In major relief, IHC acquits Nawaz Sharif in Avenfield reference

Published November 29, 2023
PML-N leader Nawaz Sharif is seen alongside his party members outside Islamabad High Court on Wednesday. — DawnNewsTV
PML-N leader Nawaz Sharif is seen alongside his party members outside Islamabad High Court on Wednesday. — DawnNewsTV

In a massive relief for the PML-N, the Islamabad High Court (IHC) on Wednesday acquitted former prime minister Nawaz Sharif in the Avenfield reference.

The verdict was announced by a two-member bench comprising IHC Chief Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb on Nawaz’s appeal against his conviction in the case.

In July 2018, an accountability court had handed the PML-N leader 10 years in jail in the Avenfield properties corruption reference for owning assets beyond known income and one year for not cooperating with the National Accountability Bureau (NAB), both of which were to be served concurrently.

The IHC had declared him a proclaimed offender in the case in December 2020. After leaving for London on medical grounds, Nawaz remained there for nearly four years and only returned to the country last month.

Following his return from the UK, the PML-N leader had filed an application seeking the restoration of his appeal against his conviction.

He had contended that while he was abroad for medical treatment, the pen­­ding appeals were dismissed for non-prosecution. The plea req­u­ested the court to revive the pending appeal for a decision on them on merit. Last month, the IHC had restored the appeal in question.

Today, the court set aside the accountability court’s verdict and accepted Nawaz’s appeal.

Speaking to reporters after the hearing, the PML-N supremo said: “I thank God as I had left the entire matters on him. God has made us victorious today.”

Separately, in a post on X (formerly Twitter), Maryam Nawaz said today’s verdict showed how God vindicated those who put their unwavering trust in him.

Acquittal ‘long time coming’, say legal experts

Speaking to Dawn.com, lawyer Abdul Moiz Jaferii said the acquittal was a “long time coming”.

“If it had occurred when it was due back when the appeal was filed, it would be newsworthy. It would have been an example of justice being done,” he said.

Jaferii added that currently, the only ones “feigning surprise about the weakness of the trial are the judges of the IHC”. He remarked that it was the same IHC which was “blind to these weaknesses when their intervention would have meant justice”.

Lawyer Rida Hosain said the next hurdle for the PML-N supremo would be his appeal against the conviction in the Al-Azizia reference.

She said Nawaz’s conviction in the Al-Azizia reference would either need to be set aside or suspended for him to be able to contest the upcoming elections.

“Interestingly, NAB — which initially prosecuted these cases with extreme vigour — has had a visibly different attitude at the appellate stage. The accountability watchdog should explain the reason for this shift,” she said.

Hosain pointed out that there was a Supreme Court judgment disqualifying Nawaz in the Panama Papers case under Article 62(1)(f) for not being ‘honest’ and ‘truthful’ (ameen and sadiq).

“Subsequently, the Supreme Court held that a disqualification under this article would be for life. The lifetime disqualification judgment was harsh. However, as far as the lifetime disqualification goes, the Pakistan Democratic Movement government made various amendments to the Election Act 2017.

“One of these amendments states that a disqualification under Article 62(1)(f) shall be for a period not exceeding five years from the declaration by a court. This amendment attempts to undo the lifetime disqualification judgment by introducing a five-year time period. Crucially, the amendment to the Election Act 2017 has not been set aside by a court as yet,” she said.

Hosain said there was a possibility that the amendment was challenged on the basis that the court’s interpretation of the Constitution could not be undone through ordinary legislation. “If a time limit is to be added in Article 62(1)(f), it should have been done through a constitutional amendment. On the other hand, Nawaz Sharif could argue that since the Constitution is silent, this gap could be addressed through the law,” she added.

Hosain further said that another possibility existed if the issue ultimately reached the apex court as “a larger bench could depart from the view that a disqualification under Article 62(1)(f) shall be for life.”

Meanwhile, Advocate Muhammad Ahmad Pansota said it was “interesting” to see NAB withdrawing its appeal against Nawaz’s acquittal in the Flagship reference.

“Previously in the Hudaibiya Paper Mills case, NAB filed an appeal with a considerable delay before the Supreme Court and now this. This appears to be a travesty of justice,” he opined.

