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July 10, 2019

Top legal experts say: AC can’t issue notice to accused in case which has already been decided

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July 10, 2019

ISLAMABAD: Top legal brains of the country are unanimous that once the Accountability Court (AC) has given its verdict in Avenfield Reference case and sentenced the accused, it has no jurisdiction to reopen the case especially if the appeal is in high court and the judgment has been suspended.

The Accountability Court has already given seven years rigorous imprisonment based on the ‘Trust Deed’ then how could it again reopen the case or send a notice to the accused on same point (Trust Deed), question the experts.

The Accountability Court’s July 2018 verdict in Avenfield Reference says, “The trust deeds produced by the accused Maryam Nawaz were also found bogus. She (accused Maryam Nawaz) was instrumental in concealment of the properties of his father accused Mian Muhammad Nawaz Sharif. This accused Maryam Nawaz aided, assisted, abetted, attempted and acted in conspiracy with her father accused Mian Muhammad Nawaz Sharif who was holder of Public Office. Therefore, prosecution has succeeded to establish her guilt within the meaning of Section 9 (a)(v)(xii) NAO 1999 READ WITH SERIAL No.2 of the schedule and punishable u.s.10 and schedule attached therewith. In view of the role of this accused Mst Maryam Nawaz, she is convicted and sentenced to rigorous imprisonment for seven years with fine of two million pounds under section u/s 9(a)(v)(xii) NAO 1999/ read with section 10 of NAO 1999 and simple imprisonment for one year under serial No2 of the schedule. Both the sentences shall run concurrently”.

According to some experts, this is not a legal matter as the case has already been decided by the accountability court and its judgment has already been suspended by Islamabad High Court. The experts believe that the counsel for accused will press this issue before the accountability court judge. While understanding this legal view the accountability court judge will withdraw the notification during the first hearing, the experts believe.

“Legally speaking, the judge should have avoided sending the notice to the accused as he has already given his judgment on this case. Under these circumstance, especially when the accused has shown some videos of an accountability judge the court should have avoided this”, said the expert.

Justice (retd) Nasir Aslam Zahid while talking to The News said if the accountability court has already decided the case and gave its judgment then it cannot summon the accused or reopen the case unless something very important related to the judgment arises.

“The courts should follow the legal procedure and once the case has been concluded and the accused has been penalized then the same court should avoid reopening the case. If some new angle or fresh evidence arises in the already concluded case then the court can reopen the case but there are very rare cases when the courts have reopened the cases especially in lower judiciary”, commented Justice (retd) Nasir Aslam Zahid.

If some fresh and new legal point has been raised by the prosecution in an already concluded case then the court can issue notice to the accused otherwise the court should avoid this practice especially if the appeal against this case is in high court, said Justice (retd) Nasir Aslam Zahid.

Abid Hassan Minto — One of the senior most lawyers of the country while talking to The News said it is useless to give legal opinion on this issue.

“No one is following the constitution in this country. Everything seems to be political these days. I don’t want to waste my words or opinion under these circumstance. Nothing is being done as per the law. When the accountability court has given its verdict and high court has already suspended the judgment then issuing the notice to the accused in the same case is beyond his comprehension”, commented Abid Hassan Minto.

The council for defendant will raise this point during the hearing of this case that once the case has already been concluded then how the court could issue the notice in already concluded case. The court will decided after hearing the arguments of the defendant, he said.

Former President Supreme Court Bar Association and senior lawyer Kamran Murtaza while talking to The News said the court has already given its verdict and awarded seven years imprisonment sentence based on the ‘Trust Deed’. When the court has already given its verdict on it then how could it issue the notice to the accused on same point for second time?

“Accountability Court’s judge’s jurisdiction has ended once he has given his verdict now the case is in Islamabad High Court. It is beyond my understanding that how could lower court reopen the case which is pending in higher court”, commented Kamran Murtaza.

“I believe this is frivolous application and the accountability court should have rejected it instead of issuing the notice to the accused. Particularly under the present circumstance when the accused has shown a video of one of the accountability court, the court should have avoided sending notice to the accused in an already concluded case”, said Kamran Murtaza.

“The judgment has already been suspended by Islamabad High Court since last ten months. Why the National Accountability Court did not raise this issue before? Why it filed the application just a day or two after the accused has shown video of the accountability judge”, he commented.

Meanwhile, former judge Shah Khawar, while talking to Anchorperson Shahzeb Khanzada in his Geo’s programme Aaj Shahzeb Khanzada Kay Saath on Tuesday, said that it is surprising to see that notice has been issued again to Maryam Nawaz by Accountability Court. He said that the Supreme Court had ordered Accountability Court to decide about fake documents in Panama case. He said the Accountability Court had already awarded sentence to Maryam Nawaz on bogus trust deed and this sentence had been suspended by the Islamabad High Court during hearing appeal and now there is no justification to summon her in the court in the same case under Section 30 of NAB Ordinance.

Shah Khawar said that Section 30 of NAB Ordinance says summary trial of anyone can be conducted against a person even after judgment, if Accountability Court finds that someone has recorded false witness. He said that Section 30 also tells that Accountability Court itself can initiate this action. He said that under Section 30 the prosecution or accused can also move application for action within 30 days.

Shah Khawar said that the appeal of Maryam Nawaz is still pending in Avenfield references and Article 13 of the Constitution says that neither anyone can be prosecuted nor awarded punishment more than once in one case. He said that it is very surprising that the Accountability Court had already punished Maryam Nawaz in the same offence and now under what law this action is being taken against her.

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