ISLAMABAD, Jan 30: A judge of the Supreme Court bench hearing the case relating to Nawaz Sharif’s electoral eligibility said on Friday that the court would have heard Mr Sharif had he challenged his conviction in the plane conspiracy case.

“This court could have considered had Nawaz Sharif come before us in appeal against his conviction,” Justice Sheikh Hakim Ali observed.

The three-member bench, also including Justice Mohammad Moosa K. Leghari and Justice Syed Sakhi Hussain Bukhari, was hearing appeals of the federal government against the June 23, 2008, order of the Lahore High Court disqualifying Mr Sharif from contesting a by-election for having been convicted in the plane conspiracy case.

The observation came when Dr Moeenuddin Qazi, representing Noor Ellahi, an independent candidate on whose plea the LHC had disqualified Mr Sharif, said that Sharif brothers could have taken relief similar to that provided to others under the controversial National Reconciliation Ordinance (NRO) by getting extended the period covered by it through an amendment.

An amnesty was granted under the NRO to holders of public office charged in corruption cases between 1986 and 1999.

At this, Justice Hakim Ali said he wondered whether the amnesty under the NRO also meant quashment of conviction, but hastened to add that this was something for parliament to decide.

Referring to the split verdict of an election tribunal on appeals challenging the candidature of Sharif brothers, Dr Qazi said the Election Commission had utterly failed to judiciously exercise its authority by appointing a two-member tribunal, instead of three. “Knowing the involvement of important and respected personalities like Nawaz Sharif in the election dispute, the commission should have appointed a larger bench,” he added.

Justice Hafiz Tariq Nasim of the tribunal had allowed Sharif brothers to contest the June 26, 2008, by-election while Justice Mohammad Akram Qureshi had held them ineligible.

By wrongly interpreting Article 45 of the Constitution that gives the president power to pardon any sentence, Dr Qazi argued, members of the tribunal had not only violated constitutional provisions, but also made them redundant by giving a split decision. “Thus the Election Commission had failed to exercise the powers vested on it for the reasons best known to them with an intention only to create further confusion in the country.”

Dr Qazi said that corruption cases against Prime Minister Yousuf Raza Gilani and Javed Hashmi were totally different from that of Sharif brothers since the cases of the earlier two were pending in courts while the conviction in cases relating to plane conspiracy and loan default against Nawaz Sharif had attained finality for not having been challenged in the courts of law.

He objected to the filing of appeals by the federal government, saying it was not a party and had no locus standi. It was a unique example in the history of the Supreme Court, he added.

Referring to a request by petitioners to refer the matter to the chief justice for constitution of an appropriate bench, Dr Qazi said the three-member bench hearing the matter had been constituted by the chief justice and, therefore, was appropriate. Besides, he said, the federal government which had moved the appeals had also not requested for the constitution of a larger bench.

He deplored the apex court’s decision to stay the by-election in NA-123 (Lahore) and asked why should voters of this constituency suffer for no fault of theirs as no one was being represented in parliament from the constituency.

The bench adjourned the hearing for Monday after senior counsel Akram Sheikh and A.K. Dogar, representing the proposer and seconder of Mr Sharif’s candidature, said they would give rebuttal to the arguments by Dr Qazi and Ahmed Raza Qasuri.