Tuesday July 16, 2024

Nawaz may have been acquitted but NAB is still in the dock

By Zebunnisa Burki
November 30, 2023
The NAB logo from its website.
The NAB logo from its website. 

KARACHI: Legal experts see the IHC’s Wednesday ruling in the Avenfield case as an unsurprising outcome of a case that should have been decided much earlier, terming it ‘a right decision made at the wrong time’, but also noting that the attitude of NAB had considerably changed since the first time around in the Avenfield reference.

Speaking to Hamid Mir on Geo News ‘Capital Talk’, Barrister Ali Zafar said that he hoped the way the Nawaz acquittal happened “in a speedy way”, similarly the Toshakhana case against Imran Khan was also disposed of with such speed since “that too is a weak case, without any basis. When we see such cases, it also raises a red flag over the judicial system. And our superior judiciary manages to then [resolve] these cases when they come in front of it.”

Answering a question on whether NAB needs to also be prosecuted for filing cases against politicians and then not being able to make these cases, Barrister Zafar told Hamid Mir that it has been a long-standing demand in the Senate and even the Supreme Court had made observations that when an institution is used for the wrong purposes and an anti-corruption agency is used for political reasons then the fight against corruption is affected and the credibility of the institution is also harmed.

Supreme Court advocate Basil Nabi Malik tells The News that the Wednesday verdict “is a great example of a correct yet unjust decision. It is correct because Nawaz Sharif had been wrongly convicted and this correction was much needed, but it is unjust because it took too long for it to be effected. Correcting a wrong at this time may be the right thing to do, but unfortunately, it also seems all too convenient. This, like many other decisions, will go down in history as a right decision made at the wrong time.”

Barrister Rida Hosain is not surprised by the Avenfield outcome, saying that “Earlier, the IHC had accepted Maryam Nawaz’s appeal in the Avenfield case. The accountability judge found that Maryam Nawaz aided and abetted Nawaz Sharif in concealing the true ownership of the Avenfield properties. In setting aside the decision, the IHC held that NAB did not have requisite evidence, and failed to discharge the burden of proof. In fact, the IHC judgment accepting Maryam Nawaz’s appeal also states that ‘the role of NAB in investigating the matter is also below par, rather is disappointing’.”

That said, she says that “the most striking aspect of the appeals was the visibly different attitude of NAB”. According to Hosain, where NAB had “originally prosecuted the Avenfield, Al Azizia, and Flagship cases robustly, this was missing at the appellate stage.”

Where lawyer Abdul Moiz Jaferii calls the IHC’s verdict “the only one possible after the atrocious judgment rendered and the manner in which the trial was conducted”, he also thinks that it is “rendered moot due to the delay with which the appeal was concluded and the state of play when it was concluded”. Explaining the details of the case, Jaferii says that “the basic case of the Sharif family was that evidentiary requirements were not met in proving the link between the assets to Nawaz Sharif. Another limb of the arguments was how in acquitting Nawaz of corrupt practice as the trial court did, they could not then independently find Nawaz guilty of assets beyond his means unless they could show they were his own assets. NAB failed to show his benami ownership of the apartments and that was that.”

Constitutional lawyer Usama Khawar sees the verdict as a “positive development, especially considering the upcoming elections in Pakistan.” For him, the lack of evidence presented by NAB “to substantiate the ownership of the London properties by Nawaz Sharif and the failure to determine the values of the Avenfield properties and assess Nawaz Sharif’s income at the relevant time weakened the case. It appears that the prosecution fell short in meeting the relevant prerequisites for convicting Nawaz Sharif.”

Recalling Maryam Nawaz’s acquittal -- also in the Avenfield reference -- Khawar says that “the requirement to prove Nawaz Sharif’s ownership of the properties is pivotal in establishing the case against Maryam Nawaz. The inadequacy in determining the values of the Avenfield properties and assessing Nawaz Sharif’s income further underscored the challenges faced by the prosecution. The court’s decision reflects a fair assessment of these deficiencies in the legal proceedings.”

What do such acquittals mean, given that some critics see them as ‘rushed-up’? Barrister Hosain refers to a Supreme Court judgment authored by Justice Maqbool Baqar where “it has been stated that there is a widespread perception that NAB is being used as a tool for oppression and victimization of political opponents by those in power (PLD 2020 SC 456). The approach of NAB in the instant appeals does nothing to dispel this impression, and in fact, strengthens it.”

Khawar does not think the Avenfield verdict “ was extraordinarily rushed-up considering the context of the approaching elections.” He feels that “NAB’s failure to produce substantial evidence regarding property ownership, values, and income assessments raises questions about the strength of the case from the outset. Expedited handling of such cases, especially those involving major political figures, is crucial to ensure a fair electoral process.”

In fact, says Khawar, “the courts should expedite the cases of all serious political candidates, especially those from major political parties, to uphold the principles of fairness and let the people elect their representatives through the ballot box.”

For Basil Nabi Malik, “frankly, these are acquittals that have been a long time coming. If anything, people should rue the delay in this finally happening. If done at the right time, the judiciary would have been seen upholding legal principles against daunting odds. Doing it now as opposed to then has taken away a tinge of legitimacy from the verdict, which is unfortunate. The situation reminds me of a quote by Mark Twain, that is, ‘principles have no real force except when one is well fed’.”

“More than a rushed acquittal, this is a case which has suffered from poor timing for the cause of justice throughout”, says Jaferii who adds that “these weaknesses being highlighted today serve little purpose when the House of Sharif is riding the prevailing wind. it would have looked like justice if these few dates from proclaimed offender to innocent acquittal occurred in 2020 when the appeal was first filed. It would have counted for something.”