ISLAMABAD: The Islamabad High Court (IHC) on Thursday dismissed appeals of former prime minister Nawaz Sharif against his conviction in Avenfield and Al-Azizia references for being fugitive from law.

The court, however, left the window open for rehearing of the appeals upon his surrender or re-arrest by law enforcement agencies and production before the court.

“Appellant [Nawaz Sharif] may file an application before this court, as and when he surrenders or is captured by the authorities, for decision of the appeal on merits. Needless to observe that the said application, if and when is made, shall be decided in accordance with the law,” the court said in its order.

This means the matter would remain pending at the IHC level and Mr Sharif will not be required to challenge it in the Supreme Court as the high court has given a clear indication of rehearing, since the present appeals have been dismissed without touching merits of the case.

An IHC division bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani announced the judgement that was reserved a day earlier.

Court, however, leaves window open for rehearing of appeals upon his surrender, production; both PTI, PML-N claim victory

Mr Sharif had challenged his conviction in the Avenfield reference on July 5, 2018 — days before the last general elections — and the Al-Azizia reference on Dec 24 that year.

The IHC had in September 2018 suspended the sentence in Aven­field reference against Nawaz Sha­rif, his daughter Maryam Nawaz and son-in-law retired Captain Moh­a­mmad Safdar. The court also suspended Mr Sharif’s sentence in Al-Azizia reference and granted him bail for eight weeks. However, Mr Sharif proceeded abroad on medical grounds before the bail lapsed.

Last year, the IHC had declared Mr Sharif a proclaimed offender because of his absconsion.

In order to determine a way forward in the appeals, the high court appointed Azam Nazeer Tarar as amicus curiae for legal assistance.

Mr Tarar submitted that trial in absentia was generally declared null and void by the Supreme Court. He said that since the appeal was a continuation of trial, it could not be heard in the absence of the appellant. He argued that after addition of Article 10-A to the Constitution to ensure fair trial, there had been a shift in approach towards appeals, where appellant was fugitive from law.

Mr Tarar said that though the apex court dismissed such an appeal yet observed that same may be resurrected as and when the appellant surrendered before the authorities and wished to apply that his appeal be heard.

He also placed on record various orders passed by high courts where the appeals of fugitives were dismissed or adjourned sine die with observation that the same may be resurrected.

Advocate Hassan Nawaz Makhdoom, another amicus curiae, submitted that Article 10-A had made incumbent that every person should receive fair trial and adjudication of the matter after due process.

NAB additional prosecutor general Jahanzeb Khan Bharwana, on the other hand, argued that since Nawaz Sharif had lost right of audience for being fugitive from law, his appeals might outright be dismissed.

The court observed that there were two options — either to dismiss the appeals outright or follow the dictum laid down — as reported in recent judgements of the superior courts. In the latter case, an observation was made specifically providing option to the appellant for resurrection of appeal while dismissing the same.

The court noted that Nawaz Sharif was provided fair trial but since he has now absconded from justice at the time of hearing of appeals, Article 10-A is of no avail to him.

“Mr Sharif was provided a fair trial inasmuch as trial court provided him opportunity of hearing as well as cross-examining the prosecution witnesses and only after the proper trial, his conviction was recorded; despite being on bail, he proceeded abroad and did not appear before this court and without any justification or basis remained absent on a number of dates of hearing. Hence this court was left with no option but to follow the procedure as provided in Code of Criminal Procedure, 1898, and declare him as fugitive from law.

“In view of foregoing, since appellant is fugitive from law hence has lost his right of audience before this court and we are left with no choice except to dismiss his appeal,” the court ruled.

Political reaction

The ruling Pakistan Tehreek-i-Insaf (PTI) and the opposition Pakistan Muslim League-Nawaz (PML-N) reacted to the IHC judgement differently.

Federal Minister for Information Fawad Chaudhry termed the dismissal of Nawaz Sharif’s appeals a victory for the PTI. “Everyone knows how Nawaz Sharif escaped from the country, Sharif family should return money plundered from people of Pakistan. Today’s decision is a victory of justice as well as for the government,” he tweeted.

PML-N information secretary Marriyum Aurengzeb said the IHC had passed a “fair and just” judgement.

She said the decision was in accordance with the spirit of Article 10-A since the court had dismissed the appeals without examining the evidence and touching the merits of the case. “The case is still at the forum of the high court and will remain at this stage until Mr Sharif returns to Pakistan,” he added.

Published in Dawn, June 25th, 2021

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