Panama Verdict: Sword Of Damocles?

Panama Verdict: Sword Of Damocles?

The story behind ‘sword of Damocles’ has become relevant for Prime Minister Nawaz Sharif in the wake of Supreme Court’s judgment in Imran Ahmad Khan Niazi v Mian Nawaz Sharif & 9 Others [CP No. 29 of 2016—Panama Papers Scandal], announced on April 20, 2017. Dionysius, the tyrant of Syracuse had a courtier named Damocles who was more or less a professional flatterer who lay around opulent feasts saying nice things to Dionysius. And once, he made a comment to the effect of, oh, how great it would be to be the king. And Dionysius said, “Oh, really? Well, if you want to know what that’s like, you can come and sit on my throne,” which Damocles did and Dionysius made sure that he was well supplied with sumptuous food, great service by cute waiters and beautiful fragrances and scented candles going. And Damocles was thinking to himself, how very wonderful then it must be and then noticed that Dionysius had also hung above the throne a gleaming sword, which was suspended by a single horsehair. And he then begged Dionysius to be allowed to leave the throne and to go back to his subservient position as a courtier and obviously got the point: anybody who gets to enjoy immense wealth, luxury and power is also living under a perpetual threat.

The brief summary of the judgment is:

• Two honorable senior judges have declared that the Prime Minister should be disqualified under Article 62(1)(f) of the Constitution.
• The remaining three judges, after rejecting the defense of Prime Minister and others, ordered further probe through a joint investigation team (JIT), under the supervision of the apex court.
• Even in majority view (order of the court), not a single judge has acquitted Nawaz Sharif.
• No judge has dismissed the petitions being without merit.

Mr. Saad Rasool, a young lawyer having done his Masters in Constitutional Law from Harvard Law School, in his op-ed (A Judgment to Remember? The Nation, April 23, 2017) has raised the following pertinent questions and made some interesting observations:

“In any case, one has to wonder, would the majority have ruled as it did, if the person in question was not Nawaz Sharif?

Regardless, now that the JIT has been formed, with specific TORs, a number of questions arise. Can the JIT be expected to work independently, while investigating the sitting PM? If NAB, FIA and other regulators are not performing their job (as observed in the judgment itself) why have they been included in the JIT? Also, why have intelligence agencies been entrusted with an ‘investigation’? Even so, why has the civilian intelligence agency (IB) not been included in the JIT?

Also, can the PM and his family be allowed to further improve upon their “not believable” story? If so, how will this ‘improvement’ be seen through the lens of law? Do the courts not convict people every day, when they improve their defense in criminal cases?

Can additional documents or foreign letter be submitted before the JIT, when the same were not given to the court? Did the PM, and his family, not assure the court that “every” documentary evidence, in their possession, has already been placed on the record?

Importantly, as per the TOR, the JIT is supposed to investigate issues such as whether the Qatari letters are “a myth or reality”. Can the JIT declare these letters, and their content, to be the truth, even after judges of the Supreme Court have already rejected their veracity? Can the JIT sit in appeal over issues that have already been decided by Justice Asif Khosa and Justice Gulzar Ahmed?

And what will happen in 60 days? Will this probe be concluded, or is this going to become a repeat of the Arsalan Iftikhar or Saleem Shehzad investigations?”

It is worthwhile to remember that on December 9, 2016, a five-member bench of the Supreme Court ordered fresh proceedings before a new bench in the Panama case. After the announcement of the judgment, there was an air of jubilation in the camp of the ruling party. The atmosphere of gloom in Tehreek-e-Insaf (PTI) after the first nine hearings and in the wake of the judgment after 26 days of herculean day-to-day hearings is obvious. They have so far failed to get Nawaz Sharif ousted through even the “legal process” (sic).

