After UK vindication, IHC clears Nisar Afzal in £60m UK case condemning NAB

The Islamabad High Court has set-aside freezing orders on several properties of British Pakistani businessman Nisar Ahmed Afzal while observing that the National Accountability Bureau (NAB) had demonstrated high-handedness in its dealing in several ways – in a case that started on request of the UK’s National Crime Agency (NCA) related to £60M alleged Birmingham Mortgage fraud case.
 
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 UK’s Serious Fraud Office (SFO) announced in November 2021 it has 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 lack of evidence.

However, NAB authorities in Pakistan froze Afzal’s assets on a request by the UK govt which was sent originally 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 properties in Islamabad as well which were purchased long before the alleged offence in the UK. 
 
On 7 August 2017, the NCA through British High Commission Islamabad had complained with Chairman NAB, alleging that two real brothers namely Nisar Ahmaed Afzal and Saghir Ahmed Afzal and others were involved in a £60 million Mortgage Fraud in UK in the year 2004-2006 and that Nisar Ahmad Afzal, however, fled away from UK to Pakistan alongwith part proceeds of £26 million which were received in Pakistan bank accounts of Afzal’s family members and subsequently routed/layered and brought in their personal utilization to acquire properties.

However, the IHC heard that the NAB did nothing from 2017 onwards and moved to freeze properties in September 2021 and since then didn’t transmit the cases to Court of Session or any other court under the law nor concluded the investigation report.
 
The judges said: “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 noted that the freezing orders cannot be continued when the principal offences in terms of the National Accountability Ordinance 1999 stand repealed and “this is not the mandate of law to put any person under caution or his properties be freezed forever, even when no complaint has been filed in court of law nor any prosecution has been initiated from last more than seven years, such aspect clearly demonstrate the highhandedness on part of respondent
authorities, who though conceded that the EBM in their meeting held on 14.11.2023 recommended that investigation be closed at NAB’s end and be referred to the FIA”.
 
The judges criticised the NAB for its conduct and culture of unfairly victimising people. They noted: “Such aspect left nothing in favour of 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. Therefore, if FIA authorities intends to proceed against the petitioner 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 able 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 scenario, the right to property envisaged under the Constitution of the Islamic Republic of Pakistan, 1973 which is a supreme law could not be curtailed at the whims and mercy of the NAB authorities neither it is the mandate of law to curtail or suspend the right to property available to the petitioner. Hence, both the writ petitions are allowed and the freezing orders stand set-aside having no
effect.”
 
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). 
 
The Birmingham Mortgage Fraud case became one of the biggest cases of its nature in UK history and Nisar Afzal fled to Pakistan in 2006 at the start of the investigation, alleging that he was wrongly framed in the case in a high-profile conspiracy and that he will not get justice in the given circumstances. He alleged the persons actually involved in the fraud were in cahoots with the secret SFO investigators and orchestrating a drama to frame him. 
 
There was an arrest warrant issued at the Westminster Magistrates’ Court for Nisar Afzal’s arrest but the UK government never asked the Government of Pakistan to bring him back to face trial. Nisar Afzal was arrested in Pakistan in 2011 and he accused Rehman Malik, the late senior Pakistan People’s Party (PPP) leader. He was later released without any further action.
  
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. 
 
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 can keep 50% of the assets recovered if NAB succeeded in finding assets of Nisar Afzal in Pakistan. The NAB confirmed that from 2011 to 2017 the NCA didn’t hand over any proof 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 Serious Fraud Office.
 
The NCA told NAB it requests assistance with recovering criminal assets held legally 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 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 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.”