Panama case

Constitution Petition No. 29 of 2016,

Constitution Petition No. 30 of 2016 &

Constitution Petition No. 03 of 2017

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:

Mr. Justice Asif Saeed Khan Khosa

Mr. Justice Ejaz Afzal Khan

Mr. Justice Gulzar Ahmed

Mr. Justice Sh. Azmat Saeed

Mr. Justice Ijaz ul Ahsan

Constitution Petition No. 29 of 2016

(Panama Papers Scandal)

Imran Ahmad Khan Niazi                                          Petitioner        

versus

Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan / Member National Assembly, Prime Minister’s House, Islamabad and nine others                                        Respondents

For the petitioner:	Syed Naeem Bokhari, ASC Mr. Sikandar Bashir Mohmad, ASC Mr. Fawad Hussain Ch., ASC Mr. Faisal Fareed Hussain, ASC Ch. Akhtar Ali, AOR with the petitioner in person Assisted by: Mr. Yousaf Anjum, Advocate Mr. Kashif Siddiqui, Advocate Mr. Imad Khan, Advocate Mr. Akbar Hussain, Advocate Barrister Maleeka Bokhari, Advocate Ms. Iman Shahid, Advocate,
For respondent No. 1:	Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate
For the National Accountability Bureau (respondent No. 2):	Mr. Qamar Zaman Chaudhry, Chairman, National Accountability Bureau in person Mr. Waqas Qadeer Dar, Prosecutor-General Accountability         Mr. Arshad Qayyum, Special Prosecutor Accountability         Syed Ali Imran, Special Prosecutor Accountability Mr. Farid-ul-Hasan Ch., Special Prosecutor Accountability
For the Federation of Pakistan (respondents No. 3 & 4):	Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Pakistan Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate
For the Federal Board of Revenue (respondent No. 5):	Dr. Muhammad Irshad, Chairman, Federal Board of Revenue in person Mr. Muhammad Waqar Rana, ASC Mr. M. S. Khattak, AOR Kh. Tanvir Ahmed, Director-General (Intelligence)         Mr. Shaukat Ali, Director-General         Hafiz Muhammad Ali Indhar, Director (Legal)         Dr. Muhammad Iqbal Khawaja, Member, Federal Board of Revenue
For respondents No. 6, 9 & 10:	Mr. Shahid Hamid, Sr. ASC         Ms. Ayesha Hamid, ASC Syed Rifaqat Hussain Shah, AOR
For respondents No. 7 & 8:	Mr. Salman Akram Raja, ASC Syed Rifaqat Hussain Shah, AOR Assisted by: Malik Ahsan Mahmood, Advocate Malik Ghulam Sabir, Advocate Mr. Nadeem Shahzad Hashmi, Advocate Mr. Asad Ladha, Advocate Mr. Zeshaan Hashmi, Advocate Ms. Atira Ikram, Advocate Mr. Tariq Bashir, Advocate Mr. Muhammad Shakeel Mughal, Advocate

Constitution Petition No. 30 of 2016

(Panama Papers Scandal)

Sheikh Rasheed Ahmed                                             Petitioner        

versus

Federation of Pakistan through Secretary Law, Justice and Parliamentary Division and three others                Respondents

For the petitioner:	In person
For the Federation of Pakistan (respondent No. 1):	Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Pakistan Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate
For the National Accountability Bureau (respondent No. 2):	Mr. Qamar Zaman Chaudhry, Chairman, National Accountability Bureau in person Mr. Waqas Qadeer Dar, Prosecutor-General Accountability         Mr. Arshad Qayyum, Special Prosecutor Accountability         Syed Ali Imran, Special Prosecutor Accountability Mr. Farid-ul-Hasan Ch., Special Prosecutor Accountability
For the Federal Board of Revenue (respondent No. 3):	Dr. Muhammad Irshad, Chairman, Federal Board of Revenue in person Mr. Muhammad Waqar Rana, ASC Mr. M. S. Khattak, AOR Kh. Tanvir Ahmed, Director-General (Intelligence)         Mr. Shaukat Ali, Director General         Hafiz Muhammad Ali Indhar, Director (Legal)         Dr. Muhammad Iqbal Khawaja, Member, Federal Board of Revenue
For respondent No. 4:	Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate

Constitution Petition No. 03 of 2017

(Panama Papers Scandal)

Siraj-ul-Haq, Ameer Jamaat-e-Islami, Pakistan             Petitioner

        

versus

Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and three others                      Respondents

For the petitioner:	Mr. Taufiq Asif, ASC Sh. Ahsan-ud-Din, ASC Mr. Atif Ali Khan, ASC Mr. Mehmood A. Sheikh, AOR with the petitioner in person. Assisted by: Mr. Khan Afzal Khan, ASC Mr. Ajmal Ghaffar Toor, Advocate Mr. Saif Ullah Gondal, Advocate Mr. Sher Hamid Khan, Advocate Mr. Imran Shafiq, Advocate Mr. Asad Ullah Bhutto, Advocate
For the Federation of Pakistan (respondents No. 1 to 3):	Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan Mr. Nayyar Abbas Rizvi, Additional Attorney-General for Pakistan Mr. Gulfam Hameed, Deputy Solicitor, Ministry of Law & Justice Assisted by: Barrister Asad Rahim Khan Mr. Salaar Khan, Advocate Mr. Bilal Naseer, Advocate Mr. Shahzaib Khan, Advocate
For respondent No. 4:	Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram M. Hashmi, ASC Mr. Feisal Naqvi, ASC Assisted by: Mr. Saad Hashmi, Advocate Mr. Sarmad Hani, Advocate Mr. Mustafa Mirza, Advocate

Dates of hearing:         04.01.2017,                05.01.2017,                06.01.2017,  09.01.2017, 10.01.2017, 11.01.2017, 12.01.2017, 13.01.2017, 16.01.2017, 17.01.2017, 18.01.2017, 19.01.2017, 20.01.2017, 23.01.2017, 24.01.2017, 25.01.2017, 26.01.2017, 27.01.2017, 30.01.2017, 31.01.2017, 01.02.2017, 15.02.2017, 16.02.2017, 21.02.2017, 22.02.2017    &        23.02.2017.        

JUDGMENT

The popular 1969 novel ‘The Godfather’ by Mario Puzo recounted the violent tale of a Mafia family and the epigraph selected by the author was fascinating:

Behind every great fortune there is a crime.
— Balzac

The novel was a popular sensation which was made into an acclaimed film. It is believed that this epigraph was inspired by a sentence that was written by Honoré de Balzac and its original version in French reads as follows:

Le secret des grandes fortunes sans cause apparente est un crime oublié, parce qu’il a été proprement fait.

(The secret of a great success for which you are at a loss to account is a crime that has never been found out, because it was properly executed)

It is ironical and a sheer coincidence that the present case revolves around that very sentence attributed to Balzac as through Constitution Petition No. 29 of 2016 it has been alleged by the petitioner namely Imran Ahmad Khan Niazi, Chairman of a political party named Tehreek-e-Insaf, that while holding high public offices in the State of Pakistan over a stretched period of time respondent No. 1 namely Mian Muhammad Nawaz Sharif, the incumbent Prime Minister of Pakistan, and through him his immediate family has amassed huge wealth and assets which have been acquired through means which were illegal and unfair, practices which were unlawful and corrupt and exercise of public authority which was misused and abused. Through Constitution Petition No. 30 of 2016 Sheikh Rasheed Ahmed petitioner, Chairman of a political party named Awami Muslim League, and through Constitution Petition No. 3 of 2017 Siraj-ul-Haq petitioner, Ameer of another political party named Jamaat-e-Islami, have also agitated the same issue. All the above mentioned petitioners have inter alia prayed that it may be declared by this Court that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is respondent No. 4 in the other two petitions) is not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and, thus, he is disqualified from being a member of the Majlis-e-Shoora (Parliament). Some other reliefs have also been prayed for by the petitioners and the same shall also be dealt with by me at appropriate stages of the present judgment. For facility of reference Mian Muhammad Nawaz Sharif shall be referred to in this judgment as respondent No. 1, his daughter namely Mariam Safdar shall be referred to as respondent No. 6, his son-in-law namely Captain (Retired) Muhammad Safdar shall be referred to as respondent No. 9, his sons namely Mr. Hussain Nawaz Sharif and Mr. Hassan Nawaz Sharif shall be referred to as respondents No. 7 and 8 respectively and his Samdhi (father-in-law of one of his daughters) namely Mr. Muhammad Ishaq Dar shall be referred to as respondent No. 10 as arrayed in Constitution Petition No. 29 of 2016. We have been informed by the learned counsel for respondent No. 1 that the said respondent has so far held the following high public offices:

Minister for Finance, Excise and Taxation, Government of the Punjab

(from April 25, 1981 to February 28, 1985)

Chief Minister, Government of the Punjab

(from April 09, 1985 to May 30, 1988)

Caretaker Chief Minister, Government of the Punjab

(from May 31, 1988 to December 02, 1988)

Chief Minister, Government of the Punjab

(from December 02, 1988 to August 06, 1990)

Prime Minister of Pakistan 

(from November 06, 1990 to April 18, 1993)

Prime Minister of Pakistan 

(from May 26, 1993 to July 18, 1993)

Leader of the Opposition in the National Assembly

(from October 19, 1993 to November 05, 1996)

Prime Minister of Pakistan

(from February 17, 1997 to October 12, 1999)

Prime Minister of Pakistan

(from June 05, 2013 till date)

A younger brother of respondent No. 1 namely Mian Muhammad Shahbaz Sharif has also served in the past as Chief Minister, Government of the Punjab for many terms and even presently he is holding that high public office. A Samdhi of respondent No. 1 namely Mr. Muhammad Ishaq Dar, respondent No. 10 herein, has remained and is also the present Federal Minister for Finance and a nephew of respondent No. 1 is a Member of the National Assembly at present. In an interview with Mr. Hamid Mir and Mr. Sohail Warraich telecast on Geo News television on November 17, 2009 respondent No. 1 had maintained that he belonged to a business family and he had claimed that the members of his family who were in politics (including respondent No. 1 himself) had decided in the year 1997 to disassociate themselves from the family business. The contents of the said interview have never been denied or controverted by respondent No. 1 and nothing has been brought on the record of this case to show how and when the claimed disassociation had actually come about, if at all. It is, however, not disputed that between 1981 and 1997 respondent No. 1’s public offices and his business interests coincided and coexisted. 

2.        In the last two and a half decades there had been a constant murmur nationally as well internationally about respondent No. 1 indulging in corruption, corrupt practices and money laundering, etc. with the active assistance and involvement of respondent No. 10 and some specified properties in London, United Kingdom had been identified as having been acquired by respondent No. 1 through ill-gotten or laundered money. In that regard the British Broadcasting Corporation (BBC) had come out with a documentary, the British newspaper Guardian had published a story about it, Mr. Raymond W. Baker had mentioned some specific details about it in his book ‘Capitalism’s Achilles Heel’ (published in 2005 by John Wiley & Sons, Inc., Hoboken, New Jersey) and some prosecutions had been launched against respondents No. 1 and 10 and others locally by the Federal Investigation Agency and the National Accountability Bureau. However, this time it all started ominously on April 03, 2016 when the International Consortium of Investigative Journalists (ICIJ) released some information leaked from the internal database of a law firm named Mossack Fonseca based in Panama. The said information was published in the print and electronic media worldwide on April 04, 2016 disclosing details of a large number of offshore companies established in different countries providing tax havens and owned or controlled by hundreds of persons and entities based in different countries of the world. The information so disclosed also revealed that many political and public figures in different countries and their families, including the children of respondent No. 1 herein, held or owned valuable assets in different parts of the world through such offshore companies. The political uproar that followed forced some political figures in the world to resign from high public offices and others to submit explanations in the parliaments whereas in some countries high powered bodies were constituted to inquire into the allegations of corruption, corrupt practices and money laundering, etc. adopted in the matter. Respondent No. 1 happens to be the elected Prime Minister of our country and the political tumult arising out of the so-called Panama Papers compelled him to explain his position by addressing the nation twice on radio and television and the National Assembly once, abortive attempts were made to constitute a Judicial Commission to inquire into the allegations leveled against respondent No. 1 and his immediate family and ultimately the present Constitution Petitions were filed before this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. In the backdrop of an unfortunate refusal/failure on the part of all the relevant institutions in the country like the National Accountability Bureau, the Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the Speaker of the National Assembly to inquire into or investigate the matter or to refer the matter to the Election Commission of Pakistan against respondent No. 1, who is the Chief Executive of the Federation, and his family it was decided by a Larger Bench of this Court on November 03, 2016 with reference to some precedent cases that these petitions involve some serious questions of public importance with reference to enforcement of some Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and, therefore, the same are maintainable before this Court under Article 184(3) of the Constitution. On that occasion none of the parties to these petitions raised any objection to competence and maintainability of these petitions and even before the present reconstituted Larger Bench (which includes a majority of the members of the earlier Larger Bench) no such objection has been raised at any stage of the protracted hearings.  