Pansota also said that Nawaz’s Panama disqualification still “stands”, adding that the previous government had attempted to undo it through an act of Parliament.

“Interestingly, there is a SC Judgment which holds that disqualification under Article 62(1)(f) is lifetime. There is a conflict between the law and the Supreme Court judgment which, in my view, may be resolved when Nawaz Sharif files his nomination papers for contesting elections,” he said.

“The same will be challenged by his opponent and the matter will eventually go till the apex court where it is likely to be settled,” he observed.

Advocate Usama Khawar said that due to the Panama disqualification and the Azizia conviction, Nawaz “still faces two significant hurdles” for his electoral prospects.

“Nawaz Sharif has a disqualification under Articles 62 and 63 by the Supreme Court in July 2017 in the Panama case. There is a Supreme Court judgment indicating that a person disqualified under these articles would be disqualified for a lifetime if the time period of disqualification is not provided.

“Additionally, there’s another Supreme Court judgment barring persons disqualified under Articles 62 and 63 from becoming the head of a political party. This lifetime disqualification is reinforced by the Supreme Court’s interpretation in the Sami Ullah Baloch case, where it held that the term of disqualification is indefinite where not specifically written, making the disqualification permanent,” Khawar said.

He added that while the Elections (Amendment) Act 2023 introduced the five-year disqualification period and thus added a “layer of complexity”, ultimately “its application to cases like Nawaz Sharif’s would depend on how the judiciary interprets and applies the amendment retroactively or prospectively.”

Khawar said the “constitutional perspective” was that ordinary legislation like the amendment could not override the Constitution, adding that the apex court’s interpretation of Articles 62 and 63 declaring disqualification as a lifetime ban held “significant weight”.

Reiterating that while the amendment could impact future cases, “for its application to cases like Nawaz Sharif’s, a competent court, such as a high court or the Supreme Court, would need to interpret the retroactive or prospective application of the amendment.

“Until a court of law declares the amendment contrary to the Supreme Court’s judgment in the Sami Ullah Baloch case, Nawaz Sharif’s disqualification remains in force. The legal landscape surrounding his eligibility will likely be shaped by the judiciary’s interpretation of this new amendment.”

The hearing

As the proceedings commenced, Nawaz’s lawyers came to the rostrum. Advocate Amjad Pervaiz contended that the accountability court had acquitted the PML-N supremo from Section 9A of the NAB Ordinance in the Avenfield reference.

Now, only section 9A(5) is remaining in the case which pertains to assets beyond means, the counsel said and then proceeded to read the law out loud in court.

“Under Section 9A(5), the prosecution has to prove certain facts and the accused is required to be shown as a public office holder,” he said. The law states that the accused’s income should not match with his assets, the lawyer added.

“I think Nawaz’s sentence was suspended on the same basis,” Justice Aurangzeb said here. “We relied on several judgments of the Supreme Court for the verdict on the suspension of the sentence,” he said.

The judge added that later the apex court had further elaborated on the matter and directed the lawyer to assist the court on this.

Continuing the arguments, Pervaiz said the investigation agency has to investigate the source of the assets at the time of their acquisition and compare known sources of income with the value of the assets.

“But this case is such that its contents have yet not been proven,” he said, adding that the investigators failed to prove all the sections of crime.

Subsequently, the lawyer submitted date-wise details of Nawaz’s assets in court.

At that, the IHC CJ asked if if these assets were requisitioned at the same time or separately. “These properties were obtained from 1993 to 1996,” the lawyer replied, highlighting that nowhere it was written in the reference that these properties were linked to Nawaz.

“Whether it is the joint investigation team, NAB reports, references or statements, the value of these properties were not written anywhere,” he contended. “There is not a single page that can prove Nawaz had any connection with these properties.”

Pervaiz further stated that Wajid Zia, the prosecution witness, had also stated during the cross-examination that he had no evidence to prove the PML-N supremo’s connection with the properties.

“Do these documents include the date of acquisition of the properties and their value?” Justice Farooq asked. The PML-N counsel responded that the details were mentioned in some documents but they did not have any information that could prove Nawaz’s connection with the properties.

