A decision bound to fail the first test of appeal
The Avenfield case is in the news yet again after the petitions for suspension of sentence filed on behalf of Mian Nawaz Sharif, Maryam Nawaz and Captain Safdar were allowed. While this comes as a shock for many, it was not unexpected for those familiar with jurisprudence related to the NAB Ordinance. This is mainly because the case built by the NAB investigation team, the case presented by the prosecution and the judgment itself had a lot left to be desired. When the accused in a criminal case move a suspension of sentence petition before the High Court, the Court needs to consider whether the judgment was based on legal flaws or was based on inadmissible evidence which was ultimately not sustainable. Though at the time of writing of this article, the detailed order has not been penned by the Islamabad High Court, it is clear that that the Honourable Court found enough flaws with the judgment to grant bail to the Former PM and his family.
Nawaz Sharif had been convicted by the trial court for acquiring assets beyond his known sources of income under Section 9(a)(v) of the NAB Ordinance, 1999. According to legal precedent established by the Supreme Court of Pakistan in numerous cases related to this provision, such as Muhammad Hashim Babar v State (2010 SCMR 1697), the prosecution is required to prove that: (i) the accused was a holder of public office at the time of the acquisition of the assets/properties; (ii) the nature and extent/value of the assets that the accused possesses; (iii) his known sources of income; (iv) whether the assets found in possession of the accused are beyond his known sources of income. Only when the prosecution establishes all these ingredients, the onus shifts to the accused who is then required to ‘reasonably’ account for the resources from which the assets were acquired.
While a lot has been said and written about the version taken by the defense team, any defense taken by the accused could only be looked at once the entire above-mentioned ingredients were fulfilled by the prosecution.
In this case, the prosecution alleged that the Avenfield Properties were acquired between 1993 and 1996. In order to prove this fact, the Prosecution produced title deeds indicating that the properties were owned by Nielsen Enterprises Limited and Nescoll Limited during this time. However, no evidence was produced by the prosecution to prove as to when these properties were actually acquired and if Nawaz Sharif was a holder of public office at that time. Therefore, the prosecution seemingly failed to prove the first ingredient of this offence. Even if it is assumed that Nawaz Sharif was the Prime Minister at the time of acquisition of these properties and these properties belonged to him, the Prosecution failed to bring any evidence to substantiate the second ingredient i.e value at which the properties were acquired. The value of the properties at the time of acquisition was crucial for the prosecution to establish its case of Nawaz Sharif owning assets beyond his income. Without putting an actual price on the Avenfield Properties, it is impossible to prove that Sharif’s income, or for that matter any income, is insufficient for its purchase. Nevertheless, the learned trial judge seemingly ignored this crucial ingredient while convicting the former Prime Minister.
The inability to prove the third ingredient, proof of Nawaz Sharif’s known sources of income, is perhaps best attributed to prosecutorial mistakes or incompetence. The JIT constituted by the Supreme Court created a detailed chart of Sharif’s income and wealth. However, the head of the JIT chose not to present the chart as evidence, forcing the prosecution to present the chart through the Investigating officer of NAB. The law of evidence clearly states that only the author/creator of a document can testify regarding its contents. Therefore, since only the JIT members could testify in relation to the contents of the chart and no other proof was actually submitted pertaining to Nawaz Sharif’s income, this ingredient also stands unfulfilled.
This brings us to the last ingredient which the prosecution had to prove: that the assets found in possession of the accused are beyond his known sources of income. Since the valuation of the property at the time of its acquisition was never given and the evidence pertaining to the known sources of income of Nawaz Sharif was legally inadmissible, it can be safely concluded that this ingredient was also unproved.
To add insult to injury, the head of the JIT admitted during his cross-examination at various instances that there is no proof of Nawaz Sharif’s real or beneficial ownership of Avenfield Apartments. Without taking this into account and without analyzing whether the prosecution was able to satisfy the ingredients essential to proving guilt, the learned trial judge convicted Nawaz Sharif on the basis that he was not able to provide a satisfactory defense regarding the acquisition of Avenfield Properties. While a lot has been said and written about the version taken by the defense team, any defense taken by the accused could only be looked at once the entire above-mentioned ingredients were fulfilled by the prosecution. Since the prosecution failed to prove the ingredients during the trial and the trial judge failed to take that into account in his judgment, the Islamabad High Court rightly granted the petitions for the suspension of sentence. At this juncture, it will be a herculean task for the NAB prosecution team to successfully appeal this decision before the Supreme Court or win the appeal filed by the accused before the Islamabad High Court.