ISLAMABAD: Ousted prime minister Nawaz Sharif, his daughter Maryam Nawaz and son-in-law Captain (retd) Muhammad Safdar have challenged their conviction in the Islamabad High Court (IHC).
On Monday, they filed their appeals in IHC, seeking to set aside the accountability court (AC) judgment that awarded 11 years imprisonment to Nawaz, eight years to Maryam and one year to Captain (retd) Safdar in the Avenfield Apartments corruption reference.
An IHC division bench comprising Justice Mohsin Akhtar Kyani and Justice Miangul Hassan Aurangzeb would hear the matter on Tuesday (today).
All the three convicts cited the state through the National Accountability Bureau (NAB) chairman, as respondent. Appellants requested the court to set aside the sentences as those were illegal and based on no evidence, and in violation of superior courts judgments.
The appellants also filed a separate writ petition, seeking to suspend the AC order dated July 6 and another application for transfer of the remaining two corruption references from AC-1 of Judge Muhammad Bashir to some other accountability court. Appeals and applications have been filed through Khwaja Haris Ahmad and Amjad Pervez advocates.
The appellant said that on Sept 8, 2017, NAB filed three corruption references including Avenfield Apartments, Al-Azizia/ Hill Metal Establishment and Flagship Investment.
In the references, it was alleged that the appellants and other accused have committed the offences of corruption and corrupt practices under Sections 9 (a)(iv), (v) and (xii) and offence at Serial No.2 of the Schedule of the National Accountability Ordinance 1999 (NAO 1999).
The convicts said in the appeals: “It stands established on record that the prosecution had miserably failed to refer to or lead any evidence that during more than 37 years’ of his political career, the Appellant [Nawaz Sharif] had ever committed any act of omission or commission to obtain any property, valuable things or pecuniary advantage for himself or for his spouse or dependants or any other person.”
It further said that the joint investigation team (JIT) head, Wajid Zia, and investigation officer (IO) Imran Dogar admitted in their cross-examination that there is no evidence that title of Avenfield Apartments ever remained in the name of Nawaz Sharif or either Nescoll & Nielsen Enterprises, the two companies that owned Avenfield Apartments. Both Wajid Zia and Imran Dogar never came across any evidence, documentary or oral, that Sharif paid or contributed any money for the purchase of the London apartments. Nawaz Sharif, in his appeal, stated that the AC judgment found no mention of these admissions in the judgment.
Prosecution also didn’t bring on record any evidence that Nawaz Sharif acquired these assets in the name of his benamidars and, therefore, there was no basis for his conviction.
The three appellants have also raised objections over the admissibility of JIT opinion as evidence, saying that it is a violation of the law, laid down by the superior courts. The AC, in its judgment about the opinion, had said that “the same may be considered, if it is found convincing and found based on reliable documents/ material that opinion can be accepted and relied upon.”
The appellants said that the accountability court had committed a grave miscarriage of justice in drawing inferences against the appellant on the basis of the contents of documents, including pleadings and affidavits, executed, scribed or sworn to (as the case may be) by those persons who were not before the court, either as accused or as witnesses, and/or were never cited as accused or witnesses in the case.
The NAB investigation officer (IO), during his cross-examination, had said that he had no evidence to even remotely connect Nawaz Sharif with the Avenfield properties. As a matter of fact, he said, there is not an iota of evidence produced by the prosecution that any of the children of Sharif were dependent on him at any time since they came to be in possession of Avenfield properties. Appellant said that the AC also ignored the fact and did not consider it.
The prosecution did charge the appellants for assets beyond means, but they did not show any evidence regarding their known sources of income. Maryam Nawaz, in her application, said that the prosecution in interim reference set up a story that was different to the main reference. In the interim reference, it was alleged that the Avenfield properties were owned and possessed by Nawaz Sharif in the name of his dependents/ benamidars, which were disproportionate to his known sources of income and were shown to be acquired in the name of accused Hussain Nawaz of which Maryam was made as trustee and the trust deed was alleged to be fake and fabricated on the basis of forensic report.
Whatever they alleged was assets beyond means however, nothing was available on record to suggest any nexus of Nawaz Sharif with the ownership of the Avenfield properties, even the known sources of income were not enlisted, determined, compared and quantified with the value of the properties, rather, nothing was available on record to show even the price of the properties.
Even after a difference in the main and supplementary charges, the prosecution did not amend the charge-sheet; rather, it was observed that the supplementary reference shall be read with already filed interim reference, JIT report and investigation conducted by NAB. The said observation created an anomalous situation for the convicts as to what case they were supposed to defend.
Maryam, in her application, stated that the prosecution failed to furnish any oral account in support of its case whereas the entire documentary evidence produced by it was inadmissible for want of formal proof or being attestation of copies or being photocopies.
Appellants said that the AC judge convicted them under Section 9(a)(v) of the NAO, 1999. The conviction is based on the testimony of JIT head Wajid Zia, who was an investigation officer of the case and did not have any personal knowledge regarding the facts deposed by him, his deposition was both inadmissible and irrelevant, he was not competent to play proxy to any witness not produced nor could have he proved any document of which he was neither author nor privy.
The only evidence regarding beneficial ownership of the London apartments was a letter of financial investigation agency of British Virgin Island (FIA-BVI) that it wrote to Mossack Fonseca and received a reply in 2012. However, the prosecution failed to produce any evidence worth name to vouch safe the contents of the disputed letters, Maryam said in her appeal.
This letter could not be treated as incriminating evidence, Maryam also said in her appeal. She said the trial court had felt it convenient to seek aid of presumptions for passing the impugned judgment which could not have been invoked without fulfilment of statutory requirements of requisite proof as the necessary ingredients of the offence under Section 9(a)(v).
In her appeal, Maryam termed the allegations regarding trust deed being concocted by the JIT with a mala fide intention to implicate the whole family. She said that the trust deeds were before the Supreme Court as well and the apex court did not raise any question regarding their authenticity, genuineness or otherwise in its April 20, 2017 judgment.
Uncorroborated evidence is the weakest kind of evidence and is liable to be received with great caution. All the three convicts have prayed to the court to set aside AC judgment and their convictions.
Last week, the Sharif family had filed a petition to move the two corruption references out of Accountability Court-I’s Judge Muhammad Bashir. Remarking that only the high court held the mandate to transfer the case, Judge Bashir had rejected the transfer petition.
In the appeal filed in the high court, Nawaz’s legal counsel maintained that since Judge Bashir had already decided on the Avenfield properties case, the remaining corruption references should be transferred to another accountability court.
Nawaz’s lawyers further stated that a verdict on the report prepared by the Panama Papers joint investigation team (JIT) report and Gulf Steel Mills had already been announced and these two matters were common in the pending references.