ARU

BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN (Original Jurisdiction) CMA No. _________ of 2020 in C.P. No. 17 of 2019 Justice Qazi Faez Isa

Versus

Federation of Pakistan and Others

… Petitioner … Respondents

Re: Respondent Nos. 8 and 9 of the ASSETS RECOVERY UNIT (‘ARU’) Application Under Article184(3) of the Constitution read with Order XXV, XXVII and XXXIII of the Supreme Court Rules, 1980 The petitioner most respectfully submits as under: 1.

Mirza Shahzad Akbar (respondent No. 8) purports to be the Chairman and Mr. Zia ul Mustafa Nasim (respondent No. 9) (‘Mr. Zia’) purports to be the Legal Expert of the Assets Recovery Unit (‘ARU’). The petitioner has been seeking information about them since 25 July 2019 (‘L’, page 32, Part II) but neither they nor any of the other contesting respondents provided any information about ARU or about the said gentlemen.

2.

The petitioner’s counsel had concluded their submissions on 16 December 2020, and after six months the respondent Nos. 8 and 9 filed CMA No. 3312/2020 (‘CMA 3312’) on 1 June 2020, respondent No. 8 filed CMA No. 3481/2020 (‘CMA 3481’) on 10 June 2020 and respondent No. 2 filed CMA 3383/2020 (‘CMA 3383’) also on 10 June 2020. Mr. Farogh Naseem represents both the respondent No. 2 (the Government) and respondent No. 8 (Mirza Shahzad Akbar), who till 1 June 2020 was Mr. Farogh Naseem’s subordinate. Till date, the registered post notices informing of the filing of these applications have not been received, nor was the petitioner or his counsel provided their copies, which were collected after learning of their filings during the hearing of the case. It appears that the belated and stealthy manner of these filings was to ensure that they could not be examined and rebutted.

3.

A number of documents (marked ‘C’, ‘E’, ‘G’, ‘H’, ‘K’ and ‘M’, attached with CMA 3312) and documents (at pages 2 to 4 of CMA 3383) pertain to ARU.

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These and other documents, belatedly filed, do not cite any law establishing the ARU. The abovementioned CMAs reveal that no law was enacted to setup the ARU. It is without precedent that an institution has been set up without legislation. The fact that ARU is not a benign institution but one which is exercising extraordinary powers is a matter of grave concern.

4.

Quite a few of the documents which have been filed state that they are required to be published in the Gazette of Pakistan, but the published Gazettes have not been filed. The most important of these documents is attachment ‘G’ to CMA 3312, it purports to establish ARU, mentions its ‘Composition’ and its ‘Terms of Reference’; this document has not been published in the Gazette of Pakistan. Since this document states it was sent for publication to the Printing Corporation of Pakistan Press, Islamabad, therefore, the Manager was contacted to obtain the Gazette of Pakistan in which it was published. However, the Manager of the Printing Corporation of Pakistan, Islamabad vide letter dated 10 June 2020 states that the same was neither ‘received’ nor ‘printed’, attached as ‘A’. Only after publication in the Gazette of Pakistan is a document transformed into a notification. A document, purporting to be a ‘notification’, but which is not published in the Gazette of Pakistan, is non est.

5.

Mirza Shahzad Akbar discloses (in paragraph 20, CMA No. 3312) that he ‘gets no salary or benefits’. One is left to wonder how he survives. Is he his working wife’s and/or working children’s dependent? And did they also pay for the services of a renowned lawyer. Or does Mirza Shahzad Akbar make do with the money generated by the, ‘successful recovery including reward upto 20% of recovered amount’ (page 24, CMA 3312)? He has also filed a document dated 20 August 2018 (‘C’, page 18, CMA 3312) which appoints Mirza Shahzad Akbar as ‘Special Assistant to the Prime Minister on Accountability’. But the terms of his appointment are not disclosed. He does not provide a single answer to the questions asked.

6.

