his business in the UK in 2001.
  1. xxvii.The said bearer certificates were surrendered and registered in June 2006 in accordance with the changed law in the name of Minerva Holdings and Minerva Officers, which were service providers appointed by Respondent No. 7. He stated that earlier, by virtue of Trust Deed dated 02.02.2006 Respondent No.7 appointed Respondent No.6 as a trustee/authorized signatory on behalf of Respondent No.7 who remained beneficial owner of the properties.
  1. xxviii.The learned counsel submits that the only question regarding the status of Respondent No.6 with reference to the Mayfair Properties that has any relevance to Respondent No.1 is whether Respondent No.6 is a dependent of Respondent No.1. He maintains the entire case of the petitioners hinges on the argument that Respondent No.6 is a dependent of Respondent No.1, she holds beneficial interest in the Mayfair Properties, and that Respondent No.1 failed to disclose the assets held by his dependent in his Nomination Papers, and had been guilty of mis-declaration of assets. He was therefore liable to be disqualified in terms of Articles 62 & 63 of the Constitution. The learned counsel submits that there is not an iota of evidence available on the record to show that Respondent No.6 is the beneficial owner of the Mayfair Properties or is a dependent of Respondent No.1. He therefore maintains that the Income Tax Returns filed by Respondent No.6 in 2012 would indicate that she had agricultural income of Rupees 2.2 Million, her husband earned Rupees 1.8 Million by way of salary as a Member of the National Assembly and she owned assets worth more than Rupees 50 Million. He argues that with this income and assets, she could have independently lived with her husband and the fact that she was, by choice living in a compound owned by her grandmother is not enough to establish that she was a dependent of Respondent No.1. The learned counsel therefore submits that the question whether the Respondent No.6 is a trustee, authorized signatory or beneficial owner of the Mayfair Properties is of no significance in so far as it relates to the case against Respondent No.1 on account of the fact that she was not his dependent at the relevant time i.e. when he filed his Nomination Papers or at any time thereafter.
  1. xxix.The learned ASC further submits that two letters issued by Sheikh Hamad establish a number of things including the fact that the grandfather of Respondent No.7 had invested AED 12 Million in the real estate business of Thani Family in 1980, there was a settlement of accounts in 2005/2006 and as a part of the settlement, the bearer certificates of two companies which held the Mayfair Properties were delivered to a representative of Respondent No.6 namely Waqar Ahmad by a representative of the Sheikh Hamad namely Nasir Khamis.
  1. xxx.He further submits that version of facts and circumstances given by the Respondents is possible and plausible, cannot be discarded out rightly and despite gaps for obvious reasons of lapse of time and death of various people involved, the material available on record supports the stance taken by the Respondents. The learned counsel referred to various assertions made and documents appended with CMA No.432 of 2017 to point out that for the first time, the shares in Nescol Limited and Nielsen Enterprises Limited were registered in favour of Minerva Holdings/Minerva Officers in 2006 on the instructions of Respondent No.7 who is the beneficial owner of the two companies as well as the properties held by them. Subsequently in 2014, Minerva Holdings / Minerva Officers were replaced by Trustee Services Corporation Limited which is an in-house corporate Trust company of JPCA Limited on instructions of Respondent No.7.
  1. xxxi.The learned counsel submits that although it has been admitted at various stages in their interviews by Respondents No.7 & 8 that were in possession of the Mayfair Properties since 1993, such possession was not in the capacity of owners. The real owners i.e. Royal Family of Qatar, had on account of their businesses and personal association with the grandfather of the Respondents, permitted them to use the said properties as a courtesy because at the relevant time the said Respondents were studying in London and required the accommodation to stay there to pursue their education.
  1. xxxii.The learned counsel took us through the provisions of International Business Companies Act, 1984 to submit that in terms of Section 28 of the said Act, the companies could issue bearer certificates which were not required to be registered anywhere. He pointed out that in terms of Section 31(a) of the Act, the bearer certificates could be transferred by delivery. He maintains that although the law was reenacted in 2004, requiring the holders of bearer certificates to register such certificates, the deadline for registration of the certificates was 31st December, 2009. The learned counsel submits that the two offshore companies namely Nescol Limited and Nielsen Enterprises Limited were voluntarily re-registered in July 2006, under the new law, the bearer share certificates initially held by the Thani Family, delivered to the representative of Respondent No.7 in 2006 were cancelled and on his instructions the same were registered in the names of Minerva Holdings / Minerva Officers, the service providers appointed by Respondent No.7.
  1. xxxiii.The learned counsel further submitted that the only documents that establish the alleged beneficial ownership of Respondent No.6 of the two companies are two letters purportedly written by Mossack Fonseca to the Financial Investigation Agency of BVI which indicate that Respondent No.6 was the beneficial owner of the two companies. Such information appears to be based upon correspondence conducted between Mossack Fonseca and Minerva Holdings / Minerva Officers which was apparently based upon the information available with Minerva Holdings / Minerva Officers at the relevant time. He submits that neither the records of Minerva Holdings / Minerva Officers are presently available nor is he presently in a position to explain on what basis Minerva Holdings / Minerva Officers took the position that Respondent No.6 was the beneficial owner of the two companies. He submits that the said information is incorrect and contrary to the record. He, however, drew our attention to CMA No.432 of 2017 to submit that the alleged Board Resolution dated 7.2.2006 signed by Respondent No.6 whereby LZ Nominee Limited was reappointed as Nominee Director of Nescol Limited with effect from 13.05.2004 has been disowned by Minerva Holdings / Minerva Officers. He further submits that the document in question is fake and Minerva Holdings / Minerva Officers has specifically stated that the same was not prepared by it. He vehemently argued that Respondent No.6 had specifically denied her signatures on the said document. As such, he maintains that any attempt on the part of the petitioners to connect Respondent No.6 with the two companies in her capacity as a beneficial owner is a futile exercise not supported by any record.
  1. xxxiv.The learned ASC for Respondents No.6, 7 & 8 took us through fresh documents filed through CMA No.856 of 2017 to show that Respondent No.7 had appointed Arrina Limited to provide full management services with reference to the Mayfair Properties. Further, the Arrina Limited had undertaken to liaise on his behalf with the service providers for Nescol Limited and Nielsen Enterprises Limited to provide such services. He drew our attention to some sample receipts issued by Barclays Bank confirming that Arrina Limited had paid certain amounts to Minerva Trust and Corporate Services Limited for their professional services. He also drew our attention to letters containing terms of engagement issued by JPCA Limited Chartered Accountants dated 01.08.2014 whereby an agreement for provision of secretarial services regarding Nescol Limited and Nielsen Enterprises Limited was put in place.
  1. xxxv.Turning to his legal submissions, the learned ASC submitted that the trust document on the basis of which Respondent No.6 was appointed as a Trustee of Respondent No.7 is a valid document and there is nothing available on record to show that she had any beneficial interest either in the two companies or the Mayfair Properties owned by the said companies. In this regard, he pointed out that a legal opinion provided by Mr. Stephen Moverley Smith QC dated 12.01.2017 has already been placed on record.
  1. xxxvi.The learned ASC further submits that powers of this Court under Article 184(3) of the Constitution have been subject matter of a large number of judgments rendered by it in the past five years. He further submits that the settled principle of law is that where intricate questions requiring recording of voluminous evidence is required, this Court has refrained from taking up such exercise and left the matter for the statutory authorities to undertake such exercise. Learned counsel relies on the case of Muhammad Ashgar Khan v. Mirza Aslam Baig (PLD 2013 SC 1) to argue that the Court called upon the parties to file affidavits, no oral statements were recorded and decision was given on the basis of facts admitted by the parties. He has vehemently argued that no evidence was recorded in the said case.
  1. xxxvii.The learned counsel has emphasized the fact that this Court has on various occasions examined the scope of inquisitorial proceedings and came to the conclusion that in such proceedings, the Court cannot record any findings of fact, as such an exercise would prejudice the trial of the case before a Court of competent jurisdiction and thereby violate the due process right of a party as guaranteed under Article 10A of the Constitution. In this regard, learned counsel relied upon Watan Party v. Federation of Pakistan [PLD 2011 SC 997 (@ 1053 to 1055, 1060 & 1088)]. He has also referred to 2013 SCMR 683 (@1687).
  1. xxxviii.Referring to General Secretary v. Director, Industries (1994 SCMR 2061), Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11) and Watan Party v. Federation of Pakistan (PLD 2012 SC 292), it was argued that a detailed inquiry cannot be undertaken in exercise of powers under Article 184(3) of the Constitution, the only exception being limited to findings of constitutional violations recorded on the basis of admitted facts. He maintains that there is a distinction between a declaration and conviction and submitted that while a declaration can be given by this Court under limited circumstances on the basis of admitted or uncontroverted facts, a conviction cannot be recorded by this Court in exercise of its constitutional jurisdiction. He maintains that such exercise would be violative of the foundational principles of independence of investigation and independence of Courts which are two mutually exclusive domains and cannot be intermingled. Reference in this regard has been made to Emperor v. Nazir Ahmed [AIR 1945 PC 18] and Shaukat Ali Dogar v. Ghulam Qasim [PLD 1994 SC 281].
  1. xxxix.The learned counsel next contended that a right to due process and fair trial is enshrined in the Constitution and any finding recorded or declaration given by this Court under Article 184(3) of the Constitution or by any Commission appointed by this Court for the said purpose would seriously violate such right. He maintains that in the limited number of cases where declarations have been issued in exercise of powers under Article 184(3) of the Constitution, such declarations have invariably been issued on the basis of admitted facts and or documents.
  1. xl.The learned ASC has referred to various judgments rendered by US Courts to argue that even in foreign jurisdictions, while commissions have been appointed to record findings of fact, such jurisdiction has been termed as an accusatory jurisdiction which does not extend to recording convictions or issuing declarations.
  1. xli.The learned counsel has further maintained that this Court has repeatedly held in a number of cases that this Court would not embark upon fishing and roving inquiries in exercise of its jurisdiction under Article 184(3) of the Constitution. In support of his arguments, the learned counsel has relied upon Jam Madad Ali v. Asghar Ali Junejo [2016 SCMR 251] and Akhtar Hassan Khan v. Federation of Pakistan [2012 SCMR 455].
  1. xlii.The learned ASC has summed up his submissions by stating that even if the entire stance of the Respondents is disbelieved by this Court, the matter requires a factual inquiry which has to be undertaken by the statutory bodies set up under the law and the Constitution for the said purpose. Once the facts have been uncovered and evidence has been collected, the matters need to be placed before a Court of competent jurisdiction for trial in accordance with the law and in line with the rights guaranteed under Article 10A of the Constitution. It is only after such an exercise has been undertaken that a person found guilty can be convicted and visited with various penalties and punishments provided by the law and the Constitution.

14. On conclusion of the arguments of learned counsel representing Respondents No.1 & 6 to 10, the Prosecutor General, NAB was directed to inform this Court as to why the aforesaid judgment of the High Court was not challenged before this Court. Tracing the sequence of events, the learned Prosecutor General informed us that Respondent No.10 had moved an application for grant of pardon on 20.04.2000. The Chairman, NAB granted full pardon to him vide letter dated 21.04.2000 in exercise of powers under Section 26 of the National Accountability Bureau Ordinance, 1999 (NAB Ordinance). He further pointed out that although an interim Reference was filed on 27.03.2004 wherein Respondent No.10 was arrayed as accused No.7, since he was granted pardon on his request on 21.04.2000 and his confessional statement was recorded on 25.04.2000 by a Magistrate under Section 164, Cr.PC he was shown as a witness and not as an accused in the final Reference. He points out that the final Reference was filed on 16.11.2000 which was quashed by the Lahore High Court on a Writ Petition filed by HPML and its Directors. He submits that the judgment of the Lahore High Court was not challenged before this Court because the competent authorities in the NAB had decided that since the Lahore High Court had unanimously quashed the Reference, it would be a futile exercise to approach this Court by way of an appeal.

15. On being summoned by us, the Chairman, National Accountability Bureau, (NAB) also appeared before us along with the Prosecutor General, NAB. We asked him whether NAB had taken any action or conducted any inquiry or investigation on the basis of the information that had come in the public domain indicating a number of citizens including Respondents No.6, 7 & 8 held offshore companies and properties worth Millions of Dollars for which there were no verifiable sources of income and there were serious allegations of corruption and money laundering had been levelled against Respondent No.1. The Chairman, NAB informed us that the NAB was awaiting initial inquiry and investigation by the “Regulators”, before proceeding with the matter. He submitted that the same stance was taken by him before the Public Accounts Committee of the National Assembly. He further submitted that in terms of Section 18 read with Section 20 of the NAB Ordinance, the NAB could only initiate investigations on receipt of a complaint from State functionaries including Securities & Exchange Commission of Pakistan and State Bank of Pakistan, etc. His attention was drawn by us to Section 9(v) and certain other provisions of the Ordinance which provide independent powers to NAB to initiate inquiries, investigations and proceedings in situations where a person is alleged to be in possession of assets beyond his known means. At this, the Chairman, NAB stated that certain preliminary steps had been taken by collecting the requisite information and as soon as it was finalized, he would proceed further in accordance with the law.

16. It is interesting to note that NAB had initiated a Reference bearing No.5 of 2000 involving HPML and its Directors which included some of the Respondents and other members of their families. The said Reference and other proceedings initiated by NAB as well as the confessional statement made by Respondent No.10 contained information which was found sufficient by NAB to initiate the Reference. However, despite the fact that information available with NAB had direct nexus with the issues raised in these proceedings, no steps were taken by NAB to investigate and inquire into the allegations that the offshore companies and properties/businesses owned by Respondents No.7 & 8 were acquired through laundered funds or ill-gotten gains and could have a connection with Respondent No.1. He was further asked to explain why a judgment of the Lahore High Court in which reinvestigation of matters contained in the Reference was disallowed was not appealed before this Court. He responded that as a matter of internal policy, he had sought opinion of its own Law Officers who had opined that in view of the fact that since two Judges of the Lahore High Court had recorded findings against the NAB, chances of success of an appeal before this Court were limited. On the basis of such opinion, it was decided not to file an appeal against the judgment of the Lahore High Court. On being asked by us whether the NAB wished to revisit its decision and reconsider the matter in changed circumstances, and in view of fresh evidence becoming available, the Chairman, NAB submitted that he would stand by his earlier views.

