Joint trial to create confusions: IHC

Issues detailed verdict on former PM’s plea

December 07, 2017

ISLAMABAD - The Islamabad High Court Wednesday issued detailed verdict in a petition wherein former prime minister Nawaz Sharif was seeking framing of joint charges and joint trial in three references pending before the Accountability Court.

Earlier, in its short order on December 4, the IHC division bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani had turned down the petition moved by the former prime minister.

He was seeking framing of joint charges under section 17(d) of the National Accountability Ordinance (NAO) 1999 while the court said that it is not mandatory rather a discretionary clause.

The dual bench noted in the verdict that joinder of charge will create ambiguities and confusions . To the apprehension of the petitioner that cross-examination on same prosecution witness again and again will expose defence of the petitioner; IHC division bench said that the petitioner could file an application in this regard before the AC seeking joint cross-examination of the prosecution witnesses those are common in the three corruption references.

The bench said that this court as court of appeal has limited jurisdiction. The bench said in the verdict: “This court while hearing a petition under article 199 of the constitution, is not sitting as a court of appeal and the scope, on the basis of which a challenge can be made, is very restricted. In this behalf, it is trite law that a petition under Article 199 of the Constitution, does not lie against an interlocutory order unless the same is patently illegal or suffers from jurisdictional defect.”

Earlier, the accountability court in its order had said: “Section 17(d) of the national accountability ordinance (NAO) 1999 provides a mechanism which may be adopted or not depending on the circumstances of each case. Prosecution or accused cannot insist on joint trial of offences even in the case of same kind. The accused/applicant could not justify clubbing of all the three references for a joint trail in the circumstances of the cases. In order to avoid conflicting judgments, or any likelihood of ignoring any defence that will be produced by the applicant separately in each reference, all the three references shall be decided simultaneously.”

The IHC dual bench endorsed the same observations of AC. The detailed judgment said that since Supreme Court has rejected an application in this regard, so this court cannot re-adjudicate the same matter.

The verdict said that during course of trial , charges were framed in the Flagship, Azizia and Avenfield corruption references separately, however, the petitioner filed applications before accountability court for consolidation of charges. The referred applications, filed by the petitioner in three references, were dismissed by the accountability court vide order dated November 8, 2017.

Nawaz Sharif's counsels Azam Nazir Tarrar, Amjad Hussain and Saad Hashmi had been contending before the IHC division bench that under section 17(d) of NAO, a person, accused of more offences than one, of the same kind, committed during the space of any number of years, may be charged with and tried in one trial; that the offence in question, for which the petitioner has been charged with, is section 9(a)(v) of the ordinance on the basis that during his stint as chief minister of Punjab and the prime minister of Pakistan, he acquired assets in the name of his Benamidars/Co-accused, which are beyond his known sources of income. Counsels further contended that accountability court dismissed applications filed by the petitioner without taking into consideration the requirements of section 17(d) of the ordinance and relevant law, despite a clear direction by an IHC bench.

His counsels in support of contention said that consolidation of charges is permissible and they relied upon the cases of Noorshad vs Chairman national NAB, Ramesh M. Udeshi Vs the state etc and several others. Reliance was also placed on the decision of accountability court No. III, Sindh in the case Anwar-ul-Haq Abbasi, Muhammad Irshad Parachi etc. In the said case AC Sindh through its judgment dated June 15, 2015 said that joinder of charges was allowed.

The counsels had contended that in the two references of Flagships and Al-Azizia charge is one under section 9(a)(v) whereas in Avenfield corruption reference charge is also under section 9(a)(iv) of NAO 1999. Nawaz Sharif counsel had submitted that in Al-Azizia and Flagship the charges should be joined. He further argued that the charge under section 9(a)(iv) should be deleted from the Avenfield reference as it is not relevant.

The counsels also submitted that separate trial shall prejudice case of the petitioner inasmuch there are common witnesses and since the cross-examination is to take place separately, the petitioner shall disclose his defence to the witnesses and when appear in the subsequent references, they will cover up the shortcomings. To this, NAB prosecutor submitted that the petitioner already exposed his defence when he addressed in the parliament on April 5, 2016 when he made a statement regarding acquisitions of the properties. IHC bench said that the petitioner can file an application to the trial accountability court for joint cross-examination of the witnesses those are common in the corruption references.

A NAB prosecutor had argued that separate references have been filed on the principles of parity as provided in section 222 and 233 in Criminal Procedure Code (CrPC). He further submitted that section 17(d) is not mandatory rather discretionary power lied with the court. IHC bench noted that the use of word ‘may’ in section 17(d) clearly indicates that it is discretion of the court. Although the court cannot read the word ‘may’ as carte blanche to use its jurisdiction injudiciously under misconception that the word 'may' gives the court unchecked, unfettered and un-interfered discretion to exercise its own authority.

IHC dual bench said: “We have gone through the case laws, and in view thereon, we are of the opinion that the word ‘may’ is discretionary and enabling word, unless the subject matter shows that the exercise of power given by the provision using the word ‘may’, was intended to be imperative by the person to whom the power is given.”

It continued that in respect of the nature of events and in view of the offices the accused Nawaz Sharif held from 1985 till 2017 during which time he allegedly accumulated wealth beyond known sources of income; it is difficult to joint charges at this stage as it will create ambiguity and confusion while referring each and every property/assets and getting answer from the accused. Referring to a judgment of Balochistan High Court the bench observed that the accused cannot insist on joinder of charges.

IHC bench said that the petitioner did not agitate joinder of charges before the Supreme Court in his review petition. However a civil miscellaneous application of the petitioner in this regard was also dismissed by the apex court on November 16.

The bench added that since Supreme Court has rejected an application in this regard, so this court cannot re-adjudicate the same matter. Further the petitioner is not facing double jeopardy and facing the same trial again and again.