IHC may announce decision on Sharifs suspension of sentences plea tomorrow

The top court earlier penalised NAB for filing a 'frivolous' petition blocking the pleas


Rizwan Shehzad September 18, 2018
The top court earlier penalised NAB for filing a 'frivolous' petition blocking the pleas. PHOTO: FILE

ISLAMABAD: The Islamabad High Court is likely to decide the fate of petitions of the Sharifs for the suspension of sentences awarded by an accountability court in the Avenfield reference if the National Accountability Bureau (NAB) fails to conclude arguments on September 19 (today).

IHC's division bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb made it clear to NAB prosecutor Akram Qureshi that the court would decide Sharifs' suspension petitions on the basis of written arguments earlier submitted by both the parties.

Meanwhile, the bench questioned NAB how Maryam could be convicted under Section 9(a)(5) along with Section 9(a)(12) of the NAB Ordinance (NAO) of 1999 because either she is the ostensible or the actual owner of the Avenfield Apartments -- not both.

When Qureshi said that Maryam's role was of an abettor, Justice Aurangzeb said, "This means half of the conviction is not proved."

"Has Maryam amassed assets beyond known sources of her income," the judge enquired.

Qureshi replied in the affirmative. However, when Justice Aurangzeb sought Qureshi's stance on the statement that Maryam could not have been convicted under Section 9(a)(5) and only Section 9(a)(12) of the NAO was enough, he said, "Yes, it is correct and only Section 9(a)(12) was enough."

Top court throws out 'frivolous' NAB petition against Sharifs' pleas

"Thank you for taking a fair stance," Justice Aurangzeb lauded the prosecutor.

Qureshi, however, said that both the sections are read together just like Section 302 (premeditated murder) and Section 109 (abetment) of the Pakistan Penal Code.

The questions and observations came after Justice Minallah drew NAB prosecutor's attention towards the fact that as per the charge sheet, Maryam is not the owner of the Avenfield flats but Nawaz Sharif is.

To the judge's question if the trust deeds of Neilson & Nescoll and Coomber were ever registered, Qureshi replied in the negative. This led to Justice Aurangzeb to say: "What difference does it make if the property belongs to sons or daughters because your [NAB] case is that Nawaz Sharif is the owner."

He then enquired if Sharif is a joint owner of the properties. Qureshi said, "No", adding this is not our case.

When the case was taken up, Qureshi alleged that there is a "strange impression" the media has created that one of the judges on the bench used to be part of the lawyer's movement which was led by Nawaz Sharif.

"Are you doubting my integrity and independence," Justice Minallah enquired, adding he was close to the former prime minister as well, but the lawyers' movement was for the rule of law and after his elevation, he has given strongest of judgments.

Qureshi reiterated that he being a lawyer was not saying it but the "press" said that the judge was close to Sharif.

"If you have confidence only then we'll proceed. We don't care what people would say. Our sole purpose is to give judgment that is confined within law," Justice Minallah said.

Importantly, the bench had asked the parties on the first hearing that it would proceed only if they have full confidence in the bench. Both the parties had expressed complete trust in the bench that day.

When Justice Minallah asked, "Is this not sufficient for suspension of judgment if the trial court has not appreciated evidence," Qureshi sought an adjournment on the grounds that he "can't continue arguments because of a 'swelling' leg as the doctors had taken out a vein from his leg for heart surgery a few months ago".

"We can give you a chair to sit on," Justice Aurangzed offered.

"Sitting won't help because I need to put my legs in a parallel position," Qureshi said, adding, he only needed half-an-hour tomorrow to conclude arguments.

"We would want everyone comfortable in this case. This case is an important and crucial case," Justice Minallah remarked.

Qureshi, a former judge, said he never refused anyone's adjournment request when he was on the other side of the bench.

Justice Aurangzeb said the court has already given several adjournments to NAB but there is limit to everything.

Ultimately, when Qureshi gave the assurance that he would definitely conclude arguments on September 19, the bench clarified that it would decide the petitions on the basis of written arguments earlier submitted in the court if NAB fails to do so.

In the order, Justice Minallah stated that if "NAB doesn't conclude on Wednesday it would be appropriate for us to pass an appropriate order".

NAB moves SC to block Sharifs’ suspension plea before IHC

Among his arguments on Tuesday, Qureshi said the court can suspend judgment only in the cases of extreme hardship and not on the basis of tentative assessment or other reasons.

He referred to precedents wherein similar situations were discussed and ruled in his favour. He said that minors are always in custody of parents and when properties are in minor's possession, parents are the presumed owners.

Further, he said, when NAB brought the possession of London properties on record then the burden of proof is on the accused. He said income and expenses were to be provided and proven by the accused in light of the SC questions for the accused as part of the Panamagate case but they did not.

Moreover, he said, this is a special case because all properties are abroad and the Sharif family said that they haven't done anything but that Late Muhammad Sharif did all of it. Qureshi said the letters were produced on record to prove that no agreement in 1980 took place.

Also, he said, BVI/FIA letters were produced which revealed that Maryam is the beneficial owner of flats. The trust deeds were proved bogus, he said, adding Safdar was a witness to it. Once again, he said, any finding on the genuineness or forgery of any document would be a deeper appreciation of the evidence and that stage has yet to come.

The bench clarified that it would not go in the deeper appreciation of evidence and that is why Sharifs' counsels were not allowed to discuss evidence while making arguments.

Qureshi once again asked the bench to first decide maintainability but the bench said that it would decide maintainability of the suspension petition and other things once the arguments are concluded.

Justice Aurangzeb said, "Kindly stick to your commitment, argue on merit…" He continued.

Later, the matter was adjourned for September 19. If allowed, IHC's order on suspension petitions can lead to Sharifs' release from Adiala jail where they are serving out sentences awarded in the Avenfield Apartments reference on July 6.

 

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Aamir | 3 years ago | Reply All the best NS!
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