17. The Chairman, Federal Board of Revenue, (FBR) also appeared in accordance with the directions issued by us. He was assisted by Mr. Muhammad Waqar Rana, Additional Attorney General for Pakistan. At the very outset, we asked the Chairman, FBR to update us qua the steps taken by him pursuant to the Panama Papers and the information contained therein becoming public. He informed us that as soon as the Panama Leaks appeared in April 2016, the FBR immediately took up the matter and started investigations / measures to collect information regarding the persons, about 400 in numbers, who allegedly owned offshore companies. He stated that there were practical and procedural difficulties in finding the full names and addresses of the persons whose names appeared in the Panama Papers. On being pressed to disclose when such information was sought, the Chairman, FBR hesitatingly informed us that the first notice / correspondence was initiated in October 2016. We cannot help but notice that even the initial steps were halfheartedly initiated six months after the afore-noted information came to light. It is astonishing to see that while the matter was being widely agitated and discussed in the Print and Electronic Media and the Courts were being approached by different parties who were clamoring for investigation and probe, the FBR had gone into deep slumber and failed to initiate even the preliminary steps towards ascertaining the identities and other antecedents of the persons named in the Panama Papers, let alone taking any action against them.

18. The complete and utter apathy shown by the State functionaries / Departments including the FBR in this matter besides being shocking has raised many questions and the constant foot dragging on their part shows complete and utter lack of interest and a desire to sweep the matters under carpet. This is obviously at the behest of those likely to be affected by deeper probe and investigation into the matter. The Chairman, FBR informed us that since a large number of persons named in the Panama Papers were either non-filers or non-residents, information and data regarding the said persons was not available in the database of FBR. However, the matter had to be coordinated with NADRA and other State agencies charged with the responsibility of maintaining the records of citizens to collect the requisite information in order to have access to such persons. Further, since the record and information relating to offshore companies was beyond the territorial jurisdiction of Pakistan and located in a number of tax havens including British Virgin Islands, letters were written to the Foreign Office of Pakistan to coordinate with their counterparts in the British Virgin Islands etc. in order to collect the requisite information. However, so far no appreciable progress has been made in this regard.

19. With reference to the Respondents in these Constitution Petitions, the Chairman, FBR pointed out that Respondents No.7 & 8 are non-residents and therefore not amenable to the jurisdiction of the tax authorities in Pakistan. He submits that although the said persons were issued notices, they filed their replies on 21.11.2016 in which the position taken by them was that since they were non-resident Pakistanis, they were under no obligation to file Returns or pay taxes on income generated outside Pakistan. He, however, stated that the matter had not been closed and if any material came to light which necessitated any action on the part of the FBR against Respondents No.7 & 8, the same shall be initiated immediately in accordance with the law.

20. The Chairman, FBR was asked to explain how Respondent No.7 claimed to have an NTN when the same was issued in 1995 and according to a Circular issued by the FBR itself, all Tax Numbers issued upto 1998 stood cancelled and fresh tax numbers could be obtained by filing appropriate applications before the competent authorities which had apparently not been done. His response was that he had no specific information in this regard. However, the learned Additional Attorney General submitted that according to the records of FBR, Respondent No.7 was the holder of an NTN which appeared in the Database of FBR. He later confirmed that the earlier had subsequently withdrawn and all tax numbers initially issued by the FBR had been restored/revived.

21. As far as Respondent No.6 is concerned, the Chairman, FBR submitted that she had also filed her response on 21.11.2016 in which she had categorically denied ownership of any foreign property or offshore company. According to her stance, her brother (Respondent No.7) had authorized her to deal with offshore companies owned by him on his behalf.

22. After hearing the Chairman, FBR we are constrained to express our dissatisfaction and extreme disappointment on the mode and manner in which the premier taxation authority of the country has dealt with the matter.

23. The learned Attorney General for Pakistan was called upon to assist the Court on the legal issues raised in these proceedings. In this regard, he made the following submissions:-

  1. There are three main cases pending before this Court filed by Pakistan Tehreek-e-Insaf; Awami Muslim League Pakistan; and ‎Jamaat-e-Islami Pakistan, respectively. These are opposition parties and seek disqualification of the Leader of the House (Prime Minister). He maintains that earlier challenges of the same nature have already been dealt by this Court in the judgment reported as Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court 275). He has pointed out that a similar case (Constitution Petition No.35 of 2016 titled as Muhammad Hanif Abbasi v. Imran Khan Niazi & others) on the basis of similar allegations has been filed against one of the petitioners which is pending before this Court and has not been heard so far.
  1. This is a unique case in many respects including the forum chosen and the form of proceedings initiated. He argues that by way of these proceedings, the petitioners seek a writ of quo warranto and also reliefs which are generally prayed for in election petitions. He maintains that these are not proceedings in the normal course and it is neither the function nor practice of this Court to entertain and proceed in matters of such nature in exercise of its powers under Article 184(3) of the Constitution. He further maintains that in pith and substance, the matter relates to a challenge to the election of a Member of the National Assembly and a declaration is being sought in terms of Article 62(1)(f) of the Constitution. He also maintains that it has to be kept in mind that any declaration granted by this Court will be binding on all Courts and Tribunals which would get guidance from how this Court proceeds in the matter. He states that the law laid down by this Court would be applicable to about 1045 MNAs & MPAs who would henceforth be governed by the same.
  1. The Attorney General for Pakistan submits that he would restrict his formulations to the following points:-
  1. (a)What is the scope of Article 184(3) of the Constitution with reference to the facts and circumstances of the present case; and
  1. (b)Should this Court exercise jurisdiction even if the case falls within the purview of Article 184(3) of the Constitution.

In this regard, the learned Attorney General submits that jurisdiction of this Court can be inquisitorial or adversarial. However, where the inquisitorial jurisdiction is to be exercised, it has to be established that a matter of public importance requiring enforcement of fundamental rights is involved. He maintains that generally this jurisdiction is exercised where relief is to be granted for benefit of the society and or to protect under privileged classes.

  1. He further states that although in Farzand Ali v. Province of West Pakistan (PLD 1970 Supreme Court 98) and Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 Supreme Court 473), this Court had held that jurisdiction under Article 184(3) of the Constitution can be exercised to issue orders in the nature of quo warranto, the person seeking such disqualification must prove the same in adversarial proceedings. In this context, he has also referred to the cases reported as Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court 275) as well as Mahmood Akhtar Naqvi v. Government of Sindh (2015 SCMR 810) wherein this Court has exercised its powers under Article 184(3) of the Constitution.
  1. The learned Law Officer questioned whether this Court is an appropriate forum to issue a declaration under Article 62(1)(f) of the Constitution considering that in making such declaration, provisions of Article 10A of the Constitution would also be applicable. He further submits that this Court must also consider the fact that a declaration issued by this Court under Article 62(1)(f) of the Constitution, the mode and manner in which such declaration is issued will be binding on all Courts and Tribunals which would be called upon to issue such declarations in future.
  1. Elaborating his first formulation, the learned Attorney General submitted that it has to be determined which fundamental rights are under threat or have actually been breached, who is the complainant of the alleged breach and in this regard which facts need to be proved. He further submits that the burden of proof that a fundamental right has been breached is on the person complaining of such breach and once such breach has been proved to the satisfaction of this Court, an appropriate order can be passed for enforcement of such right. He, however, maintains that the person complaining of a breach of fundamental right must first establish a legal obligation which if not performed has led to the alleged breach of a Fundamental Right.
  1. In the context of this case, the learned Attorney General submitted that in the first place the petitioners have not shown which of their Fundamental Rights have been breached by Respondent No.1. He further submits that the petitioners have neither alleged nor established that Respondent No.1 was under any obligation to disclose certain facts which obligation, the latter has failed to fulfill which has led to breach of some Fundamental Right available to the petitioners.
  1. The learned Attorney General for Pakistan further submitted that in order for this Court to exercise powers under Article 184(3) of the Constitution, it must be established that in addition of enforcement of fundamental rights a question of public importance is involved in the matter. In this context, it was pointed out to the learned Attorney General that vide order dated 03.11.2016, this Court had already passed an order with the consent of all concerned that a petition under Article 184(3) of the Constitution was maintainable in the facts and circumstances of the present case and all requirements of the said Article had been met. Confronted with this situation, he submitted that even if this Court determines that it has jurisdiction in the matter, it would have to be seen whether or not jurisdiction ought to be exercised to grant the relief sought in the petitions.
  1. Referring to the case of Farzand Ali v. Province of West Pakistan (PLD 1970 Supreme Court 98), the learned Law Officer submitted that the same was no longer good law in view of the fact that the judgment was rendered under the provisions of Constitution of Pakistan, 1962 without mentioning that the High Courts had power to issue a writ of quo warranto against the holder of public office as defined in Article 242 of the said Constitution. The said definition included Members of the National Assembly and Provincial Assemblies. He maintains that under the Constitution of Pakistan, 1973 a writ in the nature of quo warranto cannot be issued against Members of the National or Provincial Assemblies in view of the fact that such persons are not included in the definition of holder of public office. He submits that since the Parliamentarians hold elected offices, the mechanisms provided in Articles 62 and 63 of the Constitution and provisions of the Representation of People Act, 1976 (RoPA) have to be resorted to. The argument of the learned Attorney General is farfetched, self-contradictory and contrary to our judicial precedents and has not impressed us.
  1. The learned Attorney General further submitted that a declaration as visualized in Article 62 of the Constitution cannot be issued by this Court in view of the fact that such declaration requires an evidentiary hearing. He pointed out that in a few cases where such declarations were issued by this Court, the same were issued on the basis of admitted facts or undisputed material available on record. In this context, he referred to the cases reported as Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court 275) and Mahmood Akhtar Naqvi v. Government of Sindh (2015 SCMR 810).
  1. The learned Law Officer also submitted that in the event of an allegation of corrupt or illegal practices, Sections 42A and 82 of the RoPA provide a procedure of filing a complaint and its trial by a District & Sessions Judge. He further submits that matters being agitated before this Court are already pending before the Election Commission of Pakistan. As such, exercise of jurisdiction by this Court under Article 184(3) of the Constitution in the facts and circumstances of the case is not called for. He maintains that there are factual controversies involved which require evidentiary hearings and the law provides the mode, manner and forum for such hearings. He, therefore, concluded by submitting that special care is to be taken in exercise of jurisdiction. He maintains that a declaration issued by this Court would have serious and far-reaching consequences and a stigma will be attached to the name of Respondent No.1 who is the head of the largest political party of the country. To support his contentions, he relied upon the cases of Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) and Ishaq Khan Khakwani v. Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court 275).

24. In rebuttal, Mr. Naeem Bukhari, learned ASC for the petitioner in Constitution Petition No.29 of 2016, submitted that:-

  1. Date of Birth of Respondent No.7 is 01.05.1972. According to the documents produced on behalf of Respondents No.6, 7 & 8 through CMA No.7531 of 2016, the land for Gulf Steel was allotted on 12.04.1974 and the Rent Agreement was signed on 12.06.1974. On the said dates, Respondent No.7 was two years old; and
  1. ii.When Tripartite Agreement for sale of 75% shares in Gulf Steel was executed in 1978, Respondent No.7 was six years old. The outstanding liabilities of the Gulf Steel in 1978 were as follows:-
  1. Approximately 27 Million Dirhams owed to BCCI;
  1. Approximately 36 Million Dirhams owed to others;
  1. Aggregated liability at the relevant time was in excess of 63 Million Dirhams.
  1. iii.The learned ASC for the Petitioner pointed out that sale of 75% shares in Gulf Steel fetched about 21 Million Dirhams. Admittedly, the entire amount was paid to BCCI. This left an outstanding liability of 6 Million Dirhams to BCCI and 36 Million Dirhams to others. Therefore, when the balance 25% shareholding in the Gulf Steel was sold in 1980 for 12 Million Dirhams (when Respondent No.7 was eight years old), there was nothing which could possibly be invested in Qatar in view of the fact that an outstanding liability of 42 Million Dirhams still existed. He further submits that in the first affidavit of Mian Muhammad Tariq Shafi, it was merely stated that 12 Million Dirhams received from sale of 25% shares in Gulf Steel were, “applied as per instructions of Mian Muhammad Sharif”. However, in the second affidavit, an improvement was made and it was claimed that the said amount was given to the elder brother of Hamad bin Jassim bin Jaber in Dubai for investment in the real estate business of Al Thani Family. This improvement was obviously an afterthought and an attempt to lend credence to an otherwise baseless and concocted tale.
  1. iv.The learned counsel also maintains that there is a stark and noticeable difference between the stance taken by Respondent No.1 and Respondent No.7 before this Court. While Respondent No.1 has constantly taken the position that the funds generated from the sale of Gulf Steel and Azizia Steel Mills at Jeddah were used for purchasing the London Properties and the investment in Qatar was neither mentioned in his various speeches nor in the concise statement filed before this Court, the stance taken by Respondent No.7 is that the said properties were received by way of a settlement with the Al Thani Family.
  1. v.The learned ASC submits that this Court should believe the word of the Prime Minister of the country and ignore the statement of his children who at the relevant time were minors. In the said scenario, both letters issued by Hamad bin Jassim bin Jaber lose their significance and the story built on the same falls to the ground. In that case, it can safely be concluded that the real owner of the Mayfair Properties is Respondent No.1. Further, there is no explanation whatsoever available on the record showing the source of funds for acquiring the properties in London.
  1. vi.He maintained that despite being asked neither learned counsel for Respondent No.1 nor for Respondents No.6, 7 & 8 submitted any documents showing real owner of the Mayfair Properties, the source of funds or the money trail.
  1. vii.He further submits that Respondent No.6 has denied the document as well as her signatures thereon through which LZ Nominee Limited was reappointed as Nominee Director with effect from 13.05.2004. He maintains that in the first place, the said document was not made or forged by the Petitioners. It appeared in the Daily Guardian and was obtained from the correspondent of the said Newspaper but more importantly the document in question was acted upon. In this context, he drew our attention to a document appearing on page 12 of CMA No.895 of 17 which is a photocopy of the record of the Nescol Limited showing names of Directors of the said Company from time to time. It shows that LZ Nominee Limited was reappointed as Nominee Director on 13.05.2004 and resigned on 26.01.2006. He maintained that 13.05.2004 is the exact date which was mentioned in the aforesaid resolution containing the signatures of Respondent No.6 (Maryam Safdar). This unmistakably establishes that Respondent No.6 was, at all relevant times, the beneficial owner of Nescol Limited and the Mayfair Properties held in its name.
  1. viii.The learned counsel further maintained that a declaration is liable to be issued against Respondent No.1 to the effect that he is neither truthful nor honest in view of the fact that he failed to disclose the correct facts and source of funds for purchase of London Properties. He referred to his address to the nation as well as the speech made on the floor of the house in which there was no mention of the investment made in Qatar and the funds generated from the said alleged investment. He vehemently argued that the fact that Respondent No.1 had lied to the Nation, to the National Assembly and to the highest Court of the country had clearly and unambiguously been established.

