NAB references: Verdict reserved on joint trial plea of Nawaz

ISLAMABAD: An accountability court on Tuesday reserved its order on a plea filed by former prime minister Nawaz Sharif, seeking joint charges and joint trial in the three NAB references.

In another application submitted by Maryam Nawaz, seeking change in the charge sheet to the extent of an alleged false and fabricated trust deed of 2006 scripted in Calibri font, the accountability will hear arguments today (Wednesday).

The counsel for Maryam said under Section 30 of NAO, the cognizance of an offence of false evidence committed in the course of the investigation or trial was to be taken upon pronouncement of judgment and not at this stage. The counsel for Nawaz at one instance said it was unclear from the three corruption references what the offence was and what facts constituted the offences. “No facts, evidences or gist have been mentioned under which these offences have been constituted or framed,” Khawaja Haris said.

“The Supreme Court in its judgment said the London flats are owned by the Sharif family. That means Nawaz is not alone and hence Section 9 (a)(v) is not applicable to the Avenfield London Apartments reference,” Haris added. At the start of proceedings, Haris argued that the IHC’s detailed judgment was not issued yet.

On November 2, an IHC division bench had set aside the accountability court’s October 19 order through which it had dismissed Nawaz’s application for clubbing three corruption references into one and joint framing of charges. The IHC had directed the accountability court to hear this application afresh in the light of Section 17-D of the National Accountability Ordinance (NAO) 1999 and said detailed reasons were to be recorded later.

On Tuesday, the accountability court allowed the counsels from both sides to argue about the application as directed by the IHC. Haris argued for framing a joint charge in the three references and examining the prosecution witnesses jointly.

NAB prosecutor Sardar Muzaffar Abbasi said it was for the first time that the accused was seeking joint trial, adding that separate references were filed for the benefit of the accused so that he could defend the case separately. Haris said the cases were formed under Section 9 (a)(v) which read "if he (accused) or any of his dependents or benamidar owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot [reasonably] account for [or maintains a standard of living beyond that which is commensurate with his sources of income]".

According to Haris, under this section, the accused has to explain that the property in the name of his benamidars is actually his. Under the law, benamidars cannot be cited as accused in the reference and court can just issue notices to them, asking if they have abetted the commission of offence, Khawaja Haris said. The Section 9 (a)(iv) reads that "if he (accused) by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage".

Haris said the Section 9 (a)(iv) was regarding illegal gratification, adding that the two sections were different and both could not be applied at the same time. “The gist of all the three references is same. Hussain Nawaz is common accused, in one context in terms of property and in other context regarding money transactions. In all the references, properties under question are same, the time frame is same and Hassan Nawaz, Hussain Nawaz as benamidars are same,” said Nawaz’s counsel.

“In the Supreme Court judgment, it is said that the Sharif family owns the London flats since 90s. The JIT report also says that the Sharif family owns the London flats. So Nawaz is not the only man to face the charges but it will be implied on whole family and therefore Section 9 (a)(v) cannot be applied in this matter.” Haris said there was no clear cut evidence that the Avenfield Apartments are owned by his client through his benamidars. “Now this court has to examine that whether Section 9 (a)(v) is applicable or not in this particular case.”

“This court needs to review the charge sheet that is framed against his client. In our prayer before the high court, we sought suspension of proceedings at the accountability court the charges are joined. If the IHC allows our prayer, the whole trial here in this court will get halt.”

According to Haris, since the gist of all the references is the same, therefore, joint charges may be framed. References will remain separate to each other, convictions will also be separate but what we are seeking is a joint trial and joint examination of witnesses.

Haris said under Section 12 of NAO, there was a bar for joinder of charges for the offences committed in the last 12 months, while there was no time bar in Section 17-D. At this, the court said in Section 12, there was a word 'shall', while ‘may’ has been used in Section 17-D.

But Haris said joinder of charges was for the benefit of the accused as he would not have to go through the same allegations again and again.

The counsel for Maryam and Safdar for the same application adopted Haris’ arguments.

In his counter arguments, the NAB prosecutor said Section 17-D was not applicable to the instant case as the offenders were more than one. “Section 17-D is discretionary while Section 12 is mandatory. Joinder of charge falls within Section 12 but there is a condition of last 12 months.”

He said for Joinder of charges, NAB would have to file a single reference instead of three separate corruption references. “All the offences were committed through different transactions. If a single sort of crime has been committed through different transaction, joinder of charges is not possible,” Sardar Muzaffar said. “In all the corruption references, facts are distinct to each other, sets of prosecution witnesses are different,” he added.

At this the judge, Mohammad Bashir said the IHC had directed the court to decide the application under the mandate of Section 17-D where emphasis was on the word 'mandate'.

Another prosecutor Afzal Qureshi said a five-member Supreme Court bench has issued a judgment and they had Section 17-D in their mind. In the application of Maryam seeking a change in the charge sheet to the extent of forged documents, the court adjourned the matter till today. In the charge sheet, it was said that "A false, fabricated trust deed dated February 2, 2006 in Calibri font was filed whereas no such font was available for such purposes of that deed in that year. That deed was signed by you accused Maryam Nawaz as well as you co-accused Capt (Retd) Muhammad Safdar, signature of you accused Capt (Retd) Muhammad Safdar was as witness. By filing such declaration, you both allegedly tried to mislead the investigation agency.”

“You Maryam Nawaz Sharif consciously concealed the actual facts regarding history of ownership of the said assets and the companies.”

Maryam's counsel said as per mandatory provisions envisaged by Section 30 of NAO, the cognizance of an offence of false evidence committed in the course of the investigation or trial is to be taken upon pronouncement of judgment. The counsel further said the framing of the charge reproduced above at the current stage was illegal and without jurisdiction. After the arguments of Maryam's counsel, the judge asked the NAB prosecutor to submit his arguments. He, however, sought time to prepare after which the hearing was adjourned till today.