3.        At the commencement of regular hearing of these petitions it had been decided by this Court with concurrence of the learned counsel for all the parties that it might not be possible for this Court to take stock of the entire gamut of the business activities and personal lives of respondent No. 1 and his family within the limited scope of these petitions and, therefore, these petitions would be decided by focusing mainly, but not exclusively, on the properties relevant to respondent No. 1 and his children which were revealed through the Panama Papers. The details of the said properties are as follows:

1. Property No. 17, Avenfield House, Park Lane, London W1K 7AF, United Kingdom

(owned by a Panama based offshore company named Nescoll Limited since June 01, 1993),

(ii)        Property No. 16, Avenfield House, Park Lane, London W1K 7AF, United Kingdom

(owned by a Panama based offshore company named Nielsen Enterprises Limited since July 31, 1995),

(iii)        Property No. 16a, Avenfield House, Park Lane, London W1K 7AF, United Kingdom

(owned by a Panama based offshore company named Nielsen Enterprises Limited since July 31, 1995) and

(iv)        Property No. 17a, Avenfield House, Park Lane, London W1K 7AF, United Kingdom

(owned by a Panama based offshore company named Nescoll Limited since July 23, 1996).

It may be pertinent to mention here that during the course of hearing of these petitions it has come to light that there have been and are many other properties and businesses owned by respondent No. 1’s immediate family not only in Pakistan but also in many other countries the value of which statedly runs into billions of Rupees or US Dollars. The net worth of just the above mentioned four properties, situated in one of the most expensive areas of London, is stated to be many millions of Pounds Sterling and they had statedly come into the ownership of only one of the sons of respondent No. 1 namely Mr. Hussain Nawaz Sharif (respondent No. 7 herein). Another son of respondent No. 1 namely Mr. Hassan Nawaz Sharif (respondent No. 8 herein) separately owns many companies and properties worth millions of Pounds Sterling and a daughter of respondent No. 1 namely Mariam Nawaz Sharif, also known as Mariam Safdar, (respondent No. 6 herein) also holds some valuable properties in her own name. None of the children of respondent No. 1 has ever claimed that the businesses set up or the properties acquired in his/her name had initially been set up or acquired through any personal earning or resources of his/her own.

4.        Concise statements/replies to these petitions had been filed by all the contesting respondents and elaborate arguments had been heard by us from all the sides on all the relevant issues. During the hearing of these petitions the following issues inter alia had primarily been debated before us:

(a)        What is the scope of the proceedings before this Court under Article 184(3) of the Constitution and whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence?

(b)        Whether the above mentioned four properties in London in particular, statedly acquired in the name of Mr. Hussain Nawaz Sharif, a son of respondent No. 1, had been acquired by respondent No. 1 and his family through funds legitimately generated and transferred and whether acquisition of those assets has duly and properly been explained and accounted for by respondent No. 1 or his children?

(c)        Whether respondent No. 1 and his children have any decent explanation available for acquiring properties and setting up various businesses in general in different parts of the world?

(d)        Whether respondent No. 1 is not “honest” or “ameen” as required by Article 62(1)(f) of the Constitution as he has failed to duly account for his and his immediate family’s wealth and assets and his various explanations advanced before the nation, the National Assembly and this Court in that regard have been evasive, contradictory, unproved and untrue rendering him disqualified from being elected to or from being a member of the Majlis-e-Shoora (Parliament)?

(e)        Whether Mariam Safdar, a daughter of respondent No. 1, was respondent No. 1’s ‘dependent’ in the year 2013 and in his nomination papers filed for election to the National Assembly in the general elections held in that year respondent No. 1 had failed to disclose such dependency and had, thus, been guilty of suppression of a material fact for which the necessary legal consequences ought to follow?

(f)        Whether respondent No. 1 had been evading taxes and he had thereby rendered himself disqualified from being elected to or from being a member of the Majlis-e-Shoora (Parliament)?

(g)        Whether some allegations of indulging in corruption, corrupt practices and money laundering, etc. leveled against respondent No. 1, respondent No. 10 and some others in the past had unduly been scuttled through some judicial recourses and what would be the remedies available for reopening of those allegations and for their prosecution?

In the following paragraphs I intend to deal with all the above mentioned and other related issues with reference to the contentions of the learned counsel for the parties and the material made available on the record.

5.        Appearing for Mr. Imran Ahmad Khan Niazi petitioner in Constitution Petition No. 29 of 2016 Syed Naeem Bokhari, ASC read out the first speech made by respondent No. 1 namely Mian Muhammad Nawaz Sharif before the nation on radio and television on April 05, 2016 and maintained that in that speech respondent No. 1 had neither been honest nor truthful because in that speech the source of funds for purchase of the properties in London was stated to be the sale of a factory near Makkah whereas in his subsequent speech made before the National Assembly on May 16, 2016 he had introduced a factory in Dubai the sale of which was the initial source of funds and the factory near Makkah was described as a factory in Jeddah. He emphasized that in the speech made by respondent No. 1 before the National Assembly it had categorically been stated that all the record relevant to the factories in Dubai and Jeddah was available and would be produced before any forum inquiring into the matter but except for a few documents of sale no such record had been produced by him before this Court. He highlighted that on that occasion respondent No. 1 had proclaimed that those were the resources through which the properties in London had been “purchased” which was a claim that was contradicted before this Court by respondent No. 1’s own children and was, thus, false and untrue.

6.        Mr. Bokhari pointed out from the documents produced on the record by respondent No. 1 and his children that some land was obtained on lease in Dubai on March 28, 1974, permission to set up a factory was granted by the Government of Dubai on April 28, 1974, a rent agreement in that regard was executed on June 12, 1974, a factory was installed on that land through funds which were never properly explained, 75% shares of that factory were sold to the Ahli family through a Tripartite Agreement of Sale in the year 1978 and then through a Final Share Sale Agreement dated April 14, 1980 the remaining 25% shares of that factory were also sold to the same family. He maintained that a bare perusal of the Tripartite Agreement of Sale of 1978 showed that no money became available to the seller on the basis of that sale as the proceeds of the sale were completely consumed in paying off debts, dues and liabilities which were much more than the sale proceeds inasmuch as the seller owed the Bank of Credit and Commerce International a sum of 27.6 million Dirhams and the outstanding liabilities of the company were to the tune of about 36 million Dirhams. He pointed out that it was claimed by respondent No. 1 and his children that an amount of 12 million Dirhams in cash had become available to the seller as a result of the Final Share Sale Agreement in the year 1980 but no independent proof had been produced in that respect. He also pointed out that the Agreement in the year 1980 had been signed by Mian Muhammad Shahbaz Sharif, a younger brother of respondent No. 1, as an authorized agent of one Mr. Tariq Shafi, a cousin of respondent No. 1, who was statedly a Benami owner of that factory on behalf of respondent No. 1’s father namely Mian Muhammad Sharif and no independent proof had been brought on the record of this case to establish that Mian Muhammad Sharif was the actual owner of that factory, Mr. Tariq Shafi was his Benamidar, Mian Muhammad Shahbaz Sharif was an authorized agent of Mr. Tariq Shafi or 12 million Dirhams had actually been received in cash by the seller as a result of that sale. While referring to the signatures of Mr. Tariq Shafi available on his affidavit sworn on November 12, 2016 it was maintained by Mr. Bokhari that the signatures of Mr. Tariq Shafi on the Agreement signed in the year 1980 were fake. Mr. Bokhari emphasized that in his affidavit of November 12, 2016 Mr. Tariq Shafi had clearly maintained that no money had come into his hands from the sale of 75% shares of the factory in Dubai in the year 1978 but in the year 1980 a sum of 12 million Dirhams had been received by him in cash through the sale of the remaining 25% shares of the factory in the year 1980. Thus, Mr. Bokhari maintained that respondent No. 1 was not being truthful when he had stated before the National Assembly on May 16, 2016 that the sale of the factory in Dubai had fetched the family a sum of 33.37 million Dirhams in the year 1980.

   

7.        Mr. Bokhari forcefully argued that respondent No. 1 had never mentioned any investment by the family in the real estate business in Qatar in his speeches made before the nation or in the National Assembly and he had also failed to make any mention of the same in his concise statements filed before this Court whereas respondent No. 1’s children had based their entire case upon the resources generated through the family’s investment made in the real estate business in Qatar. According to Mr. Bokhari the contradictions between respondent No. 1 and his children in this regard were irreconcilable because according to respondent No. 1 the resources becoming available through sale of the factory in Dubai were used for setting up a factory in Jeddah whereas his children had maintained that the resources becoming available from the sale of the factory in Dubai were utilized for investment in the real estate business in Qatar and thereafter the properties in London had been acquired on the basis of a settlement of the business in Qatar! Referring to a statement of one Mr. Hamad Bin Jassim Bin Jaber Al-Thani of Qatar dated November 05, 2016 produced before this Court during the present proceedings Mr. Bokhari maintained that the said statement was nothing but an afterthought and a complete concoction which destroyed credibility of respondent No. 1 irretrievably. Mr. Bokhari asserted with vehemence that the relevant four properties in London had actually been purchased by respondent No. 1 between the years 1993 and 1996 through undisclosed resources and through money laundering.

8.        Mr. Bokhari brought the statement of Mr. Hamad Bin Jassim Bin Jabir Al-Thani of Qatar dated November 05, 2016 (to be reproduced and discussed in the later part of this judgment) under scathing criticism and maintained that the said statement did not even qualify to be called evidence. According to him the contents of paragraph No. 1 of that statement were not based upon personal knowledge of the maker of the statement; the contents of paragraph No. 2 of that statements were based upon nothing but hearsay; it was not disclosed in that paragraph as to who had disclosed the facts stated therein to the maker of the statement; it was not revealed in that paragraph as to who had disclosed the desire of late Mian Muhammad Sharif to the maker of the statement; it was not disclosed in paragraph No. 3 of that statement as to how and on what basis the maker of the statement had understood what he had claimed to have understood; it was not mentioned in that paragraph that the money invested by late Mian Muhammad Sharif in the real estate business in Qatar was the sale proceeds of a factory in Dubai; in paragraph No. 4 of the statement no detail of the real estate business in Qatar was disclosed; it was claimed in that paragraph that the bearer share certificates of the properties in London were kept at that time in Qatar but it was not claimed that the said certificates were in the custody of the Al-Thani family of Qatar; no detail of the settlement of the real estate business in Qatar, no detail of payment, no banking channel and no money trail from Qatar to London was provided in that paragraph of the statement; no detail about use of the properties in London had been mentioned in the said paragraph; in paragraph No. 5 of that statement it was not disclosed as to when and before whom late Mian Muhammad Sharif had made his stated wish, what was the proof of that wish and why all his heirs were kept out of the settlement of his real estate business in Qatar; in paragraph No. 6 of that statement a settlement between Mr. Hussain Nawaz Sharif (respondent No. 7) and Al-Thani family of Qatar was mentioned without any mention of a settlement with the maker of the statement, i.e. Mr. Hamad Bin Jassim Bin Jabir Al-Thani; and the said statement talked about the available records in Doha, Qatar but no such record had been mentioned. Mr. Bokhari stressed that the said statement from Qatar was a naked improvement upon the case of respondent No. 1 who had never mentioned any family investment in Qatar in all his speeches and his concise statements. According to Mr. Bokhari if the said statement of the gentleman from Qatar were to be kept out of consideration then the entire defence of respondent No. 1 and his children collapsed to the ground because there was no banking transaction or movement of funds from Dubai to London, from Jeddah to London or even from Qatar to London for the purposes of acquisition or “purchase” of the four properties in London.      

9.        Mr. Bokhari then referred to various interviews given by respondent No. 1, his wife and three children on the issue of the four properties in London highlighting that in each such interview a different story had been narrated as to how the said properties had been acquired by the family. He pointed out that in his interview with Tim Sebastian on BBC’s Hard Talk in November 1999 Mr. Hassan Nawaz Sharif (respondent No. 8) had stated that he was merely a student at that time with no income of his own. He had admitted that he was living in the relevant flats in London which were taken on “rent” and that the rent money came from Pakistan on a quarterly basis. Mr. Bokhari then referred to The Guardian newspaper of England dated April 10, 2000 wherein Mrs. Kulsoom Nawaz Sharif (wife of respondent No. 1) had been quoted as saying that the flats in London had been “bought” because the children were studying in London. Mr. Bokhari then pointed out that in her interview with Sana Bucha on Geo Television’s Laikin on November 8, 2011 Mariam Safdar (Respondent No. 6) had categorically stated that she had no property of her own in Central London or any house in Pakistan or abroad. She had wondered as to from where her properties or of her brothers had been discovered by people. She had gone on to say that she lived with her father at his house. Mr. Bokhari also referred to an interview of respondent No. 7 namely Mr. Hussain Nawaz Sharif with Mr. Hamid Mir in Capital Talk on Geo News television on January 19, 2016 wherein respondent No. 7 had stated that the sale of the factory in Jeddah had fetched good money which had been “officially transferred” to England about eleven or twelve years ago and through that money he had acquired three properties there through “mortgage” for which payments were still being made. He had gone on to state in that interview that the said properties had been “purchased” by him and they were still in possession of the family. Mr. Bokhari submitted that no record of the stated “official” transfer of money from Saudi Arabia to the United Kingdom had been produced before this Court. He also pointed out that the stance of respondent No. 7 regarding “purchase” of those properties through “mortgage” had subsequently been changed. He highlighted that no mention had been made in that interview to any investment in real estate business in Qatar and to the properties in London having been acquired as a result of any settlement of that investment. Mr. Bokhari also referred to an interview of Mr. Hussain Nawaz Sharif with Javed Chaudhry in Kal Tak on March 07, 2016 on Express News television wherein he admitted ownership of the two offshore companies and of the relevant properties in London besides stating that respondent No. 8 was doing business in London for the last 21 years. Mr. Bokhari pointed out that respondent No. 8 had said in his interview in the year 1999 referred to above that he was a student till then with no business or income of his own and that in his interview on March 07, 2016 respondent No. 7 had stated that the relevant properties in London belonged to “us” and no mention had been made by him in that interview to any investment in Qatar being the source of acquisition of those properties. Mr. Bokhari then drew the Court’s attention towards an interview of respondent No. 1 with Hamid Mir and Sohail Warraich on November 17, 2009 on Geo News television wherein he had stated that he had disassociated himself from the family business in the year 1997. Mr. Bokhari also referred to the speech made by respondent No. 1 on April 05, 2016 wherein he had stated that with the money becoming available through sale of the factory in Jeddah in June 2005 his sons had started their business which story had subsequently been changed by maintaining that it was with that money that the apartments in London had been purchased and still later the story had once again been changed to acquisition of those properties in London through a settlement of a real estate business in Qatar.

