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October 5, 2018

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Was AC judgment written in haste?

ISLAMABAD: The detailed judgment of Islamabad High Court (IHC) in Avenfield Apartments case clearly reflects that the judgment of Accountability Court (AC) announced on July 6 sentencing imprisonment to Sharfis was penned down in a haste.

The IHC detailed judgment holds that on one hand the AC acquitted the accused in corruption charges and on the other, convicted the accused for having assets beyond means with the same corruption charges from which they were acquitted.

The AC while convicting accused for having assets beyond means relied on a mysterious document whose author was “unknown” and wrote that reasons to declare this document “admissible” are given in the judgment but the AC judge simply forgot to write those reasons for accepting that basic and most crucial ‘document’ on which his judgment was based. IHC detailed judgment explained this whole aspect in great and interesting details. The AC judgment in Avenfield Reference was announced on July 6, some 19 days before conduct of general elections on July 25, 2018.

In para 23, the IHC detailed judgment points towards basic fact that Sharifs were specifically charged and tried under section 9(a)(iv) for corruption charges from which the AC acquitted them and NAB didn’t feel the need to challenge this acquittal.

The court also held that NAB failed to fulfil four basic ingredients for a conviction for having assets beyond means under section 9(a)(v) as defined by the Supreme Court in para-8 of the Ghani-ur-Rehman case.

In paras-24 and 25 of the detailed judgment, the IHC holds that under the principle defined by the apex court in Ghani-ur-Rehman case, NAB was supposed to provide the money spent to acquire the assets and sources of income of Nawaz Sharif at the alleged time of purchase of said properties in early nineties but NAB couldn’t do so. According to this para, neither is there any mention of the value of flats at their alleged time of their purchase nor are there any documents available on record in this regard.

The para further elaborates the AC judgment and helplessness of NAB by writing that there is only one document referred to in the judgment 'analysis chart of assets and liabilities’ relating to Nawaz Sharif which was neither prepared by NAB nor by the Panama JIT.

The relevant part of para reads, “The said document was tendered in evidence by Imran Masood, Investigating Officer, NAB, who had appeared as PW-18. The objection raised was not decided then and the same has been reproduced at page 59 of the judgment which is as follows;

"Under objection that firstly that this document is not prepared by this witness, secondly Wajid Zia appeared as head of JIT as PW-16, and he never stated that this document was prepared by JIT, nor did he get this document exhibited nor produced this document during his deposition and, therefore, this document is not admissible in the statement of this witness."

According to the detailed IHC judgment, this analysis chart was an inadmissible document in all respects as nobody knew from where it came and who made it but the AC judge declared it as “admissible” and wrote that he will record the reasons for overruling the objection raised by the defence counsel and for declaring the document “admissible”.

This inadmissible document was the most crucial evidence used to convict the accused but the AC simply forgot to record the reasons for making this mysterious document admissible. Who made it and how it became the part of the record will always remain a mystery.

The relevant part of the Para-25 which describes this amusing situation reads, “25. The learned trial court however has recorded “overruled, reasoning is given herein discussion". It has not been denied before us that the witness who had tendered this crucial document had admitted during his cross examination that he had no concern therewith nor knew when it was prepared or by whom. We have carefully gone through the judgment but could not find the reasoning recorded by the learned Accountability Court for holding the document ex-PW.18/13 as admissible. The determination of the evidentiary value of this document was crucial after taking the recorded evidence into consideration, particularly the deposition of PW.16 and PW.18.”

Para-25 further reads, “There is yet another important question which has been raised by the learned counsel for Petitioner No. 1 to the effect that there has been no determination of the value of the Avenfield Apartments at the time when they were alleged to have been acquired. There is no mention of this aspect in the judgment. We asked the learned counsels for the Bureau to show us the relevant portion in the judgment, or any document tendered in evidence, reflecting the value of the apartments when they were alleged to have been acquired i.e. between 1993 and 1996, so as to meet the requirements highlighted by the august Supreme Court in the case of Ghani-ur-Rehman. Rather than referring to the judgment or any document from the record they stated that values could be obtained through "Google".”

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