Lexi Holdings Plc v Luqman & Ors

On 3 and 4 October 2007 I heard the application by Mr Luqman referred to in paragraph 196 of the Addendum to the Judgment which I handed down on 2 July. That application was issued on 4 July, asking me to review my findings of fact in relation to the three alleged breaches of the November Order involving Mr Cheema in the light of the further evidence contained in Mr Luqman’s 12^th and 13^th affidavits sworn on 7and 28 June 2007, and to hold that he was not in contempt in relation to some if not all of those breaches. Permission was sought to adduce and rely upon the evidence in those two affidavits in support of the above application, or alternatively for the purposes of mitigation.

I also had before me a cross-application by the Company made on 23 July, asking me to review upwards the provisional sentences of 18 months’ imprisonment which I had indicated in my judgment I was minded to impose on Mr Luqman, subject to mitigation, for the breaches which I had found to be established of the committal grounds involving Mr Cheema. For convenience, I will refer to those grounds, which are contained in paragraphs 14(2), 14(3)(a) and 14(3)(b) of the Re-re-amended Committal Application, as “the Cheema grounds”.

The Company’s cross-application was originally supported by two affidavits sworn on 12 July 2007, one (at least purportedly) by Mr Cheema himself, and the other by a Mr Rana Ijaz Ahmad Khan (“Mr Khan”), who is an advocate of the Supreme Court of Pakistan and a former provincial government minister in Pakistan. He had been instructed by the Administrators to carry out investigations into the asset position of the Luqman family in Pakistan.

The background to the two applications is set out in my earlier judgment, and in the Addendum to it. I will not repeat that material, and the present judgment should be read as following on from the Addendum in which I briefly described the contents of Mr Luqman’s 12^th and 13^th affidavits and explained why I considered it appropriate to re-open the hearing in relation to the Cheema grounds, notwithstanding the very late stage at which those affidavits had been obtained.

As I said in paragraph 195, Mr Luqman exhibited to his 12^th affidavit what purported to be a witness statement by Mr Cheema signed by him and dated 3 June 2007. The statement also appeared to have been attested before a notary public, Mr Muhammad Anar Qaisar, on 5 June. Mr Luqman’s evidence was that he had managed to trace Mr Cheema to what he called “his new address”, and had achieved this “through Government Agents in Pakistan”. He had not previously thought this was a course open to him, but when he asked the Agency if they could help on 23 or 24 May they said that they would.

Mr Luqman did not say in his 12^th affidavit who these government agents were, nor did he explain why or how they assisted him to trace Mr Cheema.

Mr Cheema’s purported witness statement gave his address in the form of what appears to be a full residential address in Dohah-u-uddin City, Pakistan, and described him as an “investment broker”. The first four paragraphs of the statement read as follows:

“1.

I make this witness statement at the request of [Mr Luqman]. I have known Shaid for approximately 7 years. I operate an investment broking business and look for opportunities for Pakistani nationals to invest primarily in the UK, Middle East and Europe but also in Pakistan. I first started doing business with Shaid in April 2002. I recall that I did draw up a memoranda [sic] of understanding that was signed by both myself and Shaid but I cannot now find it. I previously lived at Cheema House E60, Galli No. 1 Nadirabad, Baidian Road, Lahore, Pakistan and moved in early December 2006. I think that the document may have got lost during the course of my move. My recollection is that the memorandum contained general terms such as that both parties would act in good faith, maintain confidentiality and that Shaid would guarantee a minimum return of 10 per cent on any monies invested with him. Apart from those terms repayment terms of loans advanced were flexible and were largely dependent upon the individual requirements of each investor. Generally I would offer investors repayment on at least 6 months notice. Between February 2002 and August 2005 I made loans amounting to about £12,755,000 to Shaid. These loans were made on the understanding that monies lent would be invested by Shaid in either real estate acquisition or real estate funding.

2.

There were no written agreements between Shaid and third party investors. Shaid had no contact with these investors direct and did not know any of them personally. The vast majority of investors specifically requested that the agreements were not formally documented. Occasionally an investor would only advance funds if there was a written agreement this was not common. I did for a time retain a limited number of written agreements between myself and my investors but once funds were repaid to the investors these agreements were destroyed.

3.

I am aware that Shaid invested in Express Leather wholesale suppliers that operated from an industrial estate on Karachi Road, Korangi No. 1 Karachi. This was an investment that I introduced to him and I visited those premises on a number of occasions. To the best of my recollection I arranged an investment for Shaid of about £1.70 million in this business in February 2002. I am aware that this leather business closed in December 2003 due to an arson attack. The investment has never been recovered by Shaid.

4.

I personally attended UBL in Kharian City to collect payment orders to repay third party investors. I also attended the bank from time to time to supply personal bank details of investors when payment was to be made by cash transfer. I also dealt with Mohammed Luqman in respect of his accounts at Askari Bank and again provided details to the bank for payable orders and gave information for cash transfers to be made to investors.”

Paragraph 5 of the statement refers to the bank statements of Mr Luqman’s UBL rupee account, and confirms that Mr Cheema attended UBL to arrange collection of payable orders and organise transfers to investors. Details are then given of fourteen payments, showing their dates, amounts and the method of payment employed. In paragraph 6, the names of nine of the “investors” are given, but these names are clearly taken from the Bank statements themselves and no further particulars are given. The statement then concludes as follows:

“7.

I did retain some ledger records of individual amounts outstanding to investors. These were hand written and were updated by me on a month by month basis. However, as the vast majority of investors have been repaid I have not retained these records.

I am aware that Shaid had dealings with other investment brokers in Pakistan and the Middle East but cannot now recall their names. I never encountered any repayment difficulty with Shaid regardless of the performances of the individual investment.

8.

The matters referred to herein are within my own knowledge and belief based on my dealings with Shaid Luqman and information derived from my investors.”

