http://www.supremecourt.gov.pk/web/page.asp?id=2958
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
Human Rights Case No.39216-G of 2018
IN THE MATTER OF SLACKNESS IN THE PROGRESS OF
PENDING ENQUIRIES RELATING TO FAKE BANK
ACCOUNTS, ETC.
In Attendance: Mr. Anwar Mansoor Khan, Attorney General
for Pakistan
Syed Nayyar Abbas Rizvi, Additional AGP.
Mr. Shehryar Qazi, Addl. A.G.
Ch. Aitzaz Ahsan, Sr. ASC
Mr. Gohar Ali Khan, ASC (For Bahria Town)
Kh. Ahmed Tariq Raheem, Sr. ASC
Mr. Azhar Siddique, ASC (For Zain Malik)
Mr. Farooq H. Naek, Sr. ASC
(For Asif Ali Zardari and Faryal Talpur)
Mr. Shahid Hamid, Sr. ASC
Ms. Ayesha Hamid, ASC
Syed Rafaqat Hussain Shah, AOR
(For Anwar Majeed and Abdul Ghani Majeed)
Mr. Munir Ahmed Bhatti, ASC
(For Kh. Nimar Majeed, Kh. Mustafa
Zulqarnain Majeed and Ali Kamal Majeed)
Kh. Naveed Ahmed, ASC for President
Sindh Bank
Mr. Salman Aslam Butt, Sr. ASC for UBL
Mr. Ibrar Saeed, Legal Advisor
(For SECP)
Mr. Haseeb Jamali, ASC
Mr. M. Qasim Mirjat, AOR
(For Nasir Abdullah Lootha)
Mr. Abid S. Zuberi, ASC
Mr. Tariq Aziz, AOR
(For Summit Bank)
Mr. Shoukat Hayat, ASC
Mr. M. Qasim Mirjat, AOR
Human Rights Case No.39216-G of 2018 2
(For Hussain Lawai)
Mr. Ahmed Nawaz Chaudhary, AOR
(For Sher Muhammad Mugheri)
Mr. Shahab Sarki, ASC for Shahzad Jatoi
(For A One Group)
For FIA Mr. Bashir Ahmed Memon, DG FIA
Mr. Najaf Quli Mirza, Addl. DG FIA
Mr. Monir A. Sheikh, Director FIA, Karachi
Mr. Qaiser Masood, Addl. Director, Law FIA
Mr. Mohammad Ali Abro, Asst. Director /
I.O FIA Karachi.
Mr. Tariq Malik, Director Law FIA
Mr. I.D Mangi, AIGP (Legal) Sindh Karachi
For NAB Mr. Imran-ul-Haq, Sp. Prosecutor
For FBR Mr. Jahanzeb Khan, Chairman FBR
Mr. Habibullah, Member I.R Operation FBR
For State Bank Mr. Tariq Mehmood Bajwa, Governor
Mr. Sanaullah Gondal, Director
Syed Ansar Hussain, AD
Raja Abdul Ghafoor, AOR
Date of Hearing: 05.09.2018
ORDER
This matter arises out of inquiries initiated by
Federal Investigation Agency (“FIA”) regarding fake/Benami
accounts connected with various individuals and entities
including A-One International, Iqbal Metals, Lucky
International and Omair Associates. Another inquiry was also
initiated on receipt of suspicious transaction reports (“STRs”)
from Financial Monitoring Units (“FMU”) of State Bank of
Pakistan (“SBP”). An investigation team headed by Dr. Najaf
Quli Mirza, Additional Director General, FIA, was constituted
to investigate the matter. Having received information that
there was slackness and slow progress in the matter and
probe and investigation was being obstructed and hampered,
this Court took suo motu notice of the same in exercise of its
Human Rights Case No.39216-G of 2018 3
powers under Article 184(3) of Constitution of the Islamic
Republic of Pakistan, 1973 (“the Constitution”). In one of the
matters, an FIR was also registered regarding which an
interim challan has already been submitted in the Special
Court (Banking), Karachi. In this regard, some accused
persons holding senior positions in Summit Bank were
arrested and are presently in Jail. The investigation found 29
suspicious/fake Bank accounts showing transactions in
excess of Rupees 35 Billion undertaken through various
Banks. The ostensible holders of such accounts denied
opening or operating the accounts. There are valid reasons to
believe that accounts were opened by misusing National
Identity Cards (“NICs”) of different unsuspecting persons
without their knowledge. This appears to have been done in
order to undertake illegal rotation and layering of huge sums
of money through the said accounts presumably for money
laundering. Interrogation of the arrested suspects and
concerned persons led to discovery of further information
about the accounts, companies and individuals who had links
with deposit of the funds in question. These included Omni
Group, its associate Companies and Sugar Mills, Bahria
Town, Zardari Group Private Limited, Arif Habib, Nasir
Abdullah Loota, H&H Exchange Company, Parthenon Private
Limited, Dream Trading & Company, and Ocean Enterprises
amongst others, etc. Some of the accused persons were
arrested. They are facing investigation. Some of the accused
persons got protective bails. A few are absconding.
