Nawaz seeks stay in Panama case

ISLAMABAD: Seeking a stay order, former prime minister Muhammad Nawaz Sharif on Tuesday filed a review petition against the July 28 verdict of the Supreme Court in the PanamaLeaks case that disqualified him as an MNA for being dishonest by hiding salary from the Dubai-based company, Capital FZE.

The five-member larger bench of the apex court, headed by Justice Asif Saeed Khan Khosa, after disqualifying Nawaz ordered the National Accountability Bureau (NAB) to file references against him and members of his family.

Nawaz challenged the apex court’s judgment saying the final order of the court carried errors floating on the surface of record, besides being per incuriam, and is therefore liable to be reviewed.

The former prime minister filed the review petition with the apex court through his counsel Khawaja Haris and requested the court to issue a stay order on further implementation of the verdict until a decision on the review petition was announced.

In the 36-page application, Nawaz has requested the court to review its July 28 verdict.Nawaz submitted that he had not concealed documents in his nomination papers for the 2013 general polls.

It was contended that had there been undisputed/admitted evidence that the petitioner had received salary from Capital FZE but deliberately concealed the amount in his declaration of assets and liabilities in the nomination papers, the issue of disqualification could have arisen.

The petitioner submitted that since he had neither received the salary nor intended to claim it, it could not be inferred that he had acted dishonestly by not mentioning such salary as an asset in his nomination papers.

“The final order of the court/judgment, having not taken into account the above, suffers from errors floating on the face of the record and merits review as such,” the review petition contended.

It was further submittedthe un-withdrawn salary by the petitioner in his nomination papers could not, in any case, per se lead to a declaration in terms of Section 99 (f) of ROPA and Article 62 (1)(f) of the Constitution, without first ascertaining whether such omission was deliberate or with an ulterior motive, or merely inadvertent, accidental or due to a misconception or misunderstanding of law or fact.

That it being a question of first impression as to whether “receivables” constitute an asset or not for the purposes of Section 12(2) of ROPA, no dishonest intention could be attributed to the petitioner even if such salary is categorized by this court as receivable and held to constitute an asset held by the Petitioner as such, the review petition submitted.

Nawaz contended that he like any other citizen of Pakistan was entitled to protection of his basic fundamental rights guaranteed under the Constitution. 

The petition said given the factual position explained in the written submissions made on behalf of the petitioner, it was evident that provisions of Article 62 (1)(f) could not be invoked against him without holding a regular trial and providing him with full opportunity to lead evidence in support of the facts stated in the written submissions and, to rebut evidence to the contrary, if any.

That even if it be presumed, though without conceding, that the salary from Capital FZE, was a “receivable”, this, per se, does not constitute this salary as part of the assets of the petitioner, and, as such, no adverse inference could be drawn against the petitioner on this count simply because he did not disclose this salary as part of his assets and liabilities in his nomination forms, the review petition submitted.

The review petition contended that so far as the “salary” of the petitioner is concerned, being unrealized, it could only be considered to constitute an asset in the form of income by applying the Accrual Method. However, the term “salary” envisaged by Section 12 (2) of the Income Tax Ordinance, 2001, is in terms of actual receipt thereof, and not in terms of accrual only.

Thus Section 12 (2) of the Income Tax Ordinance, 2001 defines “salary” as follows:  “Salary means any amount received by an employee from any employment, whether of a revenue or capital nature, including.

It is clear from the above definition that under the Income Tax Ordinance, 2001, “salary” is to be declared as income only after it is received. Thus, under the laws of our country, “salary” is not considered to form part of an individual’s assets till it is actually received/realized, the review petition submitted.

It was contended that the Final Order of the Court/Judgment dated 28.07.2017, insofar as it omits to consider this aspect of the case, is erroneous on the face of the record on this ground too, and merits review as such.

It further submitted that the provisions of Section 12 (2) (f) of ROPA do not stipulate that even such salary which is yet to be drawn is to be shown as an asset in the nomination papers, rather Section 12 (2) (f) of ROPA requires only such assets to be included in the nomination papers as are actually held by the contesting candidate.

It is humbly submitted that this aspect of the statutory provision has not been taken into account when passing the Final Order of the Court/Judgment, and, as such, the same is liable to be reviewed, being per incuriam, the review petition maintained.

It was further submitted that in any case an amount of money that is not withdrawn or in receipt of a candidate on the stipulated date cannot be considered as part of the assets held by the contesting candidate for purposes of it being so mentioned in his nomination papers. Thus Section 12 (2) of the Income Tax Ordinance, 2001 defines “salary” as follows: “Salary means any amount received by an employee from any employment, whether of a revenue or capital nature, including.

It is clear from the above definition that under the Income Tax Ordinance, 2001, “salary” is to be declared as income only after it is received. Thus, under the laws of our country, “salary” is not considered to form part of an individual’s assets till it is actually received/realized, the review petition submitted, adding that the Final Order of the Court / Judgment dated 28.07.2017, insofar as it omits to consider this aspect of the case, is erroneous on the face of the record on this ground too, and merits review as such.

It was submitted that the provisions of Section 12 (2)(f) of ROPA do not stipulate that even such salary which is yet to be drawn is to be shown as an asset in the nomination papers, rather Section 12 (2)(f) of ROPA requires only such assets to be included in the nomination papers as are actually held by the contesting candidate.

The prime minister contended that this aspect of the statutory provision has not been taken into account when passing the final order of the court/judgment, and, as such, the same is liable to be reviewed, being per incuriam.

The review petition further submitted that under Article 188 of the Constitution, Nawaz Sharif cannot be disqualified without a trial.

It was submitted that July 28 decision should have been given by a three-member bench since Justice Asif Saeed Khosa and Justice Gulzar Ahmed’s jurisdiction had expired after their dissenting judgment on April 20.

“By signing the final order of the court on July 28, Justice Asif Saeed Khosa and Justice Gulzar Ahmed have actually passed two judgments in the same case, which is unprecedented in the judicial history, the review petition maintained.

“On the face of the record, there are four final judgments passed in this case; the first of these final judgments being the minority judgment dated 20.04.2017 of the two members of the originally constituted 5-member bench, the second being the majority judgment dated 20.04.2017 passed by the 3-member bench, the third judgment dated 29.07.2017 again passed by the 3-member bench of the court, and the fourth being the final order of the court dated 28.07.2017 passed by the originally constituted 5-member bench”, the former prime minister contended.

Similarly, it was also contended that the commendations and appreciations of the joint investigation team (JIT) and its subordinate staff is a gross transgression of Nawaz Sharif’s fundamental right to a fair trial.

The review petition called for paragraph six of the final judgment to be expunged. It was contended that the members of the JIT considerably overstepped authority and the court’s bench assumed National Accountability Bureau's function by directing it.

The review petition further submitted that the final order of the court/judgment dated 28.07.2017 suffer from errors apparent on the face of the record on account of being violative, inter alia, of Article 175(2) and (3), Articles 4, 9, 10A, 14, and 25 of the Constitution, and in breach of the principle of trichotomy of powers which forms the salient feature of our Constitution.

Referring to the court’s order directing the NAB references on the basis of the material collected and referred to by the JIT and such other material as may be available with the FIA and NAB…or that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions, the prime minister submitted that this direction too is an encroachment upon and is tantamount to assumption of the authority of NAB, which again is not permissible, inter alia, in view of the provisions of Article 175 (2) of the Constitution of the Islamic Republic of Pakistan.

It was contended that the final order of the court/judgment dated 28.07.2017, insofar as it pertains to overseeing the investigation by an hon’ble Judge of the apex Court is also violative of Article 175(2) and (3) of the Constitution.