ISLAMABAD:
The Supreme Court has reserved its decision on whether pending appeals and bail applications in the 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, providing that the FCC would serve as a second forum of appeal in NAB matters.
The amendment states that any convicted person, or the responsible Attorney General (if requested by the NAB Chairman), who is aggrieved by a decision made by the High Court under Section 32, may file a second appeal to the FCC within 30 days.
Today, a three-judge bench of the Supreme Court, headed by Justice MuhammadAli Mazhar, is considering whether ongoing appeals in the 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 maintained that all matters relating to the NAB Act, including bail issues, would now be heard by the FCC after a recent amendment to the NAB Act.
He, however, said that nothing in the amended NAB law mentions that bail appeals against higher court orders would be decided by the FCC.
The AGP also said that in the past, the apex court had decided on bail issues after considering the merits of the entire case, citing the bail case of Khawaja Saad Rafique as an example. The NAB lawyer urged the Supreme Court