10.        Mr. Bokhari then referred to paragraph No. 113 of the judgment of this Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (PLD 2000 SC 869) wherein a reference had been made to a judgment passed by the High Court of Justice, Queen’s Bench Division, London on March 16, 1999 in the case of Al Towfeek Company v. Hudabiya Paper Mills Limited, etc. followed by a decree dated November 05, 1999 against Hudabiya Paper Mills Limited, etc. for about 34 million US Dollars. According to the record Mariam Safdar (respondent No. 6 herein) and Mr. Hussain Nawaz Sharif (respondent No. 7 herein) were included in the Directors of Hudabiya Paper Mills Limited and Mian Shahbaz Sharif (a younger brother of respondent No. 1 herein), Mian Muhammad Sharif (father of respondent No. 1 herein) and Mian Muhammad Abbas Sharif (another younger brother of respondent No. 1 herein) had beneficial interest therein. In the year 1999 a caution was placed by the court upon the relevant four properties in London in connection with the decree passed and on February 21, 2000 that caution was lifted upon satisfaction of the decree. Mr. Bokhari maintained that lifting of the caution and release of the said properties upon satisfaction of that decree clearly established that the Sharif family owned those properties way back in the year 1999 and the claim of respondent No. 1 and his children before this Court that the said properties were acquired in the year 2006 was false. He went on to maintain that both the offshore companies, i.e. Nescoll Limited and Nielsen Enterprises Limited were in fact established by respondent No. 1 and the four properties in London were purchased by the said companies between 1993 and 1996 on behalf of respondent No. 1 and that his family is in physical possession of those properties ever since. He vehemently argued that the entire story about the said properties having been transferred to the ownership of Mr. Hussain Nawaz Sharif in the year 2006 as a result of a settlement of some real estate business in Qatar was a concoction incarnate.

11.        Mr. Bokhari pointed out that respondent No. 7 namely Mr. Hussain Nawaz Sharif lives in Jeddah, Saudi Arabia since the year 2000 and till that year he had no income of his own to set up his own business. Respondent No. 8 namely Mr. Hassan Nawaz Sharif was a student in London, United Kingdom in the year 1999 with no income of his own and he had statedly started his own business in London on April 12, 2001 by setting up a company named Flagship Investments Limited. The Director’s report of the said company for that year showed that respondent No. 8 had Pounds Sterling 705,071 to his credit as the Director of that company and respondent No. 8 never advanced any explanation of his own as to how and from where he came to have that kind of money. The Financial Statement of that company dated March 31, 2003 showed that respondent No. 8 had made a loan of Pounds Sterling 307,761 to that company with a balance of Pounds Sterling 990,244. The Financial Statement of that company dated March 31, 2004 showed that the said respondent had made a loan of Pounds Sterling 593,939 to that company with a balance of Pounds Sterling 1,606,771. The Financial Statement of that company dated March 31, 2005 also showed that the company owed that respondent a huge amount of money. Mr. Bokhari also pointed out that respondent No. 8 had also set up another company by the name of Que Holdings Limited and the Notes of Account of that company dated July 31, 2004 showed that the said respondent had 100% holding in that company to which he had given a loan of Pounds Sterling 99,999. The Financial Statement of that company dated July 31, 2005 showed that respondent No. 8 had given a loan to that company amounting to Pounds Sterling 541,694. Mr. Bokhari highlighted that respondent No. 8 owned about ten companies in London even prior to the sale of the factory in Jeddah by the family in June 2005 and the credit from respondent No. 8 to the companies controlled by him was Pounds Sterling 2,351,877 by the year 2005 for which he had offered no explanation whatsoever till the belated revelation regarding an investment in Qatar by way of an afterthought. According to Mr. Bokhari the money becoming available to respondent No. 8 in London was nothing but money laundered by respondent No. 1 and the details of such money laundering were available in the report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency of Pakistan in September 1998.

12.        The next plank of the arguments advanced by Mr. Bokhari was that as a matter of fact respondent No. 6 namely Mariam Safdar, a daughter of respondent No. 1, was the beneficial owner of the relevant offshore companies owning the four properties in London. In this connection he referred to various emails exchanged in June 2012 between the Financial Investigation Agency of the British Virgin Islands, the law firm Mossack Fonseca and Minerva Trust & Corporate Services Limited, the administrator of the two companies, according to which there was no trust attached to the said companies and the beneficial owner of two of the properties in London was respondent No. 6. He also pointed out that in her Personal Information Form submitted before the law firm on October 14, 2011 respondent No. 6 had disclosed her source of wealth as the family’s wealth and business spread over a period of sixty years. He also referred to a document dated December 03, 2005 which established respondent No. 6’s connection with Minerva Financial Services Limited in the year 2005, prior to the claimed acquisition of the relevant properties in London in the year 2006, which document had statedly been signed by respondent No. 6 as the sole shareholder of one of the two offshore companies.

13.        Mr. Bokhari also argued that the documents relied upon by respondents No. 6 and 7 as Trust Deeds establishing respondent No. 6 as a trustee of respondent No. 7 in respect of the four properties in London were sham. He pointed out that the said documents were purportedly signed by one party on February 02, 2006 in one country and by the other party on February 04, 2006 in another country, a seal was affixed on those documents on November 07, 2016 after about ten years and those documents were certified to be correct copies only. According to him there was no attestation of the trust deeds and attestation appearing thereon was not of the documents but of the copies only.

14.        It was conceded by Mr. Bokhari that through these petitions none of the petitioners has sought any declaration or relief against respondent No. 6 namely Mariam Safdar but he maintained that the said respondent was, is and remains a dependent of her father, i.e. respondent No. 1. According to him respondent No. 6 was the actual beneficial owner of the four properties in London and respondent No. 1 had not disclosed that fact in his declaration attached with the nomination forms filed for candidature in the general elections held in the country in the year 2013 which suppression of fact was sufficient to disqualify him as a Member of the National Assembly. He pointed out that in his Wealth Statement submitted with the income-tax return for the year 2011 respondent No. 1 had mentioned the land purchased by him in the name of respondent No. 6 in Column No. 12 meant for “spouse, minor children and other dependents” and, thus, he had acknowledged respondent No. 6 as his dependent. He went on to submit that respondent No. 6 had no independent means of income, her agricultural income was not sufficient to sustain her on her own, her traveling expenses were more than her declared income, she paid no bills and admittedly she was living with father who periodically gave her huge gifts in cash and kind. He referred to the definition of ‘Dependent’ in Black’s Law Dictionary and maintained that respondent No. 6 had no independent source of income. In this connection he referred to the Wealth Statements submitted by respondent No. 6 showing that in the year 2011 she had received Rs. 3,17,00,000, in the year 2012 she had received Rs. 5,16,24,000 and in the year 2013 she had received Rs. 3,78,68,000 as gifts from respondent No. 1 besides receiving Rs. 4,23,04,310 as loans and advances from Chaudhry Sugar Mills in the year 2011 and a loan of Rs. 2,89,33,800 from respondent No. 8 in the year 2012. He also pointed out that the husband of respondent No. 6 had not paid any tax till the year 2013 and respondent No. 6 had admitted in an interview that she had no house in Pakistan or abroad. Mr. Bokhari maintained that the properties standing in the names of respondent No. 6 were in fact Benami and actually owned by her father, i.e. respondent No. 1. He referred to the cases of Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others (2009 SCMR 124), Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146), Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577), Mst. Sharifan Bibi and others v. Abdul Majeed Rauf and others (PLD 2012 Lahore 141), Mv. MD. Abdul Majid and others v. MD. Jainul Abedin and others (PLD 1970 Dacca 414), Malik Muhammad Zubair and 2 others v. Malik Muhammad Anwar and 2 others (PLD 2004 Lahore 515), Syed Ansar Hussain and 2 others v. Khawaja Muhammad Kaleem and 4 others (2006 CLC 732) and S. Abid Ali and 3 others v. Syed Inayat Ali and 5 others (2010 CLC 1633) and maintained that the requisite ingredients of a Benami transaction stood fully attracted to the acquisition of properties in the name of respondent No. 6 and as she had no independent source of income, therefore, respondent No. 1 was the actual owner of those properties and the same was true of even the four properties in London purchased between 1993 and 1996.

15.        Mr. Bokhari further argued that respondent No. 1 had also been guilty of tax evasion. In this regard he submitted that respondent No. 1 had received Rs. 74 crores from his sons between the years 2011 and 2015 as gifts but no tax was paid by him on that amount. He referred to the Wealth Statement submitted by respondent No. 1 for the tax year 2011 in column No. 3(ii) whereof it was mentioned that the said respondent had received a gift of more than Rs. 12 crores from a son and he had gifted about Rs. 5 crores to R6 and R7. According to Mr. Bokhari total gifts received by respondent No. 1 from respondent No. 7 were for Rs. 81 crores. He referred to section 39 of the Income Tax Ordinance 2001 according to which all the loans and gifts received were to be declared but respondent No. 1 had not paid tax on such gifts. Mr. Bokhari questioned the capacity of respondent No. 7 to make such huge gifts to respondent No. 1 and maintained that money was being rotated and laundered money was being made kosher through such gifts. According to Mr. Bokhari nearly Rs. 74 crores had admittedly been received by respondent No. 1 from respondents No. 7 & 8 which was income from other sources but no tax was paid on that amount. He submitted that the Federal Board of Revenue may be directed to recover the tax due and respondent No. 1 may be disqualified under Article 62(1)(f) of the Constitution even on that score.

16.        Adverting to respondent No. 10 namely Mr. Muhammad Ishaq Dar, the incumbent Federal Minister for Finance and a Samdhi of respondent No. 1, Mr. Bokhari referred to a confessional statement made by him under section 164, Cr.P.C. before a Magistrate First Class, Lahore on April 25, 2000 wherein he had confessed to laundering money for the benefit of respondent No. 1 and others and on the basis of that Reference No. 5 of 2000 had been filed by the National Accountability Bureau before an Accountability Court against Hudabiya Paper Mills, three Sharif brothers, respondent No. 10 and others. That Reference was quashed by a learned Division Bench of the Lahore High Court, Lahore on March 11, 2014 upon acceptance of Writ Petition No. 2617 of 2011. After quashing of the Reference the two learned Judges of the High Court had disagreed with each other over the issue of reinvestigation of the case by the National Accountability Bureau and thus the said aspect of the case was referred to a learned Referee Judge who held that the case could not be allowed to be reinvestigated. We have been informed that the Chairman, National Accountability Bureau did not challenge that judgment of the Lahore High Court, Lahore before this Court through any petition/appeal. Mr. Bokhari maintained that the present Chairman, National Accountability Bureau had been appointed by respondent No. 1 himself and, therefore, he had returned the favour by not filing any petition/appeal in that case against respondent No. 1 and others. According to Mr. Bokhari the Chairman, National Accountability Bureau, respondent No. 2 herein, had failed in due performance of his duty in that regard and, thus, he was liable to be proceeded against under Article 209 of the Constitution for his removal from office through the Supreme Judicial Council. Mr. Bokhari also prayed that this Court may issue a direction to the Chairman, National Accountability Bureau to file a petition/appeal in the above mentioned matter before this Court with a prayer for condoning of the delay in filing of such petition/appeal.

17.        With the submissions made above Mr. Bokhari prayed that a declaration may be issued by this Court that respondent No. 1 is not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution and on the basis of such a declaration he may be held to be disqualified from membership of the National Assembly; the closed cases of corruption, corrupt practices and money laundering, etc. against respondents No. 1, 10 and others may be reopened for fresh investigation and prosecution; and the Chairman, National Accountability Bureau and the Chairman, Federal Board of Revenue may be directed to take every step possible under the law to recover the plundered wealth of the nation and to bring the culprits to book.

18.        Sheikh Rasheed Ahmed petitioner appearing in person in Constitution Petition No. 30 of 2016 also argued that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is respondent No. 4 in Constitution Petition No. 30 of 2016) is liable to be disqualified from membership of the Majlis-e-Shoora (Parliament) because he is not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution. He maintained that in his Wealth Statement submitted with the income-tax return for the year 2011 respondent No. 1 had mentioned the land purchased by him in the name of his daughter namely Mariam Safdar in Column No. 12 which was meant for “spouse, minor children and other dependents” and, thus, he had acknowledged that the said daughter of his was his dependent but in the same statement in the column relating to family members and dependents respondent No. 1 had not shown her as his dependent which impinged upon his honesty.

