The Islamabad High Court has set aside orders to freeze several properties of British-Pakistani businessman Nisar Ahmed Afzal while observing that the National Accountability Bureau (NAB) had demonstrated high-handedness in dealing with the case.
Afzal was prosecuted by the anti-graft watchdog in a case which began at the request of the United Kingdom's anti-corruption body, the National Crime Agency (NCA), in an alleged £60 million mortgage fraud case in Birmingham.
IHC’s Justice Mohsin Akhtar Kayani and Justice Sardar Ejaz Ishaq Khan noted that several properties of Afzal and his family had been frozen by NAB in November 2021 for the purpose of recovery – on behalf of the British authorities. However, the agency failed to file a reference and present evidence of criminal liability against Afzal and his family.
During case proceedings, it emerged that NAB's actions in Pakistan came after the UK’s Serious Fraud Office (SFO) announced in November 2021 that it had dropped investigations into Afzal. The SFO brought the matter to a close after it determined there was no realistic prospect of a successful conviction due to the lack of evidence.
However, NAB proceeded to seize Afzal’s eight properties in Pakistan, including properties in Islamabad, while acting on a request it had received from the UK government in 2017.
On August 7, 2017, the NCA, through the British High Commission in Islamabad, had lodged a complaint with the NAB Chairman, alleging that two brothers, identified as Nisar Ahmed Afzal and Saghir Ahmed Afzal, and others were allegedly involved in a £60 million mortgage fraud in the UK in the years 2004-2006. Nisar, however, had fled to
Pakistan from the UK, along with part proceeds from the alleged crime, worth an estimated £26 million. This money had been transferred to bank accounts in Pakistan belonging to Afzal’s family.
This money was subsequently routed/layered and used to acquire properties in Pakistan.
However, the IHC heard that NAB has not moved on the application since 2017. It only moved to freeze the listed properties in September 2021. After that, it failed to transmit the cases to the relevant courts as required under the law, nor did it conclude the investigation report, keeping the properties perpetually frozen.
“Even we have confronted the respondent, NAB, as to whether the matter was concluded to be settled by any court of law, but nothing concrete has been demonstrated,” the judges observed.
The judges noted that orders to freeze properties could not continue when the principal offences in terms of the National Accountability Ordinance 1999 stand repealed.
“This is not the mandate of law to put any person under caution or his properties be frozen forever, even when no complaint has been filed in a court of law, nor any prosecution has been initiated from last more than seven years, such aspect clearly demonstrates the high-handedness on the part of respondent authorities, who though conceded that the EBM in their meeting held on November 14, 2023, recommended that investigation be closed at NAB’s end and be referred to the Federal Investigation Agency (FIA).”
The judges criticised NAB for its conduct and culture of unfairly victimising people.
“Such aspect left nothing in favour of NAB authorities who cannot hide behind their previous authority to proceed against the petitioner (Nisar Ahmed Afzal) when the entire issue has been closed at their end," the court observed.
It added that if the FIA intends to proceed against the petitioner (Nisar Ahmed Afzal), they are at liberty to proceed with the matter under the law, and if they have any powers to put the properties under caution or ability to freeze, they may do so within the four corners of law, but that is readily not available at present as so far the matter is not transmitted to FIA authorities.
In such a scenario, the right to property envisaged under the Constitution, which is a supreme law, could not be curtailed at the whims and mercy of the NAB authorities; neither is it the mandate of law to curtail or suspend the right to property available to the petitioner, the court further observed.
"Hence, both the writ petitions are allowed, and the freezing orders stand set aside having no effect," the two-judge bench ordered.
The case
Nisar Ahmed Afzal’s case is an interesting one involving investigative agencies of two countries with complex intrigues, allegations of bias, victimisation, racial prejudice and heavy-handedness of the investigators.
In November 2021, the SFO dropped the probe into Nisar Ahmed Afzal after 15 years and confirmed that criminal proceedings against him had been closed, his seized assets returned and he was no longer subject to an arrest warrant and the restraint orders (RO).
The Birmingham Mortgage Fraud case became one of the biggest cases of its nature in British history, prompting Afzal to flee to Pakistan in 2006. He claimed he had been wrongly implicated in the case, which was part of a high-profile conspiracy. Given the circumstances at the time, he had expressed fear that he would not get justice. He alleged that those involved in the fraud secretly collaborated with SFO investigators and orchestrated a drama to frame him as a patsy.
The Westminster Magistrates' Court issued a warrant for Afzal's arrest. Despite that, Afzal claimed the British government never asked the Pakistani government to extradite him so that he could face trial.
However, Afzal was arrested in Pakistan in 2011. He accused the former federal interior minister and senior Pakistan Peoples Party (PPP) leader for his arrest. Afzal was later released without facing any further action.
Afzal’s brother, Saghir Afzal, and banking expert, Ian McGarry, were charged by a UK court along with six solicitors who had conducted property transactions on their behalf. When the case went to trial, three were acquitted of the charges against them, and the jury could not reach a verdict concerning the role of the other three. Afzal was never charged for the allegations against him, but his brother was convicted and sentenced to 10 years in prison in 2011.
Saghir's lawyers told the court of appeal that Saghir was never involved in any criminal act and that he pled guilty under extreme duress. They further argued that vital evidence should have been first gathered in Pakistan, which the SFO did not obtain, and the court should look at the case if full evidence was before it during the trial.
The SFO, however, wanted Nisar Afzal to return to the UK to face questions. Nisar Afzal, however, stressed that he would return to the UK if the SFO confirmed in writing that it had completed its investigations in the UK and Pakistan, covering every aspect of the case with full verifications.
He asked the SFO to investigate the case through the British High Commission and Pakistan High Commission as this would potentially help his defence, but the SFO did not do that. Instead, the SFO approached the Pakistani authorities for help when needed.
Over the past 15 years, Afzal maintained that the criminal case against him was false, that he was the victim of abuse of power, and that he did not commit any fraud or criminal act. He claimed that the SFO had failed to investigate an individual called Abdul Ajram properly, who, he claimed, was the one involved.
In January 2022, the NAB announced it had obtained court orders to seize possession of land measuring 1,125 acres belonging to Nisar Afzal to make recoveries on behalf of the UK authorities. However, Afzal claimed that NAB did not inform the relevant sessions court that the UK's Serious Fraud Office had already dropped its investigation and withdrawn the arrest warrant against Nisar Afzal. This was allegedly because the NCA had offered NAB to keep 50% of the assets recovered if NAB succeeded in finding assets belonging to Nisar Afzal in Pakistan.
“The UK accepts there is a cost to recording assets held in complex financial structures there; the SFO is agreeable to the Pakistan authorities retaining 50% of the seized assets recovered to cover costs. Of course, should the Pakistan authorities retain such monies, evidence of the recovery and provenance of the assets seized just be presented to the SFO,” the NCA commission offer letter to NAB read.
NAB confirmed that from 2011 to 2017, the NCA did not hand over any evidence to Pakistani authorities that any monies had been laundered to Pakistan illegally or through any means of transfer from the UK, as alleged by the SFO.
At the pronouncement of the verdict by the IHC, Nisar Afzal said: “I am thankful that both the NCA/SFO and NAB investigations have led to the fact that there is no evidence of corruption and money laundering against me because I have never done anything corrupt or criminal."
"I have been investigated for nearly 17 years, and no evidence has been found against me. I was hounded in both countries, but in the end, truth prevails. I was vindicated when the UK dropped its investigation into me; I am now vindicated by the Pakistani court where the judges have clearly said the NAB was involved in victimising me in order to make a commission by seizing my assets.”