PESHAWAR: A Peshawar High Court larger bench on Friday issued notices to the attorney general for Pakistan and National Accountability Bureau asking them to explain their respective positions on whether after the enactment of the Khyber Pakhtunkhwa Ehtesab Commission Act, the National Accountability Ordinance 1999 (NAB law) had become redundant in the province.

The five-member bench headed by the Chief Justice Mazhar Alam Miankhel fixed Nov 30 for next hearing into 15 petitions while issuing notices to the attorney general and NAB, through its director general, observing the Khyber Pakhtunkhwa advocate general had raised the point over which it was necessary to hear them.

It also recalled its earlier stay order issued on Nov 23 of stopping the two Ehtesab courts from proceeding further in references filed against different suspects.

The bench however ruled that the Ehtesab courts should continue hearing these references but should not give verdicts until further orders.

Withdraws stay order to stop two Ehtesab courts from proceeding in KPEC references

On Thursday, advocate general Abdul Lateef Yousafzai while justifying the enactment of the KPEC Act had insisted that the Act was a special law and after its enactment the NAB law could not be applied to the province. He had asserted that the Concurrent Legislative List of the Constitution was abolished through the Constitution (Eighteenth Amendment) Act, 2010, following which it was the exclusive domain of provinces to legislate on matters concerning them.

During the Friday hearing, KPEC prosecutor general Yahya Zahid Gillani adopted the arguments of advocate general and contended that the Act was need of the time due to the growing corruption in the province.

He added that the cases may be decided in light of powers assigned to the provinces after the Eighteenth Amendment.

The commission’s additional deputy prosecutor general, Lajbar Khan, argued that the entire case of the petitioners rested on the premises that the Act was inconsistent and repugnant to the NAB law.

He contended that the petitioners could not point out any major conflict in the two laws except that in the federal law there were provisions of ‘voluntary return’ and ‘plea bargain’ and no such provision was available in the KPEC Act. He argued that the NAO was a bad law as there was centralisation of powers in the office of its chairman in cases of ‘voluntary return’ and ‘plea bargain’, whereas under the provincial law, the ehtesab courts were empowered and not the director general to award favourable sentence to an accused if he offered to return the assets or gains acquired by him.

Mr Lajbar cited a judgment of the Indian Supreme Court stating that in that verdict the court had explained the terms ‘repugnancy’ and ‘inconsistency’ and had ruled that these terms would be attracted when a law was in clear disobedience with another law. He added that some immaterial differences in the two laws could not be termed as inconsistent or repugnant.

Another additional deputy prosecutor general, Qazi Babar Irshad, pointed out that one of the petitioners, Ziaullah Afridi, an MPA and former provincial minister, had challenged the KPEC Act despite the fact that he had voted for it in the provincial assembly. He added that how could a creator of the law challenges it. He added none of the provisions of the Act could be termed as unconstitutional as none of the fundamental rights provided in the Constitution had been violated.

Additional advocate general Umar Farooq Adam also concluded his arguments saying the NAB law should have been further improved so as to bring transparency in its affairs. He added that under the provision of ‘voluntary return’ a suspect returned part of his ill gotten money following which he was allowed to continue to act as public office holder.

Prominent among the petitioners are former provincial minister Senator Sitara Ayaz, who has challenging KPEC proceedings against her and sought pre-arrest bail; ex-ministers Ziaullah Afridi, who is also an MPA, and Liaquat Shabab; district coordination officer of Kohat Noor Daraz Khattak, who is also father of PTI MPA Gul Sahab Khan; additional secretary of finance department Imtiaz Ayub; former director general of mines department Dr Liaqat Ali; provincial secretary of industries department Sajid Khan Jadoon; owner of Iqra National University Obaidur Rehman, and others.

Published in Dawn, November 28th, 2015