Maryam Nawaz on Saturday told reporters that she and her father, Nawaz Sharif (Sharifs), would return to Pakistan this coming Friday to file an appeal against the accountability court's decision in the Avenfield properties case.
A day earlier, the Sharif family had been sentenced in the Avenfield properties' corruption reference, with Nawaz getting 10 years’ imprisonment and £8 million in fine and Maryam, seven years’ imprisonment and £2 million in fine.
The Sharifs do have the right to appeal under Section 32 of the National Accountability Bureau (NAB) Ordinance before two judges of the Islamabad High Court (IHC). The IHC has inherent powers to accept the appeal, suspend the sentence(s) pending appeal and/or overrule the authorities’ sentence.
Convicts who do not surrender after their conviction generally cannot file an appeal.1 This is based on the sound principle that a convict can only seek protection of the law if he/she surrenders before the court of law.2
The Lahore High Court (LHC) dealt with a similar matter in 2002, whereby the (late) Begum Nusrat Bhutto was tried and convicted under the NAB Ordinance (she was overseas throughout the trial due to old-age incapacities).
After Nusrat Bhutto’s conviction, her daughter filed an appeal on Nusrat Bhutto’s behalf, which was rejected by the LHC. Begum Nusrat was deemed a fugitive under the law and therefore was not entitled to invoke provisions of the appeal till she had surrendered.3
A 2012 Supreme Court (SC) judgment4 might, however, leave some room for interpretation. The Sharifs could file their petition for suspension of sentence (pending appeal) under Section 426 (1) of the Code of Criminal Procedure (CrPC).
Section 426 (1) of the CrPC relates to a situation when a convict has filed for the suspension of sentence, has not yet surrendered before the police, but appears before the court instead.
In the aforementioned SC judgment, the Court found that a convict appearing before the High Court amounted to surrender, notwithstanding the fact that he had remained an absconder for more than a month after conviction, without surrendering to the police.
Consequently, the Sharifs could “surrender” under Section 426 (1) CrPC by appearing before the court without surrendering before the police. However, sources have stated that NAB authorities will be waiting to take the Sharifs into custody as soon as they arrive in Lahore. Furthermore, Maryam has stated that her father will be offering his arrest upon arrival.
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Moving on, as aforementioned, the IHC does have inherent powers (Section 561-CrPC) to suspend the sentence pending appeal and/or grant bail to convicts. The rhetoric for this law is that there is no compensation for a conviction that may later be set aside, and that a conviction can always stand resumed from where it parted.5
An Appellate Court examining suspension of sentence (pending appeal) is only required to tentatively assess the evidence, as the court is not deciding the innocence or guilt of the convict.
High Courts have granted bail and suspension of sentences after conviction in certain NAB cases (e.g. appeal had been pending indefinitely without fault of convict, the convicts had previously been allowed bail during trial and were imposed a shorter sentence).
However, there exists little precedent for suspension of sentence and/or release on bail for convictions of seven years and more. This is in part due to the Section 497 CrPC prohibitory clause, whereby convictions of more than seven years are more are generally not granted bail exemption.
Therefore, the only real remedy for grant of bail and suspension of sentence for the Sharifs can be if the IHC finds that there are glaring errors apparent on the surface of the judgment.
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Grave errors on mere appraisal of the evidence of NAB trial cases have been found in certain fact-patterns: prosecution witnesses who were relied upon to show collusion amongst convicts did not depose a single word connecting as such6; prosecution failed to cite towards particular provision of law to show illegality of convict’s action7; Trial Court’s assessment was based on conjectures and not established facts.8
Consequently, the Sharifs will have to establish a high threshold to show illegality within the authorities’ judgment based on a bare perusal of it to obtain suspension of sentence.
The Trial Court found that the prosecution successfully proved its burden under Section 9 (a) (v) of the Ordinance, as the properties found in possession of accused/Sharifs (i.e., London flats) were disproportionate to their known source(s) of income, and that the Sharifs did not satisfactorily account for possession of such property.
Consequently, the Sharifs were found guilty within Section 14 (c) of the NAB Ordinance for corrupt practices.
Critics have relied heavily on a 2011 SC judgment9 to assert that in order to convict under Section 9 (a) (v) of the NAB Ordinance, the prosecution must bring on record the misuse of authority of a public servant to show that the assets built by him is disproportionate to the known source of income.
The High Courts have recently come to the same conclusion.
However, in the aforementioned 2011 judgment, the apex court was critical of the fact that the authorities had filed a reference and claimed a non-existent nexus between misuse of a public official’s authority and accumulation of assets beyond known sources of income.
No such nexus was claimed by the prosecutors in this case. The Trial Court’s judgment was based entirely on the presence of disproportionality without sufficient explanation, which is enough to convict.
In fact, the SC’s Panama verdict briefly cited towards the 2011 judgment, and did not mention any requirement of nexus between misuse of public authority and ownership of benami property for the purposes of conviction.
Consequently, the Sharifs’ best bet would be to tackle the Trial Court’s handling of the evidence.
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In appeal, it will have to be determined by the High Court whether the prosecution fulfilled its burden of proof (prima facie) that the Avenfield apartments were not purchased from the sources of incomes shown by the accused.
The Trial Court found that the prosecution fulfilled its burden of proof based on circumstantial/secondary evidence such as:
Documents showing Maryam’s connections with the holding company of the company that owned the Avenfield apartments; digital media such as video clips purporting to show various members of the Sharif family uttering words of possession and/or association with the Avenfield apartments at various times; the Sharif family living in the apartments since the year 1993; the British Virgin Islands' attorney general verifying Maryam’s beneficial ownership of the offshore companies and Nawaz being chairman of a Dubai offshore company owned by his son.
The culmination of all the circumstantial/secondary evidence led the Trial Court to determine that “the entire family…are one and the same monolith” in terms of culpability.
The Trial Court deemed credible the prosecution’s use of Joint Investigation Team’s (JIT) chart of the Sharif family’s assets and liabilities as their “known sources of income,” which was contrasted with the Avenfield properties to show disproportionate source(s) of income.
The Trial Court found that the Sharif family’s explanation(s) did not reasonably account for possession of such properties.
The infamous trust deed document purporting to show Maryam as a trustee and Hussain Nawaz as the beneficiary owner was dismissed by the Trial Court for the same reasons as the JIT Report (Calibri font).
The narration of investment with the Qatari royal family was deemed insufficient due to lack of corroboration.
The lack of production of documents of incorporation and articles of association of the offshore companies was impugned against the Sharif family as lack of sufficient explanation.
The lack of production of witnesses and presentation of additional documents also contributed to the lack of satisfactory explanation in the eyes of the Trial Court.
Finally, the Trial Court came to a conclusion that it was Nawaz’s unaccounted for money that purchased the apartment in 1993, and not the children, as they were held too young to have tangible assets.
It is settled law that circumstantial evidence should be of a conclusive nature. It should exclude every possible hypothesis except the one to be proven, and there must be a chance of evidence complete to the extent that it does not leave reasonable ground for conclusion consistent with the innocence of the violators.
This principle will hold the key in the adjudication of the appeal and suspension of sentence (pending appeal).
Illustration by Mushba Said
12005 YLR 1283, Sindh High Court.
22010 PLD 353, Lahore High Court
32002 PLD 74, Lahore High Court.
42012 SCMR 997, Supreme Court
52018 Pcr. LJ 610, Sindh High Court
62002 YLR 3996, Lahore
9PLD 2011 Supreme Court 1144
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