ISLAMABAD: If the Islamabad High Court (IHC) directs former prime minister Nawaz Sharif to appear in the hearing of his appeals in Al-Azizia, Avenfield Apartments and Flagship references then his presence would be required.
This was the view held by a majority of lawyers though some drew parallels with the different treatment meted out to General Pervez Musharraf.
Rasheed A Rizvi, former President Supreme Court Bar Association (SCBA) said the IHC had granted conditional bail to the ex-PM for eight weeks in October, 2019. But he filed petition for exemption when the IHC issued notice on the pending appeals in August, 2020. "He (Nawaz Sharif) should have filed petition earlier when due to coronavirus all over the world including Pakistan presence before the courts was not mandatory."
Nawaz Sharif, one day before the hearing of appeals (August 31), filed a Civil Miscellaneous Application (CMA) in the IHC for exemption from appearance as his health does not allow him to travel to Pakistan and appear before the court. A Division Bench of IHC on September 1 took up his CMA and directed him to appear before it on September 10, warning that otherwise, it would declare him an absconder.
The IHC on September 10 granted time to Nawaz Sharif's counsel Khawaja Haris to prepare arguments on legal points to "forgo the requirement of the Applicant's surrender". It, however, noted in its order that "the legal position is clear that once a person is declared a Proclaimed Offender, he has no right except to surrender before the Court of competent jurisdiction and till then no application or legal proceedings can be initiated by him."
Ramzan Chaudhry, former vice-Chairman Pakistan Bar Council (PBC), concurred stating that Nawaz Sharif would have to appear if the IHC desires. He, however, said the Court has three options; First, declare him proclaimed offender and issue his red warrants and direct the government to bring him back through Interpol. Secondly, exempt him from appearing during hearing of appeals and decide the matter on merit. And finally postpone the hearing and await his return.
Kamran Murtaza, former vice-chief PBC, told Business Recorder that if the IHC issues the order for Nawaz Sharif to appear then he should be present in the Court during the hearing of his appeals in Al-Azizia, Avenfield Apartments, and Flagship references. "The courts have inherent power to direct anyone to appear before it for a case," he added.
The IHC in October 2019 suspended the sentence in Al-Azizia case and granted bail to Nawaz Sharif for 8 weeks. It then referred the matter to the Punjab government to decide whether to seek an extension in suspension of sentence and bail. The Punjab government on 27.02.2020, did not extend the suspension of sentence thus Nawaz Sharif's suspension of sentence and bail lapsed.
Former Additional Attorney General Shah Khawar however argued that under Section 423 of Code of Criminal Procedure 1898 the former premier's presence is not necessary, as according to the legal provision, the appeal hearing could be held in the presence of the 'appellant or his pleader'. He said both Nawaz Sharif's counsel and NAB special prosecutor, candidly admitted before IHC on September 1 that since the appeal has been admitted for regular hearing therefore even if the appellant (Nawaz Sharif) is declared an absconder the appeal is to be decided on merit.
NAB Prosecutor Jehanzeb Bharwana had prayed to the IHC to declare Nawaz Sharif an absconder if he does not appear before it. He said any decision in the present appeal would impact on other cases in which the former prime minister is nominated and that are being heard by accountability courts. Accountability Court, Islamabad, in the Toshakhana case declared Nawaz Sharif a proclaimed offender.
Former AAG Shah Khawar further pointed out that under Section 31-A of National Accountability Ordinance, 1999, if the NAB Chairman or any officer designated, issues notice to a person for investigation or inquiry and that person does not appear before the authority then he could be awarded sentence for three years. Shah Khawar said the Supreme Court in many judgments declared the section redundant and unlawful.
A section of lawyers told this correspondent that if former army chief General (retd) Pervez Musharraf's trial could be held and decided in absentia then why could not Nawaz Sharif's appeal be heard and decided on merit in his absence. They said Musharraf's trial took almost 7 years, and the ex-COAS appeared before the court twice, while Nawaz Sharif was present during the trial of Avenfield Apartments, Al-Azizia and Flagship references.
Copyright Business Recorder, 2020
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