• Apex court will ensure justice prevails, observes CJP-designate Khosa
• Fawad insists decision doesn’t effect any change in practical terms
• Ex-PM to remain in prison in another reference
ISLAMABAD: Chief Justice-designate Asif Saeed Khosa has said loud and clear that the Supreme Court will ensure that justice prevails by securing fair trial as long as the Constitution is there.
Justice Khosa made this observation on Monday while throwing out the National Accountability Bureau (NAB) appeal against the Sept 19, 2018 order of the Islamabad High Court that had suspended the jail terms awarded to former prime minister Nawaz Sharif and his daughter Maryam Nawaz in the Avenfield apartments reference.
“No matter what the gravity of the situation is, as long as we have a constitution, we will make sure that justice prevails by ensuring fair trial, which is a fundamental right,” observed Justice Khosa, who was a member of the five-judge SC bench.
He intervened when Justice Gulzar Ahmed cited the example of China where those found guilty of white-collar crime were put before a firing squad or hanged after a summary trial.
Chief Justice of Pakistan Mian Saqib Nisar said he had been reminding the government, time and again, to update the laws concerning white-collar crime by bringing changes to the rules of proof in corruption cases.
Legal observers are of the opinion that the dismissal of NAB’s appeal will benefit the former premier who is also seeking suspension of his seven-year imprisonment in the Al-Azizia reference, which is based on the same JIT report that was filed in the Avenfield reference. The hearing of the plea for suspension of the sentence in the Al-Azizia reference may be taken up by the high court on Jan 21.
At the last hearing, the Supreme Court had constituted the five-judge larger bench to determine a set of questions it had formulated about the scope of the constitutional jurisdiction for the grant of bail during investigation/trial or release on bail by way of suspension of sentence. The 17-point legal questions were formulated by the apex court with the assistance of NAB’s special prosecutor Akram Qureshi and defence counsel Khawaja Haris Ahmed.
On July 6, 2018, Judge Mohammad Bashir of the accountability court deciding the Avenfield apartment reference had awarded 10-year imprisonment to Nawaz Sharif, seven years to his daughter Maryam Nawaz and one year to his son-in-law retired captain Mohammad Safdar. Two months later, a division bench of the IHC accepted their petitions seeking suspension of the sentence and set them free on Sept 19.
When NAB’s appeal came up for hearing before the five-member bench on Monday, Justice Khosa wondered why the bureau was pursuing the instant case when the former prime minister’s plea challenging his conviction was pending before the high court. He reminded NAB’s special prosecutor that there was no allegation that he (Mr Sharif) had ever abused the facility of bail while he used to appear before the trial court regularly. He was not a free man and already behind bars, remarked the chief justice-designate.
“Do you want your pound of flesh?” Justice Khosa remarked, quoting from TheMerchant of Venice. But he hastened to add that he would be blamed again if he quoted a word from literature. He was apparently referring to the line ‘behind every great fortune, there is a crime’ from Mario Puzo’s novel that he mentioned in the Panamagate judgement on April 20, 2017.
Earlier, the counsel for Mr Sharif, Khawaja Haris, sought the court’s permission to argue on the aspect that the questions earlier framed by the apex court tended to prejudice his appeal before the high court.
The bench asked NAB’s special prosecutor, Akram Qureshi, to highlight salutary provisions for bail cancellation.
Chief Justice Nisar observed that the high court had already granted bail to the accused and there was every possibility that the court might have granted the bail on a wrong application of principles.
Justice Gulzar asked NAB to cite the basis on which the apex court should undo the decision of the high court, wondering why the bureau had challenged only one part of the order.
“What harm has come in your way? Has he (Nawaz Sharif) been acquitted?” Justice Khosa remarked, while reminding the special prosecutor that the high court in its order had already held that its observation was tentative in nature.
Justice Khosa said the principles for the grant of bail and those for the cancellation of bail were different. He explained that there was no ground for interference by the Supreme Court unless there were allegations of misuse of concessions of bail.
Even if the high courts were convinced that the bail to an accused had not been granted in a proper manner, the higher courts never liked to interfere, he added.
Justice Khosa also reminded the prosecutor that the SC would be making the same mistake of touching the merits of the case if the bench chose to discuss the case. He said one of the accused being a woman (Maryam Nawaz) was entitled to bail, while her husband deserved bail as he was sentenced for one year only.
CJP Nisar then highlighted that declining bail to the accused should not be used as punishment.
Later, the bench dismissed NAB’s appeal.
Commenting on the development, federal Minister for Information and Broadcasting Fawad Chaudhry said from a legal point of view dismissal of NAB’s appeal against the suspension of Mr Sharif’s sentence was correct though the Supreme Court decision did not effect any change in practical terms, adds APP.
The minister admitted that exceptional grounds were needed to revert the Islamabad High Court decision to grant bail to Mr Sharif in the Avenfield reference.
The minister, however, asked the Pakistan Muslim League-Nawaz to elect its new leadership as politics of the former prime minister was finished forever.
Published in Dawn, January 15th, 2019