The appellants prayed the IHC to set aside the impugned judgment, conviction and sentence awarded by Accountability Court No. 1, and they may be acquitted of all charges. The Accountability Court on July 6 had sentenced Nawaz to 10 years in prison for owning assets beyond known income, along with a fine of £8 million. Maryam was given seven years of jail time and slapped with a fine of £2 million, as the court found her guilty of being "instrumental in concealment of the properties of her father". Captain Safdar (retd) was awarded one year in jail for failure to cooperate with the National Accountability Bureau (NAB), and for aiding and abetting Nawaz and Maryam.
Advocate Khawaja Haris filed three appeals on behalf of Nawaz Sharif; first to set aside the AC verdict, second to suspend the verdict until the IHC adjudicates on the main appeals, and a third requesting to transfer Al-Azizia and Flagship corruption references against former PM from Judge Mohammad Bashir to another accountability court in Islamabad. Amjad Pervaiz Advocate filed two appeals each on behalf of Maryam and Safdar. In the first plea, he urged the IHC to set aside AC judgment, while in the second he urged the court to suspend the accountability court's verdict until the IHC adjudicates on appeals.
"The Prosecution has not produced any evidence that appellant [Nawaz Sharif] contributed any money for the purchase of Avenfield properties. Even no evidence exists on the record that any of the children of the appellant were his dependents financially at the time when one or the other of them occupied these properties, or that they were holding the said properties as benamidars of the appellant," Kh Haris contended.
He stated that ex-PM has been acquitted of the specific charge framed against him under Section 9(a)(iv) of the NAO, 1999, and it stands established on the record that judgment says the prosecution [NAB] had miserably failed to refer to or lead any evidence that during more that 37 years of his political career 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.
Thus there is no legal basis or justification to convict the ex-PM for an offence of having acquired assets beyond his known sources of income in the name of any alleged dependant, as despite the specific allegation made against him in this regard by the prosecution, and a charge having been so framed against him on this very allegation, no evidence to support this allegation has been found against him on this count.
The impugned judgment, conviction and sentence are, therefore, illegal and unwarranted by law, besides being inherently contradictory and in utter derogation of the principle laid down, inter alia, in Ghani-ur-Rehman's case; PLD 2011 SC 1144, argues Kh Haris. "None of the ingredients constituting the offence falling under Section 9(a)(v) of NAO, 1999, or under Serial No. 2 of the Schedule thereto, stand proved in the instant case, and, as such, the appellant is entitled to acquittal from the said two charges as well," he argued.
The judgment purports to convict Nawaz Sharif for acquiring assets described as Flats No.16, 16A, 17 and 17A, Park Lane, London (known as Avenfield Properties) that are allegedly beyond his known sources of income, but nowhere in the judgment or, for that matter, in the evidence brought on the record by the prosecution is there any indication of the value of the Avenfield Properties at the time it is alleged to have been purchased by the appellant. He stated that in the absence of the specifications of the value of the assets allegedly acquired by the appellant, it is evident that there is no way it could be held by the learned trial court that the same were disproportionate to the appellant's known sources of income. This is without prejudice to the appellant's case that even the appellant's known sources of income do not stand proved in the instant case.
Under the law, as laid down by the Supreme Court of Pakistan, the onus is on the prosecution to prove, in the first instance, the essential ingredients of the offence falling under Section 9(a)(v) of the NAO, 1999, establishing that the assets in question belong to the accused, and it is only after the prosecution has discharged this onus, and proved that the accused person or any other person on his behalf is in possession of assets disproportionate to his known sources of income, that a presumption can be drawn in terms of Section 14(c) of the NAO, 1999, thereby shifting the onus on the accused to explain the sources from which he may have acquired the assets in questions.
Haris submitted that the prosecution having miserably failed to discharge its onus as regards proof of the ingredients of the offence as detailed hereinabove, the accountability court erred in invoking the provisions of Section 14(c) of NAO, 1999 to raise a presumption against the appellant, and, as such, the impugned judgment, conviction and sentence passed against the appellant (for allegedly failing to explain the sources from which he purchased the assets, which in any case never belonged to him, nor stand proved as such), are manifestly illegal and liable to be set aside as such.
He further submitted that the trial Court (AC) has held that the Avenfield property has been in the possession or ownership of one or more of the children of the Appellant since "1993", but none of the children had the means to purchase the said property, hence, this property must belong to the appellant, as "generally children are dependent on their parents."
Haris stated that the accountability court has foisted ownership of Avenfield property upon the appellant, not on the basis of any concrete evidence, but on a presumption, and that too based on a "generalization" which has no relevancy, nor is admissible under any provision of the Qanun-e-Shahadat Order, 1984 ("QSO").
The prosecution has miserably failed to lead any evidence whatsoever showing that the appellant was the actual owner of Avenfield properties and / or that his children were holding the property as his benamidars. Thus it is admitted by both Wajid Zia, Head of JIT (PW-16) and / or Imran Dogar, Investigating Officer NAB (PW 18), that neither the documents of title of Avenfield properties, nor the control of Nescoll Limited and Nielsen Enterprises (the offshore companies in whose name Avenfield properties stand) ever remained with the appellant, nor did they come across any evidence, documentary or oral, that the appellant paid or contributed any money for the purchase of the Avenfield properties. It may be added that these admitted facts do not find any mention whatsoever in the impugned judgment.
Amjad, who filed petition on behalf of Maryam Safdar and Captain Safdar (retd), contended that the finding of the accountability court that Maryam and her brothers were dependents upon their father [Nawaz Sharif] is also conjectural as no such evidence was available nor Maryam was confronted with any such evidence in her statement under Section 342 CrPc.