JIT: Jeopardising it terribly

As a law student proceedings post submission of JIT report are very interesting. Sharifs’ decision to challenge to report came as a surprise to me considering the said challenge was made through two of the leading lawyers of the country whom are presumed to the top National Accountability Bureua (NAB) law practioners. Sharifs were so intrigued by their opinion to challenge the report that they chose to replace their existing counsels for this particular purpose. There also appears to be a divide in Sharifs’ legal as far as challenging the report was concerned.

Criminal procedure in our jurisdiction does not give an accused the right to object to a final investigation report, usually referred to as a ‘Challan’, as defined under section 173 Criminal Procedure Code, 1898 (CRPC). The only option available to an accused of a criminal case is to seek change of investigation that too during the pendency of an investigation, which right Sharifs seemed to have lost since the report had been finalized and submitted before the Bench of the Supreme Court dealing with Panama Case.  Apart from this all remedies lie before a trial court. Challenging the report through an application appears to be a very damaging move for the Sharifs. By objecting to the report Sharifs are in inviting observations from the apex court with respect to the contents of the report, which is most likely to prejudice the expected trial before the NAB court in case the Bench chooses to refer the matter for trial. An example of that would be the Qatari letter. So much has been said about the letter and now by formally bringing it before the Bench, serious remarks if not observations are expected from the Bench which happened yesterday. Unfortunately, this letter seems to be the only defence of Sharifs. We have seen in the past that superior courts tend to avoid entertaining cases, fit for trial, in constitutional jurisdiction. The present report seems to have been prepared under the NAB law, which in itself is quite an encompassing law and provides an accused with various remedies at the trial stage. The report has been prepared quite comprehensively and that too after following a process prescribed under the relevant law. Almost every accused in a criminal case is aggrieved of final investigation report which is why the same is not binding upon the trial courts. Court may not agree with it at all. The whole point of a trial is to sift out the truth.

In Panama Case, the Bench is exercising utmost restraint and caution by avoiding to pass any finding/observation on the report, however, Sharifs’ counsel is bent upon bringing factual parts of the report into question time and again. Challenge to the report is a planned move on part of Sharifs just to discredit the report in a very sophisticated manner. Otherwise there doesn’t seem to be any reason why they would do so. It seems to be an attempt on part of Sharifs to drag the Bench into making observations about the report just to divert the Bench’s attention momentarily from the real issue of disqualification. An extract from transcript of yesterday’s court proceedings is reproduced just to highlight the position of Sharifs before the Bench:-

Justice Ijaz Afzal : Aik baat ker ke saara muqaddama khatam ker dein. Assason ke wasail kahan se aye!

Khuwaja Haris: Nawaz Sharif ko safai denay ka moqa nahi diya giya.

Justice Ijaz Afzal: Aik saal ho gaya hai aap se poochtay howay!

Khuwaja Haris: Court ne humara moqaf nahi poocha.

Justice Azmat Saeed: Yaar ab pooch rahay hain, ab bata bhee do!

Khuwaja Haris: Wazir e Azam JIT mein gaye thay, JIT ka kaam tha poochna.
The above referred excerpt speaks volumes about Sharifs seriousness or so as to say the genuity in persuing the case. No accused placed in their position would have ever instructed his to take such a position before the Bench. Khawaja Harris sab is a seasoned counsel and someone that all young practitioners look upto. His present strategy seems to have confused many who are anxiously awaiting the final judgment.

Sharifs have also brought in ‘new documents’ inspite of ample opportunity to provide the same before the JIT. The new documents will have face a lot of legal hurdles before the same are placed on record so as to be considered by the Bench. The only favourable situations for Sharifs, only if the Bench adopts a compassionate approach, would be to direct their counsel to produce these documents before the trial court in the expected reference. For me Sharifs counsel Mr. Raja has clearly led the court into ordering for a reference against the Sharifs. In criminal jurisdiction placing documents on record once the investigation has been completed is a difficult task and requires a very stringent criterion. Sharifs counsel will find it difficult to justify the placement of these new documents on record. Another important aspect deals with concealment of evidence thats culpable under Article 129(d) of Qanun-e- Shahdat Order, 1984. There is a very high probability of court reaching this conclusion that Sharifs purposely withheld these documents so as to avoid JIT questioning.

Bench appears to be fully cognizant of this and has sidetracked itself from going deep into the report. The observations of the Bench in the case are mainly related to legal objection as opposed to factual objections. In my humble opinion, the court is expected to dissect the report into two halves. First half comprising of factual material which is expected to be sent to NAB courts for trial to provide a fair trial to Sharifs envisaged under Article 10-A of the constitution. Second half shall contain extracts from the report enabling the bench to reach a conclusion with respect to the issue of disqualification of Nawaz Sharif. Sharifs will also be allowed to raise objections to that part. Eventually, the Bench just had to decide the issue of disqualification which in the present circumstances is expected to be decided against Nawaz Sharif. As far as the trial is concerned it may take long but the Bench may also give them a timeline of two to three months.