25. Mr. Muhammad Taufiq Asif, learned ASC for the petitioner in Constitution Petition No.3 of 2017 in his rebuttal arguments submitted that Respondent No.1 had misstated / withheld the material facts in his speech on the floor of the house. Therefore, the privilege claimed under Article 66 of the Constitution was not available to him as the said Article is subject to the Constitution. He further maintained that Respondent No.1 had violated his oath by putting his personal interest over and above the national interest and had made an effort to secure the same by making false statements on the floor of the house as well as before this Court. He was 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 truthfuland ameen as provided in Article 62(1)(f) of the Constitution.

26. 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.

27. Senator Siraj ul Haq, petitioner in Constitution Petition No.3 of 2017 was also granted an opportunity to address the Court. He submitted that Respondent No.1 had failed to explain or justify the sources of funds which were used to acquire assets in London. He maintained that it is incumbent upon this Court to decide the matter in accordance with the law to uphold the Constitution and safeguard the interests of 200 Million citizens of the country.

28. We have heard the learned counsel of the parties at length and examined the record submitted by the parties before us at various stages of the hearings. To our mind, inter alia, the following questions need to be answered on the basis of submissions made by learned counsel for the parties, the assertions made in the petitions and the stance adopted by the Respondents in their respective concise statements. We have also considered additional documents filed by the parties through numerous Civil Miscellaneous Applications filed at various stages of hearing of these petitions:

  1. What was the source of funds for acquisition of the Mayfair Properties in London, UK?
  1. ii.Whether Respondents No.7 & 8, owing to their tender ages had the financial resources in early nineties to possess, purchase or acquire the Mayfair Properties?
  1. iii.Who is the real and beneficial owner of Nescol Limited and Nielsen Enterprises Limited?
  1. iv.Whether sufficient material has been placed on record to explain the source of funds used for acquisition of the Mayfair Properties?
  1. v.Whether Respondent No.1 has any direct or indirect, legal or beneficial right, title or interest in the Mayfair Properties or any of the businesses of Respondents No.7 and /or 8.
  1. vi.Whether enough documentary evidence comprising of account statements and banking documents etc has been produced before us to establish generation of funds through legitimate sources and movement of such funds through banking channels for acquisition of the Mayfair Properties and businesses of Respondents No.7 & 8. If the answer is in the negative, what is its effect?
  1. vii.Whether the two letters dated 05.11.2016 and 22.12.2016 submitted on behalf of Respondent No.7 allegedly written by Sheikh Hamad can be taken into consideration for the purpose of substantiating the stance taken by Respondent No.7
  1. viii.Whether the business transactions allegedly occurring in 1974, 1978 and 1980 in Dubai and the documentation produced on behalf of Respondent No.7 in this regard show legitimate business activity generating sufficient funds to have supported subsequent transactions claimed to have been undertaken in Qatar, Saudi Arabia and UK?
  1. ix.Whether there is sufficient material to support the claim of Respondent No.7 that a sum of 12 million Dirhams was invested in the real estate business of the Thani family in Qatar which multiplied manifold between 1980 to 2000 and consequently led to availability of requisite funds for settlement of dues of Hudaibiya Paper Mills Limited (HPML), provision of funds to Respondents No.7 & 8 in Saudi Arabia and the UK respectively and transfer of Mayfair Properties in favor of Respondent No.7 by way of a final settlement of accounts?
  1. x.Whether Respondent No.1 failed to provide a satisfactory explanation regarding the ownership of the Mayfair Properties and whether he was able to satisfy this Court that he has no nexus or connection with the Mayfair Properties and other businesses of his children?
  1. xi.Whether Respondent No.6 was/is the beneficial owner of the Mayfair Properties. What is the effect of the trust document allegedly executed between her and Respondent No.7. What is the legal effect of the letter written by Mossack Fonseca to Financial Investigation Agency of British Virgin Islands (BVI), confirming that the Respondent No.6 is the beneficial owner of the Mayfair Properties?
  1. xii.Whether Respondent No.6 is/was at the relevant time a dependent of Respondent No.1 and if so, whether Respondent No.1 had rendered himself liable to disqualification by making a misstatement in his Nomination Papers for the general elections of 2013 and concealing the same from the tax authorities?
  1. xiii.Whether Respondent No.1 had been guilty of tax evasion in consequence of which he was liable to be disqualified in terms of Article 62 (1) (o) of the Constitution of Islamic Republic of Pakistan, 1973?
  1. xiv.Whether the affidavits submitted on behalf of Mr. Tariq Shafi can be relied upon and believed in order to establish generation and transmission of funds in the manner claimed by Respondents No.1 & 7?
  1. xv.Whether sufficient material has been placed on record explaining the source of funds for establishing Azizia Steel Mills in Jeddah, Saudi Arabia and its sale in 2005?
  1. xvi.What were the sources of funds utilized by Respondent No.8 to set up Flagship Investments Limited and a number of other companies, set up/taken over by Respondent No.8?
  1. xvii.Whether Respondent No.7 adequately explained the mode and manner and the financial resources utilized for setting up Hill Metal Establishment in Saudi Arabia.
  1. xviii.Does Respondent No.1 have any direct, indirect, legal, beneficial or equitable right, title or interest in Hill Metals Establishment, considering that he has regularly received amounts ostensibly by way of gifts for amounts in excess of US $ 7,612,350 from Respondent No.7? In the year 2015-16 alone a sum of approximately US $ 2.3 Million were received from the account of Hill Metals Establishment.
  1. xix.Whether regular and consistent receipt of huge amounts of money from/on account of Hill Metals Establishment shows a financial/ ownership interest and stake of Respondent No.1 in the said business.
  1. xx.Whether there are contradictions and discrepancies in the speeches, press interviews and statements made by Respondent No.1 and other members of his family at different times before different fora explaining ownership of Mayfair Properties and the sources of funds for purchase of the Mayfair Properties and other businesses of Respondents No.7 & 8. Further, whether there are irreconcilable discrepancies in the stance taken by Respondent No.1 and the statements, interviews and plea taken by Respondent No.7 and other members of his family before this Court?
  1. xxi.Whether there is enough evidence available before this Court furnishing basis for disqualification of Respondent No.1 or to issue a declaration under Article 62(1)(f) of the Constitution and disqualify them from being member of the Parliament?

29. In order to answer the afore-noted amongst a host of other questions which have arisen during these proceedings (all of which need not necessarily be dealt with by us), we consider it appropriate to examine the respective pleas taken by Respondents Nos.1, 6 to 8, 9 & 10 in the respective concise statements filed by them and submissions made by their learned counsel before us. It may also be noted that during the course of proceedings in these matters which were spread over 26 full day hearings before this Bench, additional documents were filed at regular intervals presumably to substantiate what was being asserted and to answer various queries raised by the Court regarding matters considered relevant in order to understand and resolve the controversy before us.

30. These cases arose out of documents recovered from the database of Mossack Fonseca, a Panama based law firm engaged in the business of establishing, structuring and managing offshore companies on behalf of its clients from all over the world, including Pakistan. On the basis of the said information which was available in the public domain it was alleged that assets and businesses were held in the names of offshore companies which were owned by Respondent No.1 i.e. Prime Minister of Pakistan and members of his family including Respondents No.6 to 8. At the heart of the controversy were four residential flats bearing No.16, 16-a, 17 & 17-a, Avenfield House 118, Parklane London, UK (hereinafter referred to as the Mayfair Properties). The Mayfair Properties were held in the names of two offshore companies namely Nescol Limited and Nielsen Enterprises Limited registered in the British Virgin Islands (BVI). It was alleged that the real owner of the Mayfair Properties was Respondent No.1 though beneficial ownership of the same was shown to be that of Respondent No.6, who is the daughter of Respondent No.1. She was at all relevant times and continues to be his dependent. Since Respondent No.1 had failed to declare the assets of his dependent daughter in the nomination papers filed by him for his election to the National Assembly and his yearly Statements of Assets and Liabilities required to be filed under Section 42-A of RoPA and had consistently failed to disclose or declare the same in his Tax Returns/Wealth Tax Statements, there had been a conscious and deliberate concealment of facts which must lead to a declaration that he was not “honest” and “ameen” within the contemplation of Article 62(1)(f) of the Constitution. Consequently, he was liable to be disqualified from being a member of the Parliament.

31. In addition to the above, allegations of money laundering, corruption and use of corrupt practices on the part of Respondent No.1 were levelled. Questions were raised regarding the businesses being run by Respondents No.7 & 8 in Saudi Arabia and the United Kingdom. The said Respondents are the sons of Respondent No.1. Serious questions were also raised regarding the sources of financing of such businesses. Allegations of tax evasion and filing of incorrect/inaccurate tax returns were also levelled.

32. Faced with the disclosures that the Mayfair Properties were owned by the children of Respondent No.1 and the allegations that he is the real owner of these properties, Respondent No.1 who is the Prime Minister of Pakistan, addressed the Nation on 05.04.2016 on national television. This address was also televised by private media networks. He took the stance that on being sent into exile in the year 2000, he and his family had set up a Steel Mill in Jeddah, Saudi Arabia with financing obtained from Saudi Banks and loans given by friends and well-wishers. He stated that the business in question was sold in 2005 and the funds received from such sale were utilized by his sons for their various businesses. He also stated that his son Hassan Nawaz (Respondent No.8), had been residing in London since 1994 and his other son Hussain Nawaz (Respondent No.7) was residing and doing business in Saudi Arabia since 2000. Both were engaged in lawful businesses. He lamented that political opponents would criticize the legitimate businesses of his children whether these were conducted within Pakistan or abroad. He denied any impropriety or wrongdoing on the part of his family. It appears that the speech failed to have the desired effect. The opposition parties as well as the Print and Electronic Media continued to allege wrongdoing on the part of Respondent No.1 and his family. There were calls for his accountability. This appears to have prompted Respondent No.1 to deliver another speech. This time, he spoke in the National Assembly of Pakistan on 16.05.2016. The said speech was also televised by the National Television Corporation Network all over Pakistan as well as other private TV Channels. In the said speech, Respondent No.1 took the position that he had no personal connection with the offshore companies or Mayfair Properties mentioned in the Panama Papers. His name did not feature in any of the leaked documents. Although, he had been advised not to get embroiled in the controversy, but since the name of his family was mentioned in the said Papers, he considered it necessary to clarify the position so that the truth would come out. He stated that he did not need to seek any legal or constitutional immunity. He categorically stated that he had nothing to hide, his past and present conduct was like an open book and he was not averse to any form of accountability or investigation through any mode and before any forum.

33. Referring to the source of funds for the Mayfair Properties he stated that pursuant to nationalization of the family businesses in 1972 his late father Mian Muhammad Sharif went to Dubai and set up a Steel Factory under the name and style of Gulf Steel for which a license was granted by the Government of UAE. A long term lease was also granted to set up the factory over a plot of land measuring 1 million square feet. Subsequently, this factory was sold in 1980 at an approximate price of 33.37 Million Dirhams equivalent to US$ 9 Million. In the same speech, he also stated that when he and his family were sent into exile in 2000 his father set up a Steel Mill in Jeddah for which the amount received from sale of the factory at Dubai was also helpful. The factory at Jeddah was sold in June, 2005 for about 64 Million Riyals equivalent to US$ 17 Million. He stated that these were the sources and resources which were utilized for businesses of his children and purchase of the Mayfair Properties. He also stated that all records and documentation relating to Dubai and Jeddah factories were available and would be produced before any forum to clear the name of his family.

34. It appears that even the second speech failed to settle the storm of criticism caused by the sudden and unexpected disclosures coming in the public domain through Panama Leaks. Therefore, initially efforts were made by/and on behalf of Respondent No.1 to refer the matter to an Inquiry Commission. A letter was accordingly written by the Government of Pakistan through Secretary, Ministry of Law & Justice, to the Honorable Chief Justice of Pakistan requesting him to appoint a Commission of Inquiry. However, such request was declined for reasons mentioned in the letter issued by the Registrar of this Court in response to the said letter. The matter was also referred to a Parliamentary Committee with the consent of the ruling party which is headed by Respondent No.1 as well as most of the opposition parties, to agree on a modus operandi and possibly pass legislation for appointing a Commission of Inquiry to conduct an inquiry/investigation into the matter. It is therefore clear that there was consensus across the board amongst all parties that there was a need for inquiry and investigation to ascertain the true facts. However, unfortunately no consensus could be reached amongst the Parliamentarians regarding the mode, manner, scope and Terms of References (ToRs) of such Commission of Inquiry. This led to the present petitions being filed before this Court on behalf of Mr. Imran Ahmed Khan Niazi, Chairman, Pakistan Tehreek-e-Insaf (PTI), Sheikh Rashid Ahmed, Head of Awami Muslim League Pakistan and Senator Siraj ul Haq, the Ameer of Jamaat-e-Islami. The petitioners are leaders of Political Parties which have representation in the National Assembly of Pakistan. They seek inter alia, disqualification of Respondents No.1, 9 & 10 as Members of the National Assembly; a direction that looted / laundered money along with properties purchased through offshore companies should be recovered; a direction to Chairman NAB to discharge his obligations under Section 18 read with Section 9 of the National Accountability Ordinance, 1999 (NAO) and an order directing Respondents No.2 & 3 to initiate claims on behalf of the Government of Pakistan for recovery of the properties subject matter of these petitions (Mayfair Properties, etc), and also a direction to Respondent No.5, Federal Board of Revenue to probe and scrutinize tax returns and asset declarations of Respondent No.1 and his family.

