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Sunday, September 24, 2023

Will Nawaz Sharif surrender to court on September 10?

Legal experts opine that it is in Nawaz Sharif's best interest to return to Pakistan to avoid being considered an absconder. However this detailed GVS News Analysis helps understand why Nawaz may not be under any real pressure to come back to Pakistan in the near future. Must Read for students of Pakistan's politics, law and history.

The Islamabad High Court (IHC) on Tuesday ordered former Prime Minister Nawaz Sharif, who is currently in London, to surrender before the court on or before September 10.

An IHC division bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani was hearing appeals of Nawaz Sharif against his conviction in Al-Azizia and Avenfield property references – in which he also sought exemption from court appearance on health grounds. Analysts are now mulling over an intriguing question: Will Nawaz Sharif surrender on September 10?

Islamabad High Court did not declare Nawaz Sharif a proclaimed offender or absconder (mafroor) as demanded by the NAB but warned his lawyers that if he failed to appear before the court on September 10 then this process can be initiated.

During today’s hearing, Justice Kayani observed that the Lahore High Court (LHC) permitted the ex-PM to travel abroad for four weeks on the basis of this undertaking and asked the lawyer to satisfy the court as to why he has not returned.

Khawaja Haris, Nawaz’s lawyer, said that his client’s treatment was delayed due to the outbreak of the coronavirus pandemic, adding they approached the Punjab government seeking an extension in his stay in London but it rejected the plea.

Maryam gets relief from Court: Can file separate Appel in Avon-field case

Justice Kayani observed that all reports about Nawaz Sharif’s health are old ones. Justice Farooq noted that the federal government had not gotten any information about his treatment abroad nor has anyone from Pakistan High Commission in London gone to see the ex-PM to ascertain his condition.

In another important move, the court took up the appeals of Maryam Nawaz and retired Captain Mohammad Safdar in the Avenfield reference and separated their appeal from Nawaz’s case. This appears to be a major relief to Maryam who, unlike Nawaz, is interested in Pakistan’s electoral politics but she is a co-defendant along with her farther in the Avon-field case.

This may also reduce immediate pressures from Nawaz who has no immediate stake in electoral politics and was under pressure to return to help Maryam’s appeal process. In that respect, today’s decision in Islamabad High Court was a break through for both Maryam and Nawaz.

Read More: NAB’s order in Toshakhana case: Is Nawaz Sharif going to be arrested soon?

Now there is a debate going on in Pakistan about Nawaz’s political future; is he facing a serious legal challenge as court demands him to surrender on September 10? While popular media opinion is that Nawaz is in trouble but some analysts are of the view that the PML-N’s supremo is finding step wise relief as the cases instituted by NAB in pursuance of Supreme Court judgment remain stuck and he is not under any immediate pressure. He will, according to them, make his own decisions and will find some excuse to avoid court appearance on 10th.

Rana Sana Ullah, ex-law Minister of Punjab, and a senior leader of the PMLN, appearing in Gharida Farooqi’s program, along with Fawad Chaudhry, Science and Technology Minster also made similar observations. He asserted, “Mian Nawaz Sharif will decide when and how he will return, this could be in 15 days or three months”

Cases against Nawaz Sharif: A background

It is important to mention here that on April 20, 2017 the Supreme Court of Pakistan issued orders in Panamagate case and directed the formation of a Joint Investigation Team (JIT) to probe the Sharif family’s financial affairs.

FIA’s Additional Director General Wajid Zia, a grade 21 officer, was appointed as head of the probe team. The JIT consisted of Amer Aziz of the State Bank of Pakistan, Executive Director of the Securities and Exchange Commission of Pakistan Bilal Rasool, National Accountability Bureau Director Irfan Naeem Mangi, Brig Muha­mmad Nauman Saeed of the Inter-Services Intelligence and Brig Kamran Khurshid of the Military Intelligence.

