ISLAMABAD: The Islamabad High Court (IHC), on Thursday, dismissed former prime minister Nawaz Sharif’s appeals in the Avenfield Apartments and the Al-Azizia references but said the ex-PM may file an application when he surrenders or is captured for decision of the appeal on merit.
“Appellant may file an application before this Court, as and when he surrenders or is captured by the authorities, for decision of the appeal on merits. Needless to observe that the said application, if and when [it] is made, shall be decided in accordance with law,” said the judgment.
A division bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani, a day ago, had reserved its judgment after hearing the arguments in Nawaz Sharif’s appeals against his conviction in the Avenfield properties and the Al-Azizia Steel Mills corruption references.
The verdict authored by Justice Farooq stated that the appellant (Nawaz Sharif) was provided a fair trial and now has absconded from justice, at the time of hearing of appeal hence, the referred Article 10-A of the Constitution, is of no avail to him.
He noted, “Mian Muhammad Nawaz Sharif was provided a fair trial in as much as trial court provided him opportunity of hearing as well as cross-examining the prosecution witnesses and only after the proper trial, his conviction was recorded; he despite being on bail, proceeded abroad and did not appear before this Court and without any justification or basis, remained absent on a number of dates of hearing hence this Court was left with no option but to follow the procedure as provided in Code of Criminal Procedure, 1898 and declare him as fugitive from law.”
The judgment said, “Since appellant is fugitive from law hence has lost his right of audience before this Court and we are left with no choice except to dismiss his appeal.”
The IHC observed in the judgment that in view of the position of law and practice, two courses are available to this Court; either to dismiss the appeal outrightly as was the case in judgment reported as “the Hayat Bakhsh and Others Vs The State” or follow the dictum laid down in case reported as “the Ikramullah and others Vs The State.”
The IHC judgment mentioned that the decision rendered by the apex court in case reported as PLD 1981 SC 265 supra was by a five-member Bench, whereas, the decision handed down in case reported as 2015 SCMR 1002 is by a three-member Bench, hence former decision still holds the field and is binding, despite being earlier in time.
It pointed out that even otherwise, there is little or no difference between cases reported as PLD 1981 SC 265 and 2015 SCMR 1002 inasmuch as in the latter case, an observation was made specifically providing an option to the appellant for resurrection of appeal while dismissing the same, whereas similar views were expressed in a case reported as PLD 1981 SC 265 and while concluding the matter, it was stated that absconders before hearing of the appeals of the co-convicts can appear and make an application for hearing case on merits, the same would be fixed before fixation of appeals of co-convicts.
According to the IHC verdict, much emphasis was laid on Article 10-A of the Constitution by Hassan Nawaz Makhdoom Advocate that the right of fair trial is a must in every case.
The court noted that Article 10-A of the Constitution provides for the determination of civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.
The bench mentioned that in a case reported as Hayat Bakhsh supra, the Supreme Court observed that there is no bar on the Supreme Court to dispose of a criminal appeal on consideration that the accused person has abused the process of the Court.
“It was also stated that there is nothing in the Constitution or the Rules to compel the Court to decide on merits an appeal filed by an accused person who has chosen to be fugitive from justice and while remaining so decides to disobey or frustrate the orders, directions and process of the Court from which he seeks justice,” said the court order.
The court also stated that the appellant, Nawaz Sharif, was tried and convicted in Reference No 20-2017 by learned Accountability Court No I, Islamabad vide judgment dated 06.07.2018. He filed an instant appeal against the referred judgment, which was suspended and he was released on bail. It added that Sharif did not appear before this court when appeal was listed for hearing, hence was declared an absconder i.e. fugitive from law after following the codal formalities for procuring his attendance before this court.
Copyright Business Recorder, 2021
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