ISLAMABAD: In a case that began at the UK’s National Crime Agency’s request in relation to an alleged £60 million Birmingham Mortgage fraud case, the Islamabad High Court has overturned freezing orders on a number of properties owned by British-Pakistani businessman Nisar Ahmed Afzal. However, the court also noted that the National Accountability Bureau (NAB) had shown high-handedness in its dealings in a number of ways.
The IHC’s Justice Mohsin Akhtar Kayani and Justice Sardar Ejaz Ishaq Khan noted that several properties of Nisar Afzal and family members were frozen in Islamabad by the NAB in November 2021 for the purpose of recovery – on behalf of the UK authorities – but the agency failed to file a reference and failed to furnish any evidence of criminality against the British Pakistani family.
Interestingly, the NAB seized Afzal’s properties after the UK’s Serious Fraud Office (SFO) announced in November 2021 that it had dropped the investigation into Nisar Afzal, bringing the matter to a close as there was no realistic prospect of a successful conviction, primarily due to a lack of evidence. However, NAB authorities in Pakistan froze Afzal’s assets on a request by the UK government, which was originally sent in 2017, and the NAB accepted it in November 2021, when the original case was already over. The NAB froze around eight properties of Afzal, which included those in Islamabad as well, which were purchased long before the alleged offence in the UK.
The NAB chairman received a complaint from the NCA on August 7, 2017, via the British High Commission in Islamabad. The complaint claimed that two brothers, Nisar Ahmaed Afzal and Saghir Ahmed Afzal, along with others, were involved in a mortgage fraud scheme worth £60 million in the UK between 2004 and 2006. Nisar Ahmad Afzal, however, left the country.
Pakistan, along with a portion of the £26 million in earnings that Afzal’s relatives obtained, channeled, stacked, and brought in for their own use in purchasing real estate through their bank accounts in Pakistan. The NAB, the IHC heard, moved to freeze properties in September 2021 after doing nothing else. Since then, the NAB has not finished the investigation report or sent the cases to the Court of Session or any other court as required by law.
The judges declared, “We have challenged the respondent NAB about whether the case was resolved by a court of law,” although they had not yet seen any hard evidence.
“This is not the law’s mandate to put anyone under caution or to freeze their properties forever, even in cases where no formal complaint has been filed or prosecution has begun in the last seven years; such aspects clearly demonstrate the respondent’s highhandedness,” the judges stated, adding that the freezing orders would end once the National Accountability Ordinance 1999’s main offenses were repealed.
authorities, who though conceded that the EBM in their meeting held on November 14, 2023, recommended that the investigation be closed at NAB’s end and be referred to the FIA”.
The NAB’s behavior and culture of unfairly victimizing people were criticized by the judges. They noted: “Such an aspect left nothing in favour of the NAB authorities, who cannot hide behind their previous authority to proceed against the petitioner (Nisar Afzal) when the entire issue has been closed at their end. Thus, in the event that the FIA authorities decide to take legal action against the petitioner, they are free to do so within the bounds of the law. However, since the matter has not yet been reported to the FIA authorities, they are unable to use their authority to freeze or place the properties under caution. In this case, neither the petitioner’s right to property nor the right of the NAB authorities to restrict or suspend it would be authorized by law. The right to property guaranteed by the Islamic Republic of Pakistan, 1973 Constitution, which is the ultimate law, could not be restricted at their whim. Therefore, the freezing orders stand revoked and have no further effect, and the writ petitions are both granted.”
Nisar Ahmed Afzal’s case is one of the most interesting cases of British investigations, full of complex intrigues, allegations of bias and victimisation, racial prejudice and heavy-handedness of the investigators.
In November 2021, the SFO dropped the probe into Nisar Ahmed Afzal after 15 years, confirming that criminal proceedings against him have been closed, his seized assets have been returned, and he is no longer subject to an arrest warrant and the Restraint Orders (RO).
Nisar Afzal’s brother Saghir Afzal and banking expert Ian McGarry were charged along with six solicitors who conducted the property transactions on their behalf but at the trial three were acquitted of the charges against them and the jury was unable to reach a verdict in respect of the other three. Nisar Afzal was never charged for the allegations for which his brother was convicted but the SFO wanted Nisar Afzal to return to the UK to face questions. However, Nisar Afzal 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 through the British High Commission and Pakistan High Commission as this would potentially help his defence but the SFO didn’t do that. However, the SFO took help from Pakistan authorities when needed.
Nisar Afzal’s brother Saghir Afzal was jailed for 10 years in 2011 around the time Nisar Afzal was kidnapped in Pakistan and Saghir’s lawyers told the court of Appeal that Saghir was never involved in any criminal act but pleaded guilty under extreme duress. They also said that vital evidence should have been first gathered in Pakistan which the SFO didn’t obtain and the court would look at the case if the full evidence was before it during the trial.
Throughout the 15 years, Nisar Afzal disputed the criminal case against him and stressed that he was a victim of abuse of power; didn’t commit any fraud or criminal act. He said that the SFO had failed to properly investigate an individual called Abdul Ajram who, he said, was the one involved.
The SFO has told The News that as per terms of the Code for Crown Prosecutors, either there must be sufficient evidence to convict in court or it is in the public interest to prosecute. In the case of Nasir Afzal, it is believed that the decision was taken to drop the investigation and withdraw the arrest warrants of Nisar Afzal was taken over both the test of not having sufficient evidence for a successful conviction or being in the public interest to prosecute an accused.
The SFO said that it followed all lines of enquiry into Abdul Arjam and found nothing wrong but lawyers of Afzal accused the SFO of overlooking key facts and not following the lines of enquiries that they should have.
It was also during the court case linked to the same matter where a senior SFO prosecutor was accused of racial bias and abuse of power he insulted Nisar Afzal’s wife’s female lawyer as a “dog” and called his wife Shabana Kausar a “gangster’s moll” in the insulting personal attack at the Westminster Magistrates’ Court on 28 February 2020. Lawyers at Imran Khan and Partners made a formal complaint to SFO listing various serious offences against the senior lawyer prosecuting the case. The SFO disciplined the civil servant, seperated him from the case file of Afzal family members but the case incharge lawyer then quietly returned to the case.
In January 2022, the NAB announced it had taken court orders to seize possession of land measuring 1,125 acres of Nisar Afzal to make recoveries for the UK authorities. The NAB didn’t tell the sessions court that the UK Serious Fraud Office (SFO) has already dropped its investigation and withdrew the arrest warrant against Nisar Afzal.
This was because, according to correspondence, the NCA had offered to the NAB that it could keep 50% of the assets recovered if the NAB succeeded in finding the assets of Nisar Afzal in Pakistan. As claimed by the Serious Fraud Office, the NAB verified that between 2011 and 2017, the NCA did not provide Pakistani authorities with any evidence that any money had been unlawfully laundered to Pakistan or through any method of transfer from the UK.
Notifying the NAB of its request for help in reclaiming criminal assets legally owned in Pakistan, the NCA made this request. “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 percent 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 should just be presented to the SFO,” the NCA commission offer letter said to the NAB.
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.”
