ISLAMABAD: A former senior adviser to the Federal Shariat Court (FSC) has challenged the powers of an accountability court of convicting the accused on the basis of presumption.

Dr Fazal Ilahi, who served the FSC for over three decades, has filed a petition in the FSC seeking its declaration against provisions of the National Account­ability Ordinance (NAO), 1999, that empower an accountability judge to pass a verdict against an accused if he presumes him/her guilty.

Dr Ilahi filed the petition through his counsel Hashmat Ali Habib.

The petition states, “in any trial punishable under the provisions of above mentioned law, the accused person in possession of assets/properties for which he cannot satisfactorily give account of asset and his assets or pecuniary resources disproportionate to his known resources of income, the court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction shall not be invalid by the reason that it is solely based on presumption”.

Federal Shariat Court’s ex-official says such powers of accountability court are against teachings of Islam

Preliminarily, the petition raises two objections on the applicability of the law: the first objection is that the burden of proof has been shifted from plaintiff/prosecution to defendant and he is bound to prove that he has not committed corruption, which is not in line with Islamic injunctions as well as against the norms of English law and its judicial legacy.

Secondly, the presumption of innocence is the basic rule upon which, there is no divergent opinion both in Islamic law as well as in English law but in the impu­gned law, the principle of presumption of guilt has been applied which is not only against the tenet of Islam but also denial of international human rights under Article 11 of the UN’s Universal Declaration on human rights.

The petition points out that Article 227 of the Constitution provides that: all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet and no law shall be enacted which is repugnant to such injunctions. There are two Constitutional institutions in Pakistan entrusted with the duty to examine such laws, which are not in line with the Islamic injunctions. The nature of powers given to the Council of Islamic Ideology is recommendatory in nature, whereas the Federal Shariat Court is a proper forum empowered to examine any law either on its own motion or on a petition filed by a citizen of Pakistan being repugnant to the injunctions of Islam, hence this impugned law, i.e. provisions of National Accountability Bureau Ordinance, 1999 is being challenged before it for the purpose of examination on the touchstone of Islamic injunctions.

According to the petition, the Muslim theorists have devided the degree of proof in terms of certainty and doubt into five categories. The first one is certainty, the second dominant conjecture, the third presumption, the fourth doubt and the fifth is negative presumption.

Though the petition admits that the Sharia in certain cases allows reliance on presumption or conjecture but if error of conjecture is established by certain evidences, then such conjecture is not valid and effective. On the same pattern, it has been held necessary for a Mujtahid who, if reaches a conclusion after applying Ijtihad and then in subsequent period, proved some error in his Ijtihad on the basis of evidence, has to retract from previous opinion and adopt new juristic opinion based on evidence. On the same way, if a judge decides any case on wrong footing believing that his judgement is according to Sharia, he has to make recourse after reaching a correct conclusion.

Referring to Section 14 (c) of the NAO, the petition maintains that initial burden of proving all the ingredients of the charge always lies on prosecution and the burden shifts to the accused only after prosecution success in establishing the presumption of his guilt.

Regarding presumption against the accused person, the petition contends that prosecution of a person without distinction of criminal and civil liability in transaction is misuse of process of law and similarly stretching law in favour of prosecution is unjust and unfair. Courts without ascertaining true character of transaction and drawing distinction in civil and criminal liability, must not proceed to raise presumption of guilt in terms of Section 14(d) of National Accountability Ordinance, 1999.

It says that court would raise a presumption of guilt against the accused under National Acco­unta­bility Ordinance, 1999 only when the prosecution succeeds in proving the basic ingredients of the charge, as the initial burden continues to be on prosecution.

The petition concluds that the presumption of innocence is the rule of Sharia unless proved guilty and the presumption of guilt without proof and going through the detail of the case is against the norms of justice and repugnant to injunctions of Islam and also in conflict with the judicial system of the West.

Secondly, shifting the burden of proof from prosecution to defendant is in conflict with the tradition of the Holy Prophet, it added.

Published in Dawn, August 6th, 2018