It is not, I think, unduly cynical to note that this purported evidence from Mr Cheema was remarkably convenient from Mr Luqman’s point of view. If taken at face value, it corroborated the most recent account that Mr Luqman had given of his dealings with Mr Cheema in cross-examination before me some two weeks earlier. That account was by no means the same as various earlier ones which Mr Luqman had given. For example, in the schedule exhibited to his fourth affidavit he had claimed that repayments were made to Mr Cheema from his UBL account “as agent for Lexi Holdings Ltd investors”, Lexi Holdings Ltd being of course the Gibraltar company of that name and not the claimant Company. Again, at his first section 236 examination in December 2006, Mr Luqman had said that the investors executed an agreement with Mr Cheema, and that there was also an agreement between Mr Cheema and Lexi Holdings Ltd, although that Company no longer had a copy of the agreement. By contrast, in cross-examination before me Mr Luqman sought to play down the supposed role of Lexi Holdings Ltd: see paragraph 125 of my earlier judgment. This change of direction is duly reflected in Mr Cheema’s purported statement, which contains no reference to Lexi Holdings Ltd and merely says that the loans made by Mr Cheema to Mr Luqman “were made on the understanding that monies lent would be invested by Shaid in either real estate acquisition or real estate funding”.

Equally convenient, from Mr Luqman’s point of view, are the explanations given for the total absence of any documentary evidence to support his story about his relationship with Mr Cheema. According to the statement, the original memorandum of understanding between Mr Luqman and Mr Cheema had been mislaid by Mr Cheema, and might have been lost when he moved house in December 2006 (paragraph 1); most of the investors specifically requested that their agreements with Mr Cheema should not be formally documented, and in the few cases where a written agreement was required it was destroyed once the funds had been repaid (paragraph 2); and although Mr Cheema did retain some ledger records of amounts owing to investors, and updated them on a monthly basis, these records too had not been retained by him (paragraph 7). Furthermore, it is notable that the details of payments and transfers set out in the statement contain no information that could not have been derived from the UBL bank statements themselves.

Apart from Mr Cheema’s witness statement, reliance was also placed by Mr Luqman in his 12^th affidavit on what purports to be a notarised letter from UBL dated 31 May 2007 and a copy of Mr Cheema’s national identity card. As I have explained, however, the copy identity card was not in fact exhibited to Mr Luqman’s 12^th affidavit, and only appeared as an exhibit to his 13^th affidavit sworn three weeks later on 28June, apparently after the relevant copy documents had been sent to him by his father who had himself collected them from UBL. In both his affidavits Mr Luqman refers to UBL’s letter of 31 May as a “fax” which he received from UBL on that date. It is notable, however, that the exhibited copy lacks any fax header or details, and appears on the contrary to be a photocopy of a page in a bundle of documents, with the top left hand corner folded over. It is also notable that although the letter (headed “To whom it may concern”) appears to be signed by an officer and manager on behalf of the Kharian City branch of UBL, the signatures are illegible and the names of the officer and manager are not given. The document does however bear a stamp indicating that it was attested before a notary public, Mr Tariq Mahmood Butt, on 31 May.

The English translation of Mr Cheema’s identity card contained in the exhibit to Mr Luqman’s 13^th affidavit gives as both his current and his permanent address an address in “Tehsil Wazirabad, District Gujranwala”, which is neither the address shown on Mr Cheema’s purported statement of 3 June nor the previous address at Cheema House mentioned in paragraph 1 of that statement. When Mr Luqman’s solicitors wrote to the Company’s solicitors on 13 June enclosing copies of the identity card and its translation, they were at pains to say, no doubt on the basis of instructions from Mr Luqman, that the address shown on the card was Mr Cheema’s address at the date of issue of the card in 2003, and not his current address.

In an affidavit sworn on behalf of the Administrators on 28 June 2007, Mr Paul Fleming pointed out that the tracing information provided by Mr Luqman in his 12^th affidavit was simply a repeat of the information contained in the UBL bank statements themselves. He went on to say:

“It is perhaps not surprising that as the risk of cross-examination of witnesses has passed, Shaid has now been able to locate Mr Cheema and provide what will be an untested witness statement. It is also worthy of note that although Mr Cheema purports to have dealt with the investors personally, he can only name those listed on the disclosed bank statements, and can provide no information save for their names.”

In paragraph 12 of his affidavit, Mr Fleming said that the Administrators were seeking to verify the authenticity of the UBL letter of 31 May, and suggested that there were grounds for suspecting it to be a forgery. The basis for this suspicion was that Mohammed Luqman had recently provided the Administrators with a letter from Askari Bank, the final sentence of which stated “There are no other documents with us”. As Mr Khan explains in his first witness statement dated 27 June 2007, Askari Bank subsequently told Mr Khan that the inclusion of this sentence was a forgery. Furthermore, it appeared that Mohammed Luqman had later prohibited Askari Bank from passing any information to the Administrators, although he had previously given an irrevocable authority for that purpose. Accordingly, said Mr Fleming, the Administrators were concerned about the authenticity of any document unless it was provided directly by the third party concerned. It will be remembered in this connection that it was Mr Luqman’s father who had forwarded to him the enclosures referred to in the UBL letter of 31 May, and that Mr Luqman had been unable to exhibit them to his 12^th affidavit.

I can now pick up the story from Mr Khan’s first affidavit sworn on 12 July 2007. With regard to Mr Cheema, he deposes that he and his assistants had been unable to trace him at either of the addresses shown on his purported statement, and in each case local enquiries had revealed nothing about him. However, on 5 July two of his assistants had visited the address on Mr Cheema’s identity card. One of the associates approached the property, which was a small single storey building, and asked whether Mr Cheema lived there. After some time a man came to the door, and identified himself as Muhammad Rafiq Cheema. They presented Mr Cheema with copies of Mr Luqman’s 12^th and 13^th affidavits and the exhibits to them. Mr Cheema said that he had never heard of Mr Luqman, Mohammed Luqman, the Luqman family or the Company, had never received any payments from them, had never collected any pay orders from UBL in Kharian City, and had never acted as an investment broker. He further confirmed that he had never seen his purported witness statement of 3 June, and said that it was not his statement. He did, however, confirm that the copy identity card exhibited to Mr Luqman’s 13^th affidavit was indeed a copy of his own identity card.

