ISLAMABAD: The Islamabad High Court (IHC) in its Sept 19, 2018 judgement of suspending the jail term awarded to former prime minister Nawaz Sharif commented on deficiencies of the accountability court prematurely at a bail stage, the Supreme Court observed on Wednesday.

The observation was made by Chief Justice-designate Asif Saeed Khosa in a five-page detailed judgement that he authored after dismissing the National Accountability Bureau (NAB) appeal on Jan 14 against the IHC order.

Justice Khosa was a member of the five-judge bench, headed by Chief Justice Mian Saqib Nisar, which had taken the appeal against the IHC order of suspending the jail terms of the ex-PM and his daughter Maryam Nawaz in the Avenfield apartments reference.

“While adverting to some deficiencies in the evidence vis-à-vis the ingredients of the offence under Section 9(a)(v) of the National Accountability Ordinance (NAO) 1999, the high court failed to consider that conclusions in that regard were premature at the stage of bail or suspension of sentence because by virtue of the provisions of Section 428 [of] CrPC, additional evidence could be adduced or procured during the pendency of the appeals,” stated the detailed judgement.

Detailed judgement issued on NAB appeal against suspension of jail term awarded to Sharifs in Avenfield reference

The chief justice-designate explained that the SC had identified a number of ingredients in a number of cases pertaining to the offence under Section 9(a)(v) of NAO. But the IHC in its order did not appreciate that in these cases, the accused persons had accepted ownership or possession of the properties whereas in the present cases, Nawaz Sharif maintained that the relevant properties (Avenfield flats) did not belong to him nor was he in possession of the same.

Moreover, instead of adhering to the guidelines issued and recommendations made by the apex court in 2014 Mohammad Shakeel case about shorter format of orders to be passed in matters of bail, the IHC had written a judgement spanning over 41 pages while deciding the matter of bail of Nawaz Sharif upon suspension of the sentence.

The IHC failed to consider whether or not the above-mentioned precedent case was relevant to the cases in hand and whether in the present cases the principle of forfeiture of the defence would apply if accused persons denied ownership or possession of the relevant properties, the SC observed.

It is a settled law that while deciding an application for bail or suspension of sentence during the pendency of an appeal, merits of the case are not adverted to or commented upon in detail. However, the IHC in its judgement not only undertook a detailed assessment of the merits of the case but also recorded some categorical conclusions, Justice Khosa regretted.

The raison d’etre (most important reason) for suspension of sentence during the pendency of an appeal is that due to the peculiarities of the case, the convict may not be kept in custody till his appeal is fixed for hearing. But here the writ petition by Nawaz Sharif was taken up for hearing and decision at a time when the main appeals were also fixed for hearing, regretted the SC in its detailed judgement.

It explained that the apex court had already held in cases under NAO, bail could be granted through exercise of constitutional jurisdiction of the high court only in extraordinary circumstances and in cases of extreme hardship. But in the present case, no such extraordinary circumstances or hardship had been referred to by the IHC, according to the SC verdict.

Justice Khosa, however, observed that despite deficiencies in the high court order, the SC was cognisant of the legal position that considerations for the grant of bail and those for its cancellation were entirely different.

The chief justice-designate in the detailed verdict observed that no allegation had been levelled before the SC regarding any misuse or abuse of the concession of bail by the ex-PM. One of the respondents (Nawaz Sharif) is already in jail after being convicted and sentenced in connection with another case, while another respondent (Maryam Nawaz) is a woman and the law envisages concession for her in the matter of bail. The sentence of imprisonment passed by the trial court against yet another (Capt Mohammad Safdar) was quite short.

In the peculiar circumstances, the SC did not feel persuaded to interfere with the jurisdiction and discretion exercised by the high court, the judgement said, adding that these appeals, therefore, were dismissed.

Published in Dawn, January 17th, 2019