ISLAMABAD: The Islamabad High Court (IHC) on Wednesday issued a detailed order on suspension of jail sentences awarded and bail granted to former premier Nawaz Sharif, his daughter and son-in-law in the Avenfield apartments reference.

A division bench of the IHC comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb declared that petitions filed by the convicts were maintainable since it was a hardship case and observed: “We have formed a prima facie tentative opinion that the convictions and sentences handed down to the petitioners may not be ultimately sustainable.” But the bench also clarified that the opinion formed by the court would not affect the hearing of regular appeals against the conviction of the Sharif family in the Avenfield apartments reference.

Detailed order on Avenfield verdict suspension issued

The court had suspended the sentences awarded to ousted PM Sharif, his daughter Maryam and son-in-law retried captain Mohammad Safdar through a short order and ordered their release on bail on Sept 19.

The detailed judgement covering different aspects including maintainability of petitions filed by the convicts, loopholes in the verdict of the accountability court, onus of proof and weak prosecution also discussed in detail some precedents, especially the Ghani-ur-Rehman case, where the apex court had set guidelines in identical matters.

Loopholes

The IHC bench in the detailed verdict stated, “This view formed by us is tentative and solely confined to the defects and infirmities which are obvious from a plain reading of the judgement and tentative assessment of evidence permissible while considering a case for suspension of sentence in terms of Section 426 of the criminal procedure code.”

On July 6, Judge Mohammad Bashir of the accountability court had awarded 10 years imprisonment to ousted PM, seven years imprisonment to his daughter and one year to his son-in-law in the Avenfield apartments reference.

The division bench observed that though the maximum punishment for such offence was 14 years, the accountability judge had not “recorded reasons for handing down lesser sentences”.

The bench noted, “It is admitted position that the [National Accountability] Bureau has not preferred appeals against the acquittal of the petitioners for an offence under Section 9(a)(iv) of the [National Accountability] Ordinance of 1999 nor has it sought enhancement of the sentences despite the fact that the maximum punishment prescribed under the law has not been awarded. The learned accountability court in the judgement has also not recorded reasons for handing down lesser sentences.”

According to the IHC’s detailed verdict, “prima facie, it [accountability court’s verdict] suffers from an obvious legal infirmity or lacuna, resulting in forming a tentative opinion within the ambit of the above discussed principles and law for reaching a conclusion as to whether a case for suspension of the sentences”.

It added, “It is obvious from a plain reading of the judgement that, inter alia, a specific charge was framed and the petitioners were tried for an offence under Section 9(a)(iv) of the Ordinance of 1999. By charging the petitioners for the said offence, they were alleged to have acquired Avenfield apartments by corrupt, dishonest or illegal means. The learned accountability court in the judgement has held that “prosecution has not brought evidence in respect of Section 9(a)(iv) NAO, 1999. So the accused are acquitted under that section of law”.

The IHC noted NAB in its wisdom had not challenged the said acquittal. “There is no cavil to the proposition that the offence under Section 9(a)(v) is distinct. However, there is force in the argument raised by the learned counsel for Petitioner No 1 [Nawaz Sharif] that, having been specifically charged under Section 9(a)(iv), the learned accountability court should have considered whether, on the same evidence and relating to the same property, a conviction could be handed down under Section 9(a)(v).”

Weak prosecution

The detailed order of the division bench stated: “At the very outset, we had asked the learned counsel for the bureau as to why no appeal had been preferred against the acquittal of the petitioners for the specific offence under Section 9(a)(iv) relating to Avenfield apartments and in response he stated that the bureau was satisfied with the convictions and sentences awarded under a distinct offence i.e. Section 9(a)(v).”

The bench noted that the accountability court had acquitted the Sharif family from the charge related to acquiring assets through corruption. Moreover, the prosecution could not prove its case in accordance with the guidelines set by the apex court to establish that the assets were beyond known means.

The detailed verdict stated the trial court order never mentioned comparison of value of assets and known sources. Citing the principles and law laid down by the Supreme Court in the cases of Khalid Aziz and Ghani-ur-Rehman, the court stated that this opinion was subject to deeper appreciation of evidence that would obviously be undertaken at the time of hearing of the appeals. This ground alone is sufficient at this stage to form a prima facie opinion that the convictions may not be ultimately sustainable unless through deeper appreciation of evidence it could be shown otherwise.

“The only document referred to in the judgement in this context is the ‘analysis chart of assets and liabilities’ which was not prepared by the witness who produced it before the trial court but was made by someone else whom the investigation officer did not know,” the bench noted.

Regarding maintainability of the petitions, the IHC was of the view that the “appeals could not be decided within the time prescribed under Section 32 of the Ordinance of 1999 nor is their fixation in sight, particularly when two other trials are pending before the learned accountability court against Petitioner No 1 [Nawaz Sharif]. After forming a tentative opinion, as discussed above, it would lead to causing hardship to the Petitioners if the relief by way of suspension of sentences is withheld. We are also guided by the principles and law laid down by the august Supreme Court.”

The court, however, made it clear that the bench had “not recorded any conclusive finding and our assessment or any observation made herein shall not in any manner prejudice the case of either party when the appeals will be heard”.

Published in Dawn, October 4th , 2018