19.        The statements made by the gentleman from Qatar (to be reproduced and discussed in the later part of this judgment) were described by the said petitioner as hearsay and not based upon personal knowledge. The petitioner further maintained that the said statements of the gentleman from Qatar showed existence of business relations between Al-Thani family of Qatar and the family of respondent No. 1 since prior to the year 1980 but no disclosure in that regard had ever been made by respondent No. 1 at any stage which again reflected adversely upon his honesty.

20.        Referring to the judgment and decree passed by the High Court of Justice, Queen’s Bench Division, London in the year 1999 the petitioner submitted that the relevant four properties in London were placed under caution till satisfaction of the decree and as the said decree had later on been satisfied by respondent No. 1’s family, therefore, the connection between respondent No. 1 and ownership of those properties clearly stood established way back in the year 2000.

21.        Regarding the Trust Deed dated February 02, 2006 statedly executed between respondents No. 6 and 7 the petitioner pointed out that the document had not been attested by the Pakistani High Commission, it was not notarized and the witness of the document was not identifiable.

22.        According to Mr. Sheikh some documents becoming available on the record showed that it was respondent No. 6 namely Mariam Safdar who was the actual beneficial owner of the relevant properties in London.

23.        Adverting to the affidavits of Mr. Tariq Shafi brought on the record by the respondents the petitioner pointed out that Mr. Tariq Shafi was only nineteen years of age and admittedly a Benamidar when the factory in Dubai was set up in his name which fitted into a pattern of respondent No. 1’s family putting up a front man for its businesses and assets and the same pattern was also followed in acquisition of the four properties in London.

24.        Mr. Sheikh vehemently argued that respondent No. 1 has not been “honest” with the nation, the National Assembly and this Court in the matter of explaining the mode of acquisition and the resources for acquisition of the properties in London and, thus, he has become disqualified from remaining a member of the National Assembly by virtue of the provisions of Article 62(1)(f) of the Constitution. In this regard he referred to the cases of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246), Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad–II and others (2013 SCMR 1271) and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369). He also maintained that the case in hand involves enforcement of the Fundamental Rights guaranteed by Articles 9, 14, 18, 23 and 24 of the Constitution besides attracting Articles 2A and 4 of the Constitution and that the matter is undeniably of great public importance sufficiently attracting the jurisdiction of this Court under Article 184(3) of the Constitution.

25.        Mr. Taufiq Asif, ASC appearing for the petitioner in Constitution Petition No. 3 of 2017 argued that respondent No. 1 in Constitution Petition No. 29 of 2016 (who is respondent No. 4 in Constitution Petition No. 3 of 2017) may be disqualified under Article 62(1)(f) of the Constitution because he concealed property, made a false declaration in the nomination papers filed in the general elections held in the year 2013 and evaded wealth-tax and income-tax by failing to disclose his properties in London. Referring to the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) he pointed out that in that case this Court had adverted to different definitions of “Honesty” and had held that the question of honesty could be decided on the basis of evidence or even with reference to “conduct” of a person.

26.        Referring to the speech made by respondent No. 1 in the National Assembly on May 16, 2016 Mr. Asif pointed out that according to respondent No. 1 Ittefaq Foundries was returned to the family in the year 1980, it became profitable in the year 1983 and in the year 1985 many more factories had been established by the family without disclosing the actual funds becoming available. According to the learned counsel no source of funds for setting up the factory in Dubai had been disclosed in that speech. He maintained that the factory in Dubai was statedly sold in the year 1980 for 33.37 million Dirhams and then the factory in Jeddah was statedly sold in June 2005 for 64 million Riyals (about 17 million US Dollars) but no money trail or banking transaction in that regard had been shown by respondent No. 1. He also highlighted that in that speech respondent No. 1 had completely suppressed any information about any investment by his family in real estate business in Qatar or acquisition of the four properties in London in the name of one of his sons. While referring to different speeches made by respondent No. 1 he pointed out that contradictory stands had been taken by the said respondent regarding the sources of funds and the routes through which such funds had been channeled for acquisition of the relevant properties and assets and such contradictions had raised serious doubts about bona fide of his explanations.

27.        The learned counsel for the petitioner also referred to the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (PLD 2000 SC 869) wherein the submissions made on behalf of the Federation of Pakistan had been noted and in those submissions the judgment of the High Court of Justice, Queen’s Bench Division, London dated November 05, 1999, placing of caution on the relevant four properties in London and lifting of that caution upon satisfaction of the decree for about 34 million US Dollars had been mentioned. According to the learned counsel for the petitioner no source of funds for satisfaction of that decree had been disclosed by respondent No. 1 and satisfaction of that decree by the said respondent’s family and lifting of caution on the said properties clearly established a direct connection between those properties and the respondent’s family in the year 2000.

28.        Mr. Asif further argued that acquisition of the relevant four properties in London had been admitted by respondent No. 1 and his children, possession of those properties had not been denied and it was always maintained by them that the entire record in that respect was available but no such record had been produced before this Court. According to the learned counsel the initial onus of proof on the petitioners, thus, stood discharged and a heavier onus of proof shifted to respondent No. 1 and his children to explain that the said properties had been acquired through legitimate resources and lawful means but they had completely failed to discharge that onus of proof. He maintained that a fact admitted by a party may not be proved and that the onus of proof in such cases shifts to the person who admits ownership or possession of the property in issue. He referred in this regard to the provisions of Articles 30, 53, 114 and 122 of the Qanun-e-Shahadat Order, 1984.

29.        The learned counsel for the petitioner went on to argue that the privilege in connection with a speech in the National Assembly contemplated by the provisions of Article 66 of the Constitution is not absolute and in support of that argument he referred to the case of Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823). He also referred to the provisions of Article 5(2) of the Constitution and to the oath of a Member of the National Assembly (Article 65) and of the Prime Minister (Article 91(5)) prescribed by the Constitution according to which he has to conduct himself honestly in all situations. In the context of Article 66 of the Constitution he pointed out that the Order of the Day for the National Assembly on May 16, 2016 did not mention any speech to be made by respondent No. 1 as the Prime Minister and that no such speech was a part of the agenda of the day. He maintained that although the speech made by respondent No. 1 on that day was something said in the proceedings of the National Assembly yet for the purposes of the privilege contemplated by Article 66 of the Constitution the speech of respondent No. 1 had to be relevant to the matter before the National Assembly and he referred to Rule 31 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007. He pointed out Rule 50 of the said Rules dealing with classes of business and Rule 51 according to which a Tuesday is a private members’ day and May 16, 2016 was a Tuesday. According to him the Speaker of the National Assembly ought not to have allowed respondent No. 1 to make a speech in the National Assembly on that day on a matter which was purely personal to him and if such speech was in fact allowed to be made then it was not a part of the proceedings of the National Assembly and, therefore, no privilege under Article 66 of the Constitution could be claimed for such speech. In the context of the privilege under Article 66 of the Constitution he also relied upon the case of Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383) and referred to an article written by Dr. Ken Coghill captioned as “Why Parliamentary Privilege Matters”.

30.        Mr. Asif also argued that sanctity is attached to proceedings of the Parliament but by lying before the National Assembly respondent No. 1 had breached that sanctity as well. Regarding sanctity of the Parliament he referred to the cases of Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817) and Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828). He pointed out that in his speech in the National Assembly respondent No. 1 had stated that the entire record pertaining to setting up and sale of the factories in Dubai and Jeddah as well as the record pertaining to acquisition of the four properties in London was available and would be produced before any forum inquiring into the matter but no such record had been produced before this Court. He pointed out that respondent No. 1 had also stated before the National Assembly that no privilege or immunity would be claimed by him but before this Court the privilege under Article 66 of the Constitution had been claimed on his behalf. Referring to the oath of office of the Prime Minister he highlighted that respondent No. 1 had sworn that he would discharge his functions honestly and that he would not allow his personal interest to influence his official conduct but in his speech he had expressly stated that as the matter pertained to his family, therefore, he felt obliged to explain the matter.

31.        On the issue of the scope of jurisdiction of this Court under Article 184(3) of the Constitution Mr. Asif referred to the cases of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642). He maintained that in an appropriate case this Court may also record evidence so as to ascertain a fact and in that regard he referred to the case of Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1).

32.        Sheikh Ahsan-ud-Din, ASC also briefly addressed arguments on behalf of the petitioner in Constitution Petition No. 3 of 2017 and maintained that the jurisdiction of this Court under Article 184(3) of the Constitution is inquisitorial in nature and in an appropriate case this Court may inquire into a fact itself or may get it inquired into or investigated through an appropriate commission, body or agency before reaching a conclusion in the matter. On the issue of respondent No. 6 being a dependent of respondent No. 1 he referred to different definitions of the word ‘dependent’. With reference to the jurisprudence developed in respect of the provisions of section 342, Cr.P.C. he maintained that the speech made by respondent No. 1 in the National Assembly was substantially untrue and, therefore, the same had to be treated as false in toto. He lastly argued that the statements of the gentleman from Qatar brought on the record of this case were nothing but an afterthought.

33.        At the outset Mr. Makhdoom Ali Khan, Sr. ASC appearing for Prime Minister Mian Muhammad Nawaz Sharif, respondent No. 1 in Constitution Petition No. 29 of 2016 and respondent No. 4 in Constitution Petitions No. 30 of 2016 and 3 of 2017, submitted that respondent No. 1’s name did not appear in the Panama Papers in any capacity whatsoever, no allegation was leveled against him therein and, thus, he did not have to answer for anything connected with the said issue. The learned counsel, however, hastened to add that some issues had been raised through the present petitions concerning respondent No. 1’s children and in respect of some speeches made by him and, thus, the said respondent felt obliged to offer some explanations in that regard and to make submissions on some legal aspects relevant to the present petitions.  

34.        Regarding the speeches made by respondent No. 1 after leakage of the Panama Papers Mr. Khan maintained that no false statement had been made by respondent No. 1 in such speeches and the said speeches did not contain anything which could be termed as a misstatement or a lie. According to him there could be some omissions in the said speeches which could be inadvertent or the fora at which those speeches had been made were not the fora obliging the respondent to make full disclosures. He maintained that in those speeches only a broad overview of the family’s business and assets had been presented by the respondent which business was initially set up and commenced by the respondent’s father in the year 1937, prior to the respondent’s birth, and his father remained incharge of the expanding business till his demise in the year 2004. Mr. Khan submitted that in those speeches respondent No. 1 was not swearing an itemized affidavit or a petition and, thus, precision or correctness of the things stated in those speeches ought not to be judged on that standard. He emphasized that respondent No. 1 had no connection with the factory in Dubai, the factory in Jeddah or the relevant apartments in London and, therefore, some details regarding those properties might not be known to him at the time of making the relevant speeches. Mr. Khan contended that respondent No. 1 was not responsible for his children’s businesses. He also stressed that some interviews given by others could not be utilized to contradict respondent No. 1 so as to be made a basis for his disqualification from membership of the Parliament because it had not been established before this Court as to who was right and who was wrong. He added that an inadvertent omission is to be treated differently from a deliberate suppression. Referring to the provisions of sections 78(3), 82 and 99 of the Representation of the People Act, 2006 Mr. Khan submitted that in the electoral laws of the country making of a false statement or a declaration is a cognizable offence and unless there is a prosecution and recording of a conviction on the basis of such an allegation no court can issue a declaration which may be made a basis of a disqualification under Article 62(1)(f) of the Constitution. He also referred to the case of Aftab Shaban Mirani v. President of Pakistan and others (1998 SCMR 1863) for maintaining that a mere press statement made by a person cannot be made a basis for disqualifying him even if making of such statement is not denied by him.

35.        Mr. Khan also argued that the bar for disqualification under Article 62(1)(f) of the Constitution is higher than the bar for disqualification under section 99(1)(f) of the Representation of the People Act, 1976 because for the constitutional disqualification a prior declaration by a court of law is required whereas the said requirement is not there for the statutory disqualification. In support of this argument he referred to the cases of Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/O Law Justice and Parliamentary Affairs and others (2013 SCMR 1328), Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad–II and others (2013 SCMR 1271), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Muhammad Khan Junejo v. Fida Hussain Dero and others (PLD 2004 SC 452), Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97), General (R.) Pervez Musharraf v. Election Commission of Pakistan and another (2013 CLC 1461), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670) and Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). Referring to the cases of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) and Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) Mr. Khan maintained that affirmative evidence is required to establish dishonesty for the purposes of electoral disqualification and that the threshold has to be very high for disqualifying a person on the basis of qualifications which are obscure and vague. He also contended that no declaration about honesty can be made without there being a prior adjudication made by a court on the subject and in this regard he relied upon the cases of Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) some persons were declared to be disqualified in exercise of the constitutional jurisdiction on the ground of holding dual nationality in the absence of a prior adjudication in that regard but in those cases the facts were either admitted/undisputed or the same were conveniently ascertainable with minimum inquiry. He also referred to the case of Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246) wherein dual nationality was not disputed and was in fact admitted. He also referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under Article 62 of the Constitution. It was, however, conceded by Mr. Khan that a decision of the Election Commission of Pakistan is not binding upon this Court.

36.        Adverting to the speech made by respondent No. 1 in the National Assembly on May 16, 2016 Mr. Khan referred to Article 66(1) of the Constitution which reads as under:

“66.        (1)        Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora (Parliament), there shall be freedom of speech in Majlis-e-Shoora (Parliament) and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Majlis-e-Shoora (Parliament), and no person shall be so liable in respect of the publication by or under the authority of Majlis-e-Shoora (Parliament) of any report, paper, votes or proceedings.”