Mr Khan goes on to say that he then contacted the Company’s UK solicitors and arranged for Mr Cheema to travel to his office in Lahore on the following day, 6 July, where he confirmed to Mr Khan what he had previously told his assistants. At this meeting Mr Cheema said that he was unable to explain how his identity card had come to be exhibited to Mr Luqman’s affidavit. He provided his identity card to Mr Khan, who took copies of it which are exhibited to his affidavit. It is common ground that this card is the same as the one of which Mr Luqman had exhibited a copy.

With regard to UBL, Mr Khan said that once he had discovered the existence of Mr Cheema he contacted the manager of UBL in Kharian City and spoke to the Vice President at the Branch. He explained that he had a copy of the UBL letter of 31 May, and enquired how UBL had come to obtain a copy of Mr Cheema’s identity card in the light of Mr Cheema’s evidence that he had never visited the bank. Mr Khan also said that he wanted to verify that the UBL letter was genuine, because its contents were again wholly at odds with Mr Cheema’s evidence. In response, Mr Khan was told to put his request in writing, which he then did in letters dated 9 and 12 July. However, he had received no response by the time he swore his affidavit.

Mr Cheema himself also swore an affidavit on 12 July, in which he set out his address (as shown on his identity card) and continued as follows:

“1.

I am resident at the above address and have been for 30 years. My property is made up of a single storey residence. I also inherited some agricultural land with approximately five acres from my forefathers.

2.

I was born on 30 April 1955.

3.

I was educated up to Matric and after completing my education I joined the Pakistan Ministry of Defence as a clerk on 13 January 1979. I am in the process of retiring.

4.

My income is less than 6,000 Pakistani rupees per month. I have seven children including two sons and five daughters and my income struggles to cover the cost of their support. I have no assets of substance other than what is described above.”

Mr Cheema went on to confirm that a true copy of his national identity card had been exhibited to Mr Luqman’s 13^th affidavit, and said he could not understand how this had happened. As further evidence of his address and identity Mr Cheema exhibited copies of a letter sent to him by the Military Estates Office on 29 May 2006, referring to his retirement from service with effect from 31 March 2006, and of his Ministry of Defence identity card issued on 15 September 2001 and valid up to 31 December 2002.

I pause to observe that if the evidence of Mr Cheema and Mr Khan in their affidavits of 12 July is to be believed, it must follow that Mr Cheema’s purported witness statement of 3 June is a fabrication, and that Mr Luqman’s attempt to rely upon it in support of his application to re-open the hearing is a dishonest attempt to mislead the Court and pervert the course of justice. There is no possibility, so far as I can see, of an innocent mistake or misunderstanding. If what Mr Cheema says is the truth, he has been the victim of some form of identity theft and it is impossible to escape the conclusion that all the explanations advanced by Mr Luqman for his conduct which involve Mr Cheema, and the making of payments to him, or through his instrumentality, on behalf of investors, are wholly fictitious.

Despite the seriousness of the matter, however, and the obvious implications of the evidence filed by the Administrators on 12 July, Mr Luqman chose not to swear any further affidavit evidence in reply. The date originally fixed for the adjourned hearing of his application was 30 July. Arrangements were made, following a telephone hearing on 20 July, for Mr Cheema and Mr Khan to give evidence from Pakistan by video-link at the adjourned hearing. In addition, on 23 July the Administrators issued their cross-application that I should review (upwards) the provisional sentences of 18 months’ imprisonment which I had indicated in my earlier judgment.

There matters rested until the Friday before the hearing, 27 July, when without any prior notice Mr Luqman through his solicitors served copies of three further affidavits upon which he wished to rely. This further evidence consisted of:

This additional evidence was served, as I have said, without any prior notice, and without any prior application for permission to adduce it, on Friday 27 July. On 28 July, Mr Khan swore a further affidavit, his second, on behalf of the Company, deposing to recent developments involving Mr Cheema. He said that Mr Cheema had attended at his office at 2 pm on 27 July, when he informed him that he would have to give his oral evidence by video link at the forthcoming hearing. The affidavit continued:

“4.

Mr Cheema, however, informed me that some days ago, people he had not previously met and identifying themselves as friends of Shaid Luqman approached him at his home. They first offered him a bribe if he would not give his evidence before the UK Court. Mr Cheema said that, on hearing this, he explained to them that if he did not appear before the UK Court there was a possibility that law enforcement authorities in Pakistan may investigate him, as there was the possibility of identity theft. Mr Cheema informed me his visitors got infuriated by this response and threatened him with serious consequences if he gave his evidence, including threats to kidnap him or take his life.

5.

Mr Cheema further informed me that on the night of 26 July 2007, another man came to his house and met his wife, when he was away from his house for some work. Mr Cheema also met that person walking in front of his house gate, who identified himself as “Riaz”. Mr Cheema said that Riaz also recited the same threats. He further said that Riaz also sought to bribe him not to give any evidence. Riaz left Mr Cheema to consider his answer.

6.

At our meeting, Mr Cheema was scared and nervous. He told me that he is willing to give his evidence but only in the UK and not in Pakistan. He also sought guarantees for his life and the life of his children in case he gives his evidence against Shaid.

7.

At present, therefore, I do not believe that Mr Cheema is willing to testify in Pakistan, however, it appears that he will feel safer giving his testimony in the UK and would be willing to travel to the UK for that purpose.”

