AC judge puts heavier onus of proof on ousted PM

ISLAMABAD: Accountability Court Judge Muhammad Arshad Malik put the “heavier” onus of proof on ousted Prime Minister Nawaz Sharif whom he convicted to seven-year rigorous imprisonment besides imposing other heavy penalties.

But he was convinced with the prosecution story and wrote that the National Accountability Bureau (NAB) proved its case. NAB submitted no document to the court nor any of its witnesses deposed that Nawaz Sharif was the owner of the Al-Azizia Steel Mill. The judge held that the ex-premier failed to discharge the heavier burden of proof, and, as a result, deserved conviction.

He rendered his own reasons by juxtaposing different clauses of the National Accountability Ordinance (NAO) to sentence the accused. He relied on a Supreme Court judgement to shift the “light initial” onus of proof on the prosecution to the “heavier” burden of proof on the former premier.

The principal reason mentioned by the judge for punishing Nawaz Sharif was that the ex-prime minister failed to satisfactory account for the Al-Azizia Steel Mill. The fact that he received gifts from his son made him the benamidar of the factory. There was a total reliance on presumptions.

The court referred to Section 14(c) of the NAO, which says: in any trial of an offence punishable under Section 9(a)(c) (lifestyle or assets beyond means) the fact that the accused person or any other person on his behalf is in possession for which he cannot satisfactorily account of assets or pecuniary resources disproportionate to his known source of income, or that such person has, at or about the time of the commission of the offence with which, he is charged obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the court shall presume, unless the contrary is proved, that he is guilty of the offence of corruption and corrupt practices and his conviction; therefore, shall not be invalid by reason only that it is based solely on such a presumption.

The judgement said that whilst interpreting Section 14(c), the apex court had observed that as regards the burden of proof, the normal rule of law is an accused is presumed to be innocent until his guilt is established and the onus of establishing the guilt is always on the prosecution. But the rule of law laid down in Section 14(c) is a departure from normal law and under this section, a presumption of corruption and corrupt practices is required to be drawn, if the accused or any person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income of which sources he cannot satisfactorily account, the Supreme Court verdict had said.

For shifting the burden upon accused to account for the sources of income, the words of the statue are preemptory and the burden must lie all the time on the accused to prove the contrary, after the conditions laid down in the earlier part of the section have been fulfilled by the prosecution through evidence to the satisfaction of the court and then the court is required to draw the presumption that the accused person is guilty under Section 14(c) of the Ordinance, it said. Such presumption continues to hold the field unless the court is satisfied that the statutory presumption has been rebutted.

In its 2017 verdict, the apex court held that Section 9(a)(v) “places a light initial onus of proof on the prosecution to establish that a holder of a public office, or any other person, or his dependent or benarnidar owns, possesses, or has acquired right or title in any asset or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income or maintains a standard of living beyond that which is commensurate with his sources of income, and, thereafter, a heavier onus shifts to the accused person to reasonably account for his ownership, possession, acquiring of right or title or holding irrevocable power of attorney in respect of such assets or pecuniary resources.”

Judge Arshad Malik wrote that in view of the charge against Nawaz Sharif and as per ratio laid in this apex court ruling, the prosecution has the “light initial onus of proof' to establish that Al-Azizia Steel and Hill Metals Establishment are the assets” of Nawaz Sharif within the meaning of the NAO.

The judge was satisfied that the prosecution case and available evidence against the former prime minister is sufficient to shift the onus to him as contemplated and provided in Section 14(c). Once the “initial light onus of proof on the prosecution” has shifted to him a heavier onus shifts to him to reasonably account for his ownership, possession, acquiring of right or title or holding irrevocable power of attorney in respect of such assets or pecuniary resources.

The judgement said that in view of these factors, the statutory presumption under Section 14(c) also validly applies and is invoked and drawn against Nawaz Sharif, who, it added, has manifestly failed to provide any satisfactory and credible explanation or account, and therefore, failed to discharge the heavier onus on him to provide any satisfactory and credible explanation or account. Therefore, the presumption remains un-rebutted.