He relied upon the universally acknowledged concept of parliamentary privilege recognized by the said provision of the Constitution for maintaining that respondent No. 1 cannot be “liable to any proceedings in any court” on the basis of any statement made by him on the floor of the National Assembly. He pointed out that the said privilege is subject to the Constitution and the only provisions of the Constitution relevant to the issue are those of Articles 68 and 204 placing restriction on discussing conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and commission of contempt of court. For highlighting various aspects of the concept of parliamentary privilege Mr. Khan referred to the cases of Lahore Development Authority through D. G. and others  v. Ms. Imrana Tiwana and others (2015 SCMR 1739),Pakistan  v. Ahmad Saeed Kirmani and others (PLD 1958 SC (Pak) 397), Regina v. Chaytor (2011 UKSC 52), [2011] 1 A.C. 684, Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383), United States v. Thomas F. Johnson (383 U.S. 169), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670),A v. United Kingdom (35373/97) (2003) 36 E.H.R.R 51, Tej Kiran Jain and others v. M. Sanjiva Reddy and others (AIR 1970 SC 1573), Dr. Suresh Chandra Banerji and others v. Punit Goala (AIR 1951 Calcutta 176), In the matter of Special Reference No. 1 of 1964 (AIR 1965 SC 745), Wason, Ex parte (1868-69) L.R. 4 Q.B. 573 and Richard William Prebble v. Television New Zealand Ltd. (1995) 1 A.C. 321. He also read out parts of some authoritative works and treatises on the subject and also referred to some similar provisions of the Indian Constitution and their interpretations by the courts of that country.

37.        Mr. Khan pointed out that through these petitions allegations have been leveled against respondent No. 1 regarding evasion of tax on the sale proceeds of the factory in Dubai worth about 9 million US Dollars; regarding late filing of Wealth Statements for the years 2011 and 2012 (which allegation was not pressed during the arguments); regarding the gifts of Rs. 31,700,000 by respondent No. 1 to respondent No. 6 and of Rs. 19,459,440 by respondent No. 1 to respondent No. 8 being sham and not disclosed; and in respect of the gifts received by respondent No. 1 from respondent No. 7 not having been treated as income from other sources. According to him the said allegations attract the provisions of Article 63(1)(o) of the Constitution and section 99(1A)(t) of the Representation of the People Act, 1976 but in terms of the facts of the present case the disqualification mentioned in those provisions is not relevant. He maintained that the crucial factors for the said disqualification are “default” and “dues” and it has already been clarified in the cases of National Bank of Pakistan and 117 others v. SAF textile Ltd. and another (PLD 2014 SC 283), Messrs Summit Bank Limited through Manager v. Qasim & Co. through Muhammad Alam and another (2015 SCMR 1341) and Agricultural Development Bank of Pakistan v. Sanaullah and others (PLD 1988 SC 67) that in the absence of any adjudication there cannot be any dues and, hence, no default can be alleged. According to him no determination had been made and no finding had been recorded by any tax authority against respondent No. 1 in respect of any tax due. He also clarified that respondent No. 1 was neither a Director nor a shareholder of the factory in Dubai. Mr. Khan went on to submit that the Wealth-Tax Act, 1963 was repealed in the year 2003, at the time of repeal of that law no proceeding was pending against respondent No. 1 and, therefore, at this stage no officer or machinery is available to determine any concealment, etc. by the said respondent rendering the issue dead. With reference to the record placed before this Court he pointed out that the gifts made by respondent No. 1 in favour of respondents No. 6 and 8 were actually disclosed by respondent No. 1 in his Wealth Statements and such payments had been made through cheques which had also been placed on the record. As regards the gifts made by respondent No. 7 in favour of respondent No. 1 it was submitted by him that respondent No. 7 had a National Tax Number in Pakistan and he was a non-resident Pakistani and, therefore, gifts made by him in favour of his father could not be treated as income from other sources as is evident from the provisions of section 39(3) read with sections 81, 111, 114, 116, 120, 120(2) of the Income-Tax Ordinance, 2001. He also pointed out that by virtue of the provisions of sections 122(2) and 122(5) of the Income-Tax Ordinance, 2001 finality stood attached to the matter after five years of commencement of the assessment order even if there had been any concealment. In support of the submissions made above he relied upon the cases of Commissioner Income-Tax Company Zone-II, Karachi v. Messrs Sindh Engineering (Pvt.) Limited (2002 SCMR 527), Income-Tax Officer and another v. M/s. Chappal Builders (1993 SCMR 1108), Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another (PLD 2012 SC 1067), Assistant Director, Intelligence and Investigation, Karachi v. M/s B. R. Herman and others (PLD 1992 SC 485) and Re State of Norway’s Application (No.1) (1989) 1 All ER 661.

38.        On the issue of respondent No. 6 allegedly being a dependent of respondent No. 1 Mr. Khan argued that the nomination papers filed by respondent No. 1 for election to NA-120 before the general elections held in the country in the year 2013 had correctly been filled, no misstatement was made by him in the relevant solemn affirmation regarding the list of his dependents and the Wealth Statement filed by him for the year 2011 was quite correct. He explained that in Column No. 12 of the said Wealth Statement some land purchased by respondent No. 1 in the name of respondent No. 6 had been shown but actually respondent No. 1 was not his dependent and a mention to her had been made in Column No. 12 only because in the relevant form there was no other column for disclosure of the land purchased. He further clarified that respondent No. 6 had not been mentioned by respondent No. 1 in Column No. 18 of the same form in respect of dependents. He also pointed out that later on the income-tax form was amended and a new Column No. 14 was introduced therein for “Assets in others’ name”. Mr. Khan drew our attention towards a clarification issued by a reputed firm of chartered accountants wherein it was asserted and opined that the land purchased by respondent No. 1 in the name of respondent No. 6 had been shown in Column No. 12 of the relevant form because the said form did not contain any other column wherein the above mentioned purchase by the father in the name of his daughter could be shown. According to Mr. Khan showing the relevant purchase by respondent No. 1, be it in a wrong column, established bona fide of the said respondent and that was surely better than suppressing the said information. He emphatically maintained that respondent No. 6 was a married lady having grown up children, she was a part of a joint family living in different houses situated in the same compound, she contributed towards some of the expenses incurred, submitted her independent tax returns, owned sizeable property in her own name, was capable of surviving on her own and she could not be termed a ‘dependent’ merely because she periodically received gifts from her father and brothers. He drew our attention toward a chart showing the details of the agricultural land owned by respondent No. 6 and referred to the cases of M. A. Faheemuddin Farhum v. Managing Director/Member (Water) WAPDA, WAPDA House, Lahore and others (2001 SCMR 1955), In re Ball. Decd. (1947) 1 Ch. 228 and In Re Baden’s Deed Trusts (No.2) (1973) Ch. 9 wherein the term ‘dependent’ had been interpreted. He clarified that as far as some foreign judgments on the issue of dependence were concerned they were merely of persuasive value but where interpretation of some foreign law is involved there the foreign law is to be formally proved as a question of fact, as held in the case of Atlantic Steamer’s Supply Company v. M. V. Titisee and others (PLD 1993 SC 88). He also referred to the definition of ‘Benamidar’ contained in the National Accountability Ordinance, 1999 and to the cases of Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577), Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144) and Mst. Asia Bibi v. Dr. Asif Ali Khan and others (PLD 2011 SC 829) wherein the said term had been interpreted. In view of the interpretations of the terms ‘dependent’ and ‘Benamidar’ in the said precedent cases Mr. Khan argued that respondent No. 6 could not be treated or accepted as a dependent of respondent No. 1. He also maintained that very clear proof of dependence of one person on another is required before a court of law and in that connection he relied upon the cases of Amir Bibi through legal heirs v. Muhammad Khurshid and others (2003 SCMR 1261) andCh. Muhammad Siddique and another v. Mst. Faiz Mai and others (PLD 2012 SC 211). Mr. Khan emphasized that the alleged dependence of respondent No. 6 on respondent No. 1, even if established, was relevant to the year 2011 and not to the year 2013 when nomination papers were filed by respondent No. 1 for contesting an election in the general elections. He also pointed out that the issue of respondent No. 6 allegedly being a dependent of respondent No. 1 is already pending before the Election Commission of Pakistan and, therefore, he submitted that this Court may withhold any comment on that issue in the present proceedings.

39.        Mr. Khan categorically submitted that respondent No. 1 did not question competence and maintainability of the present petitions filed under Article 184(3) of the Constitution because they involved questions of public importance with reference to many Fundamental Rights conferred by Chapter 1 of Part II of the Constitution but he maintained that the scope of jurisdiction of this Court under Article 184(3) of the Constitution is limited and in exercise of such jurisdiction a person may not be disqualified from membership of the Parliament on the basis of disputed or unverified facts. In support of that submission he relied upon the cases of Khuda Bakhsh  v. Mir Zafarullah Khan Jamali (1997 SCMR 561), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089),Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279), Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A., Former President of Defunct National Awami Party (PLD 1976 SC 57), Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad (PLD 2006 SC 697),Muhammad Saeed and 4 others v. Election Petitions Tribunal, Mehr Muhammad Arif, Ghulam Haider, West Pakistan Government and others (PLD 1957 SC 91), Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6), Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388), Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) and many other cases. In this context he also maintained that the book by Mr. Raymond W. Baker titled “Capitalism’s Achilles Heel” relied upon by the learned counsel for one of the petitioners was not evidence but was merely an opinion of the author. He also argued that newspaper reports were not sufficient proof of the facts stated therein, as observed in the cases of Messr Balagamwallah Cotton Ginning & Pressing Factory, Karachi v. Lalchand (PLD 1961 Karachi 1), Aftab Shaban Mirani v. President of Pakistan and others (1998 SCMR 1863) and Muhammad Azam v. Khalid Javed Gillani, etc. (1981 SCMR 734). He pointed out that a Writ Petition was already pending before the Lahore High Court, Lahore on the same subject and three petitions were also pending before the Election Commission of Pakistan seeking disqualification of respondent No. 1 on the basis of the same issues and, therefore, this Court ought not to interfere in the matter at such a stage through exercise of its jurisdiction under Article 184(3) of the Constitution.

40.        Mr. Shahid Hamid, Sr. ASC represented respondent No. 6 namely Mariam Safdar (daughter of respondent No. 1), respondent No. 9 namely Captain (Retd.) Muhammad Safdar (husband of respondent No. 6 and son-in-law of respondent No. 1) and respondent No. 10 namely Mr. Muhammad Ishaq Dar (a Samdhi of respondent No. 1 and the incumbent Finance Minister of Pakistan) before us and at the outset he adopted all the arguments of Mr. Makhdoom Ali Khan, Sr. ASC representing respondent No. 1. He also pointed out in the beginning that no allegation had been leveled against respondent No. 6 in Constitution Petition No. 29 of 2016 but relief had been prayed therein regarding her disqualification under Article 63(1)(o) of the Constitution. He further pointed out that in Constitution Petition No. 30 of 2016 and also in Constitution Petition No. 3 of 2017 respondents No. 6, 9 and 10 had not been arrayed as parties and no relief had been prayed against them in those petitions. He submitted that the questions to be answered by him were in respect of respondent No. 9’s tax returns, the assets of his wife, i.e. respondent No. 6, the asserted dependence of respondent No. 6 on respondent No. 1 and the allegations leveled against respondent No. 10.

41.        Mr. Hamid pointed out that respondents No. 6 and 9 had placed on the record of these petitions copies of the tax returns of respondent No. 6 for the years 2011 and 2012, the tax returns of respondent No. 1 for the years 2011 and 2012, an opinion of a reputed tax consultancy firm about correctness of the tax returns filed by respondent No. 1, the license granted for setting up a factory in Dubai, the lease deed for obtaining land in Dubai for setting up a factory, the land rent agreement executed in Dubai, the tripartite sale agreement in respect of sale of 75% shares of the factory in Dubai, the shares sale certificate pertaining to sale of the remaining 25% shares of the factory in Dubai, a photograph taken at the time of inauguration of the factory in Dubai, two affidavits of Mr. Tariq Shafi who was the Benamidar owner of the factory in Dubai, incorporation certificates of Nescoll Limited and Nielsen Enterprises Limited, all the share certificates in favour of respondent No. 7, a trust deedqua a company named Coomber, a trust deed dated 02/04.02.2006, two statements of a gentleman from Qatar, income-tax returns of respondent No. 6 from the year 2011 to the year 2016, income-tax returns of respondent No. 6’s grandmother from the year 2011 to the year 2016, wealth statement of respondent No. 1 for the year 2010 showing agricultural land in the ownership of respondent No. 6, bank statements of respondent No. 1 showing that all the relevant transactions were carried out through banks, SRO No. 84(I)/2015 amending the income-tax return form and the nomination papers of respondent No. 1 showing that respondent No. 1 lived in his mother’s house.

