In terms of the law, the initial burden of proof is on the prosecution, and if, and only if the prosecution discharges such burden, would the accused be required to satisfy the court as to why a judgment should not be passed against the same.
In light of the above, and in regard to Nawaz Sharif’s conviction, the judgment would best be analysed from three varying yet interconnected perspectives.
Firstly, how was the issue of the prosecution’s discharging of its burden tackled in the judgment? Secondly, how did the judge view the prosecution’s evidence vis-à-vis known incomes of the Sharif family? And thirdly, how was the fairness and impartiality of the trial perceivably impacted by its manner and method?
In relation to the first point, the judge has in fact noted in this judgment that the initial burden of proof was on the prosecution itself. The prosecution was required to first establish that the Avenfield properties were in fact owned by the accused, or his dependants. Secondly, they were also to establish the sources of income of accused, and in comparison of the two, to further show that the known sources of income were not sufficient to purchase the properties in question. Only upon doing so, amongst proving other elements, would the burden of proof have shifted to the accused.
In relation to the ownership of the properties, the judge had himself noted on at least two separate occasions that proving ownership was a difficult task, if not impossible, when off shore companies were involved. Despite this, the judge went on to hold that such a burden had indeed been discharged. On what basis, you may ask?
Well, the judge highlighted links between the Avenfield properties and Nawaz Sharif’s children, whilst finally concluding that at least one of the children was in possession of the flats in question. On the basis of such possession, third party documentation from Mossack Fonseca stating that Maryam Nawaz appeared to be the beneficial owner of an off shore company which owned a part of the Avenfield properties, the UK High Court proceedings in which Avenfield properties were attached, and interviews of Hussain Nawaz, the judge proceeded to adjudge that ownership had been proven.
The Mossack Fonseca letters appeared to be of questionable evidential worth, especially in light of the fact that relevant officials in such an organisation did not bother to offer evidence, nor did the accused get any opportunity to cross examine them
This was in spite of the fact that the Mossack Fonseca letters appeared to be of questionable evidential worth, especially in light of the fact that relevant officials in such an organisation did not bother to offer evidence, nor did the accused get any opportunity to cross examine them. At best, such evidence would be hearsay. The judge also apportioned much weight to the television interviews of Hussain Nawaz, who was not present during the trial, nor was any other accused able to cross examine the same for purposes of establishing the veracity of his claims.
The judge then went on to hold that as the children were not old enough to purchase the properties themselves, it must have been provided through funds obtained by the father. The weaknesses of such an assumption are plainly obvious, that is, it is not necessary that income derived by a child would necessarily be from the father. Although probable, it was certainly not beyond a reasonable doubt.
Secondly, in relation to establishing the known sources of income, it appears that the judge had relied more so on the inability of Nawaz Sharif, and his children to justify their income, as opposed to the prosecution’s ability to prove a lack thereof. No detailed inquiry had been sought into this aspect, nor did the judge point out as to how the prosecution was able to establish the income flows. This is perhaps why the judge constantly refers to statements and interviews offered by the children so as to indicate the lack of income required to purchase such properties.
Finally, in relation to the manner and method of trial, the contents of the judgment clearly show the tremendous influence that the Supreme Court and its JIT had on the overall trial. Although the judge notes that the report was not binding on him, he appears to rely heavily on it. Furthermore, the haphazard, hasty, and rushed manner in which the judgment was given, its timing, and the constant interventions from the Supreme Court, give an overall impression of justice being hurried, and ultimately, justice being buried.
The writer is lawyer based in Karachi he can be reached at [email protected] and Tweets at @basinabi
Published in Daily Times, July 12th 2018.