ISLAMABAD: During the hearing of review petitions filed by Sharif family against the Panama Papers case verdict on Wednesday, Justice Ejaz Afzal Khan observed that disqualified prime minister Nawaz Sharif and his children can cross-examine members of the joint investigation team (JIT) during trial before the accountability court.
He made it clear that counsels of the Sharif family can also cross-examine every witness and the findings of the accountability court's judge without being influenced by the apex court's observations in the Panama Papers case.
The five-member larger bench comprising Justice Asif Saeed Khosa, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed, Justice Sh Azmat Saeed and Justice Ijaz ul Ahsan is seized with hearing review petitions filed by ousted premier Nawaz Sharif, his children Hassan, Hussain, Maryam, son-in-law Capt (r) Safdar and Finance Minister Ishaq Dar against the July 28 verdict in Panama Papers case.
In his arguments, Nawaz Sharif's senior counsel Khawaja Haris, raised questions over the July 28 verdict in the Panama Papers case, contending that the five-member larger bench was not competent to announce the final order as it was not constituted properly.
He argued that two judges - Justice Asif Saeed Khosa and Justice Gulzar Ahmad - who had written dissenting notes against the former premier in the April 20 verdict of the Panama case could not have signed the verdict announced by the five-member bench on July 28.
Justice Khosa noted that two judges including him disagreed with the formation of the six-member probe panel in the court's April 20 verdict. He said conclusion of the five judges on Sharif's disqualification and supervision of a subsequent trial was the same but their reasons were different.
Justice Sheikh Azmat Saeed noted that the final verdict of the Panama case had to be decided by the same five-member bench which had given the April 20 verdict. He said the court had formed a three-member implementation bench, however the decision had to be ultimately made by the five-member bench. He said the three-member implementation bench had to work as per directions passed by the five-member bench. The judges observed that the reasons to disqualify Nawaz Sharif as prime minister may have differed but the decision was unanimous.
Citing several earlier verdicts of the apex court, Justice Khosa said the order of the court is always signed by all judges even by those who have the minority view in the verdict. "What the problem is if all the judges signed the final order," he wondered. Justice Ijazul Ahsan noted that the judges observed utmost care while writing the July 28 verdict so that the trial could not be influenced. "It was just the tip of an iceberg and if the petitioners are bent upon to compel the court to uncover the whole of it, then they should not complain about the consequences later," he maintained.
He said if a poor person steals AED10,000, he would be sent to prison but when a billionaire did the same, would he not face the similar consequences. "If Nawaz Sharif did not withdraw any salary then why his iqama was not suspended," he questioned.
However, Kh Haris maintained that the matter of receiving or not receiving a salary was not part of the petitions. He contended that the court did not give proper hearing to his client before disqualifying him on the issue of employment with the UAE-based firm Capital FZE.
He also objected to the nomination of a monitoring judge to supervise the investigation, prosecution and trial in the Panama Papers case before the accountability court. Justice Ejaz Afzal Khan said the un-withdrawn salary was the asset of Sharif, adding that it was a written agreement that he would withdraw the salary.
Haris argued that the final verdict in the Panama Papers case by the five-judge bench was not justified as two judges of the bench, who dissented, had already given their verdict. He said April 20 verdict had no mention of a larger bench, thus the final verdict should have been made by the same three-member bench which oversaw the JIT probe.
He said his client was not given the opportunity of a fair trial, as neither any show-cause notice was issued to him nor a chance provided to explain his position.
Justice Ijaz ul Ahsan pointed out that the verdict of the two judges, who dissented on April 20, was not challenged, thus it could be inferred that it was accepted. Kh Haris then submitted that since it was a minority judgment, thus it was not challenged.
He contended that the question arose whether the court could order the NAB to initiate an investigation. He said there was no legal precedent of appointment of a monitoring judge in such a case, adding that basic rights of his client were usurped by appointing the monitoring judge.
During the hearing, the judges made it clear that the accountability court is free to reach its own decision. To the objections raised in the petitions about the commendations and appreciations of the JIT as 'a gross transgression' of the former premier's right to a fair trial, Justice Ejaz Afzal said that he had praised the JIT report but it will be scrutinised in the trial court.
Justice Khosa observed that the content of April 20 and July 28 verdict could be different, but the result was same, as Sharif was disqualified in both the verdicts.
The court adjourned further hearing until today (Thursday), wherein Kh Haris is expected to conclude his arguments.
Published in Daily Times, September 14th 2017.