‘Fugitive’ Sharif has lost right to audience: IHC

ISLAMABAD:

Three-time former prime minister Nawaz Sharif on Thursday lost his right to audience for being a fugitive from law after the Islamabad High Court dismissed his appeals against his conviction in the National Accountability Bureau’s (NAB) corruption references over his continuous failure to appear before the court.

An IHC division bench, comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani, dismissed the deposed premier’s appeals in the Avenfield Apartments and Al-Azizia references as he, despite being on bail, went abroad, remained absent on the hearings and did not appear before the court without any justification.

Before Sharif, the former president Gen (retd) Pervez Musharraf had also lost the right to audience over his non-appearance and long delays in trial.

Apparently, in both the cases, the courts have made it clear that control over the proceedings could not be allowed to vest in the accused.

“Since the appellant is fugitive from law, hence [he] has lost his right of audience before this Court and we are left with no choice except to dismiss his appeal,” the IHC order read.

The judges, however, stated that the appellant might file an application before IHC, as and when he surrenders or is captured by the authorities, for a decision on the appeals.

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“Needless to observe that the said application, if and when is made, shall be decided in accordance with law,” the order added.

Legal experts said whenever Sharif filed such an application, the court would examine the reasons for his continuous absence before proceeding ahead in the matter.

“Mian Muhammad Nawaz Sharif was provided a fair trial inasmuch as learned trial court provided him opportunity of hearing as well as cross-examining the prosecution witnesses and only after the proper trial, his conviction was recorded,” the bench noted, adding that he subsequently went abroad and did not return when his appeals were fixed.

Hence, the judges stated, the court was left with no option but to follow the procedure as provided in Code of Criminal Procedure, 1898, and declare him a fugitive from law.

“Sharif was provided fair trial and now has absconded from justice at the time of hearing of appeal,” the order read, adding that was why the right of fair trial under Article 10-A of the Constitution was of no avail to him.

The ruling has come in response to the arguments emphasising that the right to fair trial was a must in every case.

Referring to a Supreme Court judgment, the bench ruled that there was no restriction on the court to dispose of a criminal appeal on the consideration that the accused person had abused the process.

“There is nothing in the Constitution or the Rules to compel the Court to decide on merits an appeal filed by an accused person who has chosen to be fugitive from justice and while remaining so decides to disobey or frustrate the orders, directions and process of the Court from which he seeks justice,” the verdict read.

In the order, the court noted that there was no cavil with the fact that the Supreme Court in a number of cases held trials to be null and void where the accused was absconder but in the instant case, the matter was somewhat different inasmuch as the appellant had been appearing before the trial court.

Likewise, it added, there was also no cavil to the principle that appeal was continuation of the trial but again, the circumstances of the instant case were different as the appellant was in custody and granted bail by the court on September 19, 2018.

However, it maintained, Sharif proceeded abroad and failed to appear before the court when appeals were fixed and was declared absconder through an order dated December 2, 2020 after following the procedure.

Citing judgments, the bench ruled that it was an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice.

While giving background of the cases, the order read that Sharif was tried and convicted in NAB references by accountability courts in July and December 2018. Subsequently, it added, he filed appeals against the judgments and was released on bail. Later, it continued, he failed to surrender and was declared an absconder after following the codal formalities for procuring his attendance.

On July 6, 2018, an accountability court had convicted Sharif in the Avenfield reference and sentenced him to 10 years in prison. Subsequently on Dec 24, 2018, another accountability court had convicted Sharif in the Al Azizia reference and sentenced him to seven years imprisonment.