ISLAMABAD: In a surprise move, accountability court judge Mohammad Bashir, who had convicted Nawaz Sharif in the Avenfield properties reference, on Monday recused himself from hearing Al-Azizia and Flagship references against the ex-premier just hours after the Sharifs requested the Islamabad High Court to transfer both references to another court.

In their appeals, Nawaz Sharif, his daughter Maryam Nawaz and son-in-law retired Capt Mohammad Safdar also challenged their conviction in the London flats case, asking the IHC to annul the July 6 verdict of the accountability court.

In addition, their counsel Saad Hashmi and Zafir Khan, who were part of the team of defence counsel for the Sharifs, also asked the IHC to release the convicts on bail until it adjudicates on their appeals.

Challenging their conviction in the Avenfield properties reference, the appeals stated: “The impugned judgement, conviction and sentence are based on no evidence”.

IHC moved against conviction in Avenfield properties case; release on bail sought till appeals are decided

The appellants argued that the trial judge acted in “violation of the settled principle of law and acted in utter breach of the principles governing interpretation of penal statutes as consistently laid down by the Supreme Court”.

While referring to the July 6 verdict, the appeals stated: “It stands established on 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 dependants or any other person.”

The accountability court, however, had acquitted the Sharif family of the charge relating to owning assets with corrupt practice and ill-gotten money under Section 9(a)(iv) of the National Accountability Ordinance (NAO).

The appellants argued that it was admitted by head of the Joint Investigation team (JIT) Wajid Zia and NAB’s investigating officer Imran Dogar that neither the documents of the title of Avenfield properties nor the control of Nescoll Limited and Nielsen Enterprises (the offshore companies in whose name Avenfield properties stand) ever remained with Nawaz Sharif, nor did they come across any evidence, documentary or oral, that the ex-PM had paid or contributed any money for the purchase of Avenfield properties.

According to the appeals, these facts admitted by the JIT head and the investigation officer did not find any mention whatsoever in the impugned judgement.

They said there was no legal basis or justification for Nawaz Sharif to have been convicted for the offence of having acquired assets beyond his known sources of income in the name of any of the alleged dependants due to lack of corroborating evidence.

The appeals maintained that the trial judge 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 could be considered if it was found convincing and based on reliable documents / material.

They said that before the trial court, a Supreme Court ruling was cited whereby a similar reliance on opinion of an investigating officer by the high court was held to be “bad law”, yet the trial court judge ignored that dictum of the apex court and proceeded to give credence to the “opinion”.

The appeals claimed that NAB’s investigating officer Imran Dogar categorically admitted that there was no evidence collected by him to even remotely connect Mr Sharif with the Avenfield properties in any manner whatsoever.

As a matter of fact, the investigating officer said, there was not an iota of evidence produced by the prosecution that any of Mr Sharif’s children were dependent on him at any time since they came to be in possession of Avenfield properties, but this aspect of the record was also not taken note of by the trial court.

According to the appeal, the conviction and sentence for the charge under Section 9(a)(v) of the NAO, 1999 has been mainly based upon the testimony of the JIT head who had investigated the case but had no personal knowledge of the facts that he deposed. It stated that the NAB’s official’s testimony was both “inadmissible and irrelevant”, as he was not competent to play proxy to any witness not produced before the court. The JIT head’s testimony fell within the mischief of “hearsay” that was liable to be discarded on the exclusionary rule, the appellant argued.

The appeal stated that Judge Mohammad Bashir had passed the verdict in the Avenfield properties reference on the basis of presumptions and assumptions without fulfilling the “requirements of justice”.

The counsel for the Sharifs contended that until the IHC adjudicated on the appeal against the accountability court’s decision, the convicts should be released on bail. They claimed that the chart of the Sharif family’s assets and liabilities as their “known sources of income”, which was produced in the accountability court, was not submitted by the head of the Panamagate Joint Investigation Team, who was NAB’s star witness, and did not bear the signatures of any officials either.

In the appeal filed on the ex-PM’s behalf, Advocate Khawaja Haris said NAB declared the Avenfield flats were worth more than the former premier’s known income but the bureau failed to take into account the value of the flats at the time of their purchase. It was argued that the prosecution had provided no evidence for establishing Nawaz as the owner of the London flats.

Referring to the contentious use of Calibri font in the trust deed, the appeal stated that forensic expert Robert Radley admitted before the accountability court that the font had existed when the trust deed had been prepared and signed.

Transfer of references to another court

The counsel for Nawaz Sharif urged the court to transfer the two pending references against Nawaz — Al-Azizia and Flagship Investment — to another accountability judge since the arguments in both cases were similar to the ones in the Avenfield reference. Advocate Haris argued that since the evidence in both the cases was similar, the verdict could be the same if heard by the same judge.

Advocate Haris had earlier requested Judge Mohammad Bashir to recuse himself from the case for the same reasons and the latter refused and wrote a letter to the Supreme Court informing it about the objection of the defence counsel. The apex court gave a go-ahead to Judge Bashir who subsequently dismissed the application of Advocate Haris seeking transfer of the case to another court last week.

The counsel on Monday filed an appeal before the IHC against the order of Judge Bashir. In the appeal, he said the accountability court had announced the verdict in absentia, though the Sharifs had appealed to the court to delay the judgement for seven days.

Seeking transfer of references, the appeal maintained that the accountability court in the July 6 judgement “has given its findings in respect of (i) status and relevancy of the JIT report, (ii) pleading of the co-accused ...(iii) interviews of co-accused and their impact and relevancy (iv) appellant’s address to the nation on April 5, 2016 and his speech given on the floor of the National Assembly on May 16, 2016, (v) all assertions relating to Gulf Steel Mills and Qatar.”

It said the court had already disclosed its mind on the evidence and documents produced by the prosecution in Avenfield properties reference and it would not be appropriate for this court to continue holding trial in the Al-Azizia and Flagship references on the same evidence.

According to the appeal, it is a settled law that even where a judge hearing a criminal case, who had earlier formed an opinion while deciding a civil dispute on a fact that constitutes a crucial point of consideration in a criminal trial, may give rise to a bona fide and reasonable apprehensions that the trial would not be fair and impartial.

Published in Dawn, July 17th , 2018