After reading the full judgment, the self-assumed claim of “victory” by Pakistan Muslim League-Nawaz [PML(N)] proved shortlived. PTI also realized that battles of words in media are different from actual case proceedings in courts where one has to establish one’s case relying on law and incontrovertible evidence. The dilettante approach by PTI in presenting the evidence and arguing the case and self-assumed expectation of a positive outcome has been taken care of by the honourable Justice Sheikh Azmat Saeed as under:

“However, on 09.12.2016 Mr. Naeem Bokhari, learned counsel for the Petitioner in Constitution Petition No.29 of 2016 on instructions, in a rather belligerent tone, stated that a Commission by a Judge of this Court was not acceptable and the matter be decided by this Court on the existing record. The relief of the opposite side could barely be concealed. One of the unsolved mysteries of the case is this sudden change of heart by the Petitioners and more importantly what persuaded the Petitioners to believe that a definitive finding could be given by this Court on the photocopies of disputed unsigned documents not coming from a proper custody or Respondent No.1 could be disqualified on mere allegations emanating out of the Panama Papers”.

The deliberate act of Nawaz Sharif and other respondents to withhold the relevant documents, concealing facts and making contradictory statements also annoyed the honourable judges. The following observations to this effect are worth reading:

Justice Asif Saeed Khan Khosa [para78]:

“Although it had specifically and repeatedly been said by respondent No. 1 on the floor of the National Assembly in the above mentioned speech that the entire record relevant to the setting up and sale of the factories in Dubai and Jeddah was available and would be produced whenever required yet when this Court required Mr. Salman Aslam Butt, Sr. ASC, the then learned counsel for respondent No. 1, on December 07, 2016 to produce or show the said record he simply stated that no such record existed or was available and that the statement made by respondent No. 1 in the National Assembly in that respect was merely a “political statement”!

In one of his interviews with Mr. Javed Chaudhry on Express News television on March 07, 2016 Mr. Hussain Nawaz Sharif, respondent No. 7, had also categorically maintained that the entire record pertaining to acquisition of the four properties in London was available with the family and the same would be produced before any court looking into the matter. Such state of affairs has been found by me to be nothing but shocking as it tends to be an attempt to suppress the relevant facts and the truth and to mislead the Court. Mr. Haroon Pasha and Mr. Hussain Nawaz Sharif have never denied or contradicted the contents of the above-mentioned interviews.”

In his judgment [Para 83], the honourable Justice Asif Saeed Khan Khosa reproduced a chart highlighting “the serious contradictions in the stands taken by respondent No. 1 and his immediate family from time to time in the matter of acquisition of the relevant four properties in London” and noted that such “contradictions may reflect upon their lack of honesty on the issue”.

Justice Gulzar Ahmed [para 11]:

“This anomaly of increase in the number of shares of the two companies is not explained. Further, I find that the Bearer Share Certificates of the two companies separately mentioned authorized capital of each of the company to be US$ 50,000 divided into 50,000 shares of par value US $ 1 each. No record is made available on the basis of which it can be ascertained as to what number of shares in each of the company were issued, either bearer or registered. The Bearer Share Certificate of Nescoll Limited is dated 29.04.1993 while that of Nielsen Enterprises Limited is dated 22.01.1994. Mian Muhammad Nawaz Sharif and his family does not claim that these Bearer Share Certificates were in their custody from their respective dates

.………………………………………………………..

He when called upon by the highest Court of the country to explain, what Mian Muhammad Nawaz Sharif chose was to remain silent and gave bare statement that he is not owner of the four London Flats and of the two offshore companies. This evasive attitude of Mian Muhammad Nawaz Sharif, more so before the highest Court of the country, to me, did not appear to be justified or bonafide rather its purpose appears to throw the Court in altogether a dark alley where it is left groping without realizing that this very act of his will cast a substantial shadow upon him, more so when the Court is considering the very question of his being Honest and Ameen in holding office of the Member of National Assembly and the Prime Minister of Pakistan.”

Justice Sh. Azmat Saeed [para 69, 72 & 80]:

“In the circumstances, it is clear and obvious that the person, who instructed M/s. Minerva Nominees Limited and M/s. Minerva Services Limited in 2006 and M/s. Trustee Service Corporation in June 2014 to provide services for the two companies M/s. Nielsen Enterprises Limited and Nescoll Limited, is the real beneficial owner of two companies. The said documents were not provided. This aspect of the matter was pointed out to the learned counsel for the Respondents, more particularly, Respondent No.7.

