The legality of the Avenfield case: Will appealing the verdict save Nawaz Sharif and Maryam?

Claims against the judgment do not pinpoint the exact evidence Nawaz's counsel considers inadmissible under the law.

 “Independence means voluntary restraints and discipline, voluntary acceptance of the rule of law.” – Mahatma Gandhi

The much talked about judgment in the Avenfield case issued by the accountability court  should be celebrated for upholding accountability from the top, and promoting the rule of law in Pakistan where everyone is required to obey the laws of the country.

 The verdict given by Justice Muhammad Bashir relates to case filed under Section 18(g) read with Section 24 of National Accountability Ordinance (NAO) 1999 against five accused, namely deposed Prime Minister Nawaz Sharif, Maryam Nawaz, Captain (retired) Muhammad Safdar, Hussain Nawaz Sharif and Hassan Nawaz Sharif. The last two accused did not appear before the court and after completion of requisite processes were declared as absconding/proclaimed offenders. The verdict sentenced Nawaz to 10 years in prison with £8 million fine, Maryam was sentenced to seven years with £2 million fine and Safdar was sentenced to a year in jail.

Prosecution National Accountability Bureau (NAB) said that the Sharif family obtained the flats through illegal sources, while the counter argument presented by the counsel of Nawaz was that the four flats are in the ownership of Nawaz’s sons.

Advocate Faisal Siddiqi told The Express Tribune that it is a judgment “full of contradictions”, that relies on inadmissible evidence and draws inferences about evidences based upon unproven facts. However, such claims against the judgment fail for two main reasons.

One of them is that the claims are vague and do not pinpoint the exact evidence which Nawaz's counsel considers inadmissible under the law (evidence which may not be received by judge in a case in order to decide the merits of a controversy). Secondly, if Nawaz is not guilty of any charges imposed on him then he should have stepped forward and defended his case. There was absolutely no documented proof presented by Nawaz which depicts his delusional confidence and abuse of process by him. Such a refusal to cooperate with NAB qualifies as an offence under Serial 2 of the schedule of the National Accountability Ordinance (NAO) 1999 which states,

“Refuses to answer questions, or to provide information to any member of the NAB or any other agency when required to do so.”

Another argument by Siddiqi to support his earlier criticism is that at one point the court held that corruption could not be proven in the ownership of the flats, but Nawaz is being convicted for possession of the same apartments, whose source of purchase has not been proven. This argument fails on the grounds that were held by Justice Asif Saeed Khan Khosa in a Supreme Court judgment of Ghaniur Rehman versus NAB and others, reported at Pakistan Legal Decisions (PLD) 2011 Supreme Court 1144,

“Under Section 9(a)(v) of the National Accountability Ordinance 1999, it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property…”

What is interesting about the aforementioned judgment is that it does not mention corruption should be proven rather all that is required for a strong case to be made out is the fact that the ownership of the properties was disproportionate to the source of income of the accused. Another point to be noted from the 2011 judgment is that there was no relationship found between the assets and pecuniary resources of the person who filed the appeal and misuse of his authority as chairman and provincial minister so as to bring the charges against him home.

The accusation that there have been inferences drawn by the judge is deliberately framed to appear wrong, whereas it is perfectly permissible to do so provided certain conditions are met. An inference in the law of evidence is a deduction or conclusion that with reason and common sense leads the judge to draw from facts, which have been established by the evidence in the case. The Supreme Court in its judgment of Azim versus The State reported at PLD 1965 Supreme Court 44, while quoting another case of Fazal Elahi alias Sajawal versus Crown (PLD 1953 F C 214) has clearly held that,

“In the absence of direct proof a Court might draw an inference of the commission of crime by the accused.”

Another critique highlighted by legal experts has been regarding the ownership of Avenfield properties that according to them has not been proven to belong to Nawaz. It is important to understand the principles underlying the burden of proof (the obligation to prove one’s assertion) to evaluate the basis of this criticism. Under the Supreme Court judgement of Wahid Bakhsh Baloch versus The State reported at 2014 SCMR 985, it has been held that in terms of Section 9 of NAB Ordinance 1999,

“The initial burden is on the prosecution to prove that the accused was guilty of any of the offences for which he was being charged.”

According to the additional deputy prosecutor general of NAB, Sardar Muzaffar Abbasi, the prosecution proved that Nawaz is the actual owner of four apartments in Avenfield House, Park Lane, London, while he acquired these properties in the name of his children. Thus, it was on Nawaz and Maryam to prove their innocence, which they never did.

Despite the above arguments, both Nawaz and Maryam have the right to appeal (legal right to ask for a court’s decision to be changed) under Section 32 of the NAB Ordinance before two judges of the Islamabad High Court. Another route available for the convicts is to file a petition for suspension of sentence pending appeal under Section 426(1) of the Code of Criminal Procedure which states that,

“Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended…”

Ultimately, the onus rests on Nawaz to prove that the ownership of the Avenfield apartments was not illegal and within the sources of his incomes. The fate of the Sharifs seems to be in troubled waters, and unless there is strong evidence against the claims levied on them, the appeal is bound to be dismissed which means that they will be sentenced according to the judgment given by NAB.