–High court division bench orders accountability court to hear former PM’s case afresh
— Justice Kayani says accountability court has the authority to consolidate all three references into one
ISLAMABAD: A division bench of the Islamabad High Court (IHC) on Thursday accepted former prime minister Nawaz Sharif’s plea seeking to halt the indictment proceedings against him and to club the three references against him into one.
The high court also held the verdict of the accountability court to have a joint trial in the references against Nawaz as ‘null and void’, ordering the accountability court to hear the case again and then give a verdict on it.
The court had earlier reserved its judgement over Nawaz’s petition to set aside the orders of an accountability court through which it framed charges separately in three corruption references.
The court reserved its verdict after Nawaz’s counsels and prosecutor of the National Accountability Bureau (NAB) concluded their arguments. The anti-graft watchdog raised objections over maintainability of the petition while the former PM’s counsels argued in favour of consolidating all three references into one.
Challenging the trial court’s order of October 19, Sharif through his counsel has sought the IHC’s directions for the accountability court to frame joint charge and conduct a single trial against the Sharif family. He also prayed the court to suspend proceedings before the accountability court till the framing of joint charge.
During Thursday’s proceedings, the NAB prosecutor told the court that the separate references were filed as per the Supreme Court’s instructions given in the July 28 order pertaining to the Panama Papers case. The prosecutor further informed the bench that the accused had filed a review petition in the apex court against its verdict but it was subsequently dismissed. “The July 28 decision has attained finality,” the prosecutor said.
At this, Justice Mohsin Akhtar Kayani observed that even if the top court’s directions were there the joinder of the references was still the prerogative of the trial court, asking the prosecutor to explain where the accountability court’s power would go in such a scenario. The prosecutor said the petitioner did not raise these points before the apex court in his review petition, adding however a separate petition was filed on the same grounds.
Responding to this, Nawaz’s counsels Azam Nazir Tarar and Amjad Pervez said the registrar office of the Supreme Court raised objections on their client’s petition and the same has not been placed for hearing.
“Facts are different, accused are different, references cannot be joined, there is no nexus between the references,” the NAB prosecutor said in response to Justice Aamir Farooq’s question if the charges can be consolidated. “The accused can’t insist on joinder of charges.”
To this the IHC judge asked if all these things had been discussed in the order by the trial court. The defence counsels said it was not the case.
In his arguments, Tarar said the SC’s July 28 judgement said “from now on the law shall take its own course”. He said it was not stated anywhere in the order that the trial court shall proceed in haste. “Under the law NAB should decide any reference in a month’s time whereas the SC has extended it to six months,” he explained. “It should not be the case where one should put references in a machine from one side and take out sentence from the other side.”
The defence counsel maintained that the allegations that the assets are disproportionate to the known sources of income remain the same in all references. While citing several previous judgements of the superior courts, he emphasized upon a particular case of the Sindh High Court whereby it consolidated 49 NAB references against dozens of accused into one.
“Courts should be impartial and they should not be playing prosecution’s role even though the prosecution wants judges to grill the accused,” he said. At this, Justice Aamir Farooq quipped, “court’s favourite child is the accused”.
While referreing to the trial court’s order, Tarar said that the accountability judge indicted the accused separately “for his own convenience” and added that the defence team would be exposing all the points to the prosecution witness when anyone appears before the court to record their testimony in one reference.
“Allegations are same, set of accused is same, some of the witnesses are same and a lot of evidence is also originating from similar sources so it would tantamount to exposing all the points to any witness when he appears in one reference,” he submitted.
“Accused shouldn’t be exposed to double prosecution,” he continued, saying the SHC ruled to protect the accused’s rights. “The SC has stated nowhere that the procedures of the trial court should be dispensed with but the trial court has not given any reasons in the indictment order and ignored all the contentions raised before the court.”
Meanwhile, the bench raised a question if the suspects were convicted in all three references separately what would be the impact of that as usually sentences run concurrently. “The court can give consecutive sentences as well and it would jeopardize the accused’s rights,” replied Tarar.
He informed the division bench that it was contended before the trial court “to leave aside if Nawaz was the former prime minister and at least give him the rights of a common citizen” but the judge of the trial court preferred his own convenience over the accused’s right, as reflected in his order. “We expect that NAB can do whatever it wants but we do not expect the same from the trial court.”
Pervez said the court was bound to record reasons in the order. To which the bench said it would have been much simpler if the trial court had seen all these things when contended and given its reasons in the order.
SIMILAR PETITION IN SC:
Nawaz’s legal team had on Oct 13 moved a similar constitutional petition in the SC urging the top court to stop the accountability court’s proceedings in the three references until a single reference is filed against the accused.
According to the petition, multiple references against the accused, for each asset allegedly owned, possessed or acquired by him, disproportionate to his known sources of income, is in violation of Section 9 (a)(v) of the National Accountability Ordinance, 1999.
The references against the Sharif family pertain to the Azizia Steel Mills and Hill Metals Establishment, their London properties and over dozen offshore companies owned by the family.
NAB’s Rawalpindi branch prepared two references regarding the Azizia Steel Mills and Hill Metals Establishment, and the nearly dozen companies owned by the Sharif family.
Its Lahore branch prepared a reference on the Sharif family’s Avenfield apartments in London and another against Finance Minister Ishaq Dar for owning assets beyond his known sources of income.
If convicted, the accused may face up to 14 years imprisonment and lifelong disqualification from holding public office including the freezing of bank accounts and assets.