IHC accepts Sharifs’ request to hear sentence suspension pleas first

2018-09-11T02:17:42+05:00 SHAHID RAO

ISLAMABAD  -  A division bench of the Islamabad High Court Monday accepted an application of Nawaz Sharif requesting the court to hear his and his family members’ suspension petitions before appeals against the sentence.

The dual bench of the IHC comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb conducted hearing of the appeals of former premier Nawaz Sharif, Maryam Nawaz and Capt (r) Safdar seeking suspension of their sentence and directed National Accountability Bureau as well as defence counsels to submit their written arguments in this connection.

The court also directed both the sides to complete their arguments till next Monday otherwise it would announce its verdict. The court directed the defence counsel to conclude his arguments Tuesday and Wednesday while the NAB prosecutor would present his final arguments Thursday and Monday.

During the hearing, the dual bench directed the NAB prosecutor to present his arguments Wednesday. However, the prosecutor sought one-week time for argumentation. Justice Maingul Hassan remarked it would earn a bad name for your organisation.

He added the court would announce its verdict if the NAB sought more time on next Monday.

Later, the court adjourned hearing till today (Tuesday) when Khawaja Haris, the counsel for Nawaz Sharif, would present his arguments in this matter.

Former Punjab chief minister and PML-N president Shehbaz Sharif was also present in the courtroom during the proceedings. After hearing of the case, in response to a question whether the PML-N would launch any movement against PTI-led government on rigging issue, Shehbaz Sharif said he would play his role in the parliament as the Opposition leader.

Khawaja Haris and Amjad Pervez advocates filed the appeals and requested the court seeking suspension of their clients’ sentence in the Avenfield property reference.

Nawaz Sharif, Maryam Nawaz, and Capt Safdar had also filed the appeals in the IHC challenging the accountability court’s verdict in the Avenfield property reference. The appellants contended that from a comparison of the allegations made in the initially filed interim reference on September 8, 2017, and the allegations made and formulated in the supplementary reference dated January 1, 2018, it is abundantly clear that the same are radically different from each other. As such, it was incumbent on the learned trial judge to have re-framed the charge after the receipt of the supplementary reference and his failure to do so vitiates the trial. They were of the view that the impugned judgment, conviction and sentence are based on no evidence.

“None of the ingredients constituting the offence falling under Section 9(a) (v) of NAO, 1999, or under Serial No 2 of the Schedule thereto stands proven in the instant case, so the appellant is entitled to acquittal,” said the appeal moved by Nawaz Sharif.

It maintained the judgment purports to convict the appellant for acquiring assets described as flats No 16, 16A, 17 and 17A, Park Lane, London (known as Avenfield Properties) that are allegedly beyond his known sources of income, but nowhere in the judgment or, for that matter, in the evidence brought on the record by the prosecution is there any indication of the value of the Avenfield Properties at the time it is alleged to have been purchased by the appellant.

According to the appeal, under the law as laid down by the honourable Supreme Court of Pakistan, the onus is on the prosecution to prove, in the first instance, the essential ingredients of the offence falling under Section 9(a)(v) of the NAO, 1999, establishing that the assets in question belong to the convict, and it is only after the prosecution has discharged this onus, and proven that the accused person or any other person on his behalf is in possession of assets disproportionate to his known sources of income, that a presumption can be drawn in terms of Section 14(c) of the NAO, 1999, thereby shifting the onus on the convict to explain the sources from which he may have acquired the assets in question.

“It is submitted that the prosecution having miserably failed to discharge its onus as regards proof of the ingredients of the offence as detailed hereinabove, the learned trial court erred in invoking the provisions of Section 14(c) of NAO, 1999, to raise a presumption against the appellant, and, as such the impugned sentence passed against the appellant is manifestly illegal and liable to be set aside,” maintained the appeal.

It continued that, as a matter of fact, there is not an iota of evidence produced by the prosecution that any of the children of the appellant was dependent on the appellant at any time since they came to be in possession of Avenfield properties, but this aspect of the record was also ignored by the trial court.

“It stands established on the record that the prosecution has miserably failed to lead any evidence whatsoever showing that the appellant was the actual owner of Avenfield properties and/or his children were holding the properties as his benamidars.

 Thus it is admitted by both Wajid Zia, head of JIT, and/or Imran Dogar, investigating officer NAB, that neither the documents of title of Avenfield properties, nor the control of Nescoll Limited and Nielsen Enterprises (the offshore companies in whose name Avenfield properties stand) ever remained with the appellant,” said the appeal.

Maryam in her appeal argued the prosecution failed to furnish any oral account in support of its case whereas the entire documentary evidence produced by it was inadmissible for lack of formal proof.

She added the AC judge convicted them under Section 9(a)(v) of the NAO, 1999. The conviction is based on the testimony of JIT head Wajid Zia who was an investigation officer of the case and did not have any personal knowledge regarding the facts. Moreover, he was not competent to play proxy to any witness not produced.

The appellant contended the only evidence regarding beneficial ownership of the London apartments was the letter of financial investigation agency of British Virgin Island (FIA-BVI) that it wrote to Mossack Fonseca and received a reply in 2012. However, the prosecution failed to adduce any evidence to vouchsafe the contents of the disputed letters.

Maryam said this letter could not be treated as incriminating evidence. She further said the trial court has felt it convenient to seek aid of presumptions for passing the impugned judgment which could not have been invoked without fulfillment of statutory requirements of requisite proof as to the necessary ingredients of the offence under Section 9 (a) (v).

She termed the allegations regarding trust deeds concocted by the JIT with the mala fide intention to implicate the whole family. She said the trust deeds were before the Supreme Court as well and the apex court did not raise any question regarding their authenticity, genuineness or otherwise in its April 20, 2017, judgment.

She prayed to the court to set aside the impugned judgment, conviction and sentence awarded by the accountability court.

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