A conviction without conviction

ISLAMABAD: Judge Muhammad Bashir of the Accountability Court, Islamabad appears to have punished Nawaz Sharif and others reluctantly.

The court acquitted former prime minister and others from the charge of having acquired the Avenfield properties “by corrupt, dishonest, or illegal means”. It means, the judge cleared Nawaz Sharif of having purchased the London flats from the money of corruption, kickbacks or commission.

Nawaz, however, has been convicted of his failure to explain how he had purchased the London flats. However, while doing so, the Accountability Judge Muhammad Bashir instead of relying on concrete evidence, depended on presumptive or circumstantial evidence to conclude that Nawaz Sharif is the real owner of the London flats.

Interestingly, the Accountability Court in its judgment not only admitted that establishing the ownership of Avenfield flats is difficult in the absence of relevant documents but made it clear that it is relying on prosecution’s presumption that Nawaz Sharif is the owner of the properties.

The judgment concluded that Nawaz is the real owner of London flats because the prosecution has succeeded in establishing that the Sharif family has been living in these apartments since 90s.

According to the operative part of the judgment, the children of Nawaz Sharif were not financially strong during early 90s and had no source of income to purchase those apartments. “However, during the same era, accused no 1 Nawaz Sharif and his father used to reside in the said apartments. Thus, the prosecution has succeeded in establishing on the basis of this presumption that Nawaz Sharif is the real owner of these flats.”

The judgment said it was difficult to establish ownership of properties which was purchased through offshore companies formed in tax haven jurisdiction due to veils of secrecy.

On presumption-based evidence, the court first established that Nawaz Sharif was the owner of the London properties and then punished him for failing to explain the resources with which he had purchased the Avenfield Apartments.

Interestingly, Nawaz Sharif had denied his ownership of London flats both before the Supreme Court and the JIT. His elder son Husain Nawaz was the only family member who owned these flats and presented before the JIT and the Supreme Court the documents, including Qatari letter, to justify his sources for acquiring these properties.

Husain, however, did not appear before the trial court- the Accountability Court- and thus has been declared absconder. Now the Accountability Court on the basis of presumptive evidence declared Nawaz Sharif the owner of the Avenfiled flats and punished him too for failing to explain the sources with which the properties were purchased.

The Court punished Nawaz Sharif under Section 9a(v), which reads as; “If he or any of his dependents or benamidar owns, possesses, or has acquired right or title in any ‘assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income’.”

Even though on the basis of presumptive or circumstantial evidence the Accountability Court established that Nawaz Sharif is the actual owner of London flats and has failed to explain that he had purchased these properties from his known means of income, there is another catch which makes this judgment weak.

The NAB law Section 9(a)(v) under which Nawaz Sharif and others have been punished, has already lost its meanings in the light of a Supreme Court judgment on the same subject.

The judge of the Accountability Court held that “All the ingredients of the offenses as defined u/s 9(a)(v) of NAO 1999 are established therefore, heavy burden was shifted to the accused to account of assets/Avenfield apartments that those are not disproportionate to known sources of their income.”

However, a SC judgment on this subject titled Ghani-ur-Rehman vs NAB (PLD 2011 Supreme Court 1144), authored by Justice Asif Saeed Khosa, has already declared that prosecution has to establish a link of the property with the committing of a crime of corruption and without that no punishment can be awarded.

Now Nawaz Sharif, Maryam and Safdar have the legal option to file their appeals against this judgment in the high court. For the convicts, it’s a good judgment to challenge. It will be interesting to see how the high court will treat this judgement.