ISLAMABAD: Members of the Supreme Court bench hearing the Panamagate case on Friday expressed divergent opinions over which side shouldered the burden of proof. While Justice Asif Saeed Khosa — who heads the five-judge bench — wanted the onus to prove innocence to rest on Prime Minister Nawaz Sharif’s family, two other members of the bench differed.

During the hearing of Pakistan Tehreek-i-Insaf and Jamaat-i-Islami petitions seeking the disqualification of Prime Minister Nawaz Sharif, Justice Khosa effectively came to the PTI’s rescue when he referred to the 2006 trust deed, declaring Maryam Nawaz Safdar the trustee of her brother Hussain Nawaz, and observed that the onus to prove innocence had shifted to the respondents, i.e. the prime minister’s family.

The observation came when PTI counsel Naeem Bokhari cited a number of communications, such as the June 12, 2012 letter from the British Virgin Islands’ Financial Investigation Agency (FIA) to Mossack Fonseca Money Laundering Reporting Officer J. Nizbeth Maduro, raising queries about Nescoll Limited and Nielson Enterprises Limited — the companies that owned the four London flats.

Justice Khosa says Sharifs should prove their innocence; Justice Azmat and Justice Ejaz want PTI to furnish more evidence

The counsel also referred to Mossack Fonseca’s June 2012 response, acknowledging that Nielson and Nescoll were owned by the same beneficial owner, Maryam, and that family’s business spread over 60 years was the source of her wealth. The counsel also provided acknowledgement of the Samba Financial Group, Jeddah, certifying that Maryam was one of their valued customers since 2002, while highlighting that Maryam did not have the resources to buy the London flats.

She allegedly acted as a tool to launder money for her father, of whom she was a dependant, and received gifts from father and brother, he argued.

Also read: Supreme Court focus remains on Maryam Nawaz's expenditures

So many questions needed to be answered since a strong connection between Maryam Nawaz, Samba Group and Minerva Financial Services Ltd had emerged, Justice Khosa observed, wondering whether the court should utilise the services of forensic investigators to match Maryam Nawaz’s signatures in the trust deed and other documents.

But Justice Sheikh Azmat Saeed dissented, observing that the real issues that needed attention were the questions: whether the trust deed was an admitted, valid and effective document; whether the two children were obliged to disclose the deed under UK laws; and under what capacity Maryam was declared the trustee or the owner of these companies.

It is for you (the petitioner) to tell the court what are the principles of benami, the judge said, pointing towards Mr Bokhari, asking whether he wanted the court to lay down a judgement that all gifts such the ones received by Maryam from her father and brother at different points of time were benami.

“Do not burden us to look at the law,” the judge observed, adding that they still were at “square one”.

But Justice Khosa referred to Article 122 of the Qanoon-e-Shahadat 1984, which suggests that the burden of proving a fact rested upon the person who had the knowledge of that fact, adding that it was always difficult to acquire documents regarding offshore investments.

The judge then cited Article 161 of the same law to emphasise that the law vested powers on any judge to pose questions or order the production of any documents to discuss proper proof.

It is for the defendants to produce documents to show how they acquired these offshore companies, as well as the money trail to buy the four London flats, Justice Khosa reiterated.

“Are we recording evidence?”, was the observation from Justice Saeed. “Why not then frame charges?” Justice Khosa observed.

“If we start recording evidence, then you will boycott [these proceedings],” Justice Saeed observed in a lighter vein, pointing towards Naeem Bokhari.

“Is it too much to ask for documents?” was Justice Khosa’s retort.

Justice Azmat also regretted that the defendants had not filed the required documents, adding that in order to refute the evidence filed by the petitioner, they would have to bring documents to support their claims.

Justice Azmat Saeed intervened, saying that the matter would end if the defendants put the relevant documents, explaining how Mariam became the beneficial owner of the London flats, on the court’s record.

At this point, another member of the bench, Justice Ejaz Afzal Khan, referred to Article 13 of the Constitution, which provides protection to the accused from bringing any witness or evidence against himself, adding that the Supreme Court was neither a trial court, nor was it seized with a civil case or inquiry at the moment.

“You (the petitioner) have to satisfy us about the authenticity of the documents you have presented before the court,” Justice Khan observed, adding that at this stage, it was too early to consider these documents.

Justice Saeed also reminded the PTI counsel “not go to this territory” since the communications he was referring to were “not sent or received by you” and the documents were “mere photocopies”.

“You [cannot only] rely on the Qanoon-e-Shahadat and throw away the rest of the law and the Constitution,” he said.

“We are trying to find out the truth,” Justice Khosa then intervened, citing the relevant Supreme Court rules. He emphasised that the court enjoyed ample authority to order the production of any evidence necessary.

“Perhaps the stage when the party is required to produce the evidence has not come,” Justice Khan observed, adding that they would have recourse under Article 161 of the Qanoon-e-Shahadat.

“Place all your cards on the table, so that we can look at them,” was Justice Khan’s observation.

Justice Ijazul Ahsan also observed that the petitioner had not provided any document to prove ownership of the flats prior to 2006. But Mr Bokhari kept repeating that it was for the defendants to provide these.

On Friday, PTI also submitted the transcript of an interview of Haroon Pasha – the Sharif’s financial adviser – where he had claimed that all the records and documents about financial transactions had been provided to their lawyer.

Meanwhile, Advocate Shahid Hamid — representing Maryam, Finance Minister Ishaq Dar and Capt Safdar — told Dawn that he may on Monday submit a supplementary reply on behalf of Mariam to rebut the allegations that surfaced during the course of the hearing.

Published in Dawn, January 7th, 2017