ISLAMABAD - The Supreme Court on Wednesday expressed annoyance over the NAB for sending references against the bureaucrats who had followed the orders of the former PM Gilani regarding appointment of Adnan Khawaja as OGRA MD and sparing Gilani who had had misused his authority by issuing orders of his appointment.

A five-member bench, headed by Justice Anwar Zaheer Jamali, was hearing the cases of illegal appointments of NRO beneficiaries, Adnan Khawaja as managing director Oil and Gas Development Corporation (OGDC) and Imtiaz Sheikh as Federal Investigation Agency (FIA) additional DG. Justice Jamali said: “It’s not an ordinary case because the highest office of the country was involved in the malpractice.” He asked the NAB to set examples that they were not biased. NAB Prosecutor General KK Agha argued: “We believe there was no mens rea (criminal intent) in the appointment of Adnan Khan, so no reference was sent against the ex-PM,” adding Adnan Khawaja remained an OGDC MD only for seven days and caused no loss to the national exchequer. He, however, told the bench that references had been sent against Ismail Qureshi, former Principle Secretary to PM Saeed Gilani and Rang Zia, bureaucrats, involved in the appointment of Adnan Khawaja.

Justice Ejaz Afzal, member of the bench, questioned: “Why did the NAB adopt pick-and-choose policy by sparing the person (Gilani) who approved Adnan Khawaja’s appointment and committed mens rea?” He further questioned how the NAB could form such an opinion that one person was guilty and the other not.

Justice Asif Saeed Khan Khosa, another bench member, remarked that the ex-PM ordered the appointment, but he was spared. He said though no loss was caused to the national exchequer, misuse of official authority was the main offence. Justice Khilji Arif maintained that the convicted people were given favour by Gilani.

KK Agha argued the prime minister did not know that Adnan Khawaja was convicted and an NRO beneficiary. Justice Jamali questioned how Gilani was not aware as the two were jail associates. He said the NAB was trying to save the key respondents of the case. Apparently, the country’s top officials seemed to be involved in corruption, he added. He questioned how a reference could be filed against the persons who followed the orders not against the person who issued the orders to them. Justice Khosa remarked that the officials had carried out the orders of their political master who enjoyed the sacred trust of the people of Pakistan.

The bench asked the prosecutor general to act against the guilty persons otherwise it would be more damaging if the court passed any order. Justice Ejaz said it was the job of the court and not that the NAB to form opinion about the criminal intent of a person. Justice Jamali stated that mens rea had to be seen by the court, adding an attempt to commit an offence was itself an offence. He asked the NAB to treat everyone equally and there should be no discrimination.

Regarding the reference against Malik Qayyum, KK Agha said that the executive board of the NAB, at its meeting, had decided to close the inquiries against the former attorney general. Justice Khosa maintained that Malik Qayyum had misused his authority as the attorney general.

The court directed the NAB authorities to review their decision to close the inquiries against the former attorney general and send a reference against Qayyum in the light of Asghar Khan and Anita Turab cases. The graft cases against President Asif Ali Zardari were shelved in 2007 after the then attorney general Malik Qayum wrote letters to the Swiss authorities, following the promulgation of the NRO. The Supreme Court, in its 16th December 2009 judgment, had directed the NAB to take action against Malik Qayyum, Imitiaz Sheikh, Adnan Khawaja and officials of the Establishment Division, the Interior Ministry and the FIA, involved in the illegal contractual appointment of Khawaja and reinstatement and promotion of Sheikh.

The hearing was adjourned until December 4.