ISLAMABAD: Former prime minister Nawaz Sharif, his daughter and son-in-law on Monday challenged an accountability court’s July 6 verdict in the Islamabad High Court (IHC), requesting it to set aside their convictions, which they termed ‘illegal’ and in violation of the superior court’s orders.
Sharif, his daughter Maryam and her husband Captain (retd) Safdar were sentenced to rigorous imprisonment after the accountability court found them guilty in one of the four corruption references filed by the National Accountability Bureau (NAB) in line with apex court’s order in Panama Papers case.
Now imprisoned in Rawalpindi’s Adiala Jail, they have filed appeals against judgement through their counsel Khawaja Haris and Amjad Pervaiz.
The impugned judgement, conviction and sentence are based on no evidence, Haris has said in Sharif’s appeal. The counsel has stated that the trial judge, Muhammad Bashir, has acted in utter breach of the principles governing the interpretation of penal statutes as consistently laid down by the Supreme Court.
“It stands established on the record that the Prosecution had miserably failed to refer to or lead any evidence that during more than 37 years of his political career the Appellant [Nawaz Sharif] had ever committed any act of omission or commission to obtain any property, valuable things or pecuniary advantage for himself or for his spouse or dependents or any other person,” Haris stated.
Haris said it is admitted by both Wajid Zia, head of the Panama Papers joint investigation team (JIT), and the investigation officer, Imran Dogar, that neither the documents of title of Avenfield Properties nor the control of Nescoll Limited and Nielsen Enterprises (the off-shore companies in whose name Avenfield Properties stand) ever remained with Sharif, nor did they come across any evidence, documentary or oral, that Sharif paid or contributed any money for the purchase of the properties. He said these admitted facts do not find any mention whatsoever in the impugned judgment.
He said there is no legal basis or justification for Sharif to have been convicted for an offence of having acquired assets beyond his known sources of income in the name of any alleged dependant as no evidence to support this allegation has been found against him.
Both the counsel argued that the trial judge has acted in violation of the law as laid down by the superior courts in relying upon the opinion recorded by the JIT in its investigation report on the pretext that “the same may be considered, if it is found convincing and found based on reliable documents/ material that opinion can be accepted and relied upon.”
They said, before the trial court, a ruling of the Supreme Court was cited whereby a similar reliance on opinion of an investigating officer by the high court was held to be ‘bad law’, yet the judge ignored that dictum of the Supreme Court and proceeded to give credence to the JIT’s opinion in gross violation of the law declared by the apex court.
Haris said the accountability court has committed “a grave miscarriage of justice in drawing inferences against the Appellant (Sharif) on the basis of the contents of documents, including pleadings and affidavits, executed, scribed or sworn to (as the case may be) by those persons who were not before the court, either as accused or as witnesses, and/or were never cited as accused or witnesses in the case.”
He said in the appeal that NAB’s investigating officer categorically admitted that there was no evidence to even remotely connect Sharif with the Avenfield properties in any manner whatsoever.
As a matter of fact, he said, there is not an iota of evidence produced by the prosecution that any of the children of Sharif were dependent on him at any time since they came to be in possession of Avenfield properties, but this aspect of the record is also not taken note of by the trial court.
Maryam’s counsel said the prosecution story in pith and substance was the commission of an offence of assets beyond means yet the charge as framed did not enlist the known sources of income of any of the accused, expenditure incurred in lieu of acquisition of ownership and thereafter its quantification to show the alleged disproportion.
The same did not even specify as to who amongst the accused was the owner of the Avenfield properties.
Contrary to its story setup in the interim reference, Pervaiz said, an altogether different case was introduced whereby it was alleged that the Avenfield properties were owned and possessed by Sharif in the name of his dependents which were disproportionate to his known sources of income and were shown to be acquired in the name of accused Hussain Nawaz of which Maryam was made a trustee and the trust deed was alleged to be fake and fabricated on the basis of forensic report.
In the couple’s appeal, Pervaiz said the sum total of the prosecution case was the commission of an offence of assets beyond means, however, nothing was available on record to suggest any nexus of Sharif with the ownership of the Avenfield properties.
“Even the known sources of income were not enlisted, determined, compared and quantified with the value of the properties, rather, nothing was available on record to show even the price of the properties,” he argued.
Pervaiz said despite paradigm shift in the case of the prosecution, the trial court did not amend the charge in consonance with the changed version of the prosecution, rather, it was observed that the supplementary reference shall be read with already filed interim reference, JIT report and NAB probe.
“The said observation created an anomalous situation for the accused as to what case they were supposed to defend,” Pervaiz stated.
He also argued that the prosecution failed to furnish any oral account in support of its case whereas the entire documentary evidence produced by it was inadmissible for want of formal proof or being the attestation of copies or being photocopies.
The conviction and sentence for the charge under section 9(a)(v) of the NAO, 1999 has been mainly based upon the testimony of JIT head Wajid Zia who was an investigation officer of the case and did not have any personal knowledge regarding the facts deposed by him.
“His deposition was both inadmissible and irrelevant; he was not competent to play proxy to any witness not produced nor could have he proved any document of which he was neither author nor privy. Zia’s testimony fell within the mischief of hearsay which was liable to be discarded on the exclusionary rule,” he said.
He said the case of the prosecution regarding the allegation of beneficial ownership by the appellant (Maryam, Safdar) were three letters – one by the British Virgin Island’s Federal Investigation Agency (FIA) and two replies by Mossack Fonseca. However, the prosecution failed to adduce any evidence worth name to vouchsafe the contents of the disputed letters.
Pervaiz said the correspondence between the FIA and Mossack Fonseca and its logical result thereof could not have been treated as an incriminating circumstance against Maryam.
“The trial court has felt it convenient to seek the aid of presumptions for passing the impugned judgement which could not have been invoked without fulfilment of statutory requirements of requisite proof as to the necessary ingredients of the offence under section 9(a)(v),” he said.
He said the allegation regarding trust deeds has been concocted by the JIT with the mala fide intention to implicate the whole family. It is a matter of record that the trust deeds were available on the record of Hon’ble Supreme Court of Pakistan yet no question was formulated as to the authenticity, genuineness or otherwise regarding trust deeds in the order dated 20-04-2017.
He argued that no implicit reliance can be placed upon an uncorroborated opinion of an expert, it is not infallible, rather, it is the weakest kind of evidence and is liable to be received with great caution.
The counsels have requested the court to set aside the impugned judgement, conviction and sentence and acquit them of all the charges framed against them in the Avenfield reference.
Meanwhile, PML-N chief Shehbaz Sherif on Monday wrote a letter to the caretaker prime minister and Punjab chief minister to provide facilities to the convicted PM as per Jail privilege.
Accountability court judge recuses himself
As Nawaz Sharif’s counsel filed an application requesting the IHC to transfer remaining two references pending against the former premier, news surfaced that the Accountability Court judge Muhammad Bashir has recused himself from hearing the other references.
The accountability court judge, who convicted former PM Nawaz Sharif, his daughter and son-in-law in the National Accountability Bureau’s (NAB) Avenfield Apartments reference, is also hearing Al-Azizia and Hill Metal Establishment, and Flagship references.
In the application seeking transfer of the pending references, Sharif’s counsel Khawaja Haris said the judge has already disclosed his mind on the evidence and documents produced by the prosecution in Avenfield case and it would not be appropriate for him to continue holding the trial in two other references.