National Accountability Bureau (NAB) has challenged in the Supreme Court the order of Islamabad High Court that suspended Accountability Court verdict and granted bail to former Prime Minister Nawaz Sharif, his daughter Maryam Safdar and son-in-law Capt Muhammad Safdar (retd).
Special Prosecutor NAB Akram Qureshi on Monday filed the petition under Article 185 of Constitution, praying to set aside the impugned judgment and recall the relief of the suspension and grant of bail to Sharif, Maryam and Safdar.
The IHC's division bench comprising Justice Athar Minallah and Justice Miangul Hassan Aurangzeb on 19-09-2018 had allowed the writ petitions of the Sharif, Maryam and Safdar against the accountability court's July 6 judgment in the Avenfield reference.
"The instant writ petition is allowed and the sentence awarded to the petitioners by the accountability court shall remain suspended till the final adjudication of the appeal filed by the petitioner," said the IHC division bench's judgment.
Accountability Court Judge Muhammad Bashir on 6th July, 2018, in Avenfield Apartments case had awarded sentence to former Prime Minister Nawaz Sharif of 11 years imprisonment and £8 million fine (Rs 1.3 billion) in the corruption reference, while his daughter Maryam Safdar was sentenced to eight years with a £2 million fine (Rs 335 million) and son-in-law Capt Muhammad Safdar (retd) was given a one-year sentence without any fine.
The NAB application said the IHC 19th September, 2018 order has caused serious prejudice to the cause of the anti-graft body and may have very adverse effect for its case in the main appeal pending before the Islamabad High Court.
The NAB petition pointed out that IHC observation; "In the light of glaring defects and infirmities in the judgement (AC) we have formed a, prima facie, tentative opinion that the convictions and sentences handed down to the petitioners may not be ultimately sustainable." The IHC observations are clear contradiction with the guidelines of the apex court in the case of Soba Khan vs The State and another, the petition said.
It said that the accused have consciously concealed the actual facts regarding history of ownership of the assets and the companies. There was also failure on the accused part to account for sources/means/availability of funds and its lawful transfer abroad therefore committed offences as defined under Section 9(a)(v)(xii) National Accountability Ordinance, 1999.
The entire reference proceedings and the judgement of Accountability Court dated 06-07-2018 do not suffer from any legal infirmities and convicts/respondents (Sharif and Maryam).
The IHC ought to have decided the question of maintainability before hearing and considering the writ petitions on merits. However, the division bench of the IHC failed to appreciate and consider various and prominent judgement of the apex court.
The NAB submitted that it would be advantageous to submit here that the constitutional jurisdiction of the High Court under Article 199 of the Constitution can only be exercised when there is a no other adequate or efficacious remedy. It further stated that the jurisdiction could only be exercised against a person performing function on behalf of the federation or the province. In this case NAB is a separate legal and juristic entity enacted under a statute and thus requires to be impleaded as a proper and necessary party in an individual capacity to enable it to respond to the contents and points of facts and law raised in the writ petition. The judgement of the IHC goes to the route of the present case, the petition said.
The IHC has ignored the fact that the properties mentioned in the formal charge were directly concerning the respondent-convict and other accused through their independent business sources and ventures such as Neilsen, Nescol companies, Coomber and Capital FZE.
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