35. During the course of hearings, transcripts of various television interviews given by Respondents No.6, 7 & 8 were also produced before us. These have not been denied. It appears that Respondent No.7 Hussain Nawaz in an interview with the anchor of a television channel stated that the Mayfair Properties had been purchased from profits on investments made by his late grandfather Mian Muhammad Sharif in Dubai in 1980. Yet in another interview, he stated that the said Properties had been purchased by him (Hussain Nawaz) in 2006 with funds received from sale of the Azizia Steel Mills at Jeddah. Surprisingly, the said Respondent has not made any attempt before us to clarify, explain or reconcile the aforesaid patently contradictory statements made in two different interviews. The series of contradictions did not end here. After the parties had filed their concise statements a totally new dimension was introduced in this saga when in a dramatic turn of events the learned counsel representing the children of Respondent No.1 suddenly produced a letter purportedly written by Sheikh Hamad bin Jassim bin Jaber Al Thani (Sheikh Hamad), statedly a member of the Royal Family of the Kingdom of Qatar. The antecedents, international reputation and credibility of the said gentleman, as pointed out by Mr. Naeem Bukhari, learned ASC for the Petitioner, and not specifically contradicted by the learned counsel for the Respondents, are, it is stated with great respect, not very enviable. It appears that he is/has been the subject of investigations for doubtful money across borders and similar activities in many countries. The least said the better about the evidentiary value and admissibility of the letters issued by him for a number of legal and procedural reasons. These need not be gone into because the letters in question have not been proved in accordance with law, are ex facie based upon hearsay and not substantiated by any credible material, let alone document(s)/evidence. However, suffice it to say at this stage that the Respondents relied upon these letters to take the position that funds generated through sale of Gulf Steel in 1980 (12 Million Dirhams against sale of 25% stake in Gulf Steel Mills in favour of Mr. Abdallah Kaid Al Ahli) were, on the instructions of late Mian Muhammad Sharif, father of Respondent No.1 and grandfather of Respondents No.6 to 8, handed over to the older brother of Sheikh Hamad namely Sheikh Fahad bin Jassim bin Jabir Al Thani (Sheikh Fahad). It is claimed that these funds were given for the purpose of investment of the same in the real estate business of the Thani Family in Qatar. This investment was statedly made on the alleged basis of longstanding and close personal and business relations of late Mian Muhammad Sharif, father of Respondent No.1 and grandfather of Respondents No.6, 7 & 8 with the father of Sheikh Hamad and Sheikh Fahad and the Thani Family of Qatar.

36. Nevertheless, coming back to the sequence of events set out by Respondents No.7 & 8 in their pleadings and submissions of their learned counsel, in order to substantiate the transactions of sale of Gulf Steel in Dubai, photocopy of a Tripartite Agreement between Gulf Steel acting through Mian Muhammad Tariq Shafi who was allegedly acting on instructions and on behalf of Mian Muhammad Sharif, Mr. Abdallah Kaid Al Ahli and BCCI was placed on record. This agreement shows sale of 75% shares in Gulf Steel in favour of Al Ahli family in 1978. This document indicates that a sum of 21,375,000 Dirhams was paid by the Ahli Family as purchase price of 75% shares owned by Mian Muhammad Sharif in Gulf Steel. The agreement also shows that at the time of sale of 75% shares of Mian Muhammad Sharif, Gulf Steel owed about 27,664,589 Dirhams to BCCI alone. The total liability of Gulf Steel was about 36,023,899.31 Dirhams. According to the terms of the agreement, the entire sale price for the 75% shareholding was received by BCCI towards part payment of amounts owed to it by Gulf Steel. There is no explanation available on record and none has been offered despite repeated queries by us as to whether the balance outstanding amounts which were admittedly owed by Gulf Steel or its shareholders/partners to BCCI and other creditors were paid and if so by whom and from what source(s). There has either been complete silence or evasive responses on the part of the Respondents claiming lack of information/documentation/record to answer this question or fill these material gaps in the information.

37. It has been claimed on the basis of photocopy of another document that two years later the remaining 25% shareholding in the business which was held by Mian Muhammad Sharif through Mr. Tariq Shafi was also sold for an aggregate amount of 12 Million Dirhams. This amount was allegedly received in installments over a period of six months. In this context, it may be noted that Mr. Tariq Shafi initially submitted an affidavit dated 12.11.2016 stating that being a member of the Sharif Family he was acting on behalf of late Mian Muhammad Sharif and had sold the 75% shareholding in Gulf Steel. He also submitted that he sold the balance 25% shareholding on the directions of his uncle and utilized the proceeds as instructed by him. At that stage, we note that he did not disclose what those instructions (regarding utilization of proceeds) were. It has been asserted by the learned counsel for the Petitioners that Gulf Steel/Mian Muhammad Sharif owed amounts much in excess of 12 Million Dirhams when the 25% stake was sold. Therefore, the entire amount was utilized to pay off the outstanding liabilities. This assertion appeals to reason and logic considering the contents of the documents showing sale of Gulf Steel in favour of Mr. Abdallah Kaid Al Ahli and the figures showing liabilities of Gulf Steel/Mian Muhammad Sharif.

38. In an apparent effort to fill the gaps and provide answers to various questions raised and reservations expressed by us an improved version of the previous affidavit was submitted by Mr. Tariq Shafi. This affidavit was executed on 20.01.2017. This time it was stated that the sum of 12 Million Dirhams was received in six different installments, spread over a period of about six months. Such installments were received from Mr. Abdallah Kaid Al Ahli in cash and were delivered in cash for investment in the real estate business of Thani Family to Sheikh Fahad who was the older brother of Sheikh Hamad who has allegedly passed away. He received the amounts on behalf of the Thani Family in Dubai during his frequent visits. This investment was allegedly made on the basis of some understanding between their father Sheikh Jassim bin Jaber, who has also allegedly passed away and late Mian Muhammad Sharif who has also passed away. It is stated that both had close family ties and business relations. It is important to note that Mr. Tariq Shafi did not appear before this Court and other than letters allegedly issued by Sheikh Hamad and Affidavits of Mr. Tariq Shafi, the evidentiary value of which is highly questionable to say the least, there is not an iota of evidence or other credible material on record to substantiate the above story regarding investment of 12 Million Dirhams in Qatar.

39. We have found it strange that while all other transactions including setting up of Gulf Steel, obtaining financing for it, repayment of dues of BCCI, furnishing of guarantees stipulated in the Tripartite Agreement, etc. were undertaken by involvement of Banks / Financial Institutions, the entire alleged transaction related to investment of 12 Million Dirhams in Qatar is claimed to have been undertaken through cash transactions without documentation of any nature being executed by the parties evidencing such transaction(s). There is not a shred of evidence showing the terms and conditions on the basis of which this sum of 12 Million Dirhams was invested in the real estate business of the Thani Family. Late Mian Muhammad Sharif was a seasoned businessman of long standing. We find it hard to believe that he instructed Mr. Tariq Shafi to handover 12 Million Dirhams in cash to Sheikh Fahad for investment in his father’s business without any documentation whatsoever. The learned counsel for the Respondents have also failed to explain to us the terms and conditions on the basis of which the alleged business arrangement between Mian Muhammad Sharif and the Thani Family took place. No evidence or material of any nature whatsoever has been produced to show that any relationship being claimed by the Respondents actually existed, what part the late Mian Muhammad Sharif played in this business relationship, whether or not any accounts were maintained and if at all there was any interaction in person or otherwise between late Mian Muhammad Sharif and the Thani Family. The entire story has been woven around two letters and two affidavits, the contents of which we have found to be dubious and hard to believe.

40. Notwithstanding what has been stated above, the story was stretched further by stating that for the next about 20 years the funds were left alone, apparently forgotten or intentionally kept untouched and unaccounted for by late Mian Muhammad Sharif. During this time, apparently the funds continued to multiply expotentially at a very healthy rate. However, between 2001 to 2004 various sums aggregating US $ 4,207,925 which allegedly constituted a part of the return on the initial investment of 12 Million Dirhams were allegedly transmitted to the account of Respondent No.8 to help him set up his business in the UK. Another sum of US $ 8 Million is claimed to have been paid to Al Tawfeeq Investment Company to satisfy a decree issued by the London High Court against Hudaibiya Paper Mills Limited (HPML) and some of its Directors. Other sums aggregating US $ 5,410,000 were claimed to have been given to Respondent No.7 for setting up his business (Azizia Steel Mills) in Jeddah, Saudi Arabia. Surprisingly, there is no documentation, record of banking transactions or any verifiable money trail to show that the said funds which ended up in UK and Saudi Arabia at various times, originated from Qatar and were part of the amounts allegedly owed by the Thani Family to late Mian Muhammad Sharif on his initial investment of 12 Million Dirhams. The record does however indicate that Respondent No.8 who till the year 1999 was a student and was (according to his own admission which has not been disowned or denied) not earning anything, at all, was suddenly able to set up Flagship Investments Company and had more than Half a Million UK Pounds available to him to start a real estate business and later, register/take over and operate a number of other companies for the purpose of running and expanding his business. The funds used by these businesses and the sources of the same, although not the subject matter of the present proceedings, also raise question marks, owing to the fact that these were being received from unknown and unverifiable sources, which have not been explained to us and were used by the sons of the holder of an elected office who also happened to hold the office of the Prime Minister of Pakistan on three different occasions. No effort has been made to provide even the basic answers to such questions, considering that accusing fingers are being pointed towards Respondent No.1, who is the sitting Prime Minister of Pakistan and has held high public offices since 1985.

41. It has further been claimed on behalf of Respondents No.7 & 8 (without proof) that late Mian Muhammad Sharif had instructed the Thani Family that the beneficiary of the proceeds of his investment will be his oldest grandson namely Hussain Nawaz (Respondent No.7). Late Mian Muhammad Sharif breathed his last in October, 2004 where-after it was claimed that in 2006, the Thani Family settled the accounts of investment made by him. In terms of the said settlement, it was claimed on behalf of Respondent No.7 that in addition to other amounts paid earlier and as part of the settlement, in lieu of balance payable amount of US $ 8,039,753, bearer certificates of the two offshore companies namely Nescol Limited and Nielsen Enterprises Limited which owned the Mayfair Properties were handed over by a representative of the Thani Family to a representative of Respondent No.7 in Qatar as the bearer certificates in question were being held in Qatar.

42. It is important at this stage to point out that the Respondents have all along admitted that they were in physical possession and using Mayfair Properties since 1993/1996 when the same appear to have been acquired by two offshore/BVI registered companies namely Nescol Limited and Nielsen Enterprises Limited. However, it has been claimed that the Thani Family owned the said offshore companies and the Mayfair Properties. On account of their family relations with the late Mian Muhammad Sharif, the Thani Family had allowed Respondents No.7 and 8 to occupy and use the said properties while they were studying in London. No effort was made, despite questions asked, to explain why two young men, who were studying in London, needed four large independent flats to live in. Further, once Respondent No.7 (Hussain Nawaz) admittedly left UK to come home and later started businesses in Saudi Arabia, why Respondent No.8 (Hasan Nawaz) continued to hold on to four flats for at least the next six years till 2006 when the same were allegedly given to Respondent No.7 as part of a settlement.

43. The above claim appears to be in contradiction to an interview of Respondent No.8 with Tim Sebastian of BBC London (neither the interview nor its contents have been denied by Respondent No.8). Respondent No.8 was specifically asked by Mr. Sebastian if the Flats he was living in had been acquired by his father through various offshore companies. He responded by saying that he was living on rental basis and rent for the same came from Pakistan, every quarter, from the family business in Pakistan. He also stated that he was a student at that time and was not earning. It is therefore clear that at least three different versions about ownership of the Mayfair Properties, and purchase of the same are available on the record not to speak of yet another version in which the first lady allegedly stated in an interview that the properties in question were purchased in the year 2000 for use of their children who were studying in London.

44. In order to substantiate the claim of a settlement with Thani Family, a photocopy of an unauthenticated handwritten note has been produced. It has some random figures/calculations on it. Nobody has even tried to explain to us, who made these calculations and on what basis. Further, a print out of a computerized spread sheet which too is unsigned and unauthenticated has also been produced. Besides other calculations, it gives details of the aforesaid amounts paid to Respondents No.7 & 8 as well as Al-Tawfeeq Investment Company, which for ease of understanding are given in the following table:-

  1. 8 million – Year 2000 – Al Tawfeeq
  2. 1st payment to Respondent No.7 ( Azizia Steel) – US$ 650,000 – Year 2001
  3. 2nd payment to Respondent No.7 ( Azizia Steel) – US$ 3,160,000 – Year 2002
  4. 3rd payment to Respondent No.7 ( Azizia Steel) – US$ 1,600,000 – Year 2003
  5. Final payment to Respondent No.7 (Mayfair Properties) – US$ 8,039,753 – Year 2006
  • Total = US$ 13,449,753 (including Mayfair Properties)
  1. 1st payment to Respondent No.8 – US $ 1,038,569 – Year 2001
  1. 2nd payment to Respondent No.8 – US $ 461,333 – Year 2002
  2. 3rd payment to Respondent No.8 – US $ 1,771,257 – Year 2003
  3. 4th payment to Respondent No.8 – US $ 936,766 – Year 2004
  • Total = US $ 4,207,925

The spread sheet shows that interest was paid on the so called initial investment of 12 Million Dirhams calculated at the London Interbank Offered Rate (LIBOR) from 1980 onwards till the alleged final settlement. This document is an obvious but amateurish exercise in reverse accounting in order to show accrual of money and then its alleged payment/distribution under various heads of account, to create a semblance of availability and utilization of legitimate funds. No effort has been made to explain why, if at all funds were invested in Qatar in Dirhams (of which there is no evidence), for the purpose of investment in the real estate business of the Thani Family (of which there is not an iota of evidence either) the returns mysteriously accruing and multiplying over the next twenty years were calculated in US Dollars. Further, the alleged investment was admittedly not made by placement of the same in a Bank or financial institution or some investment company. Why, how and on the basis of what understanding or arrangement could returns on the alleged investment be linked to and calculated on the basis of LIBOR? In our opinion, the document is bogus, has no legal or evidentiary value and we have no hesitation in out rightly rejecting it.

