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August 22, 2018

Developments in Nawaz’s case


August 22, 2018

ISLAMABAD: From the dissolution of bench after bench to the day-to-day hearing, and then the unexpected adjournment of appeals by the Islamabad High Court until the second week of September, there have been many interesting developments in the cases against Nawaz Sharif.

For most of the initial three weeks, there have been no substantive proceedings in the IHC over the pleas of Nawaz Sharif, his daughter Maryam Nawaz and son-in-law Capt (Retd) Muhammad Safdar seeking bail and suspension of their convictions.

The three members of the Sharif clan were convicted on July 6 by accountability court judge Muhammad Bashir in the Avenfield apartments reference. The accountability court sentenced Nawaz to 10 years in prison, jailed Maryam form 7 years and handed down a one-year sentences to Safdar.

Three days after defence counsel Khawaja Haris filed appeals in the IHC on July 16, Nawaz and Maryam returned to Pakistan from London to court arrest. A bench comprising Justice Mohsin Akhtar Kayani and Justice Miangul Hassan Aurangzeb held preliminary proceedings on July 17 and ordered that the petitions would be heard in the third week of the same month. Later, Justice Kayani went on vacation, as per the court's previously chalked out schedule, and the bench stood dissolved.

Then, another bench comprising Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb was formed to hear the pleas. At the very first hearing, it announced that it would take up the petitioners' plea to transfer the references to another accountability judge. Subsequently, this bench pronounced its verdict after a week's proceedings.

Later, Justice Aamer Farooq also proceeded on a previously summer vacation, and the bench was dissolved. Consequently a third bench comprising Justice Athar Minallah and Miangul Hassan Aurangzeb was set up to hear the case.

On day one of its hearing, the division bench directed the Sharif family’s counsel and National Accountability Bureau (NAB) additional deputy prosecutor general Sardar Muzaffar Abbasi to conclude their arguments on the petitions seeking the suspension of the judgement in the Avenfield properties reference within four days. This enabled Haris to promptly wrap up his side of the case.

On the second day of proceedings, the division bench asked the defence and prosecution if either of them had the slightest doubt about the independence and integrity of the court or apprehensions about the fairness of its proceedings. If that were the case, the judges expressed willingness to recuse themselves from hearing the case. When both sides expressed confidence in the bench, the court formally began its hearing of the petitions filed by the Sharifs seeking the suspension of the Avenfield reference verdict.

NAB prosecutor Abbasi raised five objections on the petitions filed by the Sharif family. According to him, the appeals against the conviction had already been fixed and the convict could seek release at least six months after their incarceration. He argued that the petitioners had not cited the relevant authorities as respondents in the petitions.

The court overruled the objections and permitted the counsel for the ex-prime minister to advance his arguments. Haris argued that NAB had not ascertained the value of the Avenfield apartments or the sources of the Sharifs' income at the time of their purchase.

According to him, the properties belong to the son of the ex-PM. Even if it was assumed that the Avenfield apartments were owned by his client, for the sake of argument, the case against Mr Sharif could only be proved if the prosecution established any discrepancies between the known sources of his client's income and the price of the said property, he argued.

Haris recalled that the leader of the Supreme Court-appointed joint investigation team, Wajid Zia, had admitted during the cross-examination that no direct evidence of Mr Sharif’s ownership of the London properties was available. Prosecutor Abbasi also conceded that there was insufficient evidence available with NAB to prove that London apartments had been acquired with the proceeds of corruption.

The IHC then asked the prosecution if Maryam, being a dependent or "benamidar" of her father, could be convicted under Section 9(a)(5) of the National Accountability Ordinance (NAO), which pertains to assets beyond means.

Observing that NAB had not appealed its July 6 decision, the court told the NAB prosecutor that the Sharif family had not been found guilty of corrupt practices or dishonesty, and instead had been convicted only because they had failed to justify the acquisition of the Avenfield apartments.

Reading out the accountability court’s verdict, the IHC questioned Maryam’s conviction on the charge of abetting her father in accumulating assets beyond declared means when the only evidence against her was a forged trust deed.

The court raised similar questions regarding the conviction of her husband, who was convicted for signing the trust deed which, NAB contended, was meant to conceal the actual ownership of the London properties.

The NAB prosecutor said it would be appropriate for the court to hear the arguments of defence lawyers Khawaja Haris and Amjad Pervaiz prior to the concluding arguments of the prosecution. Subsequently, the bench asked Mr Pervaiz to conclude his arguments by Aug 15 and directed the NAB prosecution to rebut them by the following day.

On day three of the hearing, the IHC imposed a fine of Rs10,000 on NAB for using delaying tactics to delay the prospective release on bail of incarcerated former prime minister Nawaz Sharif, his daughter and her husband. Justice Minallah and Justice Aurangzeb reproached the NAB prosecutor for wasting the court’s time “since instead of arguing on the petitions seeking release of Mr Sharif, Maryam Nawaz and retired Capt Mohammad Safdar, the prosecutor is insisting that the bench adjourn the proceedings”.

“What should we write in our order? Why is NAB seeking an adjournment?” asked Justice Aurangzeb. “Is this appropriate for us to write that the hearing has been adjourned because the NAB prosecutor does not want to continue arguments?”

Justice Minallah adjourning the hearing until the following Monday (Aug 20) and dictated the court's order, which read: “The case was fixed for Thursday (Aug 16). Additional deputy prosecutor general, when asked to argue, sought adjournment to file written reply. Learned counsel for the petitioners opposed the adjournment. Since application seeking filing of reply was filed after the arguments of counsel for the petitioners, therefore, in the interest of justice cost of Rs10,000 be imposed on the prosecution.”

The written order also incorporated the undertaking of NAB additional prosecutor general Jahanzeb Bharwana to conclude his arguments by Aug 20.

On the fourth day of hearings, upon the conclusion of lawyers' argument, the court told defence counsel Haris that its decision on the Sharifs' petition seeking the suspension of verdicts would be deferred until it had heard their appeals against conviction, which had been scheduled for hearing. Haris had wanted the court to decide the Sharifs’ appeal for the suspension of convictions, irrespective of whether it went against then.

The court reserved judgment and then issue its order, which stated: “Section 32 of the NAO, 1999 provides for a time frame for deciding the appeals. Since the learned division bench has directed fixing of the appeals, at this stage we are not inclined to decide these petitions and they shall remain pending and be fixed along with the appeals. In case there is delay in deciding of the appeals, then the petitioners shall be at liberty to press these petitions.” The court directed the registrar office to fix the case immediately after the summer vacations, scheduled to end by Sept 11.

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