Wajid Zia can’t be proxy witness: defence

ISLAMABAD: The lead counsel in the Avenfield apartments reference on Thursday produced a number of past judgments to back his argument that the report of the joint investigation team (JIT) could not be admissible because a major chunk of it “is technically hearsay and opinion of the investigators”.

Khawaja Haris in a marathon five-hour court session argued that an investigating officer’s job is to collect evidence and put it before the court to decide.

“To draw inference and conclusions from evidence is the court’s work — not an investigating officer’s,” he said and pointed out that the JIT head and prosecution witness Wajid Zia had given his opinion and conclusions at many places in the report.

“Wajid Zia’s opinion about guilt or innocence [of the accused] is inadmissible. Being an investigation officer (IO), collecting evidence is what he is supposed to do. To draw an inference from the collected material is a judge’s work — not an IO’s,” Haris said.

To prove his point that an IO’s opinion is inadmissible, Haris produced a number of past judgments. “There is only one judgment in the judicial history which says the opinion of an IO is admissible in evidence, but that judgment too was termed a bad law by the apex court,” Haris said.

The defence lawyer maintained that Volume 10 of the JIT report could not be admissible as evidence in itself.

“The rationale for not allowing admissibility of the investigation report in evidence is that it contains the opinion of the IO,” Haris said, adding NAB had made a mistake by using the JIT report as evidence while filing the reference.

Haris also questioned the veracity of witness statements and evidence cited in the JIT report but not produced in court and cross-examined. “Wajid Zia cannot be a proxy witness for other witnesses who have not appeared before the court.”

The defence counsel said that the statements of co-accused Hassan and Hussain Nawaz mentioned in the statement of Zia were also not admissible against his client, Nawaz Sharif. “The statement of co-accused can only be used against me if it’s a confession and if it’s a joint trial [which it is not],” he maintained.

Similarly, he argued that Tariq Shafi’s affidavit could not be used against Sharif since the former never appeared before the court.

“How can Wajid Zia prove a document produced by somebody else. He cannot be a proxy witness. No document in itself is admissible in evidence unless the person associated with that document comes before the court.”

The counsel said the JIT’s entire Qatar correspondence include no transaction involving Sharif, neither was his name in the MLA response from the UAE.

Similarly, he said Capital FZE had nothing to do with the Avenfield properties. “Absolutely no connection. Capital FZE was a redundant piece of evidence.”

Haris would continue his final arguments in the case on Friday.

Read more: Avenfield Apartments , JiT , Wajid Zia

Source: Express Tribune