ISLAMABAD:
The Supreme Court has reserved its decision on whether pending appeals and bail applications in National Accountability Bureau (NAB) cases should be heard by the apex court or the Federal Constitutional Court (FCC) following the recent amendment to the National Accountability Ordinance (NAO).
The court is expected to announce its ruling within the next few days.
In March, Section 32-A was inserted in the NAO, which stipulated that the FCC would act as the second appellate forum in NAB cases.
The amendment stated that any person convicted or the Public Prosecutor (if directed by the NAB Chairman) who is aggrieved by a decision of the High Court under Section 32 may prefer another appeal to the FCC within 30 days.
Now, a three-judge bench headed by Justice MuhammadAli Mazhar is examining whether pending appeals in NAB cases should be transferred to the FCC and whether bail applications in such cases also fall under the jurisdiction of the Constitutional Court.
AGP Mansoor Awan has claimed that all matters relating to the NAB Act, including bail matters, would now be heard by the FCC following recent amendments to the NAB Act.
However, he said there is no mention in the amended NAB Act that bail appeals against the Supreme Court order would be decided by the FCC.
The AGP also stated that the apex court had earlier decided bail cases after examining the merits of the case and cited the bail case of Khawaja Saad Rafique as an example. The NAB counsel urged the Supreme Court to fill this omission, stating that bail-in cases would be decided by the FCC.
Justice Musarrat Hilali observed that the amendments to the NAB Act are completely silent on the issue of bail. “The word bail does not appear anywhere in the amended NAB Act. Could it be that a window has been deliberately left open where any benefit is to be extended?” 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 proceedings under the NAO, 1999 should remain within the apex court’s jurisdiction.
Lodhi cited the example of Hudood trials, where appeals are heard by the Federal Sharia Court, while bail applications continue to be decided by the High Courts. He argued that the same principle should apply to NAB cases.
The lawyer further revealed that after the recent amendment to the NAB Act, a Supreme Court bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in a NAB case.
“For God’s sake, the Supreme Court should not surrender its authority for some ‘ulterior’ motives of the executive,” Lodhi said.
After this, Justice Mazhar pointed out that the Supreme Court did not abandon its authority; rather, the 27th Amendment said the 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.
When Justice Shah maintained that a regular bench had the authority to determine its own jurisdiction, some judges, including Justice Mazhar, argued that only the constitution bench could decide the issue.