Human Rights Case No.39216-G of 2018 4
2. We have been informed by Director General, FIA
that as investigation progresses more accounts and
information is being discovered by the investigators. This
points towards a series of suspicious transactions involving
Billions of Rupees spanning various jurisdictions by skillfully
structured methods in order to camouflage and avoid
detection by the Regulators and Law Enforcement Agencies.
He, therefore, maintains that despite bona fide efforts on the
part of FIA, progress is slow on account of huge quantity of
electronic data that requires unravelling and interpretation.
For this exercise FIA is facing lack of specialized investigators.
In order to conduct effective, in-depth and incisive
investigations to discover the truth, cut through multiple
layers of transactions, fake accounts, movement of funds, and
establish the real identity of persons who are actual but
hidden beneficiaries, a broad based, multidimensional and
technically skilled team of experts is required which at
present is not available with FIA. He also submits that on
account of alleged involvement of high profile and powerful
political and business figures with the tainted transactions,
who have powerful connections within the government,
investigation is being seriously hampered and at times
willfully obstructed at every stage. Additionally, the
investigators feel threatened by the pressure generated due to
involvement of high profile persons in the case. Their fear is
not without foundation considering the general environment
and the law and order situation. He, therefore, prays that this
Court may appoint a Joint Investigation Team (JIT) consisting
of an Additional Director General of Federal Investigation
Agency (FIA); Experts from Federal Board of Revenue (FBR),
State Bank of Pakistan (SBP), National Accountability Bureau
Human Rights Case No.39216-G of 2018 5
(NAB) and Securities & Exchange Commission of Pakistan
(SECP) as well as representatives of Inter-Services Intelligence
and Military Intelligence.
3. The learned counsel appearing on behalf of Omni
Group, M/s Abdul Ghani Majeed, Asif Ali Zardari, Mrs. Fryal
Talpur, Zain Malik/Behria Town and others have opposed the
formation of aforesaid JIT. They argue that this is not a case
of the investigating agency being unwilling to proceeding in
the matter. In fact the FIA has already submitted an
incomplete challan before the concerned Banking Court. It is,
therefore, the right of the accused persons that final challan
should be submitted and trial should commence. It is
maintained that since incriminating material or evidence
against the accused persons is lacking or is deficient, the
matter of submission of final challan is being delayed which is
violative of the fundamental rights of due process and fair
trial guaranteed to the accused persons by the Constitution.
It has also been argued by the learned counsel that FIA has
sufficient powers under the Federal Investigation Agency Act,
1974 as well as Anti Money Laundering Act, 2010 to
constitute JITs (if required). Therefore, there is no need for
this Court to appoint a JIT.
4. As far as jurisdiction of this Court is concerned,
reference has been made to Imran Ahmed Khan Niazi v. Mian
Muhammad Nawaz Sharif (PLD 2017 SC 265). It has also
been argued that M/s Nimar Majeed, Mustafa Majeed and Ali
Kamal Majeed are not involved in the matter, however, their
names have been placed on the Exit Control List (ECL) which
is not justified.
Human Rights Case No.39216-G of 2018 6
5. Mr. Aitzaz Ahsan, learned Sr.ASC, has inter alia
contended that this Court is generally slow to appoint JITs in
cases where an FIR has been lodged or the matter has been
sent for trial to a Court of law. He has further argued that
name of Mr. Najaf Quli Mirza, ADG, FIA may not be included
in the JIT owing to the fact that one of the accused persons
has lodged an FIR against him and the impartiality of the said
person has been brought under question. It is argued that JIT
can be constituted only where the Head of the concerned
investigation agency expressly unwilling to act.
6. We have heard the Director General, FIA as well as
learned counsel appearing for some of the accused persons.
From the record produced so far, prima facie it appears that
fake accounts have been opened in various Banks in the
names of persons whose NICs have been misused without
their consent or knowledge. Many such persons have
appeared before us and have categorically stated that they
have no knowledge of the accounts in question. Some of them
have also complained of systematic harassment and prayed
for protection. There is no denial of the fact that huge sums of
money running into billions have been deposited in the said
accounts by or on behalf of the persons who are under
investigation or entities controlled by them. After being
deposited in the said accounts, such funds have either been
routed to other accounts which are traceable with some due
diligence or withdrawn without any ostensible trail available.
Evidence of large sum of foreign exchange being routed out of
Pakistan through hawala transfers by one of the arrested
suspects has added an additional dimension to the
investigation. Further, we find that specialized knowledge of
Human Rights Case No.39216-G of 2018 7
financial transactions and expertise in identifying and tracing
movement of funds through banking channels and otherwise
is required, in order to conduct a proper probe and
investigation in the matter. Expertise in working of
Companies, banking transactions, electronic transactions and
cyber activities relating to money transfers is needed.
Knowledge of reporting requirements and monitoring regime
put in place by the State Bank of Pakistan, modes of
discovering and tracing suspicious transactions and modes
utilized for unlawful circulation and movement of money
within the country and abroad is required. Such specialized
expertise is not presently available within the FIA. Further, in
view of the fact that this Court has taken Suo Motu notice of
this matter and considering the request made by the Director
General, FIA and the difficulties expressed by him, we are
convinced that it is in the interest of justice and to ensure
that national resources and national wealth which belong to
people of Pakistan is not looted, plundered or
misappropriated, a high powered and highly skilled JIT is
required to be set up.
7. Learned counsel for some of the accused persons
while making their submissions have frankly conceded that
this Court has ample powers and jurisdiction in terms of
Article 184(3) of the Constitution to appoint and nominate
such JITs. The concession by the learned counsel for the
suspects that a JIT can be constituted by the investigating
agency under the Anti Money Laundering Act, 2010 renders
their objection to such action by the Court to be academic. In
fact an order passed by the Court in this behalf is a valid
exercise of jurisdiction in aid of a lawful object. We are of the
Human Rights Case No.39216-G of 2018 8
view that in appropriate cases, technical inability to
undertake a complicated modern day investigation furnishes
a reasonable basis and justification to constitute a JIT. We
are in no manner of doubt that in the present case formation
of a JIT is imperative and necessary.
8. Accordingly, we constitute the following JIT for the
purpose of conducting a thorough, in depth and incisive
investigation and probe into the matter of fake bank accounts
subject matter of these proceedings to get to the truth,
uncover the persons involved and collect all material evidence
for the purpose of ensuring that in case an offence is made
out, the persons involved therein are properly prosecuted:-
1. Mr. Ahsan Sadiq, Additional Director General
(Economic Crime Wing), FIA Headquarters,
Islamabad;
2. Mr. Imran Latif Minhas, Commissioner-IR
(Corporate Zone), Regional Tax Office, Islamabad;
3. Mr. Majid Hussain, Joint Director BID-I, State
Bank of Pakistan, Islamabad;
4. Mr. Noman Aslam, Director, National
Accountability Bureau, Islamabad;
5. Mr. Muhammad Afzal, Director, Specialized
Companies Division, Securities & Exchange
Commission of Pakistan, Islamabad; and
6. Brigadier Shahid Parvez of Inter-Services
Intelligence.
9. We also direct as follows:-
i) The JIT shall set up its Secretariat at a place
convenient to it;
ii) The JIT shall have all powers relating to
inquiries and investigations including those
available in the Code of Criminal Procedure,
1908; National Accountability Ordinance,
Human Rights Case No.39216-G of 2018 9
1999; Federal Investigation Agency Act, 1974
and the Anti Corruption Laws, etc;
iii) All executive authorities or agencies in the
country shall render assistance and provide
support to the JIT in its working, if required;
iv) The JIT shall submit periodic reports before
this Court qua the progress made in the
investigation on fortnightly basis under
sealed cover for our examination;
v) The Additional Director General, FIA, who
shall head the JIT may co-opt any other
expert who may in his opinion be necessary
to complete the investigation in an effective
and timely manner; and
vi) First Report of the JIT shall be filed within a
period of 15 days from today.
10. In order to ensure that the investigation is
conducted in a professional, transparent and effective
manner, neither the JIT nor FIA nor any of the Members of
the JIT shall issue press releases or provide information
relating to the investigation to the media.
11. Further, owing to the apprehensions about the
safety of the investigators expressed by DG, FIA, in the first
instance, we direct Pakistan Rangers to provide adequate and
effective security to the investigators and to ensure that they
perform their functions without any fear to their life or liberty
or that of their families. Such protection shall also upon
request be provided to the witnesses.
12. The request of the Director General, FIA that
investigation may be transferred to and conducted in
Islamabad is for the time being declined. However, in case,
any material, ground or information comes before this Court
Human Rights Case No.39216-G of 2018 10
showing interference in the investigation or an attempt to
hamper, delay or obstruct investigation or creating an
environment of fear and pressure for the investigators, the
said request will be re-examined at that stage for passing
appropriate orders.
Chief Justice
Judge
Judge
ISLAMABAD, THE
5th of September, 2018
Human Rights Law 