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Petitioner: Mian Muhammad Nawaz Sharif VS Respondent: The State through Chairman, National Accountability Bureau, etc
Court Name: Islamabad High Court Judge(s): Athar Minallah, Miangul Hassan Aurangzeb Title:Mian Muhammad Nawaz Sharif vs The State through Chairman, National
Accountability Bureau, etc Case No.: W.P. No. 2839 of 2018 Date of Judgment:2018-09-19 Reported As: PLD 2019 Islamabad 38, PLJ 2018 Islamabad 491, 2018 IHC 115 Result: Petition Allowed Judgment ATHAR MINALLAH, J;- This single order shall dispose of the instant constitutional petition as well as W.P. No. 2841 of 2018 (Maryam Nawaz Sharif versus National Accountability Bureau, etc) and W.P. No. 2841 of 2018 (Capt. Retd. Muhammad Safdar versus National Accountability Bureau, etc). 2. Through these petitions the petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"), seeking suspension of their respective sentences handed down by the learned Accountability Court No.1 vide judgment, dated 06.07.2018 (hereinafter referred to as the "Judgment"). BRIEF BACKGROUND: 3. Briefly, the facts leading to the conviction and sentences of the petitioners, namely, Mian Muhammad Nawaz Sharif, son of Mian Muhammad Sharif (hereinafter referred to as the "Petitioner No,Z"), Maryam Nawaz (Maryam Safdar) daughter of Mian Muhammad Nawaz Sharif (hereinafter referred to as the "Petitioner No,2") and Captain Retd. Muhammad Safdar, son of Muhammad Ishaq (hereinafter referred to as the "Petitioner No,3"), (they shall be referred to collectively as the"Petitioners") are that in April 2016 the International Consortium of Investigative Journalists had released information relating to leaked documents of a private law firm, namely, M/S Mossack Fonseca, which is stated to be based in Panama. Some of these leaked documents had reference to one of the petitioners. The documents disclosed details of offshore companies incorporated under the laws of the British Virgin Islands. The reference in the documents to one of the petitioners was regarding two offshore companies, namely, M/S Nescoll Limited and Nielson Enterprises Limited. The titles of apartments no. 16, 16 A, 17 and 17 A, Avenfield House, Park Lane, London UK (hereinafter referred to as "Avenfield Apartments") were transferred in the name of the aforementioned companies on 01.06.1993, 23.07.1996, and 31.07.1995 respectively. Petitions were filed before the august Supreme Court, which were
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entertained under Article 184(3) of the Constitution. By a majority of three to two Hon'ble Judges of the apex Court, a Joint Investigation Team (hereinafter referred to as the "JIT") was constituted to carry out thorough investigations. Two Hon'ble Judges had declared Petitioner no.1 to be disqualified to hold public office. The Judgment of the august Supreme Court is reported as "Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others" [PLD 2017 S.C. 265]. The JIT concluded its investigations and thereafter submitted a detailed report. The august Supreme Court, after examining the JIT report and other material which was placed on record, observed that a prima facie case, triable under the National Accountability Ordinance, 1999 (hereinafter referred to as the "Ordinance of 1999"), was made out. Simultaneously, the august Supreme Court declared Petitioner No.1 to be disqualified to hold the public office to which he was elected. The august Supreme Court gave directions and the judgment is reported as "Imran Ahmed Khan Niazi vs. Mian Muhammad Nawaz Sharif" [PLD 2017 S.C. 692]. Pursuant to the said judgment, the National Accountability Bureau (hereinafter referred to as the "Bureau") filed an interim Reference No.20 of 2017 on 07.09.2017, alleging the commission of offences defined under section 9(a)(iv)(v) and (xii), punishable under section 10 of the Ordinance of 1999, read with serial no.2 and 3 of the Schedule thereto. Besides the Petitioners, Hussain Nawaz and Hassan Nawaz Sharif, both sons of Mohammad Nawaz Sharif, were also arrayed as accused. The latter two were proclaimed as absconders after fulfilling the legal requirements. The learned trial Court framed the charge against the Petitioners on 19.10.2017 for offences under section 9(a)(iv)(v) and (xii) punishable under section 10 of the Ordinance of 1999 read with serial nos.2 and 3(a) of the Schedule thereto. Serial no. 3(a) of the Schedule was included in the charge, dated 19.10.2017, in respect of the Trust Deed, dated 02.02.2006 (Ex.PW.14/2), which was alleged to be false and fabricated. The learned Accountability Court, vide order dated 08.11.2017, held that section 30 of the Ordinance of 1999 had prescribed the mechanism for taking cognizance of offences in respect of false and fabricated evidence. It was also observed that the offence under serial no.3 (a) of the Schedule was not mentioned in the Reference filed by the Bureau. The learned trial Court, therefore, deleted section 3(a) of the