This was the state of the evidence when the matter came before me on Monday 30 July. It quickly became obvious that the hearing could not be effective, partly because of the late evidence served by Mr Luqman and partly because of Mr Cheema’s unwillingness to testify in Pakistan. I therefore reluctantly agreed to a further adjournment of the matter until the beginning of this term. I gave permission to Mr Luqman to adduce the late evidence served on 27 July, and to the Company to adduce Mr Khan’s 2^nd affidavit. I also directed that any evidence in reply by either side was to be served by 20 August. I refused an application for a direction that Mr Qaisar and Mr Bhatti should be permitted to give their evidence by video-link, but gave liberty to apply for a direction to that effect if the circumstances warranted it. I ordered Mr Luqman to pay the costs of the adjournment, and to pay £10,000 on account of those costs by 20 August.

On 9 August 2007 the Company’s solicitors wrote to Mr Luqman’s solicitors giving notice of the Company’s intention to cross-examine Mr Qaiser and Mr Bhatti at the adjourned hearing. They also sought clarification whether Mr Cheema had now become Mr Luqman’s witness, and requested that arrangements be made for him to attend Court for examination and cross-examination.

On 16 August 2007 Mr Khan swore his third affidavit on behalf of the Company. He exhibited a hand-written statement made by Mr Cheema in his office, in the presence of his associate Mr Ali Ashtar Naqvi, on 6 July 2007, together with an English translation. He explained that this statement had been superseded by Mr Cheema’s affidavit of 12 July, but he was exhibiting it now to corroborate his evidence that he had indeed met Mr Cheema on a number of occasions and that Mr Cheema’s affidavit of 12 July was true.

The English translation of the Urdu statement reads as follows:

“I, Muhammad Rafique Cheema son of Muhammad Boota Cheema, a resident of [the address shown on his identity card] belong to a poor family, whose occupation is farming. We own some agricultural land measuring around five and one quarter acres. I inherited this land from my forefathers. I had myself been a government employee. On 13/01/1979, I joined my service in the Ministry of Defence and had been in service until I retired on 31/03/2006. I had joined my service as a junior clerk and retired in the same position. My family is comprised of nine members – my seven children, five daughters and two sons. All of them are studying. With great difficulty, I afford their food, books and fees of schools and colleges. Except a bicycle, I don’t have any other source of conveyance. Despite my children’s insistence I could not even buy a television …

I never made any deal with Shaid Luqman, nor do I know him personally. I never made any sale or purchase of land. My ID card was stolen and all these transactions are false and bogus. [Illegible] gave money, nor did I receive any amount from Kharian United Bank, nor do I know them.”

Mr Cheema went on to say that he did not know Shaid, Mohammed or Waheed Luqman, and had no dealings with them.

Mr Khan also exhibited to his affidavit a photograph of the property at which Mr Cheema lives. It appears to be a very modest brick building.

On 20 August a further purported affidavit of Mr Cheema was served by Mr Luqman’s solicitors. The affidavit appears to have been sworn at Rawalpindi on 18 August, and attested before a notary in Rawalpindi on 20 August, through an advocate Mr M Bilal Ashraf Chohan (“Mr Chohan”). The affidavit reads as follows:

“1.

I swear this affidavit at the request of … Shaid Luqman. The matters referred to herein are within my own knowledge.

2.

I have been provided with a copy of an affidavit dated 12 July 2007 which appears to bear my signature. I did not swear that affidavit and the signature on it is not mine. I did not appear before a Notary Public to swear the same and I did not instruct Rana Khan to prepare the same on my behalf.

3.

I did not meet Rana Khan at his office in Lahore on the 6 July 2007. Mr Rana came to my house in Wazirabad on the 5 or 6 July 2007 along with his associate Mr Ikram Ullah Khan and another man whose name I do not know and asked me some questions regarding my witness statement dated 3 June 2007. Rana Khan tried to persuade me to retract the contents of my statement of 3 June 2007 and made promises to provide permanent British Visas for my family if I did so. I refused to retract the contents of my statement dated 3 June 2007 and told Mr Khan and his colleagues to go away and leave me alone.

4.

I did not meet Mr Rana Khan on the 27 July either at his office in Lahore as is alleged by him or at any time after his visit to my house on the 5 or 6 July.

5.

It is correct that I am a retired Junior Military Officer. When Mr Khan came to my house on 5 or 6 July he asked me for a copy of my identity card, military card and retirement letter. Mr Rana told me that he needed these documents for verification and photocopies were provided to him.

6.

My permanent address is the address at Wazirabad. I also had a temporary address … which is the address referred to in my witness statement dated 3 June 2007 which I used for business. I used to live at Cheema House. I rented this property for a period of two years and left on about 12 December 2006. This was also a business/residential address. I have previously lived in Baakra Mandi Rawalpindi and also in Cantt Karachi.

7.

I have not been threatened by any member of the Luqman family or their friends and associates in connection with this matter. I have voluntarily offered to assist in connection with this case by making my witness statement dated 3 June 2007 and this affidavit together with my earlier affidavit dated 23 July 2007. I have been threatened pestered and harassed by Rana Khan personally and his colleagues to provide evidence in support of the Claimant’s case. This I have declined to do.

8.

I confirm again as I did in my witness statement dated 3 June 2007 that I visited UBL bank at Kharian City on behalf of Mr Shaid Luqman only to collect pay orders for the concerned persons against whom the pay orders were issued by the bank and then delivered the same to those persons on the same day … and that I also dealt with Askari Bank in connection with Mohammed Luqman on behalf of Shaid Luqman. I provided my identity documents to UBL Bank at Kharian City.”

