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No option but to suspend IHC ruling on Sharifs, says CJP

Updated November 07, 2018

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Chief Justice of Pakistan Mian Saqib Nisar expresses surprise over the IHC judgement, observes that the SC had no option but to suspend it. ─ File photo
Chief Justice of Pakistan Mian Saqib Nisar expresses surprise over the IHC judgement, observes that the SC had no option but to suspend it. ─ File photo

ISLAMABAD: Expressing surprise over the Islamabad High Court’s Sept 19 judgement which had suspended sentences earlier awarded to former prime minister Nawaz Sharif and other members of his family by an accountability court in a corruption case, Chief Justice of Pakistan Mian Saqib Nisar observed on Tuesday that the Supreme Court had no option but to suspend it.

The CJP was heading a three-judge SC bench which resumed hearing a petition of the National Accountability Bureau (NAB) which has challenged the Sept 19 IHC judgement.

“The judgement has spoiled the jurisprudence so far developed in the country that deeper appreciation on merits in a case cannot be given at the bail granting stage,” observed CJP Nisar.

“We have no other option but to suspend the IHC judgement of Sept 19, 2018,” the CJP observed while referring to paragraph 28 of the judgement in which the high court had held that in the light of the obvious and glaring defects and infirmities in the judgement of the accountability court, the high court had formed a prima facie (tentative opinion) that the convictions and sentences handed down to Mr Sharif and other members of his family might not be ultimately sustainable.

“Is this the kind of judgements which could be rendered by the high court while dealing with bail petitions?” the chief justice asked, saying the high court should have taken up the appeal against the conviction first to decide the same.

Explains high court’s judgement spoils jurisprudence that deeper appreciation on merits in case cannot be given at bail granting stage

The CJP observed that the IHC had given an ultimate finding in its judgement. But Mr Sharif’s counsel Khawaja Haris Ahmed contended that it was a tentative observation on the part of the high court.

Accountability judge Mohammad Bashir awarded 10 years imprisonment to Mr Sharif, seven to his daughter Maryam Nawaz and one to his son-in-law retired Captain Muhammad Safdar in the Avenfield apartment reference on July 6, 2018.

A division bench of the IHC suspended the sentences on Sept 19 while accepting petitions of the Sharifs against them.

Taking up the petition of NAB against the IHC judgement, the SC on Oct 24 issued notices to the Sharifs.

CJP Nisar on Tuesday asked Khawaja Haris as well as NAB special prosecutor Akram Qureshi to furnish their propositions and formulations explaining their respective stands which will be taken up by the court again on Nov 12 (Monday).

The CJP wondered whether the counsel wanted the apex court to hold that the writ jurisdiction of the high court was on a par when the ordinary laws like the criminal procedure code do not apply in matters relating to special courts like NAB (accountability) courts.

He said it was not the job of the high court to fish or indulge in roving inquiry to find out errors in the trial court’s judgement.

The apex court asked the Sharifs’ counsel to point out errors or defects in the trial court judgement which had become basis for the suspension of the conviction.

The counsel explained that the trial court had held that his client possessed assets beyond his known sources of income. In a nutshell the trial court had held that upscale Avenfield apartments in London belonged to the Sharifs, he added.

On one point, the CJP reminded the counsel that he had to listen to the court first and then respond, adding he could lose his temper in the trial court or the high court, but not here in the apex court.

The counsel argued that the prosecution had to first quantify the known sources of income of his client. But, he added, in the entire verdict of the trial court there was not a single mention about the value of the properties in question.

On the question of the CJP that to whom the assets belonged, the counsel said they belonged to Mr Sharif’s son Hussain Nawaz.

Whether the assets came out of nowhere, the CJP observed, adding the onus to prove innocence was on the accused on the principle of strict liability.

But the counsel argued that it was for the prosecution to prove that the properties were amassed beyond known sources of income. The CJP, however, insisted it was for the accused to explain that the assets were not acquired through illegal means.

The counsel, however, said that until NAB proved that the accused did not have enough means to possess the assets, the burden to prove innocence was not on the accused. The SC had already held the same in four different judgements that it was the burden upon the prosecution to prove guilt, he added.

The CJP observed that the apex court had shown a great courtesy by referring the matter to the trial court in the Panama Papers case, otherwise it could have held the Sharifs as accused in the matter.

At the outset of the proceedings, Khawaja Haris congratulated CJP Nisar for his successful cardiac procedure at the Rawalpindi Institute of Cardiology. “We hold the CJP in high esteem and it is a great relief that he is in good health,” he said.

Mr Haris said being a friend of the court he would like to advise the CJP to take some time off instead of holding the court.

CJP Nisar, however, replied that his doctor had not allowed him to resume work, adding that a doctor was sitting in an adjacent room. He said he could not absolve him of his responsibilities because the case at hand was of sensitive nature.

This was not the matter of a person, but the development of the jurisprudence and the law, the CJP said.

At the end of the proceedings, Akram Qureshi recalled that CJP Nisar used to tell him that the matters of health should be taken seriously.

On this, the CJP said he could not answer this question in the open court, adding that institutions of this country were of paramount importance to him.

Published in Dawn, November 7th, 2018

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