There is no document available on the record in favour of Respondent No.7 Hussain Nawaz to show that he (Respondent No.7) is a shareholder i.e. owner of the two BVI Companies. The Trust Deed dated 2nd/4th June, 2006 is not the evidence of Respondent No.7’s title. It pre-supposes that the shares vest in Respondent No.7 Hussain Nawaz Sharif and, at best, is an admission in one’s own favour, which is legally irrelevant.

A clear cut explanation for the title thereof and all the obvious documents in support thereof should be in the custody of the private Respondent, who claims to be the owner. Such documents have been deliberately withheld from this Court. The Flats have been in occupation of the Sharif Family since early 90s through Respondent No.8, who was a student and was a dependent upon Respondent No.1 at that point of time. The alleged source of funds through which the various properties were acquired is shrouded in mystery and no clear cut transparent transactions have been shown. Respondent No.1 has admittedly benefitted from such assets, including Hill Metal Establishment through various “gifts” totaling an amount of Rs. 84 crores as is mentioned in CMA No.432 of 2017”.

Justice Ijaz Ul Ahsan [para 36 & 39]:

“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.

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 paragraphs above clearly establish withholding of evidence available with the respondents. Two honourable judges siding with Justice Ejaz Afzal Khan (constituting majority view) after giving categorical findings of concealing the facts and deliberate withholding of evidence did not resort to Article 129(g) of Qanoon-e-Shahadat Order. Justice Ejaz Afzal Khan in the Order passed in C. A. No. 1797 of 2005 [Farid Bakhsh v Jind Wadda and others] noted that:

“The argument addressed on the strength of the judgment rendered in the case of Dil Murad and others v. Akbar Shah (supra) has not moved us a bit when the appellant failing to call the other attesting witness failed to prove the deed in accordance with the requirements of law. Such failure, in the absence of any plausible explanation, would also give rise to an adverse presumption against the appellant under Article 129(g) of the Order”.

The Lahore High Court in RSA No. 108 of 2006 [Manzoor Hussain v Haji Khushi Muhammad] held that:

“This omission was fatal to the case of the appellant as it is a settled principle of law that if the best piece of evidence is withheld by a party, then it is to be presumed that said party had some sinister motive behind it and a presumption under illustration (g) of Art. 129 of the Qanun-e-Shahadat, 1984 has to be drawn that the said evidence if produced, it would not have been favourable to the party concerned [See Muhammad Rafique, etc. vs. State & others (PLJ 2011 SC 191)].”

Illustration of Article 129(g), which reads as under squarely applies to the respondents in Panama case:

129. Court may presume existence of certain facts. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course to natural events, human conduct and public and private business, in their relation to the facts of the particular case.

The court may presume—

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

as to illustration (g)—

A man refuses to produce a document which would bear on a contract of small importance on which he is used, but which might also injure the feelings and reputation of his family………”

Had the cognizance of Article 129(g) Qanoon-e-Shahadat Order 1984 and the above-cited case law been taken, Mian Muhammad Nawaz Sharif and his family could not have escaped the adverse order (unanimous) in the Panama case. They could not have taken benefit of their own wrongdoings. They should not have been given the benefit of doubt after deliberately withholding evidence which was in their possession. Even in the Income Tax Ordinance 2001 (section 111), the assessing officer gives a chance to the taxpayer to explain the source of investment/property/expenditure and if he or she fails to do so, the entire value/amount is treated as his or her ‘unexplained income’. It is not the duty of the officer to first establish the sources and then make the addition. Once a person accepts ownership of assets, the onus lies on him or her to explain its source. Strangely, this principle has escaped the attention of the honourable judges who decided to hold an inquiry by JIT even when the respondents admitted they had no further evidence, and were also found guilty of concealing material facts and evidence with sinister motives as envisaged in Article 129(g) of the Qanoon-e-Shahadat Order.

 

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