42.        Mr. Hamid maintained that respondent No. 6’s alleged beneficial ownership of the apartments in London was a disputed question of fact and the allegation leveled in that regard was based upon forged documents produced by the petitioners. He relied upon a book written by Dr. B. R. Sharma on the law relating to handwriting, etc. and also upon the case of Syed Hafeezuddin v. Abdul Razzaq and others (PLD 2016 SC 79) on the issue of forgery of signatures. He argued that in cases involving public interest litigation the petitioner must come to the court with clean hands and with concrete facts which are verifiable and in that regard he referred to the cases of Muhammad Shafique Khan Sawati v. Federation Of Pakistan through Secretary Ministry of Water and Power, Islamabad and others (2015 SCMR 851), Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (PLD 2000 SC 869), Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others (PLD 2009 SC 406), Moulvi Iqbal Haider  v. Capital Development Authority and others (PLD 2006 SC 394), Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482), T. N. Godavarman Thirimulpad v. Union of India and Ors (AIR 2006 SC 1774), Janata Dal v. H. S. Chowdhary and Ors (AIR 1993 SC 892), S. P. Gupta v. President of India and Ors (AIR 1982 SC 149), Syed Hafeezuddin v. Abdul Razzaq and others (PLD 2016 SC 79) and M. A. Faheemuddin Farhum v. Managing Director/Member (Water) WAPDA, WAPDA House, Lahore and others (2001 SCMR 1955). He categorically submitted that respondent No. 6 was a mere trustee of one of the two offshore companies on behalf of respondent No. 7 and she had no other interest in the said companies or the properties owned by them.

43.        On the issue of the alleged dependence of respondent No. 6 on respondent No. 1 Mr. Hamid pointed out that there was no definition of ‘dependent’ provided in the Income-Tax Ordinance, 2001, section 2(33) of the said Ordinance provided for a “minor child” but section 90(8)(b) of that Ordinance provided that a “minor child” did not include a married daughter. He also pointed out that section 116(1)(b) of the said Ordinance referred to “other dependents” without defining them. He also referred in that context to section 116(2) of that Ordinance pertaining to a wealth statement, Rule 36 of the Income-Tax Rules, 2002 and Part IV of the Second Schedule containing the form of Wealth-Tax (amended on 26.8.2015) highlighting that assets in others’ names were contemplated in the said provisions but such others had not been defined. He further referred to the Representation of the People Act, 1976 and pointed out that even the said Act did not contain any definition of the word ‘dependent’ although the word ‘dependents’ found a mention in section 12(2)(d) of the said Act. He also referred to section 14(3)(c) of that Act pertaining to scrutiny of nomination papers and to section 14(5) of the said Act relevant to an appeal in that regard and then drew our attention towards a form captioned ‘Statement of Assets and Liabilities’ provided in the Representation of the People (Conduct of Election) Rules, 1977 and pointed out that in the verification provided in that form the word ‘dependents’ is mentioned. He also read out section 5(e) of the Prevention of Corruption Act, 1947 in the Explanation whereof the word ‘dependents’ is mentioned without defining or elaborating the same. In the absence of any statutory definition of the word ‘dependent’ Mr. Hamid referred to the case of M. A. Faheemuddin Farhum v. Managing Director/Member (Water) WAPDA, WAPDA House, Lahore and others (2001 SCMR 1955) and Black’s Law Dictionary in order to explain as to what the word ‘dependent’ meant. In that backdrop he vehemently argued that respondent No. 6 was not a dependent of respondent No. 1 at the time of filing of nomination papers by him on March 31, 2013. He maintained that the previous financial year had ended on June 30, 2012 whereas tax details of respondent No. 6 for the last 5 years till June 30, 2012 provided to this Court clearly showed that she was a lady of means and not dependent on respondent No. 1 financially. He pointed out that through a sale deed dated October 13, 2010 land worth Rs. 47,52,000/- had been purchased by respondent No. 1 in the name of respondent No. 6, through a sale deed dated December 14, 2010 land worth Rs. 34,78,750/- had been purchased by respondent No. 1 in the name of respondent No. 6, through a sale deed dated March 01, 2011 land worth Rs. 22,76,000/- had been purchased by respondent No. 1 in the name of respondent No. 6 and through a sale deed dated February 07, 2011 land worth Rs. 1,33,93,000/- had been purchased by respondent No. 1 in the name of respondent No. 6 and all the above mentioned sales had been registered on April 14, 2011. It was, thus, maintained by Mr. Hamid that, irrespective of the fact that the above mentioned assets had been gifted to her by her father, respondent No. 6 was for all intents and purposes a lady owning considerable property and, therefore, she could not be said to be dependent on her father for her sustenance or survival. According to him, a lady owning property worth about Rs. 20 crores could not be termed as dependent on anybody. He went on to maintain that all the tax returns and statements submitted by respondent No. 6 had been accepted by the concerned taxation authorities and the same had never been challenged and, therefore, after a lapse of the five years’ statutory period such returns and statements could not be reopened or questioned at any subsequent stage.

44.        Adverting to the case against respondent No. 9 Mr. Hamid conceded that the said respondent had not filed any tax return before the year 2014 and that a National Tax Number had been issued in his name for the first time on January 28, 2014. He also admitted that for contesting the elections in the year 2013 respondent No. 9 had submitted the wealth statement and the tax return of his wife (respondent No. 6) with his nomination papers. While defending respondent No. 9 Mr. Hamid referred to sections 114 and 182 of the Income-Tax Ordinance, 2001 and also pointed out that the same issue was already pending before the Election Commission of Pakistan through five different petitions filed before it by different persons and also before the Lahore High Court, Lahore through a Writ Petition filed before it by an interested person. He maintained that respondent No. 9 was just a member of the National Assembly against whom no relief had been prayed for in these petitions and respondent No. 6 did not even hold a public office and, therefore, the matters against them did not involve any question of public importance with reference to enforcement of the Fundamental Rights conferred by the Constitution so as to attract the jurisdiction of this Court under Article 184(3) of the Constitution.

45.        As far as respondent No. 10 namely Mr. Muhammad Ishaq Dar (a Samdhi of respondent No. 1 and the incumbent Finance Minister of Pakistan) is concerned Mr. Hamid pointed out that respondent No. 1 and some members of his family, etc. had been implicated as accused persons in FIR No. 12 of 1994 registered at Police Station Federal Investigation Agency, SIU, Islamabad on November 10, 1994 and also in FIR No. 13 of 1994 registered at Police Station Federal Investigation Agency, SIU, Islamabad on November 12, 1994 wherein various allegations, including those of money laundering, had been leveled but after submission of the Challans in those cases Writ Petitions No. 12172 and 12173 of 1997 filed by a nephew of respondent No. 1 were allowed by the Lahore High Court, Lahore on May 27, 1997, the Challans were quashed and the accused persons were acquitted. He informed that respondent No. 10 was not an accused person in those criminal cases and the Lahore High Court, Lahore had decided the above mentioned Writ Petitions at a time when respondent No. 1 was the Prime Minister of Pakistan and the said decision of the High Court had not been challenged before this Court by the Federal Investigation Agency or the State.

46.        Mr. Hamid then referred to Reference No. 5 of 2000 filed by the National Accountability Bureau before an Accountability Court against respondents No. 1 and 10 and some others with allegations of money laundering, etc. to the tune of Rs. 1242.732 million (over Rs. 1.2 billion) and in that Reference reliance had also been placed upon a judicial confession made by respondent No. 10 before a Magistrate First Class, Lahore on April 25, 2000. He pointed out that initially respondent No. 10 was an accused person in the said Reference but on the basis of his judicial confession the said respondent was granted pardon by the Chairman, National Accountability Bureau and was not treated as an accused person in the final Reference wherein he had been cited as a prosecution witness. It was alleged in that Reference that respondent No. 10 was instrumental in laundering of 14.886 million US Dollars upon the instructions and for the benefit of respondent No. 1 by opening fake foreign currency accounts in different banks in the names of others. He pointed out that Writ Petition No. 2617 of 2011 filed before the Lahore High Court, Lahore in connection with that Reference was allowed by a learned Division Bench of the said Court on December 03, 2012 and the said Reference was quashed through a unanimous judgment but the learned Judges disagreed with each other over permissibility of reinvestigation of the matter whereupon the matter was referred to a learned Referee Judge who held on March 11, 2014 that reinvestigation of the case was not permissible. Even that judgment of the Lahore High Court, Lahore was not challenged by the National Accountability Bureau or the State before this Court and incidentally respondent No. 1 was again the Prime Minister of Pakistan at that time. He also submitted that a Writ Petition challenging respondent No. 10’s election to the Senate on account of making of the above mentioned confessional statement by him was dismissed in limine by the Islamabad High Court, Islamabad because the writ-petitioner had not appended a copy of the confessional statement with the Writ Petition filed by him. He went on to submit that the allegations leveled against respondent No. 10 were over twenty-five years old and such allegations pertained to the year 1992 when the said respondent did not hold any public office. He further submitted that in the Challans quashed in the year 1997 respondent No. 10 was not an accused person and quashing of Reference No. 5 of 2000 had become final by now attracting the principle of autrefois acquit recognized by Article 13 of the Constitution, section 403, Cr.P.C. and section 26 of the General Clauses Act.

47.        While representing respondents No. 7 and 8 namely Mr. Hussain Nawaz Sharif and Mr. Hassan Nawaz Sharif, both sons of respondent No. 1, Mr. Salman Akram Raja, ASC submitted at the outset that by comparison of their verbal or written statements respondents No. 7 and 8 are not to be treated as the standard to judge correctness and honesty of respondent No. 1 because it could well be that respondent No. 1 is correct and honest in the matter and respondents No. 7 and 8 are not. He pointed out that no relief has directly been prayed for against respondents No. 7 and 8 in these petitions. He also made a categorical statement that respondent No. 7 is the exclusive owner of the relevant four properties in London since the year 2006. He maintained that it was not possible to determine facts stretching over a period of about fifty years and that on the basis of the available record respondent No. 1 or his children could not be held culpable. He argued that in cases of corruption, and particularly those under section 9(a)(v) of the National Accountability Ordinance, 1999, the initial burden of proof is on the prosecution and then the burden of proof shifting to the accused person is only to explain to the satisfaction of the court and such burden is discharged if the offered defence falls in the realm of possibilities. He place reliance in that regard on the cases of Khalid Aziz v. The State (2011 SCMR 136) and The State v. Anwar Saifullah Khan (PLD 2016 SC 276). He maintained that no wrongdoing on the part of respondent No. 1 and his children had been established in this case and, thus, the defence offered by them is to accepted in toto in terms of the principle of criminal law reiterated in the case of State v. Muhammad Hanif and 5 others (1992 SCMR 2047). He emphasized that the explanations offered by respondent No. 7 do fall in the realm of possibilities and, therefore, the same ought to be accepted.

48.        Mr. Raja submitted that the relevant record in respect of setting up and sale of the factories in Dubai and Jeddah had been made available before this Court which sales had fetched 12 million Dirhams and 20,630,000 Riyals (about 17 million US Dollars). With reference to an affidavit of Mr. Abdul Raman Muhammad Abdullah Kayed Ahli and two affidavits of Mr. Tariq Shafi he maintained that receipt of 12 million Dirhams as sale proceeds of the remaining shares of the factory in Dubai and delivery of the said amount in cash in installments to Mr. Fahad Bin Jassim of Qatar (elder brother of Mr. Hamad Bin Jassim) had been established which money later on became the source of funds for acquisition of the four properties in London.

49.        Mr. Raja stated that the family of respondent No. 1 has been in possession of the properties in London since the years 1993/1996 because respondents No. 7 and 8 were studying in England at that time. He submitted that apart from the judgment and decree of the High Court of Justice, Queen’s Bench Division, London passed and issued in the year 1999 there was no link established between respondent No. 1’s children and ownership of those properties before the year 2006. In that respect he referred to an affidavit of Mr. Shezi Nackvi (a representative of the decree holder Al-Towfeek Company) dated January 13, 2017 according to which no meeting or correspondence had ever taken place between respondent No. 1 and any representative of the decree holder till the decree was settled upon payment of 8 million US Dollars. He pointed out that the loan obtained from Al-Towfeek Company stood duly mentioned in the relevant Financial Statement of Hudabiya Paper Mills Limited of which some of respondent No. 1’s children were Directors at that time. He also pointed out that according to the written statement of Mr. Shezi Nackvi filed before the High Court of Justice, Queen’s Bench Division, London an attachment order in respect of the relevant four properties in London had been sought by the decree holder on the basis of a report prepared by Mr. A. Rehman Malik of the Federal Investigation Agency of Pakistan whereas, according to Mr. Raja, Mr. A. Rehman Malik had prepared that report at a time when he was under suspension and he had compiled that report on his own and, thus, the report had no legal standing.

50.        Giving the background of the relevant four properties in London Mr. Raja submitted that Al-Thani family of Qatar had acquired the two offshore companies owning the said properties in the years 1993, 1995 and 1996 and in January 2006 the Bearer Share Certificates of the two companies were handed over by Al-Thani family to a representative of respondent No. 7. He added that upon instructions of respondent No. 7 Minerva Holdings Limited took over management of the two offshore companies on January 26, 2006, Arrina Limited was entrusted with management service for the two companies on February 06, 2006, JPCA Corporate Accountants took over administration of the two companies from Minerva Holdings Limited and thereafter two of the relevant properties were mortgaged with Deutche Bank (Suisse) SA on September 02, 2008. He, however, went on to admit that the information supplied by respondents No. 6 and 7 in respect of the relevant four properties was “incomplete”.

51.        Adverting to the laws of the British Virgin Islands vis-à-vis companies and their ownership Mr. Raja informed that section 28 of the International Business Companies Act, 1984 provided for registered shares and bearer shares and section 31 provided that a bearer share was transferable by delivery of the certificate relating to the share. He also referred to the Financial Services Commission Act, 2001, the British Virgin Islands Business Companies Act, 2004 and an article on ‘The BVI Bearer Shares Regime’ and went on to inform that in July 2006 the bearer shares of the relevant two companies were cancelled and registered shares were issued in favour of Minerva Holdings Limited on behalf of respondent No. 7.