Schedule of the Ordinance of 1999 and, thereafter, framed a fresh charge on 08.11.2017, whereby serial no. 3(a) of the Schedule of the Ordinance of 1999 stood deleted. The Bureau filed a supplementary Reference on 22.01.2018. The Petitioners pleaded not guilty. The prosecution produced eighteen (18) witnesses, while the Petitioners preferred not to be examined on oath and, therefore, their respective statements were recorded under section 342 of the Criminal Procedure Code (hereinafter referred to as the "Cr,P,C"). The learned Accountability Court, after affording an opportunity of hearing to the parties, rendered the Judgment. The Petitioners were acquitted in the case of the offence under section 9(a)(iv) while they were convicted, inter alia, under section 9(a)(v) of the Ordinance of 1999. They were convicted and sentenced in the following terms; "The guilt of the accused Mian Muhammad Nawaz Sharif u/s 9(a)(v) NAO, 1999 read with Serial No.2 of the schedule attached with the said Ordinance punishable u/s 10 of NAO, 1999/said Serial No.2 of schedule. Therefore, he/accused Mian Muhammad Nawaz Sharif is hereby convicted and sentenced to Rigorous Imprisonment for a term of ten years with fine 08 million pounds. He is also convicted and sentenced under offence cited at Serial No.2 for one year. Both the sentences shall run concurrently." "The trust deeds produced by the accused Maryam Nawaz were also found bogus. She/accused Maryam Nawaz was instrumental in concealment of the properties of his father accused Mian Muhammad Nawaz Sharif. This accused Maryam Nawaz aided, assisted, abetted, attempted and acted in conspiracy with her father accused Mian Muhammad Nawaz Sharif who was holder of Public Office. Therefore, prosecution has succeeded to establish her guilt within the meaning of Section 9(a)(v)(Xii) NAO, 1999 read with Serial No.2 of the schedule and punishable u/s 10 and schedule attached therewith. In view of the role of this accused Mst. Maryam Nawaz, she is convicted and sentenced to Rigorous Imprisonment for seven years with fine of two million pounds under section u/s 9(a)(v)(xii) NAO, 1999/read with section 10 of NAO 1999 and simple imprisonment for one year under Serial No.2 of the schedule. Both the sentences shall run concurrently." "The accused Muhammad Safdar had signed the trust deeds as witness, he also aided, assisted, abetted, attempted and acted in conspiracy with the accused Mian Muhammad Nawaz Sharif and Maryam Safdar
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within the meaning of Section u/s 9(a)(v)(xii) NAO, 1999 read with section 10 of NAO 1999 and Serial No.2 of the schedule and he is convicted and sentenced to rigorous imprisonment for one year u/s 9(a)(v)(xii) NAO, 1999 read with section 10 of NAO 1999 and one year Serial No.2 of schedule attached with NAO, 1999." 4. The Petitioners preferred appeals under section 32 of the Ordinance of 1999, assailing the Judgment. It is noted that, pursuant to the directions of the august Supreme Court, two other References were also filed which are pending trial before the learned Accountability Court. The trial is being conducted on a day today basis so that they could be concluded within the time frame prescribed by the august Supreme Court. The appeals were filed and fixed before a learned Division Bench of this Court which directed fixation thereof after the summer vacations. The Petitioners had simultaneously filed these constitutional petitions and the learned Division Bench, vide order dated 17.07.2018, admitted the same and directed issuance of notices to the respondents. Further direction was also given for fixation of the petitions in the last week of July, 2018 before an available Bench. After a preliminary hearing and with the consent of the learned counsels, the petitions were adjourned to 13.08.2018. On 13.08.2018, the petitions were fixed and arguments were also heard. However, during the course of the arguments it was brought to our notice that the appeals had been directed to be fixed for hearing after the summer vacations. We, therefore, deemed it appropriate to keep the petitions pending and vide order, dated 20.08.2018, it was observed that they could be pressed in case of delay in deciding the appeals. It is noted that a time frame has been prescribed under section 32 of the Ordinance of 1999 to decide the appeals. On behalf of the Petitioners, C.M. No. 3485 of 2018 was filed, wherein it was prayed that these constitutional petitions be taken up and decided since it would not be possible to advance arguments in the appeals on the grounds mentioned therein. We were satisfied that in the peculiar facts and circumstances of this case, the grounds raised in the application were cogent, forceful and reasonable. We were also mindful of the fact that any conclusive decision in the appeals may prejudice the case of either party before the learned Accountability Court in the pending trials. In order to meet the ends of justice, C.M. No. 3485 of 2018 was