ISLAMABAD: A division bench of Islamabad High Court (IHC) on Wednesday reserved its judgment on maintainability of appeals in Al-Azizia Steel Mills, Flagship Investment and Avenfield Property references, after the accused Muhammad Nawaz Sharif declared an absconder.
At the outset of hearing, the court instructed the amicus curiae to assist the court on legal points instead of giving arguments on behalf of the accused.
Giving arguments, Amicus Curiae, Azam Nazir Tarar said that the court had the authority to dismiss the case as there were such examples of many courts in the country.
Azam Nazir Tarar said that as the trial could not be conducted in absence of the accused in the same way the appeals also could not be heard. He said that he would give balanced arguments to assist the court.
Tarar said that the appeal was also the continuity of the proceedings of the trial court. He, however, said that it was a fact that one loses his legal rights after being declared absconder. On the occasion, he also quoted the references of various court decisions in similar matters.
He argued that if a case was decided on merit in absentia then the accused would have no choice except to file an appeal against the decision. He has a forum and he can raise his points there.
Azam Tarar said that it was also important to save valuable time because all this practice would be of no use.
The court observed that the appeals of Nawaz Sharif, Maryam Nawaz and Captain Safdar would be heard together, adding that if the present accused get any relief then the former prime minister would get too.
Azam Nazir Tarar said that another appeal of NAB against the acquittal of Nawaz Sharif was also before the court. Justice Aamer Farooq said that no notice had been issued in the NAB appeal to Nawaz Sharif so far.
On this occasion, various judicial decisions were read out by another amicus curiae Makhdoom Hussain. Nazir Tarar said that if we look at all the decisions, then it was of pre-2010, there was only the Ikramullah case in post 2010. The Supreme Court had given a clear decision in the Hayat Bakhsh case in which the top court had rejected the appeals of the accused that were not present.
Nazir Tarar, said that the Dhaka High Court had also decided to close the case of an accused in his absence. He said that when an accused did not surrender, his case was not taken up.
Justice Mohsin Akhtar Kayani asked if the petitioner was a court absconder, then how he would surrender. Azam Nazir Tarar said in this situation, his appeal would also be rejected. The Supreme Court had rejected an appeal if an absconder did not surrender.
Justice Mohsin Akhtar Kiani said that we had two appeals, one had three people and one had a single person. Whether we would not hear the case of those who were present in the court, he asked. Tarar said that the court could hear the case of present appellant, adding that it was up to the courts, in some cases appeals were rejected while in others theses were sent to store rooms.
Tarar said that the appellant should have an open way to file appeals against judgment. Justice Aamer Farooq asked Tarar to assist the bench on legal point as he was not a political activist rather he was an amicus curiae. The bench asked how the cases could proceed in the accused absence. This was a court of law and it would not care who was the appellant, Justice Farooq said.
Additional Prosecutor General Jahanzeb Bharwana gave references of different courts’ decisions. He said that the same court had granted the opportunity to the accused to surrender. The same court suspended the decision of the trial court and accepted the bail of the former prime minister.
Justice Kiyani observed that the petitioner would have a choice whether to go to Supreme Court or High Court.
To a query, the NAB prosecutor said there were three appeals in Avefiled property reference while two appeals were related to Al-Azizia Steel Mills reference. He said that Nawaz Sharif had lost all legal rights after being declared absconder, adding that one could get relief only on appearance before court under Article 10A of the constitution.
Bharwana said that the court could hear the appeals of those accused who were present before the court.
After hearing the arguments, the court reserved its judgment. A division bench comprising Justice Aamer Farooq and Justice Mohsin Akhter Kiyani heard the appeals. Maryam Nawaz, Cap. (reted) Safdar and others also appeared on the occasion.