I observe that although in his purported affidavit of 23 July Mr Cheema had denied ever meeting Mr Khan, he now says that Mr Khan came to his house on 5 or 6 July and offered him various inducements. However, he denies having met Mr Khan on either 6 or 27 July. It is also noteworthy that Mr Cheema apparently accepts:

With regard to the addresses in paragraph 6, Mr Cheema does not explain the nature of his alleged temporary address, or why he used it rather than his permanent address in his statement of 3 June. Nor does he explain how he was able to use the Cheema House address for business purposes, despite the express provisions of the tenancy agreement that he should use it as a personal residence only. Nor does he explain why the property was apparently known as Cheema House, although according to the evidence of Mr Bhatti it was Mr Bhatti’s residence and he only let the first floor to Mr Cheema. More generally, it is again difficult to escape the impression that not only is the evidence in this affidavit remarkably convenient from Mr Luqman’s point of view, but it also seems to have been designed to confirm Mr Cheema’s story as advanced on Mr Luqman’s behalf while at the same time attempting to provide an explanation for the undeniably genuine documents exhibited to Mr Cheema’s affidavit of 12 July.

On 21 August the Company’s solicitors wrote again to Mr Luqman’s solicitors seeking immediate confirmation that Mr Cheema would be available for cross-examination at the adjourned hearing, which had by now been listed for between 3 and 9 October. On 22 August Mr Luqman’s solicitors replied, saying they thought it unlikely that Mr Cheema would be willing to travel to the UK and pointing out that he was not a compellable witness. The Company’s solicitors repeated their request on 14 September, but were again met with the same response.

There matters rested until shortly before the adjourned hearing, when a final round of evidence was served. In the event there was no opposition on either side to the introduction of this further evidence, so I agreed to receive it.

The further evidence on behalf of Mr Luqman consisted of an affidavit sworn by Mr Chohan on 29 September, and a further affidavit of Mr Cheema apparently sworn on the same day. Mr Chohan says that he is an advocate of the High Court of Rawalpindi, and that Mr Cheema instructed him to act for him towards the end of July 2007. He exhibits a power of attorney in his favour apparently signed by Mr Cheema on 27 July, and a letter which he wrote to Mr Luqman’s solicitors on 1 August informing them of his appointment and requesting that Mr Cheema should not be contacted directly but only through him. The letter, which was copied to Mr Khan, also complained that Mr Khan had exerted undue influence on Mr Cheema and had been continuously harassing him.

Mr Chohan goes on to say that he has met Mr Cheema on a number of occasions, and that he prepared Mr Cheema’s affidavit of 20 August at the request of Mr Luqman’s solicitors. He exhibits an exchange of correspondence in which Mr Luqman’s solicitors set out a list of issues involving Mr Cheema which they wished to clarify, and in response he set out the answers after going though the list very carefully with Mr Cheema. He adds that Mr Cheema said he was being threatened by Mr Khan, and was not prepared either to travel to the UK to give evidence or to give evidence by video-link. Finally, he says that he had himself been asked to travel to the UK to give evidence on behalf of Mr Luqman, but was unable to do so as he was travelling to Saudi Arabia on 30 September for a pilgrimage to Mecca, it being the month of Ramadan.

Mr Cheema’s further evidence confirms his unwillingness to travel to London or to give evidence by video-link, and says that the reason for this is threats made to him and his family by Mr Khan. He says the situation has become so serious that he has reported Mr Khan and his associates to the local police “and felt it necessary to instruct solicitors”. He exhibits a copy of a report to the police dated 20 August, describing an alleged incident on 19 August when two envoys of Mr Khan entered his house forcibly and threatened his wife and children.

The further evidence for the Company consists of a further affidavit from Mr Khan, his fourth, sworn on 29 September. He describes three occasions on which he says attempts have been made to stop him taking instructions from the Administrators:

Mr Khan also exhibits a letter which he sent to Mr Chohan on 9 August making detailed requests for further information about Mr Cheema, for example about his supposed career as an investment broker and requesting documentary evidence of his transactions with investors. Mr Khan says that he has never had a response to this letter, despite repeating his request by telephone in mid-August when he was assured that a response would be forthcoming within a couple of days.

At the adjourned hearing on 3 and 4 October the only witness who gave oral evidence was Mr Khan, who was cross-examined at length by Mr Elleray QC for Mr Luqman. Despite the requests made in correspondence by the Company’s solicitors, neither Mr Qaisar nor Mr Bhatti nor Mr Chohan nor Mr Cheema himself attended to give evidence. I have already referred to the reasons given by Mr Chohan and Mr Cheema for declining to do so. In the case of Mr Qaisar and Mr Bhatti, no explanation at all was proffered. In the absence of cross-examination I consider that I am entitled to treat their evidence as carrying very little weight: see Comet Products v Hawkex Plastics [1971] 2 QB 67 at 75F per Lord Denning MR and Great Future International Ltd v Sealand Housing Corporation, loc. cit., at paragraph 26. I should add that the Company did not require Mr Luqman to attend for cross-examination, so he too was not cross-examined on his 12 and 13^th affidavits.

So far as Mr Khan is concerned, I will say at once that I found him to be an honest and reliable witness who did his best to assist the Court. There were times, particularly during the afternoon of 3 October, when he seemed to be in some difficulty in understanding the questions put to him and providing clear answers. However, as he explained at about 3.15 pm on that day, he was suffering from the combined effects of a medical condition (diabetes), the fasting requirements of Ramadan and jet-lag. I therefore agreed to rise early, and sat at 10 am the following morning. In addition Mr Khan had to contend with the difficulties of giving evidence in English, which is evidently not his first language.

Mr Khan gave evidence that he was a former vice-chairman of the Pakistan Bar Council, and that he held office in the provincial government in Punjab, as a law minister for one year and then for four years as an adviser on law and human rights to the chief minister with ministerial status. At an early stage in his evidence he described his impressions of Mr Cheema in vivid terms, describing him as “a very small employee”, like a clerk, earning less than £100 a month: “He has no status in the society, no monetary or social status. He is a poor labourer.” A little later Mr Khan said that, when he met Mr Cheema, he could see from his face, from his clothing, from his education, from his whereabouts and from the place where he lived, that he was not a person who transacted investment business or who would have entered into financial transactions. When Mr Khan examined Mr Cheema, Mr Cheema told him:

“I am a poor clerk, I am an employee of Defence department, I have been recently retired, these are my retirement papers, this is my defence card and my ID card and I have nothing to do with all these transactions.”