45. It may be pointed out that in the year 2000, the London High Court had issued an ex parte decree against HPML, Mian Muhammad Sharif, Mian Muhammad Shahbaz Sharif and Mian Muhammad Abbas Sharif in a recovery suit filed by Al Tawfeeq Investment Company. On an application accompanied by an affidavit for execution of the decree, the London High Court passed a conditional attachment order creating a charge on the Mayfair Properties. The petitioners have heavily relied upon the attachment order of the London High Court to allege that the properties were owned by the Sharif Family in the year 2000, which led to attachment of the same in execution of the decree passed against HPML and the aforesaid members of the Sharif Family who were presumably arrayed as defendants in their capacity as directors of the Company and guarantors of the loan. It, however, appears that the attachment was based on an affidavit filed by Mr. Shezi Nackvi, an officer of Al Tawfeeq Investment Company, stating that the said members of the Sharif Family had proprietary rights/interest in the said properties. The Respondents have, during the course of proceedings before this Court procured and produced an affidavit of Mr. Nackvi stating that he had submitted the affidavit before the London High Court in the year 2000 on the basis of information available in a Report prepared by Mr. Abdul Rehman Malik, who was then working in the Federal Investigation Agency (FIA) stating that the Sharif Family owned these properties. Mr. Nackvi has further stated in his affidavit that other than the afore-noted information he had no independent information or knowledge about the identity of the persons who owned the Mayfair Properties. We have various reservations about the contents, reliability and admissibility of the affidavit. However, nothing turns either on the affidavit or the decree, because in neither, Respondents No.1, 6, 7 or 8 find any mention. The affidavit of Mr. Nackvi does however raise a number of questions and issues relating to the family businesses of Respondent No.1, including HPML etc for which no answers have been found nor has any attempt been made to furnish any answers backed by evidence and documentation. It has however, been claimed that the attachment order/charge was removed by the Court on being informed by the decree holder that the Judgment Debtors (members of the Sharif Family) had satisfied the decree which was apparently for a sum of approximately US $ 16 Million, by payment of a claimed settlement amount of US $ 8 Million. No proof or documentation has been produced to show the terms of settlement (if any). Additionally, it has been claimed that this settlement amount of US $ 8 Million was also paid by the Thani Family to Al Tawfeeq Investment Company.

46. No documentation, paper trail, money transactions, remittances records etc or any other record / material has been placed before us to back this claim. We, therefore, have no reason to believe that this amount was indeed paid by the Thani Family. The question as to who satisfied the decree of the London High Court against HPML and its Directors has remained unanswered. It has further been claimed that out of the settlement amount, a few Million Dollars were also given to Respondent No.7 for the purposes of his businesses in Saudi Arabia. No proof, paper trail or bank records of the same have been furnished either and the learned counsel appearing on behalf of Respondent No.7 has conveniently stated that no record, documentation or evidence is available on account of the fact that most of the persons directly involved in these transactions have passed away, the records have not been retained by the Banks/Financial Institutions and whatever records were available with the Sharif Family were taken over by the NAB, FIA and other authorities when the Government of Respondent No.1 was over thrown in 1999. We are neither convinced nor satisfied by the said explanation.

47. With regard to the Mayfair Properties, it has been claimed on behalf of Respondent No.7 that on receipt of bearer certificates of Nescol Limited and Nielsen Enterprises Limited, he became the beneficial owner of the two companies as well as the properties owned by the said companies in 2006. However, in view of the fact that he has two families and various children, in order to safeguard the rights of both families, he appointed his sister (Respondent No.6) as a Trustee to hold the shares in trust for him. In this regard, a so called Trust Deed has also been produced which appears to have been signed on 2nd of February, 2006 in Saudi Arabia by Respondent No.6 and in London, UK on 04.02.2006 by Respondent No.7. Admittedly, this is a private document, was never registered or authenticated by any competent authority and strangely enough was never placed in any official record or disclosed to any authority that had anything to do with the two offshore companies or the Mayfair Properties held by the said companies. Apparently, it saw the light of the day for the first time in these proceedings before us. It has not been established as to who is the real owner of the Mayfair Properties. However, the facts and circumstances narrated herein raise a suspicion that Respondent No.1 may be the real owner of these properties. Such ownership may be direct, indirect, beneficial or equitable. This requires probe and investigation.

48. It is also important to highlight that in response to letters written by the Financial Investigation Agency of British Virgin Islands (FIA-BVI), Mossack Fonseca after having collected information from Nescol Limited and Nielsen Enterprises Limited confirmed to it that Mrs. Maryam Safdar, Respondent No.6 whose address was mentioned in the records of the two companies as Saroor Palace, Jeddah, Saudi Arabia was the beneficial owner of the two offshore companies which owned the Mayfair Properties. It is pertinent to note that Respondent No.6 was at that time living in exile in Saudi Arabia along with her father (Respondent No.1) and other members of the Sharif Family. We have asked the learned counsel for Respondents No.6 to 8 why this information which according to them is incorrect and erroneous was provided by Mossack Fonseca to FIA-BVI. We have also pointed out to the learned counsel representing the Respondents that this letter directly contradicts the stance of Respondent No.7 who claims beneficial ownership but has failed to produce any document in this regard. However, other than feigning complete ignorance we have not received any satisfactory or even remotely convincing response. It is also noticeable that by and large the Respondents have not denied the information and data coming to light through what is commonly known as Panama Leaks. The only document specifically denied is a Resolution purportedly signed by Respondent No.6. She has denied her signatures on the Resolution dated 07.02.2006 through which she had ostensibly reappointed LZ Nominee Limited as Nominee Director of Nescol Limited, retrospectively, with effect from 13.05.2004. However, from the sketchy record made available to us, we find that the said resolution was duly acted upon by Nescol Limited. The record of Nescol Limited (placed before us through CMA No.859 of 2017) shows that LZ Nominees were reappointed as Nominee Director on 15.5.2004 and resigned as such on 26.01.2006. We cannot help but notice that the date of appointment i.e. 13.05.2004 is exactly the same as it appears in the Board Resolution said to be signed by Mrs. Maryam Safdar and denied by her. Further, we have found no reason either for the petitioner or for any other party to forge a document of this nature. Even otherwise, the resolution was published by a German Newspaper which appears to have dug it out from the cache of documents that constituted part of the Panama Leaks.

49. It appears that in the background of events of 9/11 and the consequent international efforts to curb money laundering, holding assets through offshore companies by masking identity of real owners and tracing illegal money etc, the law relating to offshore companies in BVI namely International Business Companies Act, 1984 was reenacted in 2006. The earlier law provided for issuance of bearer certificates without disclosing the name of the holder which could be issued under Section 28 of the Act without requiring any registration and could be transferred by delivery under Section 31 thereof. In other words a person could hold a share in an offshore company which owned immovable property in UK without disclosing his identity. The reenacted law however provided for registration of the bearer certificates with disclosure of identity of holder of the bearer certificates. The deadline in the reenacted law for registration of such bearer certificates was 31.12.2009.

50. Respondent No.7 claims that pursuant to the aforesaid requirements, the bearer certificates of Nescol Limited and Nielsen Enterprises were surrendered with the said companies and bearer certificates were issued/registered in the names of two management companies namely Minerva Holdings and Minerva Services. This arrangement continued till 2014 when the shares issued in favour of Minerva Holding and Minerva Services were cancelled and fresh shares were issued in favour of Trustee Services Corporation. Thereafter, it appears that Arrina Limited was appointed to provide management services for the Mayfair Properties and liaise with service providers of Nescol Limited and Nielsen Enterprises Limited. Respondent No.7 has attempted to show that he was in effective control of and instructing the management companies as well as service companies. He has thus tried to establish that the beneficial owner of the Mayfair Properties is and always was Respondent No.7 and that Respondent No.6 had no direct or indirect right, title or interest of any nature in the Mayfair Properties other than in her capacity as a Trustee (authorized signatory, etc) for and on behalf of Respondent No.7. However, not a single document showing real ownership of Nescol Limited, Nelson Enterprises Limited, Minerva Holdings, Minerva Services, Trustee Services Corporation, etc or control of Respondent No.7 over the said entities has been produced. The real ownership and control of the companies/properties and more importantly the sources of funds used to acquire these properties remains shrouded in mystery. Another material factor that has to be kept in mind is that admittedly the Mayfair Properties were in possession/occupation of the family of Respondent No.1 since 1993/1996 when these are alleged (without proof) to have been acquired by the Thani Family through Nescol Limited and Nielson Enterprises Limited. At that time neither Respondent No.7 nor Respondent No.8 had any sources to purchase/acquire these assets. Respondent No.1 was at the relevant time (1993/1996) and still is holder of a public office. His children have since then been in possession of the Mayfair Properties, when they were admittedly dependents of Respondent No.1 and had no sources of income. The value of the Mayfair Properties was ostensibly disproportionate to the declared and known sources of income of Respondent No.1 (if his income tax returns are kept in mind). In his concise statement as well as his two speeches, Respondent No.1 has totally denied his connection with these assets. This prima facie amounts to failure to account for these assets. The matter clearly attracts the provisions of Section 9(a)(v) read with Section 14(c) of NAO authorizing NAB to proceed against Respondent No.1 and any other person connected with him in this regard. We cannot help but conclude that this matter has intentionally and deliberately been kept vague, undocumented and unexplained to hide and conceal the real facts, which if disclosed would be damaging for the case of Respondents No.1, 6, 7 & 8.

51. Having examined the transactions leading to acquisition of the Mayfair Properties and having made earnest, and at times, highly frustrating and fruitless efforts to find a verifiable trail of transactions showing legitimate funds being transmitted through legitimate sources and verifiable banking channels for acquisition of the Mayfair Properties, we have been left in a lurch. This was despite tall and unequivocal claims on the part of Respondents No.1, 6, 7, other members of the Sharif Family and their political spokespersons who took to every available television channel and availed every possible opportunity to assert and claim that all relevant documents/evidence showing legitimate sources, money trails and banking transactions were available, in possession of the Respondents and will be produced before the legal fora. Regrettably, there has been complete utter and total failure to do so. It was repeatedly promised that all record will be produced before the concerned fora in order to show that there was no wrongdoing and the acquisition of the properties was through legitimate sources which were transparent and above board. On the contrary, we note with regret and disappointment that every possible effort was made and every conceivable device was adopted to withhold and conceal information and documents which were necessary to answer the numerous questions which have been raised regarding probity, transparency and legitimacy of the transactions in question by the highest Court of the country. We have valid reasons and lawful justification to believe and hold that most of the material questions have either not been answered or where any answers have been attempted, the same have been found by us to be most unsatisfactory, farfetched and unbelievable. It has candidly been admitted by the learned counsel for Respondents No.7 & 8 that there are holes and gaps in the stance adopted by the Respondents which have neither been filled nor explained by supplying acceptable explanations, evidence and documentation. There is a host of material, crucial and critical questions which have remained unaddressed, unresolved and unanswered. It has been argued that the explanation offered by Respondents No.7 & 8 meets the threshold of “realm of possibilities”, and this is what the Respondents were required to do. We are unfortunately unable to agree with the said argument in the facts and circumstances of the present case. We may observe that the contradictory, discrepant and divergent explanations offered to us by the Respondents, including Respondent No.1 have been found by us to be absurd, fanciful and ludicrous. Owing to the missing pieces and gaps we have found it impossible to make any reasonable sense out of a convoluted, contradictory and deliberately jumbled up set of facts to come to a conclusion on a number of matters including the fact that the Mayfair Properties were purchased/acquired with legitimate funds and verifiable sources.

52. The most material question that arises from the above discussion is whether the findings recorded above are enough for us to declare that Respondent No.1 is not truthfuland ameen and then proceed to disqualify him from being a member of the National Assembly. In order to answer these questions, it would have to be seen if there is any provision of the Constitution which may require a Parliamentarian to disclose assets of his adult and independent children and the sources of funds with which such assets were acquired and in the event of such non-disclosure or inability to explain the sources, empowers this Court to disqualify such Parliamentarian, in exercise of powers under Article 184(3) of the Constitution. Articles 62 & 63 of the Constitution deal with the issue of qualification and disqualification of the Parliamentarians. Interpretation of the said constitutional provisions, being pivotal to the question in issue, the said Articles are reproduced below, for ease of reference:-

“62(1). A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless—

  1. he is a citizen of Pakistan;
  1. he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in—

(i) any part of Pakistan, for election to a general seat or a seat reserved for non-Muslim; and

(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.

  1. he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;
  1. he is of good character and is not commonly known as one who violates Islamic Injunctions;
  1. he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
  1. he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and
  1. he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.

(2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.

63 (1). A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if—

  1. he is of unsound mind and has been so declared by a competent court; or
  1. he is an undischarged insolvent; or
  1. he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
  1. he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
  1. he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
  1. being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
  1. he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release; or
  1. he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or
  1. he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of five years has elapsed since his dismissal; or
  1. he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or
  1. he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
  1. he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person—

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) Where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) Where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or

Explanation.—In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply; or

(m) he holds any office of profit in the service of Pakistan other than the following offices, namely:-

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars,

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or

(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or

(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.

Explanation.—For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.

(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

53. Perusal of the afore-noted constitutional provisions would reveal that the said Articles of the Constitution do not impose an obligation on a Parliamentarian to disclose his own assets or those of his spouse, dependent or independent children. Likewise, there is no corresponding provision in the Constitution providing a penal consequence for non-disclosure of such assets or failure to explain the source(s) of funds with which such assets may have been acquired. In the absence of any constitutional requirement, the same cannot be read into the language of Articles 62 or 63 of the Constitution. For the said purpose, one has to look towards other laws which create such obligations, violation whereof attracts the provisions of Articles 62 and /or 63 of the Constitution.

54. One such law relating to the conduct of elections to the National and the Provincial Assemblies is the Representation of People Act, 1976 (RoPA). It provides for the conduct of elections and to guard against corrupt and illegal practices and other offences at or in connection with such elections. Article 218 of the Constitution provides for establishment of an Election Commission to organize and conduct elections and to make such arrangements as may be necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.

55. Section 12 of RoPA deals inter alia with nomination papers, sub-section (f) thereof requires a candidate to file with his nomination papers, on solemn affirmation, a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June. Section 107 of the RoPA empowers the Election Commission of Pakistan to make Rules for carrying out the purposes of the Act. In exercise of such powers, the Representation of People (Conduct of Election) Rules, 1977 (the Rules) have been promulgated. In terms of Rule 3 thereof, Nomination Forms have been prescribed. The standard Nomination Form, in addition to other particulars of the candidate, requires him to make and sign a number of declarations. The declaration relating to assets and liabilities reads as under:-

“STATEMENT OF ASSETS AND LIABILITIES

I, ……………………. A candidate for election to general seat from constituency No………… hereby declare on solemn affirmation that no immovable and movable property, including bonds, shares, certificates, securities, insurance policies and jewellery, other than specified herein below, is held by me, my spouse(s) and dependents on the 30th day of June, ………………..

