‘Presumption’ a key word in verdict against Nawaz

ISLAMABAD: An accountability court has once again relied on presumption to sentence ousted Prime Minister Nawaz Sharif for seven years on Monday in the Al-Azizia Steel Mills corruption reference.

The 131-page verdict contains word presume for 10 times and presumption for 13 times. The Accountability Judge, Arshad Malik, defended the use of presumption while quoting Qanun-e-Shahadat Order (QESO), 1984 and previous judgements of the superior courts and even used illustrations to show instances where court could presume. Interestingly, the accountability court acquitted him in a second reference related to Flagship Investments, but maintained that the prosecution has successfully established all the ingredients of the offence of corruption and corrupt practices against Mian Mohammad Nawaz Sharif in the Al-Azizia case. The court fined Nawaz Rs1.5 billion and $25 million in the reference.

The court maintained that “as per evidence read before this court and documents referred, the prosecution has succeeded establishing reasonable case against the accused and u/s 14 (c) of NAO, 1999, burden shifted on the accused, but he failed to account for the admitted assets in the name of his sons and law required this court to presume the accused guilty and punish him in accordance with law.” The court quoted Article 129 of QESO which states: “Court may presume existence of certain facts. The court may presume the existence of any fact which, it thinks, likely to have happened; regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”

The court used the illustrations mentioned in Section 107 of QESO which states “that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”

While defining how to prove an offence against an accused, the court reproduced article 2(4), (7) and (8) of the QSO.

Judge Arshad Malik also referred to the Supreme Court judgement reported as PLD 2018 SC 114 which stated that “any fact is especially within the knowledge of any person the burden of proving that fact is upon him”.

The verdict further states that the possession and ownership of the “assets” being ASCL and HME and related remittances are not denied, rather admitted, albeit in the name of Hussain Nawaz Sharif , which, as per the charge framed, are alleged to have been acquired through corruption and corrupt practices; thus, “a court may presume correctness of the allegations in terms of Article 129, and it was for accused and his co-accused (absconding) to establish; otherwise, in terms of Articles 2(7) and 2(8) of QSO read with Section 14 (c) of the Ordinance.”

The verdict under the headline, “Application of presumption under Section 14(c) of the Ordinance,” states: “It (sic) view of the above findings, the court is satisfied that the prosecution case and available evidence against the Accused No1 (Nawaz Sharif) is sufficient to shift the onus to him as contemplated and provided in Section 14(c) of the Ordinance.

As referred to above, once the “initial light onus of proof on the prosecution” has shifted to the accused pursuant to said Section 14(c) “a heavier onus shifts to the accused person to reasonably account for his ownership, possession, acquiring of right or title or holding irrevocable power of attorney in respect of such assets or pecuniary resources.”

Interestingly, in his verdict against Nawaz Sharif in the Avenfield properties case, another accountability court Judge Muhammad Bashir had also relied on presumption in sentencing Nawaz Sharif for 10 years.

On presumption-based evidence, the court first established that Nawaz Sharif was the owner of the London properties and then punished him for failing to explain the resources with which he had purchased the Avenfield Apartments.

The court of Judge Bashir had acquitted former prime minister and others from the charge of having acquired the Avenfield properties “by corrupt, dishonest, or illegal means”. Nawaz, however, had been convicted of his failure to explain how he had purchased the London flats. However, while doing so, the Accountability Judge Muhammad Bashir instead of relying on concrete evidence, depended on presumptive or circumstantial evidence to conclude that Nawaz Sharif is the real owner of the London flats.

The Accountability Court, in its judgement, had admitted that establishing the ownership of Avenfield flats was difficult in the absence of relevant documents but made it clear that it is relying on prosecution’s presumption that Nawaz Sharif is the owner of the properties.

The judgement concluded that Nawaz is the real owner of London flats because the prosecution has succeeded in establishing that the Sharif family has been living in these apartments since 90s.