I accept this evidence, which corroborates the account given by Mr Cheema in his affidavit of 12 July sworn on behalf of the Company, and in the statement in Urdu which he wrote out in Mr Khan’s office on 6 July. Mr Khan confirmed in his oral evidence that Mr Cheema wrote this statement in his own handwriting, in his presence, and that he made it voluntarily, “in open with due consideration and due deliberation, with free will and consent”.

Mr Elleray devoted a good deal of his cross-examination to exploring a possible inconsistency between Mr Cheema’s written statement, where he said that his identity card had been stolen, and the more non-committal statement in his affidavit of 12 July, where he merely said that he could not understand how his card had come to be exhibited to Mr Luqman’s 13^th affidavit. In my judgment, however, the supposed discrepancy reflects nothing more than the realisation by Mr Cheema, no doubt after discussion with Mr Khan or his assistants, that he could not be sure his card had been stolen because he still had it in his possession. Rather, he must have been the victim of some kind of identity theft, although it was impossible to say precisely how this had happened. Mr Khan returned to this theme a number of times during his oral evidence. For example, he recalls that Mr Cheema said “Somebody might have stolen my card, the photostat copy is being used, and I have nothing to do with any of the transactions”, or again:

“He told me that in his absence, without knowledge, from somewhere, some person took away his photo ID card, photostat copy, and is using, but the original card is with him and if that would have been stolen he would have knowledge.”

On another occasion, Mr Khan suggested that a photocopy of Mr Cheema’s identity card might have been removed from his government papers. With the limited information now available it is obviously impossible to be sure how the identity theft took place. The important point, for present purposes, is that there is in my view nothing sinister in the change of wording between Mr Cheema’s written statement and his subsequent affidavit. On the contrary, the alteration seems to me to reflect a laudable concern by Mr Cheema that he should not make an accusation on oath which he was unable to substantiate.

With regard to “Cheema House”, Mr Khan said that he had found no house at the stated address but met Mr Bhatti, who told him he had:

“given [his] affidavit only just to please Mr Luqman, because I am a property dealer, and he used to purchase property from me. Mr Cheema never lived in my – as a tenant nor [do] I know Cheema, this is all just to give this affidavit to please Mr Luqman.”

Mr Khan added that his meeting with Mr Bhatti had taken place about two months ago. He also pointed out that the Cheema House address was about 250 miles away from the place where Mr Cheema had been employed in the Defence Department, and said that his enquiries with the elected head of the district also revealed it to be a false address.

Mr Elleray invited me to treat this evidence as unsatisfactory, because there had been no prior reference to Mr Khan’s conversation with Mr Bhatti, even though Mr Bhatti’s affidavit had been produced before the hearing on 30 July, and I had given directions on that date for the service of evidence in reply. I acknowledge that this criticism has considerable force. Nevertheless, Mr Khan’s account strikes me as inherently plausible when compared with the multiple improbabilities of Mr Cheema having ever taken the alleged tenancy at a time when he was still employed by the Ministry of Defence, at a rent which he would have been unable to afford, and for business purposes which were prohibited by the supposed tenancy agreement. The unexplained refusal of Mr Bhatti to attend the hearing for cross-examination reinforces my scepticism. In all the circumstances, I find myself unable to attach any weight to his affidavit, and I prefer the evidence of Mr Khan.

The situation regarding the evidence of Mr Qaisar is not dissimilar. It will be remembered that Mr Qaisar is the lawyer who attested Mr Cheema’s purported statement of 3 June 2007. Mr Khan said in his oral evidence that he went to see Mr Qaisar, who told him that nobody had appeared before him identified as Mr Cheema, and that he was on occasion prepared to attest affidavits as a favour for certain advocates without going through the necessary formalities:

“He said that he does not know Cheema, no Cheema appeared before him, and I to please an advocate colleague attested it and signed it and fixed my stamp, the rest of the contents I failed to make them confirm that he has gone through all legal formalities … ”

Mr Khan was pressed on this evidence in cross-examination, and again had to concede that there was no reference to this grave accusation against Mr Qaisar in his earlier evidence. He also accepted that he has not written to Mr Qaisar in order to put the accusation to him. Moreover, Mr Khan seemed to be unclear, when he was questioned on this subject during the early afternoon of 3 October, whether Mr Cheema had told him that his purported statement of 3 June was a total fabrication or whether he had been pressurised into making it. In re-examination on the following day, however, Mr Khan confirmed that Mr Cheema had told him he had never seen the statement, and that the true position was as set out in Mr Cheema’s affidavit of 12 July.

Giving these matters the best consideration I can, I have again concluded that Mr Khan’s account is in substance correct. For internal reasons alone, the purported statement of 3 June is one which I would anyway treat with the gravest suspicion; and in view of Mr Khan’s evidence about Mr Cheema and his personal circumstances, which as I have said I accept, the conclusion must follow that it is either a fabrication or it was produced under duress. Mr Cheema’s own evidence, in his affidavit sworn on behalf of the Company, is that it is a fabrication and had nothing whatever to do with him. This is corroborated by Mr Khan’s evidence in re-examination, when he was in my view better able to do justice to himself than he had been the previous afternoon. If that is right, it must then also follow that the attestation of the statement by Mr Qaisar was false, and in view of his unexplained failure to attend for cross-examination I find myself unable to attach any weight to his protestations to the contrary in his affidavit.

With regard to Mr Cheema’s short affidavit apparently sworn on 23 July 2007, Mr Khan’s evidence was that he went to visit the magistrate before whom it was apparently sworn, in order to verify its contents, and was told by him that:

“I have not seen Mr Rafiq [Cheema], nor his ID card, nor he was present in my Court. However I stamped it as some advocate requested me.”