allowed vide order dated 10.09.2018. With the consent of the learned counsels, a schedule was prescribed so as to give them reasonable opportunity to advance arguments in these petitions. The appeals were, therefore, adjourned and directed to be fixed on their turn. CONTENTIONS OF THE LEARNED COUNSEL FOR PETITIONER NO.1: 5. Petitioner No.1 was represented by Khawaja Haris Ahmed, Senior A.S.C., who has argued that; the conviction and sentences recorded by the learned trial Court are, prima facie, not sustainable in the eyes of law; the obvious legal defect and lacuna floats on the surface of the Judgment and is identifiable on the basis of tentative assessment of evidence recorded in the case; a plain reading of the Judgment shows that, prima facie, no conviction could have been recorded nor sentence passed against Petitioner No.1; the latter has been held guilty of the offence of having acquired assets disproportionate to known sources of his income; the essential ingredients which were required to be established by the prosecution have not been fulfilled; the price at which the assets i.e. 'Avenfield Apartments' were allegedly acquired at the relevant time i.e. between 1993 to 1996 had not been determined; without determination of the price at the relevant time, which was a condition precedent so that it could be compared with the known sources of income, the mandatory obligation on the part of the prosecution was not discharged; it is settled law that in order to prove the offence of acquiring assets disproportionate to known sources of income, the onus is on the prosecution to prove 'quite objectively' that such assets were acquired and that they were disproportionate to the known sources of income; the prosecution failed to bring on record positive evidence to prove, on the one hand, the price at which the assets were acquired and, correspondingly, the known sources of income of the accused at the relevant time; it is a mandatory obligation of the prosecution to quantify both the price of the assets as well as the known sources of income for the purpose of establishing the offence and only then the onus shifts to the accused; the prosecution has led no evidence whatsoever to even remotely indicate the price at which Avenfield Apartments were alleged to have been acquired by the Petitioner No.1; in this regard, during cross examination, a specific question was put to PW.16 but he was unable to refer to any document showing the price at which the apartments had been purchased at the relevant time; no other prosecution witness had deposed during the trial regarding the price
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and, therefore, no comparison with known sources of income could have been made; the Reference, Charge and the Judgment do not refer to the price nor reflects that the known sources of income had been quantified; the Judgment, therefore, prima facie, suffers from an obvious legal error and lacuna; the ingredients which are required to be established by the prosecution for the purposes of evidence under section 9(a)(v) of the Ordinance of 1999 have been highlighted by the august Supreme Court in the cases titled"Khalid Aziz versus State" [2011 SCMR 136], "Ghani-ur-Rehman versus NAB, etc" [PLD 2011 S.C.1144] and "Pir Mazharul Haq versus State, etc" [PLD 2005 S.C. 63]. 6. Learned counsel further submitted that a purported chart of assets and liabilities of Petitioner No.1 (Ex.P.W.18/13) was tendered in evidence by Mr Imran Dogar, Investigating Officer of the Bureau; an objection was promptly raised and recorded by the learned trial Court; the objection was to the effect that Mr Wajid Zia (PW.16), who had appeared on behalf of the JIT, had not stated that such a document was prepared during the investigations; the said document was also not produced or exhibited during his deposition; Mr Imran Dogar, the Investigating Officer who had tendered the document in evidence, had admitted during cross examination, inter alia, that he had no concern with the preparation thereof nor knew when it was prepared and by whom; despite the legal objection regarding admissibility of the chart i.e. Ex.P.W.18/13, the same was not decided and the learned trial Court had explicitly recorded that a decision thereon shall be taken later; without deciding the crucial objection raised regarding admissibility of the document Ex.P.W.18/13, the learned trial Court placed reliance thereon; the Judgment, therefore, suffers from an obvious error; a specific charge was framed against Petitioner No.1 under section 9(a)(iv) of the Ordinance of 1999, alleging that Avenfield Apartments were acquired by corrupt, dishonest or illegal means. 