As the National Accountability Bureau (NAB) filed an application, an accountability court has summoned PML-N vice-president Maryam Nawaz on July 19 over the use of a “bogus trust deed” in the Avenfield reference.
It has triggered a debate about the nature of the move, as, according to many legal experts, even the British company says it is genuine and the courts there too will acknowledge that.
To understand the matter, NayaDaur Media contacted Abuzar Salman Niazi, a prominent legal expert for his comments.
Niazi says the move to try Maryam in Calibiri trust deed is short-sighted, rushed, misconceived and not supported by law.
“On the issue of initiating criminal proceeding for submitting forged documents (Calibri font trust deed), the NAB law provides a very clear mechanism. As per Section 30 of NAB Ordinance, on pronouncement of judgment, the court has the jurisdiction to take cognizance of an offense committed in the course of the investigating or trial of a case by any officer, any witness, including an expert, who has tendered false evidence in the case, whether he deposed in court or not, or any other person under the Pakistan Penal Code 1860 and to summarily try him and award punishment,” he said.
Niazi, however, added that the proceedings may be initiated by the court on its own accord at any time after the decision of the case or, in the event that there is an appeal, after the decision thereof, or on an application made within 30 days.
He says two issues have been ignored by NAB – i) conducting trial on the basis of application is not possible as the limitation of 30 days has expired and ii) during pendency of appeal the offence cannot be tried even by the court itself while exercising suo motu jurisdiction on its own. “So, only possible way was to wait till appeal is decided by superior judiciary,” Niazi opined.
Similarly, senior lawyer Basil Nabi Malik said on the face of it, there are two aspects that need to be looked at when analysing the initiation of proceedings in regard to the forged documents – the timing of this move and the legality of the proceedings.
In relation to the first, Malik said, with a broad shadow casting over the alleged conduct of NAB judges on account of the leaked video, the sudden issuance of such a notice at a time, when an appeal in relation to the original judgment is still pending, is extremely circumspect. It will simply add to the atmosphere of doubt and disbelief, he added.
In relation to the legality of the proceedings itself, the notice seems uncalled for, Malik said.
Firstly, the original conviction was based on the alleged forgery in question, and as such, questions may also be raised as to whether the instant proceeding for submission of false evidence will come within the realm of double jeopardy, that is, Maryam being vexed twice for the same offense.
Secondly, according to Malik, the law appears to apply to false evidence given during the course of the trial. “If the said forged documentation was in fact not submitted by Maryam, but was rather a part of the JIT record submitted by the prosecution or provided by order of a court then the pertinent section arguably would not apply. Furthermore, an appeal is already pending in relation to her conviction, and during such pendency, the law seems to bar the initiation of such proceedings by the court.”
Malik said, “If it has been initiated by way of an application from the prosecution, the request seems to be barred by limitation.”
It has triggered a debate about the nature of the move, as, according to many legal experts, even the British company says it is genuine and the courts there too will acknowledge that.
Also read: Pakistan Is Neither Egypt Nor Will We Allow Making Nawaz Sharif A Morsi: Maryam
To understand the matter, NayaDaur Media contacted Abuzar Salman Niazi, a prominent legal expert for his comments.
Niazi says the move to try Maryam in Calibiri trust deed is short-sighted, rushed, misconceived and not supported by law.
“On the issue of initiating criminal proceeding for submitting forged documents (Calibri font trust deed), the NAB law provides a very clear mechanism. As per Section 30 of NAB Ordinance, on pronouncement of judgment, the court has the jurisdiction to take cognizance of an offense committed in the course of the investigating or trial of a case by any officer, any witness, including an expert, who has tendered false evidence in the case, whether he deposed in court or not, or any other person under the Pakistan Penal Code 1860 and to summarily try him and award punishment,” he said.
Also read: NAB Using All Resources to Keep Nawaz Sharif in Jail over Bogus Charges: Abbasi
Niazi, however, added that the proceedings may be initiated by the court on its own accord at any time after the decision of the case or, in the event that there is an appeal, after the decision thereof, or on an application made within 30 days.
He says two issues have been ignored by NAB – i) conducting trial on the basis of application is not possible as the limitation of 30 days has expired and ii) during pendency of appeal the offence cannot be tried even by the court itself while exercising suo motu jurisdiction on its own. “So, only possible way was to wait till appeal is decided by superior judiciary,” Niazi opined.
Similarly, senior lawyer Basil Nabi Malik said on the face of it, there are two aspects that need to be looked at when analysing the initiation of proceedings in regard to the forged documents – the timing of this move and the legality of the proceedings.
In relation to the first, Malik said, with a broad shadow casting over the alleged conduct of NAB judges on account of the leaked video, the sudden issuance of such a notice at a time, when an appeal in relation to the original judgment is still pending, is extremely circumspect. It will simply add to the atmosphere of doubt and disbelief, he added.
In relation to the legality of the proceedings itself, the notice seems uncalled for, Malik said.
Firstly, the original conviction was based on the alleged forgery in question, and as such, questions may also be raised as to whether the instant proceeding for submission of false evidence will come within the realm of double jeopardy, that is, Maryam being vexed twice for the same offense.
Secondly, according to Malik, the law appears to apply to false evidence given during the course of the trial. “If the said forged documentation was in fact not submitted by Maryam, but was rather a part of the JIT record submitted by the prosecution or provided by order of a court then the pertinent section arguably would not apply. Furthermore, an appeal is already pending in relation to her conviction, and during such pendency, the law seems to bar the initiation of such proceedings by the court.”
Malik said, “If it has been initiated by way of an application from the prosecution, the request seems to be barred by limitation.”