Tuesday December 06, 2022

Throwback to 2018: ‘A conviction without conviction’

September 30, 2022

ISLAMABAD: The Islamabad High Court (IHC) order acquitting Maryam Nawaz and her husband Capt (R) Safdar in the Avenfield case was obvious from day one of their conviction by the accountability court.

It was The News that soon after the accountability court’s order had published a front-page story captioned “A conviction without conviction” on July 8th, 2018 on the basis of flaws and shortcomings in the court’s order.

“Judge Muhammad Bashir of the Accountability Court, Islamabad, appears to have punished Nawaz Sharif and others reluctantly,” reported The News in 2018. “The court acquitted the former prime minister and others from the charge of having acquired the Avenfield properties ‘by corrupt, dishonest, or illegal means’. It means the judge cleared Nawaz Sharif of having purchased the London flats from the money of corruption, kickbacks or commission,” read the story.

“Nawaz, however, has been convicted of his failure to explain how he had purchased the London flats. However, while doing so, Accountability Judge Muhammad Bashir, instead of relying on concrete evidence, depended on presumptive or circumstantial evidence to conclude that Nawaz Sharif is the real owner of the London flats,” the report said while explaining the flaws of the court order.

It added, “Interestingly, the accountability court in its judgment not only admitted that establishing the ownership of Avenfield flats is difficult in the absence of relevant documents but made it clear that it is relying on prosecution’s presumption that Nawaz Sharif is the owner of the properties.

“The AC judgment had concluded that Nawaz is the real owner of London flats because the prosecution had succeeded in establishing that the Sharif family had been living in these apartments since 90s.”

The report said, “According to the operative part of the judgment, the children of Nawaz Sharif were not financially strong during early 90s and had no source of income to purchase those apartments. However, during the same era, Accused No 1 Nawaz Sharif and his father used to reside in the said apartments. Thus, the prosecution has succeeded in establishing on the basis of this presumption that Nawaz Sharif is the real owner of these flats.”

The AC judgment had admitted that it was difficult to establish ownership of properties which were purchased through offshore companies formed in tax haven jurisdiction due to veils of secrecy.

On presumption-based evidence, the court had first established that Nawaz Sharif was the owner of the London properties and then punished him for failing to explain the resources with which he had purchased the Avenfield apartments.

Interestingly, Nawaz Sharif had denied his ownership of London flats both before the Supreme Court and the JIT. His elder son Husain Nawaz was the only family member who had owned these flats and presented before the JIT and the Supreme Court the documents, including Qatari letter, to justify his sources for acquiring these properties.

Husain, however, had not appeared before the trial court, the accountability court, and thus was declared an absconder. The Accountability Court on the basis of presumptive evidence had declared Nawaz Sharif the owner of the Avenfield flats and punished him too for failing to explain the sources with which the properties were purchased.

The AC had punished Nawaz Sharif under Section 9a(v), which reads, “If he or any of his dependents or benamidar owns, possesses, or has acquired right or title in any ‘assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income’.”

It was reported by The News, “Even though on the basis of presumptive or circumstantial evidence the accountability court had established that Nawaz Sharif is the actual owner of London flats and has failed to explain that he had purchased these properties from his known means of income, there is another catch which makes this judgment weak. The NAB law Section 9(a)(v) under which Nawaz Sharif and others have been punished, has already lost its meanings in the light of a Supreme Court judgment on the same subject.”

It was reported that the judge of the accountability court had held, “All the ingredients of the offenses as defined u/s 9(a)(v) of NAO 1999 are established therefore, heavy burden was shifted to the accused to account of assets/Avenfield apartments that those are not disproportionate to known sources of their income.”

However, The News report had referred to an SC judgment on this subject titled Ghani-ur-Rehman vs NAB (PLD 2011 Supreme Court 1144), authored by Justice Asif Saeed Khosa, declaring that prosecution has to establish a link of the property with the committing of a crime of corruption and without that no punishment can be awarded.

In the same case besides Nawaz Sharif, Maryam and Safdar were also convicted. “For the convicts, it’s a good judgment to challenge. It will be interesting to see how the high court will treat this judgment,” the 2018 report of this newspaper reads.