7. Learned counsel further submitted that no shred of evidence could be brought on record to even remotely prove that Avenfield Apartments had been acquired by Petitioner No.1 through corrupt, dishonest or illegal means for himself or for his dependents and, therefore, the learned trial Court acquitted Petitioner no.1 and other Petitioners relating to the said specific offence; in the face of this finding, Petitioner No.1 could not have been convicted under section 9(a)(v) of the Ordinance of 1999 and in this regard the learned counsel has referred to paragraph 8 of the Judgment rendered by the august Supreme Court in Ghani-ur-Rehman case, supra; section 9(a)(v) of the Ordinance of 1999 is an offence through fiction of law and, therefore, once the learned trial Court, on the basis of appreciation of evidence, had acquitted the Petitioners in the context of the offence under section 9(a)(iv), then conviction and sentence under section 9(a)(v) was not warranted nor sustainable; the charge framed by the learned trial Court had attributed ownership to all the three Petitioners while the Judgment has held Petitioner no.1 to be the owner and thus he was convicted under section 9(a)(v); this finding is based on mere presumption since the Judgment does not refer to any oral or documentary evidence which would even remotely establish a connection between Petitioner No.1 and the ownership of Avenfield Apartments; Mr Wajid Zia (PW.16) and Mr Imran Dogar (PW.18), had both admitted during their respective cross examinations that no such oral or documentary evidence could be collected during investigations. 8. Learned counsel further submitted that it was the stance of Petitioner no.1 before the JIT that he had absolutely no concern with the acquiring of or with any transaction leading to the purchase of the Avenfield Apartments; the learned trial Court, on mere assumptions, has concluded that the children at the relevant time were the dependents of Petitioner no.1; the observations made in the Judgment, which draws inference regarding financial dependency, are without any basis and on unsupported presumptions; it is on record and it was conceded by Mr Wajid Zia (PW.16) that there was absolutely no evidence to the effect that the children of Petitioner No.1 were his dependents; during recording of his deposition, Mr Wajid Zia (PW.16) had deposed that Petitioner No.1 had, inter alia, stated before the JIT that all the expenses relating to the stay of Hassan Nawaz and Hussain Nawaz in London were met by money sent by their grandfather, namely, Mian Muhammad Sharif; Mr Wajid Zia (PW.16) had also admitted during his cross examination that family members had given statements and referred to the manner and conduct of Mian Muhammad Sharif and he had further stated before the JIT that during his life time Mian Mohammad Sharif used to apportion shares in his business to all his children and
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grandchildren and that he even used to determine their pocket money; the witness, namely Mr Wajid Zia (PW.16), had unambiguously admitted that no witness had appeared before the JIT to state that Maryam Nawaz, Hassan Nawaz and Hussain Nawaz were dependent on Mian Muhammad Nawaz Sharif for their business or livelihood; the said deposition was neither considered nor discussed by the learned trial Court in the Judgment; while recording his statement under section 342 of the Cr.P.C., Petitioner No.1 was never asked whether the children were his dependents, rather it was suggested to him that they were benamidars; dependents and benamidars have been separately mentioned in section 9(a)(v); the definition of benamidars under the Ordinance of 1999 does not show that it includes dependents; the conviction recorded against Petitioner No.1 under section 9(a)(v) of the Ordinance of 1999, based on the presumption that his children were financially dependent upon him is, prima facie, not sustainable; this assumption is the incriminating piece of evidence on the basis of which conviction has been recorded against Petitioner No.1 and no such question was put to him so as to illicit his explanation; reliance has been placed on the cases titled "Abdul Lateef Brohi versus NAB" [2014 P.Cr.L.J. 334] and "Muhammad Shah versus State" [2010 SCMR 1009]; the only witness who had stated, while deposing, that the children were benamidars of Petitioner No.1 was PW.18, namely, Mr Imran Dogar, but he too had unequivocally admitted during cross examination that no witness had appeared before him in support of the said claim. 9. Learned counsel further submitted that the offence under serial no.2 of the Schedule is not attracted in the case of Petitioner No.1; the call up notices did not require Petitioner no.1 to provide information, therefore, refusal thereof has no relevance; the call up notices, also, did not mention that in case of refusal to give specific information, proceedings under serial no.2 of the Schedule would be initiated; the practice of putting an addressee to notice regarding penal action was admitted by the Investigating Officer, namely, Mr Imran Dogar (PW.18); reply was sent by Petitioner No.1 and there was no further communication or follow up by the Bureau; an offence under serial No.2 of the Schedule to the Ordinance of 1999 was, therefore, not