ASSETS

  1. IMMOVABLE PROPERTY

Open plots, houses, apartments, commercial buildings, under construction properties, agricultural property, etc.

  1. Held within Pakistan
  1. ____________
  2. ____________
  3. ____________
  1. Held outside Pakistan
  1. ____________
  2. ____________
  1. MOVABLE ASSETS
  1. Business capital within Pakistan
  1. Name of business
  2. Capital amount
  1. Business capital outside Pakistan
  1. Name of business
  2. Capital amount
  1. Assets brought or remitted form outside Pakistan*

(i) Bank drafts/Remittances

(ii) Machinery

(iii) Other

  1. Assets created out of remittances from abroad*
  1. Investments

(i) Stock and Shares

(ii) Debentures

(iii) National Investment (Unit) Trust

(iv) ICP Certificates

(v) National Savings Schemes

– Defence Savings Certificate

– Special Savings Certificate

– Regular Income Certificate

(vi) Unsecured loans

(vii) Mortgages

(viii) Any other

(f) Motor Vehicles **

Make Model Reg. No.

(i) ____ ____ ____

(ii) ____ ____ ____

(g) Jewellery, etc

Weight _______

Description______

(h) Cash and Bank Accounts*

(i) Cash in hand

(ii) Cash at Bank

Account No. Bank & Branch

Current __ _____

Deposit __ _____

Savings __ _____

Other Deposits __ _____

(i) Furniture, Fittings & articles of personal use –

(j) Assets transferred to any person—

  1. Without adequate consideration, or
  2. By revocable transfer

(k) Any other assets

Cost of Assets Present value of property Remarks

LIABILITIES

Amount Remarks

  1. Mortgages Secured On Property Or Land
  2. Unsecured Loans Owing
  3. Bank Overdraft
  4. Bank Loans
  5. Amounts Due Under Hire Purchase Agreement
  6. House Building Loans
  7. Advances from Provident Funds etc
  8. Other debts due
  9. Liabilities in the names of minor children (in respect of assets standing in their names)

Total

VERIFICATION

I,…………………… S/o, W/o, D/o ……………………. Do hereby solemnly declare that, to the best of my knowledge and belief, the above statement of assets and liabilities of myself, my spouse(s), dependents as on 30th June, …….. is correct and complete and nothing has been concealed therefrom.

Dated……………. Signature of Candidate”

56. The said declaration is also required to be verified under Oath. Section 42-A of the RoPA also requires every member to submit a statement of assets and liabilities of his own, his spouse and dependents annually to the Commission by the thirteenth day of September each year. Rule 28-A of the Rules requires such statement to be submitted in Form XXI, the format whereof is provided therein. In terms of Section 42-A(4) of the RoPA if a member submits the statement of assets and liabilities which is found to be false in material particulars, he may be proceeded against under Section 82 of the RoPA for committing an offence of corrupt practice. If found guilty by a Sessions Judge under Section 94 of the RoPA, such member is punishable with imprisonment for a term which may extend to three years or with fine which may extend to Five Thousand Rupees or with both. In case, it is established in a Court or Tribunal of competent jurisdiction that a candidate has concealed any of the assets required to be disclosed under the statement of assets and liabilities in his Nomination Papers or his Annual Statement of Assets and Liabilities, the same may constitute basis for his disqualification inter alia under the provisions of Articles 62 and/or 63 of the Constitution.

57. However, it needs to be emphasized that where such declaration is properly made there is neither any requirement nor power vesting in the hierarchy provided under the Election Laws to require the candidate to explain the source of funds used to acquire such assets. Does this mean that a candidate or holder of a public office, who acquires assets through unlawful means goes scot-free as long as he declares the same in his Nomination Papers? The answer is obviously in the negative. However, the mechanism provided by the law in order to make such a person answerable and accountable for disclosure of sources for acquisition of assets is incorporated in the NAO under which a person, holding assets directly or indirectly, which are disproportionate to his known sources of income can be called upon to explain and disclose the sources with which such assets were acquired and on his failure to do so to the satisfaction of the Court, he can be visited with penal consequences provided in the said law. A conviction under NAO or any other law for the time being in force can also trigger the disqualification mechanism provided in the Constitution. Section 9(a)(v) read with Section 14(c) and Section 15 of the NAO provide as follows:-

“9(a)(v). if he or any of his dependents or benamidars owns, possesses, or has http://www.nab.gov.pk/Downloads/nao.asp – 12-4[acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot [reasonably] account for; [or maintains a
standard of living beyond that which is commensurate with his sources of income]

14(c) In any trial of an offence punishable under clause (iv) of sub-section (a) of section 9 of this Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of [assets] or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction therefore shall not be invalid by reason only that it is based solely on such a presumption.

15. Disqualification to contest elections [or to hold to public office]. (a) Where an accused person is convicted [of an offence under section 9 of this Ordinance], he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province:

Provided that any accused person who has availed the benefit of [sub-section (b) of section 25] shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.

(b) Any person convicted of an offence [under section 9 of this Ordinance] shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances [or other financial
accommodation by] any bank or financial institution [owned or controlled by the Government] for a period of 10 years from the date of conviction.”

58. Where there is an allegation that a holder of public office or any of his dependents or benamidars owns or possesses any assets or pecuniary resources which are disproportionate to his known sources of income which he cannot reasonably account for he can be convicted of an offence of corruption and corrupt practices and upon such conviction, penal consequences would follow. However, such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution. Further, such course of action would be violative of the principles enshrined in Articles 4 and 25 of the Constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional Court following an unconstitutional course. This, we are not willing to do, in the interest of upholding the rule of law and our unflinching and firm belief in adherence and fidelity to the letter and spirit of the Constitution.

59. Perusal of Article 62 (1) of the Constitution would indicate that, prima facie it relates to pre-election qualification as is evident from the words, “a person shall not be qualified to be elected …..” The provisions of Article 62 of the Constitution which have also been replicated in Section 99 of the RoPA are initially enforceable through the hierarchy established under the RoPA starting from the Returning Officer and culminating in the Election Tribunal/Election Commission in terms of Articles 218 & 225 of the Constitution. For instance, if it is established before the Returning Officer, Election Tribunal or the Election Commission that a Court of law has issued a declaration that a candidate is not sagacious, righteous, non-profligate, honest and ameen, any of the fora provided in the RoPA (depending on the time, the stage and the proceedings in which such information is placed before the concerned forum) can hold that he is not qualified to contest the election. It must also be kept in mind that various provisions of RoPA prescribe a period of limitation for filing objections to the candidature of an intending candidate or to challenge his election after notification of the result is published in the official gazette. The question that arises is what remedy is provided under the law and the Constitution if certain facts or circumstances as enumerated in Articles 62 or 63 of the Constitution are discovered after a person has been elected and the stage or the period of limitation to challenge his election on any of the grounds provided in the said Articles before the competent fora provided in RoPA has passed/expired. Does this mean that a person once elected cannot be disqualified on the said grounds by any mode or manner despite the fact that he suffers from any of the disqualifications mentioned in Articles 62 and/or 63 or any provision of RoPA? The answer is obviously in the negative. Where there is a wrong there is a remedy. The Constitution and the law clearly cater for situations like these.

60. It may be noticed that Article 63 of the Constitution inter alia deals with the issue of post-election disqualification and also provides a forum for the same. Therefore, if a question is raised by a member as to whether or not another member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member on any ground available under the Constitution or any law for the time being in force including RoPA, the Speaker or the Chairman, as the case may be, is obliged to examine the material placed before him and if he comes to the conclusion that such question has arisen, he is required to refer the same to the Election Commission within 30 days. If he fails to do so within the said period such question is deemed to have been referred to the Election Commission.

61. Before referring the matter to the Election Commission, the Speaker / Chairman has 30 days to decide whether or not such question has arisen and if he decides that no such question has arisen he has the power to refuse to refer the question to the Election Commission for decision. However, the decision of the Speaker has to be made on the basis of lawful, valid and cogent reasons showing due application of mind to the facts, circumstances and material placed before the Speaker/Chairman, as the case may be. Such decision is justiciable before Courts of competent jurisdiction. If a Court of competent jurisdiction on being approached by any of the parties finds that the decision of the Speaker/Chairman is legally or factually incorrect it can set aside such decision, and pass appropriate orders in accordance with the law and the Constitution to refer the matter to the Election Commission of Pakistan.

62. On receipt of such question, the Election Commissionhas the power to decide the same within 90 days and if it is of the opinion that the member has become disqualified, such member ceases to be a member and his seat becomes vacant. In these proceedings, the Election Commission of Pakistan has the power to issue such directions or orders as may be necessary for the performance of its functions and duties, including any order for doing complete justice and an order for the purpose of securing attendance of any person or the discovery and production of any document. Any of the parties aggrieved of a decision of the Election Commission can approach a Court of competent jurisdiction to challenge such order.

63. Another constitutional remedy in situations of this nature is available under Article 199 of the Constitution before the High Court and in appropriate cases before this Court in terms of Article 184(3) of the Constitution. As noted above jurisprudence in this regard has developed in the past few years. However, in an earlier case reported as Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), Justice Hamoodur Rahman, CJ writing for the Court laid out the contours of exercise of jurisdiction of this Court. He repelled the contention that a writ of quo warranto could not be issued in an election dispute by holding as follows:-

“I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person’s right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose”

64. The principles laid down in the said judgment were subsequently followed in a number of cases including Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089). However, this power can be exercised only when there are admitted facts and/or irrefutable direct evidence available on record to justify disqualification. In the instant case, admitted facts or direct and irrefutable evidence is not presently available on record to justify and support a declaration of disqualification. However, sufficient material is available to raise valid suspicions which furnish legitimate basis to order probe and investigation to ascertain the true facts and collect evidence. If such facts/evidence are/is placed before this Court, appropriate orders including orders for disqualification can be passed in exercise of powers under Article 184(3) read with Article 187 of the Constitution.

65. We have been informed that a number of Members of the National Assembly belonging to the political party of the petitioner as well as Sheikh Rashid Ahmed, one of the petitioners before us, had filed Petitions before the Speaker, National Assembly under Article 63(2) of the Constitution seeking disqualification of Respondent No.1. However, vide an identical order dated 2nd September, 2016, the Speaker refused to refer the Petitions to the Election Commission holding that in his opinion no question had arisen regarding disqualification of Respondent No.1 as a member of the Majlis-e-Shoora (Parliament). The afore-noted order passed by the Speaker of the National Assembly has been challenged before the Lahore High Court, by way of a constitutional petition which is pending. We would, therefore, not like to comment on the order of the Speaker lest such comment should prejudice the case of either party. The High Court shall therefore proceed with the matter(s) before it and decide the same in accordance with law. Article 63(2) of the Constitution provides one of the remedies to cater for a situation where a validly elected member becomes disqualified during the tenure of his membership on the basis of any of the grounds mentioned in Articles 62 and/or 63(1) of the Constitution. That is to say the ground of disqualification occurs after he has validly been elected and was not in existence (whether known to anybody or not) at the time when he filed his nomination papers and was elected. In such a situation, any other member can approach the Speaker/Chairman seeking disqualification of the member who has incurred the alleged disqualification whereupon the Speaker/Chairman and the Election Commission can exercise powers provided in Article 63(2) and (3) of the Constitution, respectively. This means that where the ground for seeking disqualification is that a member did not qualify at the time of filing his nomination papers, but this fact (ground seeking disqualification) was discovered subsequently (which is the case of the petitioners), the matter cannot be referred to the Election Commission of Pakistan. In order for the Election Commission to disqualify a member on a reference sent by the Speaker, it must be shown that the disqualifying fact or event occurred after a member had validly been elected, which (ground) was nonexistent at the time of filing of nomination papers. The words “if any question arises, whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member ….” supports this interpretation. This view is fortified by the law laid down by this Court in Muhammad Azhar Siddiqui v. Federation of Pakistan (PLD 2012 SC 774).

66. As noted above, the power to disqualify a member in cases where for some reason he escaped disqualification at the time of filing his/her nomination papers, but such fact/event was discovered subsequently (as is the case set up by the petitioners) can, in appropriate cases and subject to availability of admitted facts or irrefutable evidence be exercised by the High Court under Article 199 and by this Court under Article 184(3) of the Constitution on the principles laid down in Farzand Ali’s case ibid, which has been followed by this Court in a number of recent judgements, including Mehmood Akhtar Naqvi’s case ibid. This power can also be exercised where facts can be determined if the exercise does not require voluminous evidence and intricate and disputed questions of fact are not involved. The instant case, however, does not presently meet the said criteria.

67. We have already dealt with the ground urged by the Petitioners seeking disqualification of Respondent No.1 by issuing a declaration that he is not “honest” within the meaning of Article 62(1)(f) of the Constitution in the earlier part of the judgment.