On the basis of the JIT report, SC on July 28, 2017, disqualified Nawaz Sharif for not being honest and truthful.  The court stated that “it is hereby declared that having failed to disclose his un-withdrawn receivables, constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1, Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament)”.

Read More: Nawaz Sharif should not go outside, suggest doctors

The bench further said that on the basis of this information, collected by the JIT, cases should be opened against then Finance Minister Ishaq Dar; then MNA Captain Muhammad Safdar; Maryam, Hassan and Hussain Nawaz, and the ousted premier, Nawaz Sharif.

Supreme Court References against Nawaz: Going Nowhere?

The Avenfield reference was filed by the NAB in an accountability court against Nawaz Sharif.  Judge Muhammad Bashir of the accountability court announced the decision. Nawaz Sharif was handed over 19 years imprisonment for owning assets beyond known income and 1 year for not cooperating with NAB. His daughter Maryam was given 7 years for abetment after she was found “instrumental in concealment of the properties of her father” and 1 year for non-cooperation with the bureau.  Nawaz’s son-in-law retired Captain Safdar was also given 1 year jail time — for not cooperating with NAB, and aiding and abetting Nawaz and Maryam.

On July 10, 2018 Judge Bashir was due to resume hearing in the Al-Azizia reference but Nawaz’s counsel urged him to recuse himself from the trial proceedings in the Al-Azizia and Flagship references pending before the same judge. The case was then sent to Judge Arshad Malik, only other judge available to hear the case. But Judge Arshad was transferred literally in those days from Rawalpindi. He was serving as “Sessions Judge” in Punjab and was transferred by the federal ministry of law to serve as Accountability Judge. Many political analysts find the sequence of events very strange.

Read More: Does the government really want to bring Nawaz Sharif back to Pakistan?

Nawaz was handed 7 years in jail in Al-Azizia reference by Judge Arshad Malik. Nawaz was also fined Rs1.5 billion, US $25 million. The judge, Arshad Malik, however, maintained that there was no case against Nawaz in Flagship reference. Nawaz later obtained bail from Islamabad High Court in Avon-field case where he was convicted by Judge Mohammad Bashir.

Judge Arshad Malik controversy: PML-N’s attempts for retrial of Al-Azizia reference?

Judge Malik appeared a suspicious character for various reasons. His personal and social circle reflects his close association with PML-N workers. Nasir Butt, a local leader of the party who later recorded a controversial video, is said to be a close friend of the judge. In that video Judge Arshad Malik was found making confessions that he convicted Nawaz Sharif under pressure. But Judge Malik’s viral photos also confirmed his meeting with Nawaz’s son – Hussain Nawaz – in Saudi Arabia.

Judge Arshad Malik later officially admitted that he met Hussain Nawaz Sharif in Saudi Arabia. “I met Hussain Nawaz Sharif at Oberoi Hotel, Madina Munawwara,” confirmed Judge Arshad Malik in his written response submitted with the investigation team of the FIA.

Malik had joined the district judiciary on August 1, 2000, and was promoted to the post of a sessions judge on September 8, 2010 when Nawaz’s brother, Shahbaz Sharif was Chief Minister of Punjab. He was due to retire on May 24, 2022. In 2017 he was serving as District and Sessions Judge in Rawalpindi. It’s not clear when exactly was he transferred as Accountability Judge and why was he specifically chosen – questions that assume great importance because of the subsequent controversy his conduct created and the political implications of his conduct.

However this much is known that transfer of Judge Arshad Malik as Accountability Judge took place more or less in the days when Nawaz’s lawyer, Khwaja Harris objected to Mohmmad Bashir and forced him to recuse from further hearing the Al Azizia case. Judge Mohammad Bashir had been simultaneously hearing all the three references field against Nawaz Sharif (Avon-field, Al Azizia and Flagship Investments). He had only given the first decision in Avon-field case on July 6, 2018 – before the 25 July National Elections – when Nawaz’s lawyers forced him out from the other two cases. In this way, new judge, Arshad Malik only conducted the last few hearings before making his mind to convict Nawaz in one case and exonerate him in the other. Arshad Malik was never the trial judge who heard most of the case.