52.        On the issue of the asserted dependence of respondent No. 6 on respondent No. 1 Mr. Raja maintained that no valid document had been produced by the petitioners before this Court to establish any proprietary interest of respondent No. 6 in the relevant four properties in London and, therefore, there was hardly any question of respondent No. 1 being declared disqualified on his stated failure to disclose respondent No. 6 as his dependent or failure to declare any property of respondent No. 6 as his property in his nomination papers filed in the general elections held in the country in the year 2013 or in his tax returns.  

53.        As far as the speeches made by respondent No. 1 before the nation and in the National Assembly were concerned Mr. Raja maintained that the “imperfections in the speeches” did not provide a valid basis for holding that an asserted fact or an allegation about respondent No. 1 not being honest was proved.

54.        Addressing the Court on the scope of determining a fact in exercise of the jurisdiction under Article 184(3) of the Constitution Mr. Raja referred to the case of Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process (PLD 2012 SC 664) wherein the scope of inquisitorial proceedings under Article 184(3) of the Constitution was discussed and in view of the “object” of those suo motu proceedings the relevant statutory authorities were activated under the supervision of this Court. On the said subject he also referred to the cases of Muhammad Asghar Khan v. Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1), Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Moulvi Iqbal Haider and others v. Federation of Pakistan through Secretary M/o Law and Justice and others (2013 SCMR 1683), General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061), Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693), Mehr Zulfiqar Ali Babu and others v. Government of The Punjab and others (PLD 1997 SC 11) and Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292). He also relied upon the case of Emperor v. Khawaja Nazir Ahmed (AIR 1945 Privy Council 18) to assert that independence of an investigating agency and the investigative process is as important and desirable as independence of the judiciary. He pointed out that the said aspect was also emphasized by this Court in the case ofMalik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281). Relying upon the case of State v. Muhammad Hanif and 5 others(1992 SCMR 2047) he pointed out that in criminal cases the statement of an accused person recorded under section 342, Cr.P.C. has to be accepted or rejected in its entirety and, thus, while exercising this Court’s jurisdiction under Article 184(3) of the Constitution in respect of a matter involving an alleged criminality the inculpatory part of the statement cannot be separated from the exculpatory part. Dilating upon meanings of the word “declaration” in the context of Article 184(3) of the Constitution he submitted that accusitory function cannot be resorted to before an administrative tribunal and in that context he referred to the cases of Jenkins v. McKeithen (395 U.S. 411 (1969)) and Hannah Et Al v. Larche Et Al (363 U.S. 420 (1960)) but conceded that the said judgments were not relevant to a declaration made under Article 184(3) of the Constitution of Pakistan. He further argued that no right of appeal was provided against a judgment delivered under Article 184(3) of the Constitution and, therefore, extra care is required to be taken while making a declaration under that jurisdiction and for that submission he relied upon the cases of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) and Federation Of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another (2000 SCMR 1). He went on to maintain that no fishing or roving inquiry can be made while exercising the jurisdiction of this Court under Article 184(3) of the Constitution and he referred to the cases of Jam Madad Ali v. Asghar Ali Junejo and others (2016 SCMR 251) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455) in support of that submission. With reference to the Fundamental Right guaranteed by Article 19A of the Constitution he argued that the right to access to information does not extend to gathering of information from private persons and such right is relevant only where information already exists and not where the right is asserted for creating information. He lastly submitted that in exercise of this Court’s jurisdiction under Article 184(3) of the Constitution ordinarily no evidence is recorded and no right of cross-examination of witnesses is available besides the absence of any right of appeal and, therefore, in an appropriate case it may be argued that rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process.

55.        Respondent No. 2 namely Qamar Zaman Chaudhry, Chairman, National Accountability Bureau appeared before the Court in person on February 21, 2017 along with the learned Prosecutor-General Accountability and he maintained that the National Accountability Bureau was cognizant of its duties and responsibilities in connection with the issues arising out of the Panama Papers but respondent No. 2 was waiting for the “regulators” to look into the matter first. We repeatedly asked him to elaborate as to who those “regulators” were and where did they figure in the National Accountability Ordinance, 1999 but he did not even bother to respond to those questions and conveniently kept quiet! When his attention was drawn towards the provisions of section 18 of the National Accountability Ordinance, 1999 according to which the Chairman, National Accountability Bureau could take cognizance of such a matter on his own he simply stated that he would take action in terms of the Ordinance. On that occasion the Court wondered who the referred to “regulators” could be because the same word had also been used in the two statements of a gentleman from Qatar brought on the record of the case by the children of respondent No. 1. When asked by the Court as to whether he would consider challenging before this Court the judgment passed by the Lahore High Court, Lahore quashing Reference No. 5 of 2000 and barring reinvestigation into that matter by the National Accountability Bureau or not he categorically stated that at the relevant time he had decided not to file any petition/appeal against that judgment and he had no intention to do that at this stage either.    

56.        Respondent No. 5 namely Dr. Muhammad Irshad, Chairman, Federal Board of Revenue appeared before this Court in person along with his learned counsel on February 21, 2017 and apprised the Court that after disclosures made through the Panama Papers the Federal Board of Revenue approached the Ministry of Foreign Affairs for access to the Panaman authorities for obtaining information about the Pakistani citizens involved in the scam but it did not receive any response and then notices were issued by the Federal Board of Revenue on September 02, 2016 to 334 persons located out of the 444 persons named in connection with that scam through the print and electronic media. He informed that only a few out of those 334 persons responded to the notices and they included respondents No. 6, 7 and 8 herein. According to him in her response dated November 21, 2016 respondent No. 6 denied the allegations whereas through their response of the same date respondents No. 7 and 8 maintained that they were Non-resident Pakistanis and, thus, owning offshore companies by them did not fall within the jurisdiction of the Federal Board of Revenue. The Chairman stated before the Court in categorical terms that no further steps had been taken by him in the matter. Later on through a miscellaneous application filed on February 28, 2017 respondent No. 5 placed an formation before this Court that on February 22, 2017 notices had been issued to respondents No. 7 and 8 under section 176 of the Income-Tax Ordinance, 2001 requiring them to substantiate their claimed status of Non-resident Pakistanis. The Court was also informed through the same application that the Immigration authorities had also been required by the Federal Board of Revenue to produce the travel record of the said respondents during the period between the years 2006 and 2016. It was assured through the said application that after receiving the necessary information from respondents No. 7 and 8 and the Immigration authorities the Federal Board of Revenue would take further necessary action in the matter. It is unfortunate that till passage of the final judgment of this case no further information has been received by this Court from the Chairman, Federal Board of Revenue regarding any progress made in the matter at his end.

57.        Mr. Ashtar Ausaf Ali, the learned Attorney-General for Pakistan stated at the outset that although he had represented respondent No. 1 and some members of his family in many cases in the past before different courts of the country as a private practitioner yet in the present case he was appearing as the Attorney-General for Pakistan on Court’s notice under Order XXVII-A Rule 1, CPC and, therefore, he would be assisting this Court in the present matter completely independently on some jurisdictional and legal aspects involved. He straightaway conceded that this Court has the requisite jurisdiction to entertain and hear these petitions and these petitions are maintainable under Article 184(3) of the Constitution but according to him the facts of the case do not warrant any interference in the matter by this Court through exercise of such jurisdiction. He pointed out that Constitution Petition No. 35 of 2016 filed before this Court seeking disqualification of one of the present petitioners from being a member of the Parliament on somewhat similar grounds was already pending before this Court and he was to assist this Court in that matter also in the same capacity. He submitted that the grey areas inherent in the constitutional disqualifications involved in the present petitions have already been commented upon by this Court in the case of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275). According to him the case in hand was a unique case wherein the forum chosen was this Court, the jurisdiction invoked was that under Article 184(3) of the Constitution and the main prayer made was in the nature of a writ of quo warranto. He argued that it was not the practice of this Court to entertain and proceed with such a case involving election to the Parliament under its original jurisdiction in the first instance and such issues were generally entertained by this Court in its appellate jurisdiction. He maintained that a declaration made by this Court is to be binding on all the other courts and tribunals in the country and, therefore, determination of a fact by this Court in exercise of its original jurisdiction may sparingly be resorted to because this Court may not be in the best position to record evidence, there is no appeal provided against a decision rendered in the said jurisdiction and the Fundamental Right under Article 10A of the Constitution may be jeopardized in such a process. He argued that in the context of the facts of this case it was to be seen by this Court as to which Fundamental Rights were involved or breached, who was complaining of breach of Fundamental Rights, which facts needed to be established first and what was the legal obligation of the respondents non-performance of which was detrimental to the petitioners? The learned Attorney-General went on to argue that in order to issue a writ in the nature of quo warranto this Court was to be guided by the provisions of Article 199(1)(b)(ii) of the Constitution regarding a High Court’s jurisdiction to issue a writ of quo warranto which can be issued only against a holder of a “public office” and, according to him, a Member of the National Assembly, which respondent No. 1 is, is not a holder of a “public office” in terms of the Constitution and the law. He, however, could not refer in this respect to any specific provision of the Constitution or the law or to any precedent of any court.

58.        The learned Attorney-General also submitted that from the language of Article 62(1)(f) of the Constitution it was not clear as to which court was to give the requisite declaration and, at any rate, no sufficient material was available before this Court in the present proceedings to give a declaration of that nature. Suggesting an alternate approach to the issues posed by the present petitions the learned Attorney-General submitted that under section 42-A of the Representation of the People Act, 1976 every member of the Parliament or a Provincial Assembly is required to submit yearly statements of assets and liabilities before the Election Commission of Pakistan and if such a statement is found to be false then it amounts to a corrupt practice under section 78(3)(d) punishable under section 82 of that Act and for such falsehood the concerned person is to be tried by a Court of Session under section 94 of that Act and if found guilty of such corrupt practice he stands disqualified under section 99(1A)(1) of the Act. According to him instead of entering into factual controversies while exercising jurisdiction under Article 184(3) of the Constitution the matter might be left to the Election Commission of Pakistan to attend to. He maintained that in the light of the issues highlighted about a declaration about honesty in the cases ofIshaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) and Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) such issues ought not to be decided by this Court in the first instance or as a first and the only resort and the civil or criminal issues involved in the matter ought to be established through a trial before a court of plenary jurisdiction or an election tribunal. According to him a declaration by a court or tribunal of plenary jurisdiction ought to precede a finding by this Court about honesty of a person. He submitted that inquisitorial proceedings had been conducted by this Court in the past in exercise of its jurisdiction under Article 184(3) of the Constitution where public rights were involved or where issues raised could be resolved on the basis of admitted facts or official record as opposed to private records and in this respect he referred to the cases of Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501), Imran Khan and others v. Election Commission of Pakistan and others (PLD 2013 SC 120), Lahore Bachao Tehrik v. Dr. Iqbal Muhammad Chauhan and others (2015 SCMR 1520), Muhammad Asghar Khan v. Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1), Workers’ Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process (PLD 2012 SC 664) and Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292). He also referred to the case of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) to urge that intricate questions of fact requiring recording of evidence may not be resolved by this Court in its jurisdiction under Article 184(3) of the Constitution.

59.        Adverting to the matter of failure/refusal of the Chairman, National Accountability Bureau to challenge the judgment of the Lahore High Court, Lahore whereby Reference No. 5 of 2000 was quashed and reinvestigation of the matter was barred the learned Attorney-General submitted that the said matter did not attract filing of a statutory appeal before this Court and that the matter could have been brought before this Court by anybody, including the present petitioners, through filing of a civil petition for leave to appeal. He stated that if such a petition for leave to appeal is filed before this Court by any of the petitioners then the office of the Attorney-General would not question the locus standi of the petitioner in filing of such petition.

60.        The learned Attorney-General went on to maintain that the remedies under Article 63(2) and (3) of the Constitution were the exclusive remedies for seeking post-election disqualification of a member of the Parliament or a Provincial Assembly and he placed reliance in that regard upon the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another (PLD 1995 SC 66) and Aftab Shaban Mirani v. President of Pakistan and others (1998 SCMR 1863).

61.        In respect of the alleged misstatement of facts by respondent No. 1 in his speeches the learned Attorney-General submitted that an omission in a statement does not necessarily constitute a misstatement and in this regard he relied upon the cases of Peek v. Gurney (1873) LR 6 HL 377, Hamilton and others v. Allied Domecq Plc (Scotland) (2007) UKHL 33, 2007 SC (HL) 142 and Shiromani Sugar Mills Ltd v. Debi Prasad (AIR 1950 All 508). According to him a misstatement on the floor of the National Assembly is property of that house to be dealt with in the manner prescribed by the parliamentary practices and the rules regarding privilege of the house.

