ISLAMABAD:
The Supreme Court has reserved its decision on whether pending appeals and bail petitions in National Accountability Bureau (NAB) cases should be heard by the high court or the Federal Constitutional Court (FCC) following the recent amendment to the National Accountability Ordinance (NAO).
The court is expected to announce its order in the coming days.
In March, Section 32-A was inserted into the NAO, stipulating that the FCC would serve as the second appellate forum in NAB cases.
The amendment stated that any convicted person, or the responsible Attorney General (if directed by the NAB Chairman), who feels aggrieved by a decision made by the high court under Section 32, may prefer a second appeal to the FCC within 30 days.
Now, a three-judge bench of the Supreme Court headed by Justice Muhammad Ali Mazhar is examining whether pending appeals in NAB cases should be transferred to the FCC and whether bail applications in such cases also fall within the jurisdiction of the constitutional court.
AGP Mansoor Awan has maintained that all matters related to the NAB law, including bail issues, would now be heard by the FCC after the recent amendment to the NAB law.
However, he said that in the amended NAB law there is nothing mentioned that the FCC will decide bail appeals against the high court orders.
The AGP also stated that in the past, the apex court had decided bail issues after examining the merits of the entire case, citing Khawaja Saad Rafique’s bail case as an example. NAB counsel urged the Supreme Court to remedy this omission and argued that the FCC would decide bail issues.
Justice Musarrat Hilali pointed out that the amendments to the NAB Act are silent on the issue of bail. “The word bail does not appear anywhere in the amended NAB law. Could it be that a window has been deliberately left open wherever a favor is to be granted?” she observed.
On the other hand, Ibadur Rehman Lodhi, counsel for an accused in a NAB case, argued that while all appeals, including those currently pending before the Supreme Court, would be heard by the FCC, bail issues under the NAO 1999 should remain within the jurisdiction of the apex court.
Lodhi cited the example of Hudood law cases, where appeals are heard by the Federal Shariat Court while bail applications continue to be heard by higher courts. He argued that the same principle should apply to NAB cases.
The lawyer further revealed that after the recent amendment in the NAB law, a Supreme Court bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in a NAB case.
“For the love of God, the Supreme Court should not give up its authority for ‘underground’ reasons of the executive,” Lodhi said.
Given this, Justice Mazhar noted that the high court did not renounce its authority; rather, the 27th Constitutional Amendment said appeals would go to the FCC.
A senior lawyer questioned how Justice Mazhar could deviate from his own judgment when he had transferred the Dewan Motors case from the bench headed by Justice Syed Mansoor Ali Shah.
As Justice Shah held that a regular court had the authority to determine its own jurisdiction, some judges, including Justice Mazhar, argued that only the constitutional court could decide the issue.
