ISLAMABAD - One of the accused persons in Ashiana Housing Scam on Tuesday raised objections on National Accountability Bureau’s prosecutor, saying he is a witness in the case and therefore he cannot appear as prosecutor.

Advocate Ali Raza, counsel for accused namely Bilal Kudwai, contended that Ashiana Scheme was initiated when Jehanzeb Bharwa was legal advisor of Punjab Land Development Corporation (PLDC) and thus he cannot argue the case on behalf of NAB.

He further contended that the Government of Punjab awarded contracts for different project through PLDC.

He said this when a three-judge bench headed by Justice Sheikh Azmat Saeed was hearing NAB’s appeals seeking bail cancellation of Leader of Opposition and President Pakistan Muslim League Nawaz (PML-N) Shehbaz Sharif.

NAB had approached the top court challenging Lahore High Court (LHC) verdict, wherein Sharif was granted bail in Ashiana Housing Scam.

On contention of Advocate Raza, Justice Saeed directed NAB to engage another prosecutor. However, he observed that the bench shall not discuss this fact in the judgement.

NAB’s another Deputy Prosecutor Advocate Imranul Haq submitted that he will convey the directions regarding engagement of another prosecutor to the competent authority.

Prior to this, when the hearing commenced, Advocate Haq requested the bench for adjourning the case on the ground that Prosecutor Bharwana was supposed to argue the case but he has appointment for medical treatment. The top court adjourned the hearing for a week. The top court also adjourned the hearing of the appeal seeking bail cancellation of former prime minister Nawaz Sharif’s then principal secretary Fawad Hassan Fawad.

NAB in its appeal contended that Sharif’s petition before LHC was neither maintainable nor competent and suffered from legal infirmities and this aspect was duly apprised but no finding to that extent was given by the high court.

It added that LHC failed to appreciate that the bail petitions of Sharif’s alleged co-accused namely Imtiaz Haider, Bilal Kudwai, Mansoor Ahmed, Ahmed Hassan, Ali Sajjad Bhutta and Munir Zia were earliest heard by the division bench and same were dismissed on merits. Thus, Sharif’s bail petition was also liable to be dismissed since there were no extenuating circumstances available in his favour.

LHC in its judgment had emphasised that Sharif was competent to transfer the Ashiana Project from PLDC to Lahore Development Authority (LDA) under Rules of Business.

“Though the Rules of Business don’t allow this but even for the sake of arguments it is admitted that he was competent, what is to be seen is that he passed the orders with mala fide intention and without justification,” appeal stated.

There is nothing on record, neither anything is mentioned in his orders which were passed in his capacity as Chief Minister as to why project was transferred to LDA, it said. 

The appeal questioned how Sharif could justify transfer of project from a competent forum of 17 directors of company to a single individual that is DG LDA. “There was no recommendation by the Board to transfer the project to LDA at the time when made such decision.”

It added that LHC has completely ignored the explanation provided by the NAB with regard to the reasons of transfer of project.

PLDC had prepared feasibility from a Chartered Accountant Firm KPMG which declared that Ashiana Project was feasible under Government mode, which means all 3100 Kanal land would have been used for the project had this project been completed by the Government, the appeal further contended.

“Thus mala fide of Respondent No.1 (Sharif) was that he transferred the project to LDA to make feasibility report of KMPG and the board of company redundant, and to get the project done by his blue-eyed man co-accused Ahad Khan Cheema.”

“Ahad Cheema instead of hiring an independent Chartered Accountant Firm, dishonestly got prepared feasibility report from LDA officials (Bilal Qudwaico-accused) who was not a chartered accountant, and declared that project was feasible under PPP mode.”

At one point in time this feasibility was shared by LDA with PLDC. PLDC Board directed in writing to Ahad Cheema to get his feasibility report vetted by an independent Chartered Accountant Firm, however this was never done by Ahad Cheema. Since Ahad Cheema was brought in by CM, PLDC Board became redundant and had no courage to stop his illegal activities.”

LHC’s bench was required to only make tentative assessment of the material available but failed to exercise its direction with some restraint and has passed the order while going into deeper appreciation of evidence which has caused prejudice top the case of prosecution.

NAB in its appeal contended that LHC erred to appreciate that the provisions under Section 9(a) read with Section 14(c) of National Accountability Ordinance (NAO) 199 entail that any objective appreciation of the prosecution evidence had to be evaluated and the prosecution succeeded in establishing culpability upon the Sharif and extra-ordinary circumstances did not exist for granting bail.

LHC erred in not appreciating the specific provision of ouster of jurisdiction enacted in the Special Statute wherein specifically it is promulgated that all offences of NAO 1999 shall be non-bailable.