ISLAMABAD - A division bench of the Islamabad High Court Tuesday continued hearing in the petitions of Sharif family seeking suspension of their sentences in the Avenfield reference.
The dual bench of IHC comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb conducted hearing of the appeals of former prime minister Nawaz Sharif, Maryam Nawaz and Captain (retd) Safdar seeking suspension of their sentence while their counsel Khawaja Haris presented his arguments in support of his contention.
He adopted before the court that no one could be put behind bar only on the basis of suspicion. He added that it is court’s discretion to grant bail while he also mentioned various decisions of higher judiciary on bail pleas.
Khawaja Haris argued that a high court has the authority to suspend sentence under Article 199. At this, Justice Athar remarked that they are clear about it and asked Haris to present his arguments about sections 426 and 32 of Accountability Act.
He mentioned that in 2016, the Supreme Court of Pakistan had given its verdict regarding sections of 426 and in trial of this case, the real documents of wealth tax were not produced.
Then, Justice Athar asked from the NAB prosecutor that whether the accused were given 14 years imprisonment in this case. He said that the NAB should keep it in view that it means the trial court was also not fully agreed to award maximum punishment. NAB prosecutor said that the court had decided that they would not talk about evidences and merit of this case. Justice Athar remarked that it is not matter of evidences and merit rather it is all about particular situation. He added that it means that the NAB had also accepted trial court’s decision of not giving maximum sentence.
Then, the prosecutor replied that they would inform the court about NAB’s point of view in this connection.
Khawaja Haris contended that it was the case of assets but they neither told the known resources nor the real value of the assets. He added that nothing was proved in the investigation while the verdict of Accountability Court was also completely silent about worth of the properties.
Advocate Amjad Pervez informed the court that he had submitted his written arguments in the court and tomorrow, he would only present a summary of his contentions.
Later, the dual bench of IHC adjourned the hearing till Wednesday (today) directing the defence counsels to complete their arguments on the next hearing.
Opposition Leader in Senate Raja Zafarul Haq, Senator Mushahid Hussain Syed, Senator Javed Abbasi and Iqbal Zafar Jhagra were also present during the court proceedings.
Khawaja Haris and Amjad Pervez advocates filed the appeals and requested the court seeking suspension of their clients’ sentence in the Avenfield property reference.
Former prime minister Nawaz Sharif, Maryam Nawaz, and Capt (Retd) Muhammad Safdar had also filed the appeals in the IHC challenging the Accountability Court (AC)’s verdict in the Avenfield property reference and made the state through Chairman, National Accountability Bureau (NAB) as respondent.
They were of the view that the impugned judgment, conviction and sentence are based on no evidence.
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 accused, and it is only after the prosecution has discharged this onus, and proved 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 accused to explain the sources from which he may have acquired the assets in questions.
“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 judgment, conviction and sentence passed against the Appellant (for allegedly failing to explain the sources from which he purchased the assets, which in any case never belonged to him, nor stand proved as such), are manifestly illegal and liable to be set aside as such,” 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 were dependent on the appellant at any time since they came to be in possession of Avenfield Properties, but this aspect of the record is also not taken note of by the learned trial court.
“That 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 that his children were holding the Property as his benamidars. Thus it is admitted by both Wajid Zia, Head of JIT (PW-16) and / or Imran Dogar, Investigating Officer NAB (PW 18), that neither the documents of title of Avenfield Properties, nor the control of Nescoll Limited and Nielsen Enterprises (the off-shore companies in whose name Avenfield Properties stand) ever remained with the Appellant, nor did they come across any evidence, documentary or oral, that the Appellant paid or contributed any money for the purchase of Avenfield Properties. It may be added that these admitted facts do not find any mention whatsoever in the impugned judgment,” said the appeal.