68. We now proceed to take up other grounds urged by the Petitioners in their petitions seeking disqualification of Respondents No.1, 9 & 10. It has been alleged by the Petitioners that Respondent No.1 did not declare the Mayfair Properties in the declaration filed with his nomination papers. The Respondents maintain that the beneficial owner of the said properties is Mrs. Maryam Safdar, who is a dependent of Respondent No.1. As such, he was required to disclose the said assets in his nomination papers. Such failure on his part shows that he is not truthful within the contemplation of Article 62(1)(f) of the Constitution and is therefore, liable to be declared as such, leading to his disqualification from being a member of the National Assembly. The defence of Respondent No.1 is that he neither owns the offshore companies (Nescol Limited and Nelson Enterprises Limited) nor the Mayfair Properties. However, in our view a mere denial is not enough for the reason that admittedly Respondents No.6 to 8 were minors when the Steel Mill at Dubai was established, Respondent No.1 being the oldest son of Mian Muhammad Sharif was with him in the said business (as is evident from the photographs produced by him) and the family was together when Ittefaq Foundry was returned and a number of other Units were set up. It is hard to believe that he had no information regarding the mode and manner in which the shares in Gulf Steel were sold in two different transactions and the funds generated through the said sales were used. We are also unable to believe that if at all an investment was made in Qatar, Respondent No.1 was totally unaware of it till the time that he addressed the Nation in 2016 and even after that till the time that he filed his concise statement before this Court, on none of which occasions did he mention investments in Qatar and the Mayfair Properties being given to Respondent No.7 by way of a settlement through transfer of bearer certificates. Further, the stance of different members of the Sharif Family including Respondents No.1 and 7 for many years has been that the Mayfair Properties were “purchased”. However, their accounts differ quite materially on the mode of acquisition, source of funds and timing of acquisition. The position was bad enough, as it was when letters allegedly written by Sheikh Hamad were introduced to add a new dimension to the already confused state of affairs to complicate it further. This was obviously an afterthought. Therefore, if the story of the Qatar investment and settlement was to be disbelieved (which at this stage and on the basis of material before us, we have no reason to believe), many questions have arisen on the basis of the admitted position that the Mayfair Properties have been in possession and occupation of the sons of Respondent No.1 since 1993/1995 when admittedly Respondents No.7 & 8 were dependents and had no independent sources of income. These questions include questions like who is the real owner of the Mayfair Properties, whether Respondent No.1 has legal or beneficial title or ownership of the said properties, whether he is holding these properties through Benamidars, whether the properties were acquired through legitimate sources etc, whether by his failure to declare his ownership in his Nomination Papers/Tax Returns/Wealth Statements etc he has concealed his property and is therefore liable to be visited with the penal consequences of Articles 62 & 63 read with Section 99 of the RoPA. Further, Respondent No.1 is a holder of public office and his children have been in possession of the Mayfair Properties since 1993/1996 which were disproportionate to the known sources of income of Respondent No.1 and his children. Therefore, the provisions of Section 9(a)(v) read with Section 14(c) of the NAO may be attracted. However, it is clear and obvious that answers to these questions cannot be found without a thorough probe and investigation. On the basis of the outcome of such exercise, we would be in a better position to decide if there is sufficient material available before us to exercise jurisdiction under Article 184(3) of the Constitution to disqualify Respondent No.1 and/or refer the matter to an Accountability Court established under the NAO.

69. As far as recording a finding that Respondent No.1 is hit by the provisions of the Article 62(1)(f) of the Constitution because he did not declare an asset (Mayfair Properties) beneficially owned by his dependent daughter (Maryam Safdar) in his nomination papers is concerned, there are two stumbling blocks in our way to grant such declaration. In the first place, we are not convinced at this stage and on the basis of material before us to hold conclusively that Respondent No.6 was a dependent of Respondent No.1. In addition, and notwithstanding the fact whether or not Respondent No.6 was a dependent of Respondent No.1, it cannot at this stage, on the basis of material before us conclusively be held that Respondent No.6 is the beneficial owner of the Mayfair Properties. Both these facts need to be established before Article 62(1)(f) of the Constitution gets attracted in this case. As a necessary corollary, it is not possible for us to hold, at this stage on available record, that Respondent No.1 has failed to disclose an asset owned by his dependent daughter in the declaration given in his Nomination Papers, and return a finding that he is not honestin terms of Article 62(1)(f) of the Constitution.

70. Another aspect of the case set up by the petitioner against Respondent No.1 with reference to his disqualification is that he had declared Respondent No.6 as his dependent in his wealth statement for the tax year 2011. It has been submitted that despite such admitted dependency, Respondent No.6 was not shown as a dependent and the Mayfair Properties and other assets owned/held by her were not declared in the nomination papers submitted by Respondent No.1 for his election for a seat in the National Assembly in 2013.

71. The basic question that arises from the assertions made on behalf of the petitioners is whether Respondent No.6 was a dependent of Respondent No.1 in 2011. The learned counsel for Respondent No.1 has argued that mere mention of Respondent No.6 in the tax returns of Respondent No.1 in the column provided for dependents is not enough to make her a dependent of Respondent No.1 in the legal sense. He has elaborated by pointing out that agricultural property owned by Respondent No.1 was held in the name of Respondent No.6 and was so disclosed in the Wealth Tax Returns. This disclosure perforce had to be made in the column for dependents owing to lack of space in the computerized form for disclosure of properties held by the filer in the name of any other person. He further points out that it was clearly stated that the property was, “held in the name of Respondent No.6” which shows that the property was owned by Respondent No.1 for all intents and purposes but was bona fide declared to be held in the name of Respondent No.6. The property in question was subsequently purchased by Respondent No.6 from Respondent No.1 through validly registered sale deeds and payment of consideration. This fact is established by the documents showing transfer of approximately Rs.254 million from the accounts of Respondent No.6 to the account of Respondent No.1 through banking channels which shows that she paid the price of the agricultural land in question to Respondent No.1 and became the real owner of the property in question. She declared the said property as her own in her Tax Returns. The consideration received by Respondent No.1 was also shown in his Tax Returns. In the subsequent Wealth Tax Statements, filed by Respondent No.1, the said property was therefore not declared by Respondent No.1 as his property in his returns/declarations filed after 2012. The learned counsel for Respondent No.1 has further drawn our attention to a notification dated 26.08.2015 issued by the FBR creating another column in the Wealth Tax Return to provide space for disclosure of properties held by the filer in the names of others. This according to the learned counsel shows that the deficiency in the earlier form was noticed by the FBR which necessitated the issuance of the notification in question by way of rectification of the omission/deficiency in the Form. We have considered the argument of the learned counsel for Respondent No.6 and find it plausible. In our opinion, it explains the transaction in question adequately and the same is also verifiable from the record. Further, the transaction has not been questioned by the Income Tax Authorities either before us or even in exercise of their own powers under the Income Tax Ordinance, 2001.

72. We also find that although Respondent No.6 has received cash gifts from her father in substantial amounts on various occasions, the same have been declared where such declaration was required. Even otherwise, receipt of gifts from the father does not necessarily make Respondent No.6 his dependent in the legal sense of the world. We also notice that Respondent No.6 owns substantial agricultural property, receives income from the same, holds shares in limited companies worth more than Rs.200 million and her husband also receives a fair amount of money by way of pension as a retired military officer. He also receives salary / allowances in his capacity as a member of the National Assembly. The mere fact that she has chosen to live in a compound owned by her grandmother does not ipso facto make her a dependent of Respondent No.1 either. She has asserted and such assertion has not been challenged by the learned counsel for the petitioner that she contributes a substantial sum of money towards her share in the joint expenses incurred by her grandmother on behalf of other members of the Sharif Family residing in the compound. In this context, whether or not Respondent No.6 is the beneficial owner of the Mayfair Properties becomes irrelevant at this stage, seen from the point of view of seeking disqualification of Respondent No.1 on the ground that he has failed to disclose the assets of a dependent. Even otherwise, the issue of dependency is a question of fact to be determined on case to case basis after recording evidence. We are not persuaded to undertake the said exercise, for this purpose, while exercising jurisdiction under Article 184(3) of the Constitution.

73. Having come to the conclusion that in these proceedings sufficient material is not available on the record to establish that Respondent No.6 is a dependent of Respondent No.1, in a legal sense, we do not feel the necessity to discuss this aspect of the case any further, lest it should prejudice the case of either party before a competent forum if and when this issue is agitated.

74. It has strenuously been argued by the learned counsel for the petitioner that Respondent No.1 and other members of his family have been involved in tax evasion. By way of illustration, it has been pointed out that in the wealth reconciliation statements for the tax year 2011, Respondent No.1 has disclosed receipt of a sum of US$ 1,914,054 which translates into about 20 Crore Pak Rupees. In subsequent years, similar amounts were received by Respondent No.1 as gifts. These amounts were allegedly sent by Respondent No.7 to Respondent No.1 by way of gifts. It is argued that the amounts received by Respondent No.1 did not qualify as gifts. These were to be treated as income in the hands of Respondent No.1 through other sources on which tax was required to be paid by him. It was also pointed out that despite tall claims made by Respondent No.1 regarding payment of huge amounts of money as tax by the industrial establishments of his family, his personal tax payments between 1981 to 1999 were not more than a few thousand rupees.

75. It is therefore argued that the tax payment history of Respondent No.1 clearly points towards tax evasion on his part for years on end. On considering the arguments of both sides on the issue, we find that the Returns filed by Respondent No.1 from time to time were accepted by the Tax Department. The Returns were neither challenged nor reopened in exercise of powers available to the concerned functionaries of the tax department and may have become past and closed transactions owing to afflux of time considering the period of limitation provided by the Tax laws. Representatives of the Federal Board of Revenue (FBR) and their counsel categorically stated before us that no definitive information was placed before the competent authorities either by the petitioners or any other person that may have furnished basis for reopening and scrutiny of the Returns of Respondent No.1. It was therefore stated that there was no valid reason or lawful basis available to the tax department to reopen the returns of Respondent No.1 for past years.

76. Further, even if for the sake of argument, the allegations of tax evasion were to be given any credence, the same would not automatically attract the penal consequences of Article 63(1)(o) of the Constitution. This is in view of the fact that the said Article is attracted only where liability has finally been determined by the competent forum and default has been committed in payment of such determined liability. In the present case, the said prerequisites are missing. As a result, on a mere allegation of tax evasion, it cannot be held that provisions of Article 63(1)(o) of the Constitution are attracted and Respondent No.1 is liable to be disqualified on that score from being a member of the Parliament.

77. As far as the question of default in payment of tax on the afore-noted gifts is concerned, the learned counsel for Respondent No.1 has drawn our attention to the exemption provided under Section 39(3) of the Income Tax Ordinance, 2001. For ease of reference, the said provision is reproduced below:-

“(3) Subject to sub-section (4), any amount received as a loan, advance, deposit [for issuance of shares] or gift by a person in [a tax year]from another person (not being a banking company or financial institution) otherwise than by a crossed cheque drawn on a bank or through a banking channel from a person holding a National Tax Number shall be treated as income chargeable to tax under the head “Income from Other Sources” for the tax year in which it was received.”

78. We have been informed that Respondent No.7 held a National Tax Number (NTN) at the time when the gifts were made and continues to do so. The said assertion has not seriously been contested by the Petitioners. As such, the amounts sent by him by way of gifts to Respondent No.1 enjoyed exemption from payment of income tax and were not required to be treated as income from other sources as visualized in Section 39(3) ibid. Further, the amounts received by Respondent No.1 from Respondent No.7 were transmitted through banking channels and were duly declared to the tax authorities. Some Tax Returns and Account Statements reflecting the above position have been filed and examined by us. Prima facie, the amounts received as gifts appear to be covered by the exemption provided in Section 39(3) ibid. Likewise, the cash gifts given by Respondent No.1 to Respondents No.6 & 8 were also given through banking channels/crossed cheques and were duly declared by the donor/donee in his/her Returns where required. As such, these transactions have not been found by the tax department to be in violation of provisions of the tax laws. We are therefore not inclined to arrogate to ourselves the role of the tax department, and / or tax auditors, reopen the tax history of the Respondents and record findings of our own. In case, the petitioners have any definite information regarding tax evasion, they are at liberty to approach the competent authorities who will proceed in the matter in accordance with law.

79. While on the subject of gifts, we may observe that between the years 2011 to 2015, Respondent No.1 had received amounts in excess of Rs.840 million by way of gifts from Respondent No.7. On being directed by us, the learned counsel for Respondent No.7 filed documents showing how and from where the funds originated and were routed to the account of Respondent No.1. The documents have been examined by us. We have noticed that most of the funds were sent from the accounts of an entity operating in Saudi Arabia under the name and style of Hill Metals Establishment. This company/entity is allegedly owned and operated by Respondent No.7 and appears to be a highly profitable business, enabling Respondent No.7 to send tens of millions of rupees to Respondent No.1 as gifts on a regular basis. It was claimed that the Company is a successful concern and is generating huge amounts of profits out of which certain sums are sent by Respondent No.7 to Respondent No.1 by way of gifts. Since this information has come before us during the course of these proceedings and appears to have some significance, we cannot simply skim over it. This information by itself, considering the volume of money being generated and circulated, identity of the parties involved and the seriousness of allegations against them raises a number of questions which have no obvious answers and nothing has been placed on record nor has any attempt been made to provide any answers. The record is completely silent on the question how and when Hill Metals Establishment was set up by Respondent No.7, who are its shareholders, what was the source of funds which were used to set up this business and why such huge amounts of money are being circulated through the said company. It has also not been explained whether or not Respondent No.1 who is the recipient of these funds has any direct, indirect, overt or covert nexus or connection with the said company. In today’s world of offshore companies, dummy directors and elaborate devices to hide and camouflage financial transactions, as has been seen in this case, direct evidence is seldom found. However, there are telltale signs that may point towards the possibility of legal, beneficial or equitable interests in financial resources or assets. Receipt and use of financial benefits is one such sign. Therefore, owing to admitted receipt of sums in excess of Rs.840 Million between 2011 to 2015 by Respondent No.1 from Respondent No.7, the possibility of a beneficial interest of Respondent No.1 in assets ostensibly held in the name of Respondent No.7 cannot be ruled out. As a corollary, if it is found that there is any such interest of Respondent No.1 in Hill Metals Establishment, his failure to declare the same in the Nomination Papers and Tax Returns could attract the provisions of Articles 62 and 63 of the Constitution for disqualification of Respondent No.1. Further, the value of these assets of Respondent No.7 appear to be disproportionate to his known sources of income and Respondent No.1, being their father, keeping in view the huge amounts received by him through gifts needs to explain his position. In these circumstances, prima facie provisions of Section 9(a)(v) read with Section 14(c) of the NAO are attracted.

80. During the course of hearing of these petitions, it has also come to our notice that Respondent No.1 and his family were the subject matter of a number of investigations in the past. There were serious charges of corruption and money laundering in which context two FIRs were lodged and a Reference was also filed by the National Accountability Bureau (NAB) which inter alia relied upon a confessional statement made by Respondent No.10 giving details of the mode and manner, persons and entities involved in activities ranging from money laundering to trans-border movement of allegedly tainted money and real estate investments in other countries. Respondent No.10 was granted pardon by the Chairman, NAB presumably in return for his offering to cooperate and providing the requisite information. Respondent No.10 subsequently resiled from his confessional statement. The Reference filed by NAB did not proceed for many years for various reasons including absence of Respondent No.1 and his family from the country, having been sent into exile after the events of 1999. Subsequently, the Reference was quashed by a Division Bench of the Lahore High Court on technical grounds in exercise of its constitutional jurisdiction in a case reported as Hudaibiya Paper Mills Ltd. v. Federation of Pakistan (PLD 2016 Lahore 667). It is important to note that one of the learned Judges comprising the Bench while quashing the Reference held that NAB may if it deemed appropriate reinvestigate the matter while the other Member of the Bench disagreed on the point of reinvestigation and held that such reinvestigation would amount to providing the prosecution an opportunity to fill the lacuna in its earlier investigation. The Hon’ble Chief Justice of the Lahore High Court referred the point of disagreement to a Referee Judge who agreed with the finding that the NAB could not be allowed to reinvestigate the matter.