62.        In his brief submissions in rebuttal Syed Naeem Bokhari, ASC for the petitioner in Constitution Petition No. 29 of 2016 submitted that respondent No. 7 was born on May 01, 1972, respondent No. 6 was born on October 28, 1973 and respondent No. 8 was born on January 21, 1976 and, thus, respondent No. 7 was about two years old, respondent No. 6 was less than one year old and respondent No. 8 was not even born when the factory in Dubai was stated to have been set up by their grandfather Mian Muhammad Sharif in June 1974. He also highlighted that even at the time of sale of 75% shares of that factory in the year 1978 and at the time of sale of the remaining 25% shares of that factory in the year 1980 all the said respondents were minors. He maintained that the entire story stated before this Court by the children of respondent No. 1 was based firstly upon hearsay and secondly upon two statements of a gentleman from Qatar who himself had no personal knowledge of the matter and, therefore, that story was simply to be discarded by this Court. He went on to submit that respondent No. 1 did not mention any investment made by his father in Qatar at all in his speeches or in his concise statements submitted before this Court. Mr. Bokhari stated that it was unbelievable that respondent No. 1’s children knew about and remembered the investment made in Qatar despite their minority at the relevant time but respondent No. 1 did not! According to him that was a deliberate suppression of facts by respondent No. 1 clearly establishing that he was not an honest person. He added that with the collapse of the story about investment in Qatar the story about trusteeship of the relevant properties in London also crumbled to the ground exposing respondent No. 1 as the actual owner of those properties which ownership he had knowingly and purposely concealed and suppressed. In the end Mr. Bokhari submitted that respondent No. 1 had not been truthful to the nation, to the National Assembly and to this Court in the matter of explaining his assets which were nothing but ill-gotten, he had not been truthful in respect of the money fetched by the sale of the factory in Dubai, he had not been truthful regarding beneficial ownership of the properties in London and while suppressing his Qatari connection he had been anything but honest.

63.        Sheikh Rasheed Ahmed petitioner in Constitution Petition No. 30 of 2016 referred in his submissions in rebuttal to the case of Abdul Waheed Chaudhry v. Abdul Jabbar and others (decided by this Court on March 25, 2015) wherein the word ‘honest’ appearing in Article 62(1)(f) of the Constitution had been interpreted. On the issue of parliamentary privilege he referred to the cases of Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823), Regina v. Chaytor (2011 UKSC 52), Canada (House of Commons) v. Vaid, (2005) 1 S.C.R. 667, Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Ch. Nisar Ali Khan v. Federation of Pakistan and others (PLD 2013 SC 568), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054). He maintained that this Court had the jurisdiction to grant any relief even beyond the reliefs prayed for in a petition and in this respect he relied upon the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another (PLD 1995 SC 66), Hitachi Limited and another v. Rupali Polyester and others (1998 SCMR 1618), Ch. Nisar Ali Khan v. Federation of Pakistan and others (PLD 2013 SC 568), Sindh High Court Bar Association through its Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad (PLD 2009 SC 879) and Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220). With reference to the case of Muhammad Siddiq  v. State (1977 SCMR 503) he maintained that when stolen property is recovered from the custody of a person then it is for that person to explain such possession and the court is to presume his guilt as a thief.

64.        Mr. Taufiq Asif, ASC for the petitioner in Constitution Petition No. 3 of 2017 submitted in rebuttal that the word ‘honest’ appearing in Article 62(1)(f) of the Constitution had been interpreted by this Court in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) and it was held that an honest person ought not to be deceptive and he ought not to be given to cheating. In this context he also referred to the cases of Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Allah Wasaya and 5 others  v. Irshad Ahmad and 4 others (1992 SCMR 2184).

65.        I have attended to each and every argument advanced, have perused the entire documentary material produced and have also gone through all the precedent cases cited before the Court besides brooding over the diverse aspects of this case from all possible angles.  

66.        The questions most hotly debated by the learned counsel for the parties during the hearing of these petitions have been as to what is the scope of the proceedings before this Court under Article 184(3) of the Constitution and as to whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence or not. It was decided by this Court on November 03, 2016 with reference to some precedent cases that these petitions involved some serious questions of public importance with reference to enforcement of some Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and, therefore, the same were maintainable before this Court under Article 184(3) of the Constitution. On that occasion none of the parties to these petitions raised any objection to competence and maintainability of these petitions and even during the hearing of these petitions no such objection has been raised at any stage of the protracted hearings. In his two concise statements submitted by respondent No. 1 maintainability of these petitions under Article 184(3) of the Constitution had not been contested and even the immunity available to a Prime Minister in some matters under Article 248 of the Constitution was not claimed.

67.        The jurisdiction of this Court under Article 184(3) of the Constitution has so far been invoked and utilized on diverse issues of public importance with reference to enforcement of different Fundamental Rights guaranteed by the Constitution. The issues of qualifications or disqualifications of persons who are candidates for election to or are members of the Majlis-e-Shoora (Parliament) or a Provincial Assembly have often cropped up before this Court in the context of Articles 62 and 63 of the Constitution which prescribe such qualifications and disqualifications and such issues have reached this Court either through the appellate jurisdiction of this Court under Article 185 of the Constitution or through its original jurisdiction under Article 184 of the Constitution. Article 62(1)(f) of the Constitution, as it stands today, deals with the qualifications and provides as under:

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

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

It is true that on the issue of honesty of a candidate or a member a prior declaration by a court of law regarding lack of honesty is a prerequisite but in the cases initiated before an Election Tribunal a practice has developed that the same Tribunal first decides the issue of honesty on the basis of the evidence led before it and then while issuing a declaration regarding honesty or the lack of it simultaneously decides the matter of qualification or disqualification. The plethora of case-law referred to by the learned counsel for the parties in this regard may not be reproduced here because that is the practice in vogue without any contest. The same is also the practice in cases wherein the issue of qualification or disqualification is raised before a High Court in its constitutional jurisdiction through a writ of quo warranto and then the matter reaches this Court through its appellate jurisdiction. In all such cases some fact finding by a court or tribunal below is involved and this Court then adjudicates upon the matter on the basis of the evidence or material which is already on the record. The issue involved in the present petitions is that the matter of qualification or disqualification on the basis of honesty of respondent No. 1 or the lack of it has been raised before this Court directly and the learned counsel for the private respondents have maintained that while exercising its original jurisdiction under Article 184(3) of the Constitution this Court ought to be extremely reluctant to receive evidence or material on the issue of honesty in the first instance in the absence of a proper evidentiary hearing and then simultaneously to issue a declaration on that issue and proceed to disqualify a person, particularly when no remedy of appeal is available against such adjudication and the disqualification is permanent. They have maintained that the issue of honesty or otherwise of respondent No. 1 involves disputed and intricate questions of fact which cannot adequately or satisfactorily be answered in the original jurisdiction of this Court. The stance of the learned counsel for the private respondents in this regard can be attended to after appreciating as to why these petitions had been entertained by this Court in its original jurisdiction under Article 184(3), is there any other court of law available at this stage to issue the prayed for declaration in the context of Article 62(1)(f) of the Constitution regarding lack of honesty of respondent No. 1 and are there disputed or intricate questions of fact really involved in these petitions or not.

68.        According to Article 90(1) of the Constitution by virtue of his being the Prime Minister of the country respondent No. 1 is the Chief Executive of the Federation and it is practically he who appoints the heads of all the institutions in the country which could have inquired into or investigated the allegations leveled against respondent No. 1 and his family on the basis of the Panama Papers. Even the Speaker of the National Assembly who could refer the matter to the Election Commission of Pakistan belongs to his political party and is his nominee. These petitions had been entertained by this Court in the backdrop of an unfortunate refusal/failure on the part of all the relevant institutions in the country like the National Accountability Bureau, the Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the Speaker of the National Assembly to inquire into or investigate the matter or to refer the matter to the Election Commission of Pakistan against respondent No. 1. A High Court could have entertained a writ petition in the nature of quo warranto so as to attend to the matter but it is agreed at all hands that the matter is of immense public importance and involves enforcement of some Fundamental Rights guaranteed by the Constitution and that is why all the parties before this Court agree that the present petitions filed under Article 184(3) of the Constitution are competent and maintainable and also that the jurisdiction under Article 184(3) of the Constitution is free from the trappings of Article 199 of the Constitution. It is also not disputed that the remedy of filing an Election Petition before an Election Tribunal under Article 225 of the Constitution is not available at this juncture. The Speaker of the National Assembly could have referred the matter to the Election Commission of Pakistan under Article 63(2) of the Constitution but he has already dismissed various petitions filed before him in this regard by as many as twenty-two members of the National Assembly including one of the present petitioners. It is proverbial that there is no wrong without a remedy. It was in the above mentioned unfortunate background that this Court had entertained these petitions and now this Court cannot turn around and shy away from deciding the matter simply because it statedly involves some disputed or intricate questions of fact which, as shall be discussed shortly, it does not. Apart from that if this Court stops short of attending to the issue merely because it involves some disputed or intricate questions of fact then the message being sent would be that if a powerful and experienced Prime Minister of the country/Chief Executive of the Federation appoints his loyalists as heads of all the relevant institutions in the country which can inquire into or investigate the allegations of corruption, etc. against such Prime Minister/Chief Executive of the Federation then a brazen blocking of such inquiry or investigation by such loyalists would practically render the Prime Minister/Chief Executive of the Federation immune from touchability or accountability and that surely would be nothing short of a disaster. It is said that how highsoever you may be the law is above you. It is in such spirit of democracy, accountability and rule of law that this Court would not give a Prime Minister/Chief Executive of the Federation a field day merely because no other remedy is available or practicable to inquire into the allegations of corruption, etc. leveled against him or where such inquiry involves ascertainment of some facts. It is not for nothing that Article 187(1) of the Constitution has empowered this Court to do “complete justice” where all other avenues of seeking justice are either unavailable or blocked. Apart from that I refuse to accept the contention that the petitions in hand involve disputed and intricate questions of fact which we cannot attend to or adjudicate upon in the present proceedings under Article 184(3) of the Constitution. The ownership and possession of the relevant four properties in London are not denied by respondent No. 1’s family and the only question relevant to the issue before us is as to whether respondent No. 1’s denial of any connection with acquisition of those properties is honest or not. It ought not to be lost sight of that it is not the property in London which is in issue before this Court but what is at issue is respondent No. 1’s honesty for the purposes of a disqualification under Article 62(1)(f) of the Constitution. Therefore, in order to attend to the said core issue I have decided to keep aside the material produced by the petitioners regarding the four properties in London and to take into consideration primarily the explanations offered and the material supplied by respondent No. 1 and his children in order to see whether their explanations vis-à-vis acquisition of the said properties are on the face of it honest or not. This approach adopted by me leaves me with no disputed or intricate questions of fact on the issue and focuses solely on the issue of honesty of respondent No. 1 with reference to the explanations advanced by him and his family only. Respondent No. 1 and his family cannot claim that their explanations offered on the issue are themselves disputed or intricate and this Court cannot even look at them!

69.        Apart from what has been observed above in the case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) this Court had clarified that where the question is of a right to continue in public office the matter is of public interest and in the absence of any other adequate remedy this Court can interfere through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope. In the present case respondent No. 1 is not just a serving member of the National Assembly but also the Prime Minister of the country and, thus, public interest in his right to continue in office is immense. In the case of Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774) Prime Minster Syed Yousaf Raza Gillani was declared by this Court itself to be disqualified through proceedings conducted under Article 184(3) of the Constitution after his conviction had been recorded for committing contempt of court. In the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) numerous members of the Majlis-e-Shoora (Parliament) had been declared by this Court to be disqualified on the basis of their being holders of dual nationality and were shown the door through direct exercise of this Court’s jurisdiction under Article 184(3) of the Constitution and on that occasion some factual inquiry had also been conducted by this Court. It had clearly been held in that case that this Court had the jurisdiction to satisfy itself on a question of fact touching a disqualification notwithstanding any admission made by a party or not. It is settled by now that the jurisdiction of this Court under Article 184(3) of the Constitution is inquisitorial in nature rather than adversarial and while exercising such jurisdiction this Court can ascertain, collect and determine facts where needed or found necessary. In the case of Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) it was observed by this Court that there was a “judicial consensus” on the scope of proceedings under Article 184(3) of the Constitution and that even disputed questions of fact could be looked into where a Fundamental Right had been breached provided there was no voluminous evidence to be assessed and no intricate disputed questions of fact were involved. In the case of Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1) some evidence was in fact recorded by this Court while hearing a petition filed under Article 184(3) of the Constitution. Even in the case of General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061) this Court had clearly held that an exercise of finding facts can be resorted to in proceedings under Article 184(3) of the Constitution. It is also a fact that while proceeding under Article 184(3) of the Constitution this Court had in many a case constituted Commissions tasked to inquire into some facts by recording evidence and to determine questions of fact on behalf of the Court and a reference in this respect may be made to the cases of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693),Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Suo Motu case No. 16 of 2016 (Quetta lawyers’ carnage case).

70.        It was also argued before us that on September 02, 2016 a petition filed by Sheikh Rasheed Ahmed petitioner before the Speaker of the National Assembly for referring the matter of disqualification of respondent No. 1 to the Election Commission of Pakistan under Article 63(2) of the Constitution was dismissed whereafter the said petitioner had challenged that order of the Speaker before the Lahore High Court, Lahore through Writ Petition No. 31193 of 2016 which is still pending before that Court and, therefore, the present petitions filed on the same subject before this Court under Article 184(3) of the Constitution are not maintainable or they may not be adjudicated upon for the time being. This argument, however, overlooks the law declared by this Court in the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Suo Motu Case No. 10 of 2009 (2010 SCMR 885),Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858) wherein it had clearly been laid down that the jurisdiction of this Court under Article 184(3) of the Constitution is an independent and original jurisdiction which is not affected by pendency of any matter on the same subject before any other court or forum or even by a prior decision of the same issue by any other court or forum below.

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