IHC gives partial relief to Nawaz in petition seeking joint trial in three references

ISLAMABAD: The Islamabad High Court (IHC) judgement rejecting the petition filed by former prime minister Nawaz Sharif contains a silver lining for the petitioner, by allowing the simultaneous recording of statements and cross-examination of witnesses in all three references.

The detailed order was issued by a two-member division bench consisting of justices Aamer Farooq and Mohsin Akhtar Kayani.

“In order to overcome any prejudice, which the petitioner apprehends he may face regarding disclosure of defence, a request can be made to the learned trial court for cross examination of joint witnesses i.e. witnesses which are common in three references on the same date or on the following day so that they have little or no chance for thinking and improving upon what is to be said,” the order states.

It also addressed another concern put forward by Mr Sharif, with the order stating that “The decision in three references shall be rendered simultaneously” as observed by the trial court.

In a brief history of the case, the IHC order said, the Supreme Court had directed the National Accountability Bureau (NAB) to file three references against Mr Sharif and others, “which led to filing of references no. 18, 19 and 20 of 2017”. “The petitioner assailed the judgement of the apex court on July 28, 2017 in review petitions... which was dismissed.”

Witnesses can testify simultaneously on former prime minister’s request, the court says

The SC also dismissed a petition seeking a joint trial. Expressing its inability to re-hear a case already decided by the SC, the IHC order noted: “Since the request for joinder of references has already been turned down by the Hon’ble Supreme Court of Pakistan hence this court (IHC) cannot re-adjudicate the matter on the same question.”

The order also said that the IHC bench has limited jurisdiction as a court of appeal.

“This court while hearing a petition under Article 199 of the constitution, is not sitting as a court of appeal and the scope, on the basis of which a challenge can be made, is very restricted. In this behalf, it is trite law that a petition under Article 199 of the Constitution, does not lie against an interlocutory order unless the same is patently illegal or suffers from jurisdictional defect.”

On Oct 19, an accountability court dismissed Mr Sharif’s application to club together three references, which Mr Sharif appealed.

An IHC bench on Nov 2 directed the accountability court to decide this matter in light of section 17(d) of the National Accountability Ordinance. On Nov 8, the court once again dismissed the applications, observing that: “Section 17(d) of the National Accountability Ordinance 1999 provides a mechanism which may be adopted or not depending on the circumstances of each case.”

During the course of the hearing, Mr Sharif’s counsel Azam Nazir Tarrar argued that under section 17(d), a person accused of more than one offence of the same kind, committed during the space of any number of years, may be charged with and tried in one trial; that the offence in question, for which the petitioner has been charged with, is section 9(a)(v) of the ordinance on the basis that during his stint as chief minister of Punjab and the prime minister of Pakistan, he acquired assets in the name of his benamidars/co-accused, which are beyond his known sources of income.

He also contended that the accountability court dismissed applications filed by the petitioner without taking into consideration the requirements of section 17(d) of the ordinance and relevant law, despite a clear direction by an IHC bench.

He argued that that in the two Flagships and al-Azizia charge references are under section 9(a)(v), whereas the Avenfield corruption reference charge is under section 9(a)(iv) of the ordinance.

The counsel for the petitioner claimed that there are common witnesses in the three references, and since cross-examination is to take place separate, the petitioner shall disclose his defence to the witnesses and, when they appear in the subsequent references, they will cover up the shortcomings.

The prosecution argued that separate references have been filed on the principles of parity as provided in section 222 and 233 of the Criminal Procedure Code (CrPC). He further submitted that section 17(d) is not mandatory, but rather a discretionary power that lies with the court. The IHC bench noted that the use of the word ‘may’ in section 17(d) clearly indicates that it is at the discretion of the court.

The bench observed: “We have gone through the case laws, and in view thereon, we are of the opinion that the word ‘may’ is discretionary and enabling word, unless the subject matter shows that the exercise of power given by the provision using the word ‘may’, was intended to be imperative by the person to whom the power is given.”

The bench said that with respect to the nature of events and in view of the offices Mr Sharif held from 1985 to 2017 – during which time he allegedly accumulated wealth beyond known sources of income – it is difficult to frame joint charges at this stage as it would create ambiguity and confusion while referring to each and every property or assets and getting answers from the accused.

Court proceedings

Malik Tayyab, a witness for the prosecution, continued his testimony before the accountability court on Wednesday.

Mr Tayyab, an official from Standard Chartered Bank, shared details regarding transactions between Mr Sharif and his sons Hassan and Hussain Nawaz.

According to Mr Tayyab, Mr Sharif withdrew $2,200 on Feb 7, and transferred $600,000 to his Pakistani currency account between March and May this year.

He also provided details of Mr Sharif and his sons’ Euro and Pound Sterling accounts. He said Hussain Nawaz transferred £25,000 to his father’s account in December 2010, and Mr Sharif transferred £25,000 to his own Pakistani currency account in 2015.

He also told the court that Mr Sharif transferred £10 to his Pakistani currency account twice in 2016, at which Zaafir Khan raised an objection regarding the documents presented in court.

Proceedings will resume today (Thursday).

Published in Dawn, December 7th, 2017