ISLAMABAD: Former prime minister Nawaz Sharif in his reply to an appeal filed by the National Accountability Bureau (NAB) against his release argued before the Supreme Court on Saturday that there would be no recompense for the period he would spend in jail if he was ultimately acquitted while no loss to the state would ensue in case of his release on bail.

He emphasised that continuing incarceration of a convict pursuant to a judgement that prima facie suffered from glaring legal defects would constitute a ‘case of hardship’. “In this situation, the convict prima facie would be unjustly bereft of his right to life, liberty, dignity and freedom of movement as guaranteed by Articles 9, 14 and 15 of the Constitution,” the ex-PM argued.

A three-judge bench, headed by Chief Justice of Pakistan Mian Saqib Nisar, is seized with the NAB’s appeal challenging the Sept 19 order of the Islamabad High Court (IHC) of suspending the jail term awarded to Nawaz Sharif and his daughter Maryam Nawaz.

Earlier on Tuesday, the SC had asked NAB’s special prosecutor Akram Qureshi and the counsel for the Sharifs, Khawaja Haris Ahmed, to furnish their propositions and formulations explaining their respective stands which would be taken up by the court on Nov 12 (tomorrow).

Argues that continuing his incarceration despite legal defects in judgement will constitute a case of hardship; SC to take up matter tomorrow

Subsequently, Mr Sharif along with his daughter furnished their reply through their counsel pleading before the apex court to dismiss the NAB appeal against the IHC order that had suspended the sentence awarded to them by an accountability court on July 6.

The reply to the appeal emphasised that the underlying principles developed by the Supreme Court in a number of judgements revolve around the constitutional guarantees that ensure fundamental rights of citizens.

Continuing incarceration of convicts pursuant to a judgement that prima facie suffered from glaring legal defects amounted to breach of the rule of due process as mandated by Article 4 of the Constitution, argued the ex-PM in the statement, adding that in such a case there would be no recompense for him for the period spent in jail if he was finally acquitted. But no loss to the state would ensue if the convict is released on bail pending an appeal under Section 426(3) of the criminal procedure code.

The statement challenged that the 2014 Mohammad Arshad case could not be relied upon in cases involving convictions under the National Accountability Ordinance (NAO), 1999, yet the prosecution in its appeal relied on the 2014 case that deals with convictions recorded and sentences awarded under the Anti-Terrorism Act, 1997.

Besides the judgement imposing the condition of hardship as advanced by NAB relates to the Suppression of Terrorist Activities (Special Courts) Act, 1975 or the 1992 Qaim Ali Shah case. Such condition of hardship, as relied upon by the prosecution, has been laid down by two of the five members of the Supreme Court when two other members disagreed by holding that no embargo at all can be placed.

In the 1991 Allied Bank case, the Supreme Court held that the power to suspend or grant bail to convicts could be invoked by the high court in cases involving exception circumstances. Thus in the Qaim Ali Shah case, Article 199 of the Constitution, and as a corollary, the ambit of the high court in the matter of grant of bail despite such complete ouster of jurisdiction were never figured.

The reply emphasised that Section 9(b) of NAO should be read in the context of 2001 Asfandyar Wali case in which the apex court held that in cases of statutory ouster of jurisdiction to grant bail, Article 199 was always available with superior courts to grant bail and consequently, section 9(b) NAO was held to be ultra vires.

In none of the cases for grant of bail under NAO which came up before the superior judiciary, the principle of hardship was ever applied as a condition precedent to grant bail, the reply said.

The reply contended that the prosecution was bound to prove each of the essential ingredients of the offence falling under Section 9(a)(v) of the NAO including quantification of the assets as well as the known sources of income of the accused, before the burden shifts to the accused as was held in 2011 Khalid Aziz case.

About defects in the trial court judgement, the statement pointed out that the Sharifs had been held to be the actual owner of the Avenfield properties despite the fact that no evidence whatsoever had been referred to in the trial court judgement for arriving at this conclusion.

Rather a ‘presumption’ was drawn that since the time at which one or the other son of the accused came to possess or acquire the Avenfield properties, they were financially dependent upon their father as they had no source of income of their own, the statement pointed out.

It was urged before the high court that this presumption was not supported by any provisions of law, the reply pleaded, as no evidence of dependency was produced by the prosecution.

Even if any such presumption could be drawn, the fundamental legal defect in the judgement of the learned trial court with reference to this finding is that while recording statement of the accused under Section 342 of the CrPC, he was never put to notice that any such presumption might be made by the trial judge to form the basis of his conviction, in that no question was put to him that anyone or all of his children were his dependants at the time of acquiring the Avenfield properties, the statement added.

Published in Dawn, November 11th, 2018