On July 6, 2019, exactly one year later, Maryam Nawaz held a press conference and leaked the video of the judge where Malik was claiming that he was coerced to hand down the prison sentence against Nawaz Sharif despite there being no proof of corruption against the deposed premier.

Whether the video was being recorded to facilitate Nawaz Sharif or Nasir Butt had trapped Judge Arshad Malik exploiting his earlier friendship with him is not clear as yet. The video was not presented in any court of law to determine its authenticity – though most legal experts had opined that a forensic analysis will be needed to judge its true authenticity.

Given suspicious nature of Arshad Malik’s past relations with Nasir Butt and his sudden transfer as Accountability Judge in 2018 exactly at the time when Nawaz’s lawyers objected to Judge Mohmmad Bashir this forensic analysis was important but somehow it has not happened.

Special Assistant to the PM on Accountability Shahzad Akbar has pointed out that Malik was appointed by former premier and PML-N Senior Vice President Shahid Khaqan Abbasi.

Akbar went on to claim that Al Azizia case was transferred to the court of judge Arshad Malik at the plea of Nawaz Sharif. He said that another co-accused in the case Nasir Butt was an old acquaintance of Judge Arshad Malik. Recalling ‘Justice Qayyum saga’, he said the Sharif family has done similar acts in the past as well.

Later on, after the appearance of the video, the LHC dismissed the controversial, judge Arshad Malik from his post. The decision was taken by the administration committee of the LHC. The meeting was chaired by LHC CJ and attended by seven other senior judges.

Why won’t Nawaz return to Pakistan?

Raja Amir Abbas, a prominent legal expert and ex. Deputy Prosecutor General NAB, is of the view that the Sharif family may approach the court, and file a petition for retrial- in Al Azizia case – since the alleged confession and subsequent dismissal of Judge Arshad Malik provides a basis.

Raja Amir Abbas had also argued that it is in Nawaz’s interest to get back to Pakistan. “Nawaz would never like to be declared a proclaimed offender. It is not in his interest.  For him, Maryam’s political career is what matters the most,” he added.

Raja Amir maintains that there is no such big legal challenge for Nawaz which may stop him from returning to Pakistan. He also thinks that Nawaz had decided to end his political career and let Maryam be part of mainstream politics. Therefore, he insists, it is in Nawaz’s best interest to come to Pakistan. However with court granting Maryam and Capt. Sardar a separate right of appeal this urgency for Nawaz may now disappear.

Was Nawaz facing serious health conditions? 

On the other hand, the case based upon health argument has lost its political and public appeal. As Justice Farooq noted today that the federal government had not gotten any information about his treatment abroad nor has anyone from Pakistan High Commission in London gone to see the ex-PM.

To most media analysts, the matter seems to be clear that there was some sort of understanding among the hospital staff, government agencies and PML-N to let Nawaz leave for London. PML-N’s argument that Nawaz went to London for the medical reasons seems to be no longer effective – though PMLN leaders continue to argue the same.

Some analysts are of the view that there is no serious legal challenge for Nawaz but still he won’t come back because of the deal he has signed. There is a growing perception that Nawaz Sharif went to London after signing a deal with the establishment. Those who suspect a deal point towards the past. If the history of Pakistan is any witness to help then it may be true. No politically powerful person in Pakistan’s history has ever been punished in a court of law; convictions even if obtained in lower courts are almost always overturned by superior courts. The system simply does not have the will to punish powerful people- they argue. Case of Zulfiqar Ali Bhutto in 1979 may be the only odd exception. Perhaps he was the only one who was not prepared to compromise with his prosecutors.

Researched and written by Farah Adeed, with additional input from GVS News Desk.