ISLAMABAD: The Islamabad High Court (IHC) on Monday admitted for regular hearing a petition filed by former prime minister Nawaz Sharif seeking suspension of his sentence in the Al-Azizia reference and issued a notice to the National Accountability Bureau (NAB).
The IHC bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani also admitted appeals filed by Mr Sharif and NAB against the accountability court’s verdict in the reference.
Mr Sharif is seeking the IHC’s direction to set aside the conviction and seven-year imprisonment in the Al-Azizia reference whereas NAB has filed the appeal to enhance the sentence to 14 years.
In the NAB appeal against the acquittal of the former premier in the Flagship Investment reference, the court sought further record from the prosecution agency and adjourned all the petitions and appeals in both Al-Azizia and Flagship Investment references for three weeks.
Lead defence counsel Khawaja Haris Ahmed pointed out before the court certain ‘extraneous’ factors which were part of the accountability court’s verdict. For example, the appeal identified Para 13 of the judgement and contended “the learned trial judge has proceeded to pass generalised and sweeping remarks lamenting about rampant increase in corruption in the society”.
Former PM’s petition seeking suspension of his sentence has also been admitted for hearing
The appeal said: “In doing so the learned trial judge has not only betrayed his inherent bias and predisposition while deciding the case against the appellant, he has also exceeded his jurisdiction as a trial judge, in that such generalised remarks and sweeping statement have no relevancy for purpose of deciding the guilt or innocence of an accused in a criminal trial as such a decision is to be taken strictly in accordance with law, which requires the court to confine itself within the parameters of the charges framed in the case, the admissible evidence brought on the record and proved in accordance with law, rather being influenced by his own subjective perception and observations.”
It added: “The socialist and class divisive observations made by the learned trial judge in Para 14 of the judgement are not only extraneous to the record of the case, in that during the trial no witness had complained or otherwise deposed that resorting to the corruption and corrupt practices by one set of our society has amassed unprecedented wealth and accumulated huge assets, and the other segment of the society has drowned down forced to lick clay.
“Such an observation indicates an inevitable predisposition of the mind of the learned judge in harboring an inherent bias towards the more affluent people of the society.
“Not only the aforesaid observations of the learned trial judge are in derogation of the principles governing administration of criminal justice in Pakistan, and of the principle of fair trial as guaranteed to all citizens of the country by virtue Article 10-A of the Constitution…[these] are tantamount to condemning the appellant even before considering whether evidence brought on the record is sufficient to hold him guilty of committing any offence as charged.”
Another ground of the appeal was that the accountability court presumed Mr Sharif as owner of the ASCL and HME on the basis of remittances made to him by his son Hussain through HME. However, the appeal while referring to Section 5(d)(i) of the National Accountability Ordinance, 1999, i.e. one who has enjoyed from the benefit of an asset, but does not qualify him to be the “owner” of the asset from which such remittances may have originated said that the “receipt of remittances by the appellant from his son or his sole proprietorship i.e. HME, is the benefit the appellant has enjoyed”, therefore, “the appellant may thereby fall within the category of an “associate” as defined in section 5(d)(i) of NAO, 1999, but not as an “owner” of HME.
In the appeal against the acquittal in the Flagship Investment reference, NAB alleged that accountability judge Malik “acquitted the accused [Mr Sharif] from the charge without proper appreciation of the prosecution evidence and the same is unwarranted, based on misreading and non-reading of cogent evidence, against the facts and legal justification and is liable to set aside”.
As per the charge sheet, the former premier has been accused that he “injected an amount of GBP 3.2 million” in Flagship and other UK-based companies of Hassan Nawaz. The charge sheet accused Mr Sharif of “the accumulation of the above said assets” in the names of children.
The appeal stated that the court has noted that Mr Sharif, holding the high-profile portfolios since 1985, was the most influential person of monolithic and tightly connected family. The accused is the father of the benamidar who was instrumental in establishing the companies and provided with working capital of GBP3.2m to these companies.
According to the appeal, “this fact duly establishes the factum that the working capital mentioned in the charge is provided to the absconding accused [Hussain and Hassan].
This finding coupled with the observations in the impugned judgement negates the presumption of innocence and is sufficient to convict the accused.”
It claimed that “the prosecution has shifted the initial burden cast by law upon the prosecution but the accused had not tendered any evidence to account for these assets or rebut the evidence of the prosecution”.
The accountability judge acquitted Mr Sharif in the Flagship reference and declared: “Whilst the possibility of the accused no. 1 [Nawaz Sharif] being the real beneficial owner of the assets referred to in the assets referred to in the charge cannot be ruled out…the court is inclined to extend the benefit of the doubt to the accused no. 1. As such, while giving him benefit of doubt, I do hereby acquit him of the charge as framed against him personally.”
In another appeal against the accountability court’s order in Al-Azizia reference, NAB requested the IHC to enhance the sentence of ex-premier to 14 years.
Published in Dawn, January 22nd, 2019