ISLAMABAD   -  Former prime minister Mian Nawaz Sharif in his reply to the Supreme Court contended that the Islamabad High Court’s observations on Accountability Court verdict in Avenfield reference are tentative in nature.

Advocate Khawaja Haris, on behalf of Nawaz Sharif, on Saturday submitted concise statement on an appeal of National Accountability Bureau (NAB), wherein the accountability watchdog challenged the IHC judgment regarding suspension of sentences of Sharifs.

The 26-page concise statement comprising the arguments on Sharif’s stance in IHC, arguments on whether the bail could be granted in corruption case after conviction, IHC’s observations on merits of the case in verdict on suspension of Sharif’s terms.

Earlier during the previous hearing of the case, Chief Justice Mian Saqib Nisar while heading a three-judge bench had observed that IHC had spoiled the jurisprudence.

“As regards the observation made therein that there are obvious and glaring defects and infirmities in the judgment, it is again humbly submitted that, as is noted in the judgment of the learned Islamabad High Court itself, this observation is only ‘prima facie’ and based on ‘tentative opinion’,” argued Sharif on the top court’s reservations that IHC went into deeper appreciation of merits on bail matter.

It is further stated that IHC’S verdict spreads on 41 pages which include arguments and pre-condition for grant of suspension of sentence and release on bail, adding the actual reasons for suspension of sentence are discussed in the 12 pages.

“Hence, it is submitted with respect that the judgment does not in any manner enter into the realm of deeper appreciation of evidence,” the concise statement added.

It is further submitted that where a convict is held in custody pursuant to a judgment, which prima facie suffers from a glaring legal defect, the continuing sentence of such a convict would constitute a case of hardship.

In such case of hardship, the concise statement added, the convict would be unjustly bereft of his right to life, liberty, dignity, and freedom of movement as guaranteed by Articles 9, 14, and 15 of the Constitution, besides being so held in custody in breach of the rule of due process as mandated by Article 4 of the Constitution.

“Furthermore, in such a case there would be no recompense for him for the period spent in jail in case he is ultimately acquitted.”

The concise statement added that it has been consistently held by the Supreme Court that the prosecution is required to prove the four ingredients of the offence.

These four ingredients, according to reply, include to establish that accused was holder of public office, the nature and extent of the pecuniary resources or property which were found in his possession, known sources of income known to the prosecution after thorough investigation and it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income.

The reply added that it was also submitted before IHC that as held by Supreme Court, it is only after each of the ingredients of the offence has been proved by the prosecution that the onus/burden shifts on the accused to account for the sources of acquisition of any such property.

The reply added that the respondent’s contention before IHC was that an obvious lacuna was noticeable from the bare reading of the  judgment of Accountability Court wherein neither any finding was given nor any reference was  made as to what was the value or purchase price of Avenfield Properties in the year 1993-1995 and 1996, when one or more of the flats comprised in the Avenfield Property allegedly acquired by or on behalf of Sharif.

In this manner the bare reading of the Judgment showed that there was no evidence referred to therein to prima facie support or justify a finding that the value of the “assets” alleged to have been acquired by the Respondent in the year 1993-1995 & 1996 were disproportionate to his known sources of income.

It is submitted that the lacuna indicated in the Accountability Court judgment itself furnished sufficient ground for the suspension of the sentence of Sharif adding that there was another lacuna in trial court’s judgment which reinforced the case of Sharif for the suspension of his sentence and release on bail.

It was also urged by Sharif that prosecution was required to prove as to what were the Sharif’s known sources of income but it was missing in the instant case.

In this respect, the trial court’s judgment itself showed that for proving the known sources of income of Sharif, the prosecution had relied upon a document styled as “Analysis / chart of assets and liabilities”.

As per the prosecution case, the reply added, the chart was alleged to have been prepared by the JIT but Wajid Zia, Head of the JIT, did not even refer to it during his deposition in the trial court.

Rather, the said document was produced and got exhibited by Investigation Officer, NAB Imran Dogar, who appeared as prosecution witness during the trial. 

The reply stated that Sharif took this stance in IHC that such document was not admissible as it was not prepared by Dogar while Zia had never stated that this document was prepared by the JIT nor had he produced or otherwise proved its contents, or got it exhibited during his deposition and that the trial court in its judgment overruled the objections without any reasoning.

The prosecution is bound to prove each of the essential ingredients of the offence falling under Section 9(a)(v) of the NAO 1999 including quantification of the assets as well as the known sources of income of the accused, before shifting the burden on Sharif to explain his position,

The reply referred to certain judgments wherein it has been held that where an incriminating piece of evidence forming basis of conviction of accused is not put to him under Section 342 Cr.P.C., the said piece of evidence cannot be used against him to convict him.

The reply added that the top court has further held in different judgments that an accused of an offence under NAB Ordinance, 1999 is at liberty to take any ground for grant of bail on the basis of which bail can be granted under Section 497 Cr.P.C.

Referring to a recent case of one Olas Khan, the reply stated that a person accused of an offence and falling under the NAO 1999 can nevertheless be released on bail by invoking the provisions of Article 199 of the Constitution.

The reply added that for purposes of determining the question as to whether suspension of execution of sentence and bail pending appeal against conviction should be granted to a convict, tentative assessment of evidence is not only permissible but it is quite inevitable. 

The reply added that the prosecution before the high court as well as this court relied on two unreported judgments regarding the cases involving extreme hardship. 

It is submitted that the case cited by prosecution on hardship cannot be relied upon for cases involving convictions under the NAO 1999 for the reason that that case relating to convictions recorded and sentences awarded under the Anti-Terrorism Act, 1997 wherein Section 25(8) is radically different from Section 9(b) of the NAO 1999 both in terms of actual language used, and in terms of case law developed in respect thereof, the reply added.

Meanwhile, Sharif’s daughter Maryam Nawaz, who was awarded 7 years imprisonment sentence with 2 Million Pounds for the abetment in acquisition of Avenfield Properties by the principal accused Sharif, has also filed her concise statement through her counsel Amjad Pervaiz on NAB’s appeals.