It appears, therefore, if this evidence is to be believed, that the magistrate in question was as ready as Mr Qaisar had been to attest an affidavit in the absence of the deponent as a favour to an advocate. It was again put to Mr Khan that he had not written about this to the magistrate, nor had he referred to this conversation in his affidavit evidence. As before, these points have made me think long and hard about Mr Khan’s reliability. In the end, however, I am left in no reasonable doubt that this affidavit too is either a fabrication or the product of duress, and even in the absence of Mr Khan’s evidence about his conversation with the magistrate I would be unable to accord it any weight. Mr Khan is a distinguished member of the legal profession in Pakistan, and (as he made clear a number of times in his evidence) fully aware of his responsibilities and duty to the Court. I do not believe that he has given false evidence on this, or any other, point and I therefore accept his account.

No direct challenge has been made to the authenticity of Mr Cheema’s affidavits of 20 August and 30 September. However, in the light of the findings which I have already made, and the failure of both Mr Cheema and Mr Chohan to attend Court for cross-examination, I am unable to attach any weight to them. I suspect that they are the product of some form of coercion, and that Mr Khan is correct in his belief (voiced in his fourth affidavit) that Mr Cheema has been unable to resist the inducements and threats made to him. That the existence of such threats is not imaginary is demonstrated by the evidence in paragraphs 4 and 5 of Mr Khan’s affidavit of 28 July, where Mr Khan recounts how Mr Cheema told him he had been offered a bribe by people who came to his home and identified themselves as friends of Mr Luqman, and how threats were made first to him and then to his wife during the night of 26 July while he was away from home. Mr Khan was cross-examined on this evidence, and said that Mr Cheema did not know the names of these people although he would be able to identify them if they were arrested. When asked why no report had been made to the police about these threats, Mr Khan’s reply was “Nobody listens to poor people in our country”. It was then put to Mr Khan by Mr Elleray that this was an unconvincing answer, because a complaint about Mr Khan himself had been made to the police on Mr Cheema’s behalf on 20 August. However, Mr Khan had a reply to this, which I found convincing:

“But if a complainant or poor man is supported by some influential person … his complaint is adhered to, listened to and paid heed to. My impression is that this complaint was lodged at the behest or instigation of Shaid Luqman and family.”

Mr Khan added that he believed himself to be under serious threats to his personal safety, as a result of his acting against the Luqman family in Pakistan, and said that he had made his own security arrangements.

Mr Khan also gave a fuller account of the episode when Waheed and Mohammed Luqman attempted to bribe him at the meeting at his house on 9 June 2007. He said that they asked him to drop the proceedings in Pakistan, and offered him “money out of court, or in secret manner … We are ready to purchase you”. They sat in his house for several hours. Mr Khan told them that it would be against his profession, his dignity and his conscience to do so, and that he could only contemplate negotiating with them if they offered to repay the amount they had embezzled. I am satisfied that an attempt was indeed made to bribe Mr Khan on this occasion, and that bribes were offered to Mr Cheema and threats made to him and his wife as stated by Mr Khan in his second affidavit. I have no doubt that Mr Khan is a brave man, and that he is acting for the Company in Pakistan at considerable risk to his own personal safety.

When cross-examined on his 4^th affidavit, Mr Khan readily acknowledged that he was unable to be sure that Mr Luqman or his family were behind the assault on his assistants on 5 July. He accepted that they might have been the victims of an unrelated street robbery, and said that he would be the last person to make a false accusation against anybody. He also accepted that the person who was seen taking pictures of his office on 22 September might have been an investigator unconnected with the Luqmans. The fact that Mr Khan was ready to make these concessions does credit to his integrity, and does not in my judgment detract in any way from the force of his evidence which I have accepted on the subject of bribes and threats.

Finally, when asked to comment on the UBL letter of 31 May 2007 Mr Khan said more than once that in his opinion the bank officials and Mohammed Luqman were all party to the fraud. He was, however, unable to substantiate this allegation, and said he was still investigating the matter. I am certainly not prepared to make any adverse findings about UBL’s alleged involvement in fraud on the basis of Mr Khan’s suspicions at this early stage of his investigations. However, for a number of reasons I find myself unable to attach any weight to the letter of 31 May. First, as I have already said, Mr Luqman describes it in his affidavits as a fax, but the copy document which he exhibits appears to be no such thing. Secondly, it does not state the names of the two bank officials by whom it appears to have been signed. Thirdly, the copy identification documents of Mr Cheema referred to in the letter were only supplied to Mr Luqman subsequently, through his father. Fourthly, no affidavit evidence verifying the document has been obtained from UBL, or from either of the signatories. It is true that the document appears to have been attested; and at the start of his closing submissions Mr Elleray asked me to look at the original of the document in his client’s possession, which does indeed appear to bear an authentic attestation. However, as the evidence in this case unfortunately shows, such apparent attestation cannot always be accepted at face value. In the end, in the absence of first hand evidence from a witness who can speak to the document, and whose evidence can be tested in cross-examination, I can only say that I treat it with the gravest suspicion, and it does not deflect me from the conclusion which I have reached.

I am equally unimpressed by Mr Luqman’s attempt to rely on a document obtained by the Administrators from a security firm called Risk Analysis in April 2007, setting out the results of urgent research which they had been asked to undertake into various individuals and entities connected to the Luqman family. The report was headed “Confidential”, and was sent to the Company’s solicitors on 23 April. The covering letter said that Mr Cheema was confirmed as residing at his given address for at least 12 months, but beyond that no information had been found regarding his business interests, and local enquiries did not reveal anything to suggest significant wealth. The letter went on,

“As we have discovered previously, this type of enquiry in Pakistan is fraught with difficulties. The names of all the individuals concerned are extremely common, and without the key piece of information, the Pakistani ID number, a great many avenues are closed to us when conducting due diligence.”

