WITH the eventual return of PML-N supremo Nawaz Sharif being contemplated by the incumbent government, the question has arisen whether his outstanding prison sentences will be remitted by the government before his arrival or he will apply to the courts for relief after his return.
An Islamabad accountability court had in July 2018 sentenced Mr Sharif to 10 years in Adiala jail in the Avenfield apartments reference. In September the same year, the Islamabad High Court had suspended that sentence, but Mr Sharif was arrested again in December after being found guilty in the Al-Azizia reference and sentenced to seven years’ imprisonment. He was later released for eight weeks on bail on medical grounds, following which he had proceeded to London for treatment. As he never returned to Pakistan to complete his sentences in both cases, there remains the question of what is to be done about them if he were to return now, as he reportedly wishes to.
It is worth noting that the president has broad powers to provide relief to any convict under Article 45 of the Constitution, which states: “The president shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute the sentence passed by any court, tribunal or other authorities.”
However, with the incumbent unlikely to offer any relief in this regard, this option remains closed till Dr Arif Alvi is replaced with a more sympathetic head of state. Regardless of what the president chooses to do, however, the Punjab government can act independently of him in making a decision on providing relief to a prisoner.
Because Mr Sharif was sentenced to serve time for the Al-Azizia reference in Kot Lakhpat jail, which lies in Punjab’s territory, the court, while giving him bail in that case, had reminded the provincial government that under Section 401 of the Code of Criminal Procedure (CrPC), it had executive powers to extend bail or suspend the sentence in the future.
The Punjab government therefore retains broad powers to suspend or remit Mr Sharif’s sentence in both Al-Aziza and Avenfield references under Section 401, as Adiala jail too falls in Punjab’s territory.
The court’s order stated: “The provisions of the above sub-section shall also apply to any order passed by a criminal court under any section of this Code [CrPC] or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.
“Nothing herein contained shall be deemed to interfere with the right of the president or of the central government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment. The provincial government can, on its own, pass any order regarding the suspension of sentence.
“The rationale behind Section 401 CrPC is that the provincial government on its own can scrutinise the matter and, where for reasons it believes that the sentence is to be suspended, can do so without even the convicted person agitating the matter.”
Senior lawyer and Prosecutor General of the Anti-Narcotics Force (ANF) Raja Inam Ameen Minhas noted that it is common for the government to remit the sentences of prisoners, especially on the eve of festive occasions like Eid.
However, remission or suspension of a sentence does not set aside the conviction. He explained this is because there is a legal distinction between a conviction and a sentence. A conviction means someone has been found guilty of the offence they were charged with, whereas a sentence is the punishment for being guilty of that offence.
It may be recalled here that the Supreme Court had in its 2009 judgement in Nawaz Sharif vs the State discussed the president’s power to pardon a convict under Article 45 of the Constitution. The apex court had held that the effect of grant of pardon, even in full, was not the same as an order of acquittal by a court of law.
Therefore, even if he is pardoned or receives a remission of sentences, Mr Sharif cannot hold any public office till his convictions are also overturned. Mr Sharif will still have to pursue his pending appeals if he wants his name fully cleared.
Senior lawyer Salman Akram Raja said that even though Mr Sharif is an absconder at the moment, the federal government can pardon him even before he sets foot in Pakistan under Article 45. He said the scope of CrPC, in comparison, is comparatively narrow, as remission in sentence is usually granted for good conduct.
He noted that since Mr Sharif is at large, the applicability of the powers available with the Punjab government is somewhat complicated. He, however, added that he does not believe Mr Sharif would be interested in getting such relief in the prevailing political situation.
In a recent statement to the media, federal Minister for Interior Rana Sanaullah had acknowledged that the government had ample powers to initially suspend Mr Sharif’s sentence, and that Mr Sharif can later approach the courts for setting aside his conviction. He said that it depends upon Mr Sharif as to when he will seek such remedy.
A senior leader of the PML-N said that in the current scenario, the PTI will try to take political advantage of any relief extended to the Sharif family by the government, even if it is provided under the law. Therefore, the former prime minister may not take such relief at all.
Mr Sharif would instead prefer to adopt the legal course when he returns: surrender before the court and then go to jail, which can give his party some political mileage. He had already done this in 2018, when he returned from London on July 13, ahead of the general elections later that month, to serve his sentence in the Avenfield apartments reference.
Published in Dawn, May 17th, 2022