• NAB’s plea against IHC order of suspending Sharifs’ sentences accepted for hearing

• Bench to determine 16 legal points formulated with assistance of both sides

• CJP hints at inclusion of Justice Khosa in larger bench

ISLAMABAD: The Supreme Court on Monday accepted the National Accountability Bureau (NAB) appeal against the Islamabad High Court order of suspending the jail terms awarded to former prime minister Nawaz Sharif and his daughter Maryam Nawaz in the Avenfield apartments reference and ordered constituting a larger bench for its regular hearing.

A three-judge bench, headed by Chief Justice of Pakistan Mian Saqib Nisar, also indicated it would consider setting aside the Sept 19 decision of suspending the jail terms while allowing the Sharifs at the same time to remain out of prison on bail.

The apex court granted leave to appeal to consider if constitutional jurisdiction to grant bail be invoked on the same principles or grounds as in a case where there is a statutory ouster of court jurisdiction to grant bail pending appeal.

When the matter will be taken up again on Dec 12, the SC larger bench will consider if the scope of the constitutional jurisdiction for grant of bail during investigation/trial or release on bail by way of suspension of sentence was much wider than the scope of grant of bail under the general law, or otherwise.

Besides, the court will ascertain parameters for tentative assessment of evidence and how it can be differentiated from deeper appreciation of evidence, particularly in cases involving grant of bail by suspending the sentence and release on bail during pendency of the appeal.

The questions are part of 16 legal points formulated by the court office with the assistance of NAB’s special prosecutor Akram Qureshi and defence counsel Khawaja Haris Ahmed. The SC had asked them to come up with legal questions on the basis of which the court would issue an order explaining why leave to appeal to NAB’s petition had been granted by it.

Other points included the question whether guidelines provided by the superior courts regarding ouster of Section 426 of the Code of Criminal Procedure (CrPC) were required to be followed for the suspension of sentence in NAB cases, and if so what were the principles regulating suspension of the sentence under Section 426 of the CrPC.

The court would also ascertain if the principles regulating bail under Sections 497 and 498 of the CrPC would be applicable while considering the suspension of sentence. Besides, if the convict was entitled to suspension of sentence but the judgement/order suspending the sentence was not happily worded, what would be its effect then?

The larger bench would determine in case a concession of suspension of sentence was once extended by the court of appeal, whether principles of cancellation of bail would also apply for withdrawal of suspension.

The questions formulated for the apex court’s consideration also included if the IHC had interpreted correctly the provisions of Section 9(b) of the National Accountability Ordinance (NAO) 1999 and whether the ground of hardship case be considered while suspending the sentence in a NAB case.

The bench would further decide whether the merits of a case be discussed and conclusive findings be given as done by the high court and if this was permissible in its constitutional jurisdiction while dealing with cases of suspension of sentence.

Whether in a constitutional petition, a miscellaneous application filed under Section 561-A of the CrPC for adjudication, where CrPC is not applicable, one of the questions read.

The larger bench may also suggest if the high court could take up the constitutional petition when the main appeals had already been fixed for hearing and whether a detailed order comprising 41 pages was permissible while dealing with the suspension of the sentence.

The larger bench would further decide whether or not the IHC bench ignored the guidelines laid down by the apex court and whether the IHC had properly interpreted the provisions of Sections 9(a)(v) and 14(c) of NAO read with Articles 117, 122 to 129 of the Qanun-i-Shahadat Order, 1984 with regards to burden of proof and presumption.

Earlier during the hearing, the chief justice observed that the larger bench if formed may also have Justice Asif Saeed Khosa as its member while some legal wizard from the criminal side should also be made part of the bench.

The court, however, postponed the matter till Dec 12 on the request of Advocate Haris as he informed the chief justice that he was busy before an accountability court defending the Sharifs in two other references namely Al-Azizia Steel Mills and Hill Metals Establishment.

On a lighter note, the CJP remarked that he was not feeling well and his doctors told him that Advocate Haris appearance before him gave him palpitations. At this, the entire court chuckled. The chief justice then pointing at journalist Matiullah Jan asked him after how much time he had laughed in his court.

The chief justice announced he was going to postpone further proceedings, because he was leaving for the United Kingdom.

At the outset of the hearing, the chief justice observed that undoubtedly this was a case of grant of leave to appeal and wondered if the court should go for a larger bench or not.

In his reply to NAB’s petition, Advocate Haris argued that he had cited judgements in which the apex court had upheld the suspension of sentence awarded by the Anti-Terrorism Case (ATC), which was also a special court like the accountability court. The high court had the jurisdiction to suspend even death sentence, the counsel added.

Advocate Haris said the jurisdiction of the high court under Article 199 of the Constitution to intervene in matters concerning special courts had been accepted since 2001 after the Asfandyar Wali Khan case, with the only exception of the unreported 1992 Qaim Ali Shah case in which rules and definition of hardship cases had been explained.

The chief justice observed that the defence counsel had referred to the Asfandyar Wali Khan case judgement that had been handed down by Justice Asif Saeed Khan Khosa. “Do you have any objection if Justice Khosa is also made part of the [larger] bench,” the CJP observed, while adding the propensity for doubting or mistrusting state institutions like the judiciary must end.

“The institution will only deliver what is best in the interest of justice,” Justice Nisar said.

The chief justice also emphasized the matter at hand was more of suspension of the sentence and did not revolve around the question of bail. “We have to set the principle right by determining if the high court can go into deeper appreciation on the merits of the case while granting bail or suspending the sentences,” he observed.

Justice Nisar said if there were conflicting judgements in the field on the same subject, then there was a need of settling the same.

In his reply to NAB’s appeal, Advocate Haris representing the Sharifs stated that continuing incarceration of a convict pursuant to a judgement which prima facie suffered from glaring legal defects would constitute a case of hardship. The rejoinder added that the convict in this situation would, prima facie, be unjustly bereft of their right to life, liberty, dignity and freedom of movement as guaranteed by Articles 9, 14 and 15 of the Constitution.

Published in Dawn, November 13th, 2018