Section X of the enclosed report said that “discreet research” had revealed that Mr Cheema was reported as residing at the Cheema House address, and local enquiries with neighbours had confirmed he had been residing there for the past 12 months. However, in the absence of any evidence about the sources of this supposed information, and in view of the difficulties referred to in the covering letter, I am unable to attach any weight to this evidence.

Indeed, strictly speaking the report was not in evidence before me at all, as it only appeared as an exhibit to an affidavit sworn by Mohammed Luqman on 10 July which was not part of the evidence on the committal application. This deficiency was remedied by an undertaking from Mr Luqman’s solicitors to swear an affidavit explaining how he had come to be in possession of the report, which was on the face of it a confidential document of the Company’s in respect of which privilege had not been waived. By an affidavit sworn on 5 October Mr Luqman’s solicitor, Mrs Fenton, exhibited a copy of the report and said her instructions were that it formed part of the bundle served on the various members of the Luqman family in Pakistan in respect of the proceedings in Pakistan in June 2007. I note, however, that in his oral evidence Mr Khan disputed this, and said that an index of the relevant court file which appeared to include this document, and to have been signed by him, was not authentic. I find it unnecessary to resolve this particular conflict. It is enough for me to say that, for the reasons I have given, I am unable to attach any weight to the report.

In the light of Mr Khan’s evidence, I am satisfied beyond reasonable doubt that the purported evidence of Mr Cheema upon which Mr Luqman wishes to rely in support of his application is wholly unreliable. Although certainty is impossible, I consider the likeliest explanation to be that Mr Cheema’s witness statement of 3 June is a complete fabrication, and that his subsequent affidavits of 23 July, 20 August and 30 September are in one way or another the product of threats and intimidation. Conversely, I see no good reason to doubt that the evidence given for the Company by Mr Cheema in his affidavit of 12 July is true and reliable. I found Mr Khan’s account of his meetings with Mr Cheema, and the circumstances in which Mr Cheema made his hand- written statement of 6 July, entirely convincing, and I reject any suggestion that Mr Khan or his assistants have exercised any kind of improper pressure on Mr Cheema. I bear in mind, of course, that Mr Cheema has not been cross-examined on his evidence for either side. For that reason, I would be reluctant to say that I was satisfied beyond reasonable doubt that his evidence for the Company is correct in every respect. However, it is unnecessary for me to go that far. It is enough for me to say, first, that I find beyond reasonable doubt that the purported evidence of Mr Cheema relied on by Mr Luqman is wholly unreliable, and secondly that I see no reason to doubt the veracity of Mr Cheema’s evidence for the Company. In those circumstances, there is no evidential basis upon which I could modify in Mr Luqman’s favour any of my findings of fact in relation to the Cheema grounds in my earlier judgment, and I decline to do so. I will therefore dismiss Mr Luqman’s application.

I now turn to the Company’s cross-application. In my judgment Mr Luqman has grossly aggravated his contempt in relation to the Cheema grounds by seeking to adduce new evidence which he must have known to be false, in a deliberate attempt to mislead the Court and pervert the course of justice. There can be no excuse for such conduct, and in my judgment it merits severe punishment. The question therefore arises whether it is open to me to increase the sentence of 18 months’ imprisonment which I indicated I was provisionally minded to impose on Mr Luqman in respect of each of the three Cheema grounds.

For the Company, Mr Marshall QC submitted that although it is not permissible for the Court to substitute a longer sentence once a sentence has been imposed (see Westcott v Westcott [1985] FLR 616 (CA)) there is nothing to prevent an increase in any provisional indication of sentence. He submitted that it would be appropriate to increase a sentence provisionally indicated where the intervening conduct of the respondent is such as to increase the seriousness of the contempt alleged, and to compound that contempt by further lies and the production of fabricated evidence.

For Mr Luqman, Mr Elleray QC submitted that in indicating a provisional sentence of 18 months the Court had already disbelieved Mr Luqman’s account, finding him to be “an unreliable and dishonest witness” in relation to the relevant payments. He submitted that if the Court were now to find that the new evidence adduced by Mr Luqman were also false, then the matter should be dealt with by a new committal application if thought appropriate.

I accept Mr Marshall’s submissions on this point. In my judgment there is no reason why the Court should not increase a provisional indication of sentence in order to reflect an aggravation of the contempt which it has found to be established and which has been brought about by the conduct of the respondent since the date of the original hearing. There is no question of punishing the respondent again for the same conduct which gave rise to the original finding of contempt: it is a further punishment for aggravating conduct in the intervening period between the two hearings. Nor can I see any reason why such conduct should necessarily be dealt with by a fresh committal application. It seems to me that, at any rate in a case like the present one, there is everything to be said for dealing with it as part of the same committal proceedings.

In my view, the gravity of Mr Luqman’s conduct is such that his breaches of the Cheema grounds now deserve nothing less than imprisonment for the maximum term of two years. The additional six months is intended to punish him for his disgraceful attempt to mislead the Court and pervert the course of justice. Accordingly, subject to a final opportunity for brief mitigation on Mr Luqman’s behalf when this further judgment is handed down, that is the order which I am now minded to make.

I should add that in reaching this conclusion I have not relied on the evidence of attempted bribery, threats and intimidation to which I have referred in this further judgment. I need hardly say that this evidence is deeply disturbing; and if I were deciding this case on the balance of probabilities I would not hesitate to find that Mr Luqman was responsible, at least in part, for the attempt to bribe Mr Khan on 9 June, and for the attempt to bribe Mr Cheema and the threats to him and his wife in late July. This is exactly the kind of behaviour that I would expect Mr Luqman to have instigated. However, I cannot be sure beyond reasonable doubt that it was Mr Luqman, rather than other members of his family, who were behind the attempt to bribe Mr Khan; and the evidence relating to the attempted bribery of Mr Cheema and the threats to him and his wife is hearsay evidence, which is uncorroborated and has not been tested in cross-examination. The only safe course is therefore for me to leave it out of account.