Presumption may have led to Sharifs' conviction: IHC
IHC weighs legality of conviction on basis of presumption
Nawaz, Maryam. PHOTO: AFP
ISLAMABAD:
The Islamabad High Court (IHC) on Wednesday posed questions to the National Accountability Bureau (NAB), asking if criminal conviction can be based on presumption, and if such conviction can sustain as well.
The IHC’s division bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb posed several questions to NAB while hearing petitions of former prime minister Nawaz Sharif and his family members, seeking suspension of the sentences an accountability court awarded to them in the Avenfield reference.
Among the questions the division bench asked, the court directed NAB’s Special Prosecutor Akram Qureshi to argue over purchase price of the London flats, who made the analysis of income and assets chart that purport to show income, assets, tax and wealth of the jailed prime minister, how Sharif was connected with the properties and how Section 9(a)(5) of the NAB Ordinance was attracted on Sharif’s daughter, Maryam Nawaz.
The bench’s directions came during the arguments of counsel for Sharif, Khawaja Haris, and counsel for Maryam and her husband Captain (retd) Safdar, Amjad Pervaiz.
Both the defence counsels concluded their arguments on Wednesday. NAB will start presenting arguments from Thursday (today).
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When the petitions were taken up, the bench enquired about the purchase price of the London properties, asking whether it was mentioned in the July 6 judgment of the accountability court or not.
“Shifting the burden of proof on an accused requires fulfillment of four ingredients,” Haris said, adding, “The trial court judge was aware of the ingredients but whether he followed it or not is the question.”
“Subsequently,” Haris said, “The entire set of documents produced before the trial court pertaining to the ownership of the London flats doesn’t mention the price of flats.”
“In addition,” he said, “The documents obtained from the Financial Investigation Agency (FIA) of the British Virgin Island (BVI) do not say anything about the purchase price.”
Justice Aurangzeb observed that Joint Investigation Team (JIT) Head Wajid Zia once said that the price was mentioned somewhere, “but, apparently, that document(s) is/are not on record”.
The judge then asked, “What consequences will it have?”
Haris replied, “How can it be proved that the assets are disproportionate to the income without the price.”
He added, “The price and quantification is not there and this is not the case where there is some dispute on calculations.”
Also, he said, the case was not made out if the properties purchased were not disproportionate to the known sources of income.
Moreover, he argued, the court would have to see if there is any document as Zia said and whether it was tendered before the trial court or not.
“At the moment,” he said, “the documents of ownership and statements of the witnesses do not reveal price of flats.”
To a court’s query that the Supreme Court’s judgment pertaining to four ingredients doesn’t say that the price has to be determined, Haris said that it’s an inbuilt function, and without the price, one can’t determine if assets were disproportionate.
On a query of Justice Minallah if there was any document that shows any connection of Sharif with the properties, Haris replied, “No connection at all.”
“Only one witness – investigation officer – had said that Sharif was the owner but during cross examination, he admitted that no witness told him so,” he added.
To another court’s question if any dependent has earlier been punished in other cases, the counsel replied in the negative.
He also informed the court that the charge was different from the conviction. To Justice Justice Minallah’s observation that the children can also be dependent on grandfather, Haris replied in the affirmative, saying children’s grandfather was looking after them and the entire Sharif family.
“Even a man or his children can be dependent on his father,” Justice Minallah remarked.
To the question if there was any document showing that the children were dependent on Sharif, Haris said neither any document was on record nor key witness – Zia – said so in his testimony.
“There should be some onus on NAB that children were dependent on their father or grandfather,” the bench remarked, observing the trial court may have convicted them on presumption.
Haris said Sharif was not asked any question in this regard and he was not put on notice that he would be convicted on this point.
At one point, Justice Aurangzeb wondered how the trial judge discussed the Qatari royals’ letters when Sharif, Maryam and Safdar had not produced them in their defence before the trial court.
He remarked that the trial has to be independent and not influenced by the Supreme Court’s proceedings, but the trial court has considered the stance of the co-accused – Hassan and Hussain – taken before the apex court negatively, knowing that the co-accused were not before a trial court.
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While referring to a judgment of the apex court, Haris said, “One can’t be even convicted if the conviction is based on a fact regarding which an accused has not been put a question during statement under Section 342 of the Criminal Procedure Code.
“If NAB fails to establish the case, then there is no obligation on the accused,” he said while referring to another judgment.
Meanwhile, Pervaiz argued, “Maryam has been convicted on the basis of trust deeds only and there is not an iota of evidence against her under Section 9(a)(5).”
He said the court has treated Maryam as dependent but she was not asked any question in this regard under Section 342 of Cr.P.C., adding, no document is on record how Maryam helped accumulate assets.
He concluded his arguments by saying how a document of the year 2006 can be placed with the London flats’ purchasing documents pertaining to the years, 1993, 1995 and 1996.
“There is a single sentence about Safdar and that, too, about his sentence in the entire judgment, nothing else,” Pervaiz concluded.
“Maryam’s role would come only when Nawaz Sharif’s connection with the assets is proved,” Justice Minallah noted.
The IHC will resume hearing today (Thursday).
The Islamabad High Court (IHC) on Wednesday posed questions to the National Accountability Bureau (NAB), asking if criminal conviction can be based on presumption, and if such conviction can sustain as well.
The IHC’s division bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb posed several questions to NAB while hearing petitions of former prime minister Nawaz Sharif and his family members, seeking suspension of the sentences an accountability court awarded to them in the Avenfield reference.
Among the questions the division bench asked, the court directed NAB’s Special Prosecutor Akram Qureshi to argue over purchase price of the London flats, who made the analysis of income and assets chart that purport to show income, assets, tax and wealth of the jailed prime minister, how Sharif was connected with the properties and how Section 9(a)(5) of the NAB Ordinance was attracted on Sharif’s daughter, Maryam Nawaz.
The bench’s directions came during the arguments of counsel for Sharif, Khawaja Haris, and counsel for Maryam and her husband Captain (retd) Safdar, Amjad Pervaiz.
Both the defence counsels concluded their arguments on Wednesday. NAB will start presenting arguments from Thursday (today).
Raiwind residence declared sub-jail as Sharifs' parole extended to 5 days
When the petitions were taken up, the bench enquired about the purchase price of the London properties, asking whether it was mentioned in the July 6 judgment of the accountability court or not.
“Shifting the burden of proof on an accused requires fulfillment of four ingredients,” Haris said, adding, “The trial court judge was aware of the ingredients but whether he followed it or not is the question.”
“Subsequently,” Haris said, “The entire set of documents produced before the trial court pertaining to the ownership of the London flats doesn’t mention the price of flats.”
“In addition,” he said, “The documents obtained from the Financial Investigation Agency (FIA) of the British Virgin Island (BVI) do not say anything about the purchase price.”
Justice Aurangzeb observed that Joint Investigation Team (JIT) Head Wajid Zia once said that the price was mentioned somewhere, “but, apparently, that document(s) is/are not on record”.
The judge then asked, “What consequences will it have?”
Haris replied, “How can it be proved that the assets are disproportionate to the income without the price.”
He added, “The price and quantification is not there and this is not the case where there is some dispute on calculations.”
Also, he said, the case was not made out if the properties purchased were not disproportionate to the known sources of income.
Moreover, he argued, the court would have to see if there is any document as Zia said and whether it was tendered before the trial court or not.
“At the moment,” he said, “the documents of ownership and statements of the witnesses do not reveal price of flats.”
To a court’s query that the Supreme Court’s judgment pertaining to four ingredients doesn’t say that the price has to be determined, Haris said that it’s an inbuilt function, and without the price, one can’t determine if assets were disproportionate.
On a query of Justice Minallah if there was any document that shows any connection of Sharif with the properties, Haris replied, “No connection at all.”
“Only one witness – investigation officer – had said that Sharif was the owner but during cross examination, he admitted that no witness told him so,” he added.
To another court’s question if any dependent has earlier been punished in other cases, the counsel replied in the negative.
He also informed the court that the charge was different from the conviction. To Justice Justice Minallah’s observation that the children can also be dependent on grandfather, Haris replied in the affirmative, saying children’s grandfather was looking after them and the entire Sharif family.
“Even a man or his children can be dependent on his father,” Justice Minallah remarked.
To the question if there was any document showing that the children were dependent on Sharif, Haris said neither any document was on record nor key witness – Zia – said so in his testimony.
“There should be some onus on NAB that children were dependent on their father or grandfather,” the bench remarked, observing the trial court may have convicted them on presumption.
Haris said Sharif was not asked any question in this regard and he was not put on notice that he would be convicted on this point.
At one point, Justice Aurangzeb wondered how the trial judge discussed the Qatari royals’ letters when Sharif, Maryam and Safdar had not produced them in their defence before the trial court.
He remarked that the trial has to be independent and not influenced by the Supreme Court’s proceedings, but the trial court has considered the stance of the co-accused – Hassan and Hussain – taken before the apex court negatively, knowing that the co-accused were not before a trial court.
JIT head ‘made no mention’ of Sharif’s income chart
While referring to a judgment of the apex court, Haris said, “One can’t be even convicted if the conviction is based on a fact regarding which an accused has not been put a question during statement under Section 342 of the Criminal Procedure Code.
“If NAB fails to establish the case, then there is no obligation on the accused,” he said while referring to another judgment.
Meanwhile, Pervaiz argued, “Maryam has been convicted on the basis of trust deeds only and there is not an iota of evidence against her under Section 9(a)(5).”
He said the court has treated Maryam as dependent but she was not asked any question in this regard under Section 342 of Cr.P.C., adding, no document is on record how Maryam helped accumulate assets.
He concluded his arguments by saying how a document of the year 2006 can be placed with the London flats’ purchasing documents pertaining to the years, 1993, 1995 and 1996.
“There is a single sentence about Safdar and that, too, about his sentence in the entire judgment, nothing else,” Pervaiz concluded.
“Maryam’s role would come only when Nawaz Sharif’s connection with the assets is proved,” Justice Minallah noted.
The IHC will resume hearing today (Thursday).