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July 11, 2019

Fresh NAB plea against Maryam double jeopardy bar


July 11, 2019

ISLAMABAD: The double jeopardy bar and changed stands of the National Accountability Bureau (NAB) have been cited concerning an application of the anti-corruption watchdog filed in the accountability court that convicted Maryam Nawaz for producing a “forged” trust deed.

It seeks her trial on account of fake trust deed presented in the accountability court. Judge Muhammad Bashir has summoned the Pakistan Muslim League-Nawaz (PML-N) leader to respond to the NAB plea on July 19.

“Maryam’s trial for the same offence will be a case of double jeopardy. Under Article 13 of the Constitution, no person shall be prosecuted or punished for the same offence more than once; or shall, when accused of an offence, be compelled to be a witness against himself,” Barrister Omar Sajjad quoted the provision to explain his point when contacted by The News for comments. He elaborated that a person tried for an offence, either convicted or acquitted, can’t be tried again for the same. This is an accepted principle worldwide, he added.

When approached by this correspondent, former NAB prosecutor Imran Shafiq raised important points to argue that the NAB plea was time-barred, much delayed and contrary to the National Accountability Ordinance (NAO) and the Constitution. When trial has been completed, sentence given and period of filing an appeal by NAB gone by, there is no justification of the instant NAB application, he said.

He said that in January 2018, NAB had withdrawn its appeal from the Islamabad High Court (IHC) against the November 8, 2017, order of the accountability court when the latter had deleted from the charge-sheet the allegation of producing forged document against Maryam accepting her lawyer’s contention that NAO Section 30 prohibits the court from taking cognisance of the offences relating to false evidence before making decision of the case. Imran Shafiq said that the withdrawal of appeal by NAB amounted to acceptance of the accountability court’s order about the deletion of the charge; otherwise, it would have pressed its plea.

Referring to Section 30 (under which NAB wants Maryam’s trial) of the NAO, he said the accountability court “on pronouncement of judgement” has the jurisdiction and power to take cognisance of the offence of forged documents “to summarily try” Maryam and award punishment, but it had not done at the time. This is the first part of the provision.

The second part is that the proceedings may be initiated by the accountability court on its own accord (discretion) at any time after its judgement or in the event that there is an appeal, after the decision thereof, or on an application made by the prosecution [NAB] or the accused [Maryam] tried by it, within 30 days. None did so within this specified period, he said adding that the instant NAB plea was, therefore, inconsequential and irrelevant.

Imran Shafiq said that Judge Muhammad Bashir clearly wrote in his decision that he was sentencing Maryam under Section 9a of NAO to seven years’ rigorous imprisonment and imposing two million pound sterling fine for supporting her father Nawaz Sharif in hiding corruption. Since the term of sentence for forged documents offence is five years, what she was handed was much more severe, he said adding that when the judge has already convicted him on account of the trust deed, she can’t be tried again for the same offence as per the double jeopardy prohibition.

Another subtle point the former prosecutor made was that the Sharifs’ lawyers have taken the stand in the IHC that Maryam could not be convicted under Section 9a [corruption and corrupt practices] on account of fake trust deed while on the contrary NAB argued that the sentence awarded to her was correct and the accountability court was empowered to do so.

NAB has now reversed its stand by filing the present application relating to the trust deed in the accountability court, he said and expressed the view that her lawyers may point out the “irreconcilable” NAB stands taken in the IHC and accountability court.

Imran Shafiq said that NAB preferred no appeal in the IHC against the accountability judgement in the London Avenfield apartments’ case, which was required to be submitted within 10 days. Thus, the anti-graft agency clearly accepted the convicting verdict, he opined.

The former prosecutor also said that during the hearings on the Panama case, the Supreme Court had taken a strict view of former NAB Chairman Qamar Zaman’s decision of not appealing against the Lahore High Court judgement in the Hudaibiya case and reprimanded him. At some stage, same may apply to the present case as NAB did not challenge the accountability judgement in the London flats case, he said.

In its application against Maryam, NAB invoked Section 30 read with Sr No 3 of the NAO Schedule which deals with giving false information or fabricating false evidence during inquiry into or investigation of an offence by NAB or any agency authorised by it in this regard when given by a complainant, witness or an accused person or any inquiry officer, and NAB investigator or concerned agency. It attracts rigorous imprisonment for a term, which may extend to five years.

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