Pervaiz further pointed out that the most important question was that of the ownership of the properties. “There is no verbal nor documented evidence that these properties were ever owned by Nawaz Sharif,” he said.

The lawyer added that prosecution had to prove Maryan Nawaz, Hussain Nawaz and Hassan Nawaz were under the patronage of the PML-N supremo. “But there is no evidence for that either,” he argued.

Pervaiz also reiterated that there is no evidence the properties were ever under the ownership of Nawaz.

“Is this all the job of the prosecution?” the IHC CJ asked, to which the lawyer replied in the affirmative.

At one point, Justice Aurangzeb asked the NAB prosecutor if he was noting the points highlighted by Pervaiz. “He is talking about very important things,” the judge highlighted.

“Yes sir, I am noting,” the prosecutor replied but Justice Aurangzeb cut him short and said that the former did not have a pen in his hands, prompting laughter in the courtroom.

Meanwhile, Pervaiz went on to say that the prosecution was also responsible for explaining how the public office was used to acquire “benaami properties” and read orders issued by the SC regarding the matter.

“We are aware of the main contents of benaami under the criminal law,” Justice Aurangzeb said and directed the lawyer to assist the court regarding the same under the NAB Ordinance.

Pervaiz contended that the court announced the verdict on “the basis of assumption” and penned the verdict on the basis of generality not evidence.

The court had said Maryam Nawaz was a beneficial owner and also under the patronage of the PML-N leader, he pointed out, adding that it was also written that children were in most circumstances dependent on their father.

He recalled that the Lahore High Court had earlier acquitted a NAB suspect, Intelligence Bureau’s former brigadier Imtiaz, on the basis that the accountability watchdog had determined the value of his alleged properties without determining his income.

“The SC had also maintained this decision and did not give a differing judgment,” the PML-N counsel highlighted, adding that the IHC had also upheld the same in the Avenfield case against Maryam Nawaz.

Referring to this verdict, Pervaiz stated that the court had ruled that the prosecution did not have a single document to prove as evidence in the case. When the court asked whether this verdict was “binding”, the lawyer replied in the affirmative, saying that it had not been challenged by the accountability watchdog.

Here, Justice Aurangzeb stated that the court had recently issued an order under which four categories needed to be proven pertaining to benaami properties or accounts.

For his part, the NAB prosecutor said the reference was filed due to the SC’s judgment to which the Justice Aurangzeb noted that the court’s understanding was that the accountability watchdog was compelled to file the reference.

At one point, the NAB lawyer was asked why the bureau did not challenge Maryam’s acquittal. To this, he said that the bureau did not challenge the acquittal at the time and the judgement was now “final”, therefore, he could not present arguments in this regard.

“So should Nawaz Sharif’s appeal also be allowed? Then what are we doing here?” asked Justice Aurangzeb.

When the court asked NAB about Nawaz’ acquittal in the flagship reference, the lawyer told the court that the bureau would like to take back the plea filed against the verdict. “These are the instructions we have been give,” he said.

The court then disposed of NAB’s plea to withdraw its appeal against Nawaz’s acquittal in the flagship reference.

The case

The Avenfield reference pertains to the purchase of four flats in Avenfield House, Park Lane, London. It was among the three cases filed by NAB against the former premier and his children on the Supreme Court’s orders in its landmark July 28 Panamagate verdict.

The proceeding in the Avenfield reference had commenced in September 2017 and an accountability court had indicted Nawaz, Maryam Nawaz and Captain Safdar on October 19, 2017.

According to the JIT report submitted in the Panamagate case, the Sharifs had given contradictory statements about their London flats and found that the flats actually belonged to them since 1993.

It said Nawaz had distanced himself from the apartments and could not explain the time frame and procedure adopted for obtaining the possession of Avenfield apartments by his sons and was even uncertain about which son claimed the ownership of the flats now.

An accountability court in July 2018 had handed Nawaz 10 years as jail time for owning assets beyond known income and one year for not cooperating with NAB in the case, as well as a fine of £8m.

Last year, the IHC had acquitted Maryam and her spouse retired Capt Safdar of the charges levelled in the Aven­field apartments reference and set aside an accountability court’s July 2018 verdict.

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