made out and conviction thereunder is not sustainable; the bar contained under section 9(b) of the Ordinance of 1999 has by now been interpreted by the august Supreme Court in a chain of judgments; the august Supreme Court has consistently held that despite the ouster clause i.e. 9(b) of the Ordinance of 1999, in an appropriate case relief can be granted by exercising jurisdiction under Article 199 of the Constitution; reliance has been placed on the cases titled "Muhammad Saeed Mehdi versus State" [2002 SCMR 282], "Abdul Aziz Khan Niazi versus State" [PLD 2003 S.C. 668], Olas Khan versus Chairman NAB" [PLD 2018 S.C. 40] and "Peer Mukaram ul Haq versus NAB" [2006 SCMR 1225]; the principle and law relating to section 426 of the Cr.P.C. has been recently highlighted by the august Supreme Court in the case titled "Soba Khan versus State" [2016 SCMR 1325]; reliance has also been placed on the case titled "Abdul Rehman versus State" [2008 SCMR 1381]; the august Supreme Court, in Soba Khan's case, supra, has held that if a case is made out, then release should not be withheld because, if ultimately the appeals areallowed, then the accused cannot be compensated, while if he is released and subsequently the appeals are dismissed, then obviously he would have to serve his or her sentence and in such an eventuality the State and the complainant will stand compensated; the august Supreme Court, therefore, has taken a liberal view. CONTENTIONS OF THE LEARNED COUNSEL FOR PETITIONERS NO.2 and 3: 10. Mr Muhammad Amjad Pervaiz, A.S.C., while arguing on behalf of Petitioners No.2 and 3 has contended that; in the absence of proof of ownership of Avenfield Apartments by the principal accused i.e. Petitioner No.1, the question of abetment does not arise; Petitioner No.2, namely, Maryam Nawaz, has not been convicted nor could have been convicted for allegedly submitting forged or fabricated documents because the learned trial Court had deleted the offence under serial no.3(a) of the Schedule of the Ordinance of 1999; no case is made out under section 9(a)(v); it is the case of the prosecution that the Avenfield Apartments were acquired between 1993 to 1996, while Petitioners No.2 and 3 have been convicted and sentenced on the basis of a document, dated 02.02.2006; there is no evidence on record to show that Petitioner No.2 had in any manner abetted / assisted in acquiring the Avenfield Apartments between 1993 and 1996; the findings recorded by the learned trial Court relating to assisting and abetting Petitioner No.1 are based on conjectures; the Trust Deed, dated
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02.02.2006, could only have been conclusively held to be forged or fabricated after holding a summary trial under section 30 of the Ordinance of 1999, which has not been done; the learned trial Court has recorded the finding that Petitioner No.2 had become a beneficial owner of the Avenfield Apartments in 2006; the learned trial Court, on the basis of an assumption, has mentioned in the Judgment that some documents show the ownership prior to 2006 but has not referred to any such document; no such document exists; the time of the alleged occurrence is between 1993 to 1996 and, therefore, on the basis of the Trust Deed, dated 02.02.2006 it could not be inferred that Petitioners No.2 and 3 had aided or abetted in any manner in the acquiring of the Avenfield Apartments; several reservations and objections were raised but the learned trial Court, without deciding the same, has recorded findings which are not sustainable in law; the learned trial Court has also not properly appreciated the deposition of PW.14, namely, Robert William Radley; reliance has been placed on the cases titled "Muhammad Nawaz v. The State" [1996 P.Cr.L.J. 1250], "Allah Din and others v. Special Judge, Anti-Terrorism Court No.1, Lahore and others" [PLD 2008 Lahore 74] and "Raja Shamshad Hussain v. Gulraiz Akhtar and others" [PLD 2007 S.C. 564]. CONTENTIONS OF THE LEARNED COUNSELS FOR THE BUREAU: 11. The Bureau was represented by most able and competent counsels which included Mr Muhammad Akram Qureshi, Special Prosecutor, NAB, Mr Jehanzaib Bhurwana, Additional PGA, NAB and Sardar Muhammad Muzaffar Khan, DPGA, NAB. The gist of their arguments is that; the petition under section 561-A of the Cr.P.C. was not competent; the order, dated 20.08.2018, could not have been reviewed and the appeals ought to have been heard; section 9(b) of the Ordinance of 1999 starts with a non-obstante clause and places a bar, inter alia, in respect of exercising powers under section 426 of the Cr.P.C.; the said provision has been explicitly ousted; the Anti-Terrorism Act 1997 also contains a similar ouster provision; on behalf of the Petitioners, merits have been agitated; disputed questions of fact cannot be raised while exercising jurisdiction under Article 199 of the Constitution; delay in deciding the appeals is attributed to the Petitioners and,…
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