81. Owing to the importance of the issue and considering the consistent practice of NAB that most verdicts of the High Court which had any adverse impact on investigations and prosecutions being conducted by the NAB were challenged before this Court, we were surprised why this judgment was not challenged and whether failure to challenge was based upon the fact that the parties involved were influential and prominent in the corridors of power. In order to clarify the position, we summoned the current Chairman, NAB as well as the Prosecutor General, NAB along with the record to explain the position. On being questioned lame, feeble and unconvincing excuses were put forth to the effect that an internal opinion was sought from in-house counsel who opined that in view of the fact that two Honorable Judges of the Lahore High Court had recorded findings against NAB on the question of reinvestigation, there were slim chances of success of an appeal before this Court. The then Chairman, NAB who, not unsurprisingly is also the current Chairman appears to have readily agreed with such opinion and decided to shelf the matter by not filing an appeal before this Court. Despite our serious misgivings regarding the motivation, merit and impartiality of such decision, the Chairman, NAB blatantly and unapologetically defended his action and stated that he would stick to his earlier decision despite discovery of new material and evidence.

82. The fate of the afore-noted FIRs was no different which were also quashed by a Bench of the Lahore High Court in a case reported as Hamza Shahbaz Sharif v. Federation of Pakistan (1999 P. Cr. L. J 1584). The accused were acquitted and the chapter of investigation and trial for allegations of corruption and money laundering was unceremoniously, prematurely and abruptly closed.

83. In our quest to judge, analyze and examine the inclination, disposition and ability of the State institutions and functionaries created and charged with the responsibility to probe, investigate, inquire into matters of this nature and to safeguard and protect the interest of the State and the people of Pakistan, in case any wrongdoing was found, we also summoned Representatives of FIA, FBR and Ministry of Interior to appear before us. They were required to inform us about the steps taken by them in the wake of Panama Leaks and information becoming available about possible tax evasion, money laundering and other offences committed inter alia through offshore companies and accounts. The Ministry of Interior pleaded lack of jurisdiction so did the FIA which stated that nobody had approached it in this regard. It also pleaded lack of jurisdiction. The FBR took the stance that it had taken immediate cognizance of the matter and issued notices to all those whose names had appeared in the Panama Papers. This, “immediate cognizance” translated into halfhearted issuance of some notices six months after the information came into public domain which speaks volumes about the lethargy, carelessness and inefficiency displayed by the premium tax and financial watchdog of the country. On behalf of the NAB, it was stated by a person no less than its Chairman himself that it was waiting to be approached by the “regulators”, like SECP, FBR, State Bank of Pakistan, etc before it could initiate any proceedings. When his attention was drawn to the provisions of the NAO which empowers NAB to initiate proceedings on its own accord and asked why such powers had not been exercised, he had nothing much to say except to mumble a halfhearted apology and an equally halfhearted promise to “look into” the matter. We are perturbed and disappointed to find that State functionaries/institutions charged with the responsibility to enforce law and safeguard the interests of the State by strict, impartial and unbiased enforcement of the laws are disinclined, disinterested and unwilling to do so. We are in no manner of doubt that by conscious planned and premeditated design all important State institutions which could offer any resistance or act as impediments in the way of loot and plunder of State resources which rightfully belong to the people of Pakistan by those who wish to impoverish our country and its people have been captured, taken over and neutralized by appointment of their handpicked officers in complete disregard of merit, honesty and integrity to head such institutions. These cronies owe their loyalty to their masters to whom they are beholden and do not feel any sense of allegiance, loyalty or fidelity to the country or its people. This state of affairs has brought us to the sorry, pitiable, pathetic and heart breaking situation that we find ourselves in. Being the apex Court of the country and custodians of the Constitution which has placed upon us the responsibility and constitutional mandate to enforce fundamental rights of the people, we cannot look away become unconcerned bystanders and close our eyes to this stark, painful and grim reality. The people of Pakistan expect and want this Court to enforce the law and the Constitution and exercise the powers conferred on it by the Constitution truly, faithfully, honestly, transparently, fairly and in the interest of the country and its people. Our oath of office obligates us to preserve, protect and defend the Constitution to do right to all manner of people according to law, without fear or favour, affection or ill will. We are, therefore, bound to perform our legal and constitutional duty to do justice considering the facts and circumstances of these cases in exercise of powers granted to us by the Constitution and the people of Pakistan in terms of Articles 184(3) and Article 187 of the Constitution.

84. The learned counsel for the Respondents have laid much stress on the powers of this Court under Article 184(3) of the Constitution and passing orders in terms of Articles 62 & 63 of the Constitution. In this context, the learned counsel for Respondent No.1 as well as Respondent Nos.6, 7 & 8 have emphasized that this Court has traditionally refrained from delving into situations/cases which involve factual controversies requiring recording of evidence. The only exceptions being cases where irrefutable or unrebutted evidence is available or necessary facts are admitted by the parties. It may, however, be noted that new jurisprudence of this Court has evolved in the past few years in matters involving fake degrees and dual citizenship held by the Parliamentarians. The principles regarding exercise of powers under Article 184(3) of the Constitution are undergoing a process of evolution and fresh ground is being broken. The argument made by the learned counsel for the Respondents that evidence cannot be recorded or factual inquires cannot be conducted in exercise of powers under Article 184(3) of the Constitution may be based on some precedent but we find that this is not a hard and fast, inflexible and rigid principle of law. It has only been followed by way of practice and expediency with exceptions being created and jurisdiction being extended from time to time where the facts and circumstances so required. By way of illustration, the case of Pakistan Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642] may be cited. In this case, this Court held that that there was no bar on the power of this Court under article 184(3) of the Constitution to record evidence provided voluminous record and complicated questions of fact and law were not involved. This Court is not a slave of the doctrine of stare decisis. We are not shackled by the chains of precedents where the interests of the people of Pakistan so demand. While remaining within the four corners of the law and limits set for us by the Constitution, in order to do complete justice, there is no bar on the power of this Court to record evidence in appropriate cases and pass such orders as may be necessary.

85. There are serious allegations of money laundering, corruption and possession of assets beyond known means and or acquiring assets, the sources of which have not been explained. It is also important to note that Respondent No.1 has repeatedly admitted that the Mayfair Properties were purchased by his family with the funds generated from sale of Steel Mills in Saudi Arabia. Respondents No.6 to 8 have also admitted that the said properties are owned by the Sharif Family while Respondent No.7 has been claiming that the properties were purchased by him. Neither Respondent No.1 nor Respondents No.6 to 8 have placed any credible evidence or material on record that may conclusively establish the real ownership of the Mayfair Properties. Despite at least 26 hearings spread over months, it has not been made clear to us whether the real owner of the properties is Respondent No.1, Respondent No.6 or Respondent No.7. Although it has been alleged by the petitioners that Respondent No.1 is real owner of the properties, they have not been able to produce any credible evidence to substantiate their assertion. The Mayfair Properties have been continuously in possession and use of the children of Respondent No.1 since 1993/96, when admittedly they had no independent sources of income. We have already discarded the explanation offered by Respondent No.7 based on the letters of Sheikh Hamad as dubious and hard to believe. Therefore, in the facts and circumstances of the case, the possibility of direct or indirect/Benami ownership of Respondent No.1 cannot be ruled out. The position that emerges is that it is not possible for us to conclusively hold that Respondent No.1 is the owner of the properties and thereby require him to explain the source of funds which were used to acquire such properties but it is equally difficult for us to hold that he is not the owner of the said properties. Owing to the fact that provisions of Section 9(a)(v) read with Section 14(c) of the NAO are prima facie attracted, it is for them to produce the requisite evidence and record to show the real ownership of the properties and legitimate sources and transactional money trails to show lawful movement of funds for acquisition of the same in an investigation and then before Courts of competent jurisdiction.

86. It is also an admitted fact that Respondent No.7 owns and operates Hill Metals Establishment in Saudi Arabia. From the accounts of the said business, huge amounts of funds have been transmitted to Respondent No.1 in foreign exchange which have been declared by Respondent No.1 as gifts on which no income tax is payable. Respondent No.7 needs to produce all relevant evidence and record to show the source of funds utilized for the purpose of setting up the said business.

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 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.

88. In our opinion, considering the high public office that Respondent No.1 holds and the requirement of honesty, transparency, clean reputation, unquestionable integrity, financial probity and accountability for a person who holds the highest elected office of the land, it was necessary and incumbent upon Respondent No.1 to place all information, documents and record before this Court to clear his own position and that of the members of his family. Very serious and damaging questions were raised and grave allegations levelled by the Petitioners and the local as well as international Print and Electronic Media regarding money laundering, tax evasion, corruption and misuse of authority on the part of Respondent No.1 and members of his family. Although lofty claims were made by and on behalf of Respondent No.1 regarding readiness and willingness to face accountability and clearing his name, the claims remained hollow rhetoric. Regrettably, no effort was made either on the part of Respondent No.1 or that of Respondents No.7 & 8 who are his sons before this Court, to come clean, to clear their names, place the true facts and relevant record before us and the people of Pakistan by producing all documentary evidence which was either in their possession, control or accessible to them which could have answered all unanswered questions, removed all doubts and put all allegations to rest and cleared their names once and for all. This was not done and an opportunity squandered for reasons best known to the Respondents. Instead refuge was taken behind vague, ambiguous, fuzzy and hyper technical pleas.

89. Regrettably, most material questions have remained unanswered or answered insufficiently by Respondent No.1 and his children. I am also constrained to hold that I am not satisfied with the explanation offered by Respondent No.1 (Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan) and his children regarding the mode and manner in which the said properties came in their possession and what were the sources of funds utilized for acquisition of the same. 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. The aforesaid investigation and inquiry under normal circumstances should have been conducted by NAB. However, it has become quite obvious to us during these proceedings, Chairman NAB is too partial and partisan to be solely entrusted with such an important and sensitive investigation involving the Prime Minister of Pakistan and his family. Further owing to the nature and scope of investigation a broader pool of investigative expertise is required which may not be available with NAB.

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

i) A Joint Investigation Team (JIT) shall be constituted, which shall investigate the matter, collect all relevant record and material in order to determine and establish the real title and ownership of the Mayfair Properties, the source(s) of funds utilized for purchase of the said properties and the mode, manner and time when such funds were transmitted to the United Kingdom for purchase of the Mayfair Properties;

ii) Likewise, the JIT shall also collect evidence to determine the source(s) of funds for establishing Hill Metals Establishment in Saudi Arabia as well as the mode, manner and source(s) of funding for Flagship Investments Limited and all other companies owned and controlled by Respondent No.8 from time to time;

iii) 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 funds to different entities owned or controlled by Respondents No.7 & 8;

iv) The JIT is also directed to investigate and find out if Respondent No.1 (Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan) directly or indirectly or through benamidars or authorized agents owns any other properties/assets/financial resources of any nature including but not limited to shares through offshore companies/bank accounts, which have not been disclosed to the concerned authorities.

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

a) A senior Officer of the Federal Investigation Agency (FIA) not below the rank of Additional Director General heading the Team. He shall have firsthand experience of investigation of white collar crime and related matters;

b) A representative of the National Accountability Bureau (NAB);

c) A nominee of the Securities and Exchange Commission of Pakistan familiar with issues of money laundering and white collar crime;

d) A nominee of the State Bank of Pakistan familiar with international banking transactions involving money laundering and matters relevant to the investigation;

e) A senior Officer nominated by the Director General, ISI; and

f) A senior Officer appointed by the Director General, MI.

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

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

viii) The JIT may also examine the evidence and material available with the FIA and NAB, if any, relating to or having any nexus with the possession or acquisition of the Mayfair Properties and the source(s) of funding for the same.

ix) The JIT shall submit its periodical report(s) before the Special Bench of this Court every fortnight. The JIT shall complete and submit its final report before such Bench within a period of sixty (60) days from the date of receipt of a copy of this judgment.

x) I would request the Honourable Chief Justice of Pakistan to constitute a Special Bench to ensure implementation of this judgment in letter and spirit.

91. On receipt of report of the JIT, the Bench shall pass appropriate orders in exercise of powers under Article 184(3) read with Articles 187 & 190 of the Constitution relating to disqualification of Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan, Respondent No.1 as a member of Majlis-e-Shoora (Parliament), if necessary. In this regard, it may, if considered necessary or expedient, summon Respondents No.1 (Mian Muhammad Nawaz Sharif), 7 (Hussain Nawaz) and 8 (Hassan Nawaz) or any of the said Respondents and any other person having any direct or indirect connection with or having knowledge about the matters relevant to these proceedings, to appear before it for being examined. Further, if so justified by law and on the basis of material placed before the Bench, orders may also be passed for filing of a Reference before the Accountability Court against Respondent No.1, the private Respondents and any other person having nexus with the offence.

92. During hearings of these matters and while examining the various pleas raised by the parties and the documents and other material placed before us, I have found it imperative to pass orders and take steps to ensure that the true facts should come before the people of Pakistan who have a fundamental right to be governed in accordance with law, by those who fulfill the requirements of the Constitution and the law and whose financial dealings, earnings and expenditures are open to public scrutiny to show that they meet the test of honesty, integrity, financial probity and bona fide dealings. It is high time that standards were set and systems were put in place to develop a culture of accountability at all levels in order to cleanse our system and institutions from the evils of corruption, money laundering, loot and plunder of national resources by a few, irrespective of their rank or status in the system.

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

94. Before parting with this judgment, I would acknowledge and appreciate Syed Naeem Bukhari, learned ASC; Mr. Taufiq Asif, learned ASC; Sh. Rashid Ahmed, petitioner in person; Mr. Makhdoom Ali Khan, learned ASC for Respondent No.1; Mr. Shahid Hamid, learned Sr.ASC for Respondents No.6, 9 & 10; Mr. Ashtar Ausaf Ali, learned Attorney General for Pakistan; Mr. Muhammad Waqar Rana, ASC; and Mr. Waqas Qadeer Dar, Prosecutor General, NAB and their respective teams for rendering valuable assistance in the matter.

Judge

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