11 questions of law raised in fresh plea by Nawaz in SC

ISLAMABAD: Deposed Prime Minister Nawaz Sharif,  through his lawyer Khawaja Haris, has called on the Supreme Court to intervene to correct the July 28 judgment handed down by a five-member bench in the Panama case, which is per incurium, as it has unlimited jurisdiction under the Constitution.

A per incurium verdict refers to a judgment which has been decided without reference to a statutory provision or earlier rulings that would have been relevant. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by lower courts.

It is believed that Chief Justice Mian Saqib Nisar may constitute a bench larger than the five-member panel that had decided the Panama case, or the full court to hear the new plea made by the ex-premier. This is another attempt to get relief from the Supreme Court. Nawaz Sharif has not sought voiding of the earlier judgment, but has only pleaded that just one reference be filed instead of three against him.

Khawaja Haris raised eleven questions of law, gave an equal number of reasons and made four prayers to the apex court in the fresh petition under article 184(3), attacking filing of multiple references against the former prime minister and his close relatives by the National Accountability Bureau (NAB).

He cited the 1994 judgment in the Khalil-uz-Zaman versus the Supreme Appellate Court, in which the highest judicial forum had reversed the decision in exercise of its jurisdiction under article 184(3) and had observed that in this case, the courts vide impugned judgments have ordered the petitioner to be hanged to death although he was/is not liable to death in law for the offence allegedly committed by him. "There can be no case more fit and proper than the present one for interference in exercise of our original jurisdiction under article 184(3) of the Constitution. Question of public importance with reference to the enforcement of fundamental rights conferred by the Constitution is very much involved, therefore, we feel that in exercise of our jurisdiction under Article 184(3), we must come to the rescue of the petitioner to save his life."

The lawyer pointed out that from a bare perusal of the contents of each of the three references, it is evident that the same pertain to the allegation of commission by the former prime minister of an offence of his or any of his dependents or benamidars owning, possessing or having acquired right or title in assets and/or pecuniary resources disproportionate to his known sources of income, for which he cannot reasonably account for; that similarly, every reference is supplemented by the same nine volumes of Joint Investigation Team (JIT) report, while six out of nine witnesses in one case are the same as six of the thirteen cited in another, and two out of ten witnesses are common to the third reference; and that additionally, given the allegations as per the JIT forming the basis of the references, Nawaz Sharif's defense vis-à-vis the allegations in each of the three references is substantially the same and overlapping.

Khawaja Haris quoted a number of constitutional articles to back up his plea. He prayed to suspend the proceedings before the Islamabad accountability court in three references, which, he argued, are repugnant to the National Accountability Ordinance (NAO), Criminal Procedure Code (Cr.P.C.) and the Constitution, till the filing of a consolidated case by the NAB in respect of the alleged commission of offence under Section 9 (a)(v) of NAO; declare that the July 28 final order of the court insofar as it directs filing of three references against Sharif, is per incurium, being repugnant to the provisions of articles 4, 9, 10-A, 13 and 25; that an accused under section 9 (a)(v) shall be tried through a single reference, irrespective of the number of assets alleged to have been held by him on any such date that the reference is filed against him; that multiple trials on a single charge would prejudice the ex-premier's fundamental rights to be dealt with in accordance with law, fair trial and protection against double punishment, guaranteed under articles 4, 10-A and 13.

The lawyer raised questions whether section 9 (a)(v) envisages a single offence by an accused owning, possessing or acquiring any assets disproportionate to his known sources of income; whether filing of multiple references against an accused for each asset allegedly owned, possessed or acquired by him, disproportionate to his known sources of income, is repugnant to section 9 (a)(v); whether separate trials of an accused for different properties or sets of properties alleged to be owned by him purportedly in terms of the same section is repugnant to the accused's fundamental rights to be dealt in accordance with law and fair trial, guaranteed under articles 4 and 10-A; whether filing of multiple references against an accused for the same alleged offence exposes him to double punishment, which is against the accused's fundamental right under article 13; whether filing of multiple references in a case allegedly involving acquisition of assets beyond means is unprecedented and, as such, is manifestly discriminatory and, therefore, violative of Nawaz Sharif's fundamental rights under articles 25, 9 and 14; and whether separate trials of an accused for a single offence are contrary to the principles of the criminal justice and the procedure provided under the Cr.P.C., etc.

Some more questions highlighted by Khawaja Haris included whether in any case the direction given by a bench for filing of multiple references against Nawaz Sharif for an offence falling under Section 9 (a) (v) is not only repugnant to law, but it shall also prejudice all future criminal trials in Pakistan, particularly cases involving allegations of acquisition of assets beyond means and, as such, merits setting aside in exercise of the Supreme Court jurisdiction under article 184 (3) or in terms of its inherent jurisdiction and obligations; and whether in exercise of constitutional powers, the court has unlimited jurisdiction to reopen, revisit or review, and for this purpose examine any judgment earlier pronounced by it to set the law correct, to cure injustice, save it from becoming an abuse of the process of law and this judicial system; and whether any invalid enunciation of law, which shall cause drastic adverse effects on the people at large, and the State in presentee or in futurio, is liable to be revisited by it in exercise of powers under Article 184(3).