A document dated 20 August 2018 titled ‘Constitution of Task Force For Recovery of Stolen Assets from Pakistan’ (‘D’, page 19 & 20, CMA 3312) purports to be the ‘Minutes’ and the ‘Decision’ of the Federal Cabinet meeting held and taken on 20 August 2018. This day, 20 August 2018, proved to be yet another day brimming with activity:

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a) On the 20th Mirza Shahzad Akbar is appointed by the Prime Minister as his Special Assistant on Accountability; b) On the 20th, the same day of his appointment, Mirza Shahzad Akbar prepared a presentation for the Federal Cabinet; c) On the 20th a prescient Cabinet Secretary and Prime Minister had already ensured that ‘Item No. 2 Case No.517/32/2018’ will be proposed, typed-out and circulated (not attached); d) On the 20th the Federal Cabinet was already scheduled to meet; e) On the 20th the Federal Cabinet met (summary not attached); f) On the 20th the Special Assistant walks into the Federal Cabinet (of which he is not a member) and makes his presentation, proposes the said Task Force and that he himself should head it; and g) On the 20th the Federal Cabinet agrees with him with two minor changes, call it the ‘Task Force on Recovery of Unlawfully Acquired Assets Abroad’ and adds another three members to it.

The Cabinet Secretary, and in his absence, the next senior government servant signs the minutes of the meetings of the Federal Cabinet, however, the said two-pages are not signed nor are they attested and certified that they are true copies of the original.

7.

The document marked ‘F’ (page 23, CMA 3312) does not include its stated Annex-I and Annex-II. The next document is marked ‘F1’ (page 24, CMA 3312). The first document (‘F’) is titled ‘Summary for the Cabinet’ and its subject is the ‘Assets Recovery Unit (ARU)’. The second document (‘F1’) is the ‘Decision’ of the Cabinet. The Cabinet Secretary, who is the repository of the decisions of the Federal Cabinet, has not signed, certified or attested the decision of the Federal Cabinet, which purports to be what is attached, a plain typed paper. It had been proposed and the Cabinet purportedly decided to take, ‘senior officers from NAB, FIA, FBR and SBP’ and put them in ARU. Without explaining how officers of statutory organizations will be taken from their respective organizations and parked into ARU, a non-legal entity. NAB is governed by the National Accountability Ordinance, 1999; FIA is governed by the Federal Investigation Agency Act,1974; FBR is governed by the Federal Board of

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Revenue Act, 2007 and the Income Tax Ordinance, 2001 and SBP is governed by the State Bank of Pakistan Act, 1956.

8.

The document marked ‘G’ (page 25, CMA 3312) establishes and provides for, ‘The composition and terms of reference of Assets Recovery Unit’.

However, it is (still) not disclosed who ARU’s members are, their remuneration, et cetera. The terms of reference of ARU are replete with syntax and grammatical errors and at places are difficult, if not impossible, to comprehend. For instance, it is not clear what is meant by, ‘Assets Recovery Unit shall gather existing cases, inquiries, and investigations from all relevant LEAs/departments/organizations involved unlawful assets abroad’? Does it mean LEAs/departments/organizations [which are] involved [in taking] unlawful assets abroad’? And, what does gather existing cases mean? Gather administrative files of other departments or court cases? The terms of reference also introduce concepts alien to the laws of Pakistan, for instance, in the same clause 1, it is mentioned that, ‘Assets Recovery Unit may file any legal proceedings’, but non-legal entities, such as ARU, cannot file legal proceedings.

9.

Clause 8 of the terms of reference purport to empower ARU to obtain ‘bank accounts’, ‘revenue records’, ‘travel record’, ‘data from NADRA or any other information as it may deem necessary from any bank, department or agency of the Federal or Provincial Government or any other organization or concern operating within Pakistan’. ARU cannot be so empowered, and in so empowering it a number of laws are violated, including the following: 1) Banking Ordinance, 1962 mandates ‘Fidelity and secrecy’ and that a bank ‘shall not divulge any information relating to the affairs of its customers…’ (section 33A).

2) National Database and Registration Authority Ordinance, 2000, sets up the National Database and Registration Authority (‘NADRA’) and its section 29 deals with breach of secrecy, and protects the information gathered by NADRA. It is an offence to disclose, publish or communicate any person’s information/data. It constitutes an offence punishable with imprisonment of a term which may extend to five years or with fine which may extend to one million rupees, or with both (section 28).

3) Income Tax Ordinance, 2001 also protects information and if information kept with the Federal Board of Revenue (‘FBR’) is disclosed

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it is a criminal offence (section 198 read with section 216), which is punishable with a fine of not less than five hundred thousand rupees or imprisonment for a term not exceeding one year, or both.

No one, including the Cabinet, can sanction the violation of statutory provisions, and if they do and any law is violated then each one of its members, including the Prime Minister, violate the law and would be liable like any other person.

10. Clause 7 of the ‘terms of reference’ of the ARU provides that, ‘Assets Recovery Unit may request any Intelligence agency under the Government of Pakistan for the assistance in obtaining any information on any subjects within and outside the country’. ARU has been empowered to call upon the Federal Investigation Agency, the Intelligence Bureau, the InterServices Intelligence, the Military Intelligence and all others to provide ARU any information on any subject within and outside the country; there are no limitations and no oversight over such absolute powers. ARU is completely unrestrained and unaccountable, ironically at its head is the Minister’s Special Assistant on Accountability. This has no parallel in any civilized country of the world. The fact that this was done without legislation, whilst bypassing the elected representatives of the people, subverts democracy and the Constitution of the Islamic Republic of Pakistan (‘the Constitution’).

11. The documents setting up the ARU take away a number Fundamental Rights which are guaranteed in the Constitution. Not a single one of the Fundamental Rights can be curtailed or abridged. The documents which purport to set up ARU are, as the Constitution says, void, that is literally blank spaces (Article 8 of the Constitution). The citizens of Pakistan are governed by laws and have rights, Fundamental Rights, which no one, not even Parliament, can take away. The Federal Cabinet does not have legislative power; it cannot change a single punctuation mark in a single law. Members of the Federal Cabinet take oath to ‘preserve, protect and defend’ the Constitution, not to subvert, violate and destroy it.

Parliamentary democracy is a defining feature of the Constitution. To bypass Parliament and make ‘laws’ by executive diktat is a gross transgression of the Constitution. Every citizen, and every person in

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Pakistan, must abide by the Constitution. Ours is a country in which every citizen is to be treated with dignity and respect.

12. Eight of the documents attached with CMA 3312 (‘H’, ‘I’, ‘’I-1’, ‘J’, ‘K’, ‘L’, ‘M’ and ‘N’) are in respect of Mr. Zia, mostly setting out the process for the appointment of an ‘Expert on International Criminal Laws’ and a few are completely irrelevant, like the ‘Charge Assumption Report (‘L’). What significantly is missing are: (a) the curriculum vitae of Mr. Zia to check if he met the stipulated criteria for the job, (b) the number of applicants who applied, (c) the composition of the ‘Short-listing Committee’, (d) the composition of the ‘Selection Board’, and (e) the Merit List. The absence of these relevant documents suggests that Mr. Zia was chosen for other reasons and without following due process.

13. During the course of hearings this Hon’ble Court has repeatedly directed Mr. Farogh Naseem and his client, Mirza Shahzad Akbar, to submit details of properties recovered by ARU, but the direction of this Court has not been complied with. As far back as October 2018 Mirza Shahzad Akbar, revealed that, ‘10,000 properties held by Pakistanis in Dubai and England’ and boasted that ‘as soon as leadership changed … swiftly moved and gathered details of owners of the properties’, copy of the Business World news report dated 6 October 2018 is attached as ‘B’. Almost two years have passed and the nation is still waiting to be informed about these properties. The petitioner tried to locate ARU’s website to see if such information is displayed thereon but apparently ARU does not even have a website.

14. Serious questions arise with regard to ARU, including the following: 1)

Does ARU have a website?

2)

Why does it not number all its documents?

3)

Why are ARU’s meetings secretly held after office hours at Mirza Shahzad Akbar’s residence?

4)

Why are minutes of ARU’s meetings not numbered, dated or signed?

5)

Why does ARU not publicly disclose any information?

6)

Why are the accounts of ARU not audited by the Auditor-General as mandated by Article 170 of the Constitution?

7)

Why are the audit reports of ARU not submitted to Parliament as required by Article 171 of the Constitution?

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8)

Why does Mirza Shahzad Akbar work in ARU for free?

9)

Who pockets the reward money of 20% (page 24, CMA 3312)?

10) Is the reward money disbursed amongst those working in ARU, including Mirza Shahzad Akbar and Mr. Zia? 11) Why is the record of the recoveries made and the reward money paid out not disclosed?

No information about ARU is provided, there is no accountability and no transparency. The nation can only speculate.

15. Every public institution must function without discrimination. A public institution cannot be used for the advancement of personal interests, nor can those running it operate on the basis of likes or dislikes. Similarly placed must be dealt with in like manner. A public institution cannot act selectively, its officers must not act with mala fide and shield some, including Federal Ministers and others in Government. But, ARU oftentimes shuts its eyes. It was widely reported that an Hon’ble Federal Minister has a number of properties in London. One such story was titled, ‘Meet the PTI minister who purchased over a dozen luxurious properties in London’ but who ‘from 2007 to 2013’ paid ‘zero income tax’, published in ‘Business World’ dated 22 May 2019, attached as ‘C’. ARU and Mirza Shahzad Akbar’s raison d'être, as stated by them, is to recover assets of Pakistanis which are lying unaccounted for but more often than not they look the other way.

16. Taking a cue from what is stated to have transpired in the case of the petitioner’s family, the search engine 192.com was used to search a few known public figures; searches mention properties in the UK against their names: 1)

Shahzad Akbar

5 properties, attached as ‘D;

2)

Firdous Ashiq Awan

1 property (filed in CMA 3505/2020);

3)

Zulfiqar Bukhari

7 properties, attached as ‘E’;

4)

Muhammad Usman Dar

3 properties, attached as ‘F’;

5)

Imran Khan Niazi

6 properties, attached as ‘G’;

6)

Jahangeer Tareen

1 property, attached as ‘H’; and

7)

Pervez Musharraf

2 properties, attached as ‘I’.

The petitioner does not say nor suggests, let alone allege, that the abovementioned gentlemen and lady are those public figures who are well

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known in Pakistan. Assuming they are, the petitioner still does not allege that they illegally acquired any property in the UK in violation of the income tax, the foreign exchange and/or money laundering laws.

17.

That in respect of the above individuals, before an allegation of noncompliance with income tax law is made, the FBR must check its records, and consider how much taxable income was declared and income-tax paid and whether they had non-taxable income, such as from agricultural land, which the Constitution exempts from payment of income tax. Before making an allegation with regard to the illegal transfer of money abroad, the SBP must check to determine whether the said individuals had foreign exchange accounts and whether thorough their accounts money was remitted abroad, to exclude the possibility of it sent to the UK through hawala, hundi or by any other illegal means. And, before making an allegation of money laundering the competent authority must first check if the said individuals had committed a crime and the properties were purchased from the proceeds of crime. Assuming that the said individuals had failed in respect of all or any one of the above, they would still be entitled to be asked and given the opportunity to provide an explanation.

Without first seeking an explanation and without a shred of evidence an allegation must not be made that the spouses of the said individuals were the real owners of the properties. What surely should never be done is to call upon the said individuals to do the impossible – disprove that the allegation is not true.

18.

Mirza Shahzad Akbar has filed two documents one dated 22 April 2019 (page 2, CMA 3481) and another dated 3 June 2019 (page 4, CMA 3481) but both have the same number, that is ‘No.1/11/2019/ARU’. Both these documents

supposedly

pertain

to

ARU’s

work

but

are

marked

‘Personal/Confidential’. The first document dated 22 April 2019 is addressed by Mirza Shahzad Akbar to ‘Jahanzeb Khan, Chairman, Federal Board of Revenue; he does not use the polite prefix ‘Mr’ and treats the Chairman of FBR as his subordinate; imperiously directing the Head of FBR to conduct his business with stealth, ‘this correspondence may move by hand in your jurisdiction’. However, Mirza Shahzad Akbar’s concern for secrecy evaporated when he and Mrs. Firdous Ashiq Awan arranged a press conference to publicly lambast the petitioner.

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Apparently, Mr. Jahanzeb Khan was not prepared to betray confidential tax records since Mirza Shahzad Akbar does not attach the letter he sent in response. It seems that Mirza Shahzad Akbar leapfrogged FBR’s Chairman and directed his subordinate/s to provide him information about the petitioner’s income and tax filings. As mentioned above, tax records are protected from disclosure under the Income Tax Ordinance, 2001, and obtaining information thereunder constitutes a crime. FBR is governed by its own statutes and is an integral institution of the State. The credibility and integrity of a State institution is eroded, if not destroyed, if outside interference is countenanced. The other document dated 3 June 2019 is addressed by Secretary ARU to ‘Mr. Muhammad Ashfaq Ahmad, Member ARU/Director General International Taxes, Federal Board of Revenue’. Mr. Muhammad Ashfaq Ahmad discloses that he is holding two posts, one governmental and another in ARU, which is a non-legal entity, raising serious legal and constitutional questions. A government servant in the service of Pakistan cannot be part of such a non-legal entity.

19.

Government servants are prohibited under the Government Servants (Conduct) Rules, 1964 to disclose even to another government servant information and documents other than to those ordinarily entitled to receive it. The Government may however permit an unauthorised government servant to receive from another government servant information provided the Government has issued a general or special order in his favour but even the Government cannot so authorise a ‘non-official person’ or the ‘press’. Mirza Shahzad Akbar is not a government servant, let alone one who is authorised, yet he is extracting information and documents from government servants who are prohibited to disclose and then disclosed the same to the press.

20.

Mirza Shahzad Akbar is not a government servant in the service of Pakistan. He does not hold a constitutional position. He is not an elected individual who represents the people. Whether he is a citizen of Pakistan is not known. The petitioner has repeatedly called upon Mirza Shahzad Akbar to disclose information about himself but neither he nor the official respondents do so. Yet he has been given extraordinary authority and power which he does not shy away from exercising. Government service is compromised when senior government servants are forced to work under and take directions from an outsider, a private individual. This,

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undoubtedly, erodes their self-respect, dignity, morale and independence.

Integral institutions of the State, like FBR, FIA, SBP and NADRA cannot be relegated to the subordinacy of Mirza Shahzad Akbar. Neither the Prime Minister nor the Federal Cabinet are legally empowered to appoint and place Mirza Shahzad Akbar in a position to subjugate government service and the prestige of those in the service of Pakistan. Long settled principles of governance and parliamentary-democracy enshrined in the Constitution are being pulled down.

PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court be graciously pleased to consider and accept the contents of this application as part of the pending petition and to hold and declare that: a) The Assets Recovery Unit is non est, void and of no legal effect; b) Any and all actions taken by the Assets Recovery Unit with regard to the Reference and the petitioner and his family are illegal, void and of no legal effect; c) Respondent No. 8 and Respondent No. 9, purportedly holding the offices respectively of the Chairman and the Legal Expert of the Assets Recovery Unit are illegal and void and they be directed to relinquish the same forthwith and to return all salaries, benefits, fees, rewards, vehicles, accommodation, laptops, phones, etcetera paid, received, enjoyed or consumed by them by virtue of holding the said positions; d) The actions taken by the Assets Recovery Unit and its Chairman and Legal Expert (Respondent Nos. 8 and 9) and all actions taken by any of the other respondents which were based on their advice/opinion or in any manner dependent on any action taken by the Assets Recovery Unit and/or by Respondent Nos. 8 and 9 are void and of no legal effect; and e) Respondent Nos. 8 and 9 be directed to be prosecuted by the concerned authorities under the relevant laws, including the Banking Ordinance, 1962, National Database and Registration Authority Ordinance, 2000, the Income Tax Ordinance, 2001 for accessing, obtaining, copying and/or disseminating the documents and records of the petitioner and his family.

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The prayer has been made in the best interest of justice.

Islamabad,

Petitioner

Dated: 16 June 2020

Through Advocate on Record.