ISLAMABAD: The Islamabad High Court will take up on Monday (today) a ­petition filed by former prime minister Nawaz Sharif seeking suspension of his ­sentence in the Al-Azizia/Hill Metal Establishment reference.

As per the cause list issued by the IHC on Saturday, a division bench comprising Chief Justice Athar Min­allah and senior puisne judge Justice Aamer Farooq will hear the constitutional petition No 32 of 2019 filed by Mr Sharif.

The ex-PM’s legal team had last week filed the petition as well as an appeal against his conviction in the Al-Azizia reference. The IHC registrar office had raised some administrative objections to the petition as the legal team submitted with it over 4,000 documents, including papers in foreign languages. Some documents were not readable due to which the petition was fixed for hearing after some delay.

A defence counsel on Saturday removed these objections after which the IHC registrar office fixed the case for preliminary hearing.

Accountability court judge Mohammad Arshad Malik had on Dec 24, 2018 convicted Mr Sharif in the Al-Azizia/Hill Metal Establishment reference and awarded him seven years imprisonment, besides imposing a fine of Rs1.5 billion and $25 million.

Registrar office earlier raised administrative objections on petition in Al-Azizia case

Mr Sharif’s legal team comprises lead defence counsel Khawaja Haris Ahmed, Barrister Munawwar Duggal, Zubair Khalid and others.

The National Accountability Bureau (NAB) has also filed appeals in the IHC, seeking enhancement of Mr Sharif’s sentence from seven to 14 years. NAB has also challenged Mr Sharif’s acquittal in the Flagship Investment reference.

The Supreme Court had on July 28, 2017, while deciding petitions of Pakistan Tehreek-i-Insaf chairman Imran Khan, Sheikh Rashid Ahmed and other political leaders, disqualified Mr Sharif and directed NAB to file three references — Avenfield Properties, Al-Azizia and Flagship Investment — against Mr Sharif and other members of his family in the accountability court.

Accountability court judge Mohammad Bashir had on July 6, 2018 convicted Mr Sharif in the Avenfield reference and ­sentenced him to 10 years in prison.

However, an IHC division bench comprising Chief Justice Minallah and Justice Miangul Hassan Aurangzeb suspended the sentence in the Avenfield reference.

NAB has filed an appeal against the ­suspension of sentence, which is pending adjudication before the Supreme Court.

‘Extraneous’ factors

In the petition seeking suspension of sentence in the Al-Azizia reference, counsel Khawaja Haris has pointed out certain ‘extraneous’ factors which accountability judges never consider while announcing judgements in routine cases.

For example, the appeal identified para 13 of the judgement and contended that “the learned trial judge has proceeded to pass generalised and sweeping remarks lamenting about rampant increase in ­corruption in society”.

The appeal said that “in doing so, the learned trial judge has not only betrayed his inherent bias and predisposition while deciding the case against the appellant, he has also exceeded his jurisdiction as a trial judge, in that such generalised remarks and sweeping statement have no relevancy for purpose of deciding the guilt or innocence or an accused in a criminal trial as such a decision is to be taken strictly in accordance with law, which requires the court to confine itself within the parameters of the charges framed in the case, the admissible evidence brought on the record and proved in accordance with law, rather being influenced by his own subjective perception and observations”.

Likewise, the appeal added, “the socialist and class divisive observations made by the learned trial judge in para 14 of the judgement are not only extraneous to the record of the case, in that during the trial no witness had complained or otherwise deposed that resorting to the corruption and corrupt practices by one set of our society has amassed unprecedented wealth and accumulated huge assets, and the other segment of the society has drowned down forced to lick clay”.

Inherent bias

The appeal said the socialist and class divisive observations made by the trial court judge in para 14 of the judgement were extraneous to the record of the case. “Such an observation indicates an inevitable pre-disposition of the mind of the learned judge in harbouring an inherent bias towards the more affluent people of the society,” it added.

According to the appeal, “such an observation indicates an inevitable pre-­disposition of the mind of the learned judge in harbouring an inherent bias towards the more affluent people of society”.

“Not only the aforesaid observations of the learned trial judge are in derogation of the principles governing administration of criminal justice in Pakistan, and of the principle of fair trial as guaranteed to all citizens of the country by virtue of Article 10-A of the Constitution…[these] are tantamount to condemning the appellant even before considering whether evidence brought on the record by is sufficient to hold him guilty of committing any offence as charged,” the appeal stated.

It further noted: “As a matter of fact the observations made by the learned trial judge in paras 13 and 14 of the impugned judgement are neither based on any evidence produced during the trial, nor did the learned trial judge otherwise have any jurisdiction under the law to make any such observations while pronouncing the judgement in a criminal trial, rather making of these observations is tantamount to, it is submitted with respect, politicising of the justice system, is in breach of the appellant’s fundamental right to fair trial.”

Another ground of the appeal was that the accountability court presumed Mr Sharif as owner of the ASCL and HME on the basis of remittances made to him by his son Hussain Nawaz through HME.

The appeal, while referring to Section 5(d)(i) of the National Accountability Ordinance (NAO), 1999 (which says one who has enjoyed from the benefit of an asset, but does not qualify him to be the ‘owner’ of the asset from which such remittances may have originated), said that the “receipt of remittances by the appellant from his son or his sole proprietorship i.e. HME, is the benefit the appellant has enjoyed”. Therefore, it added, “the appellant may thereby fall within the category of an ‘associate’ as defined in Section 5(d)(i) of NAO, 1999, but not as an ‘owner’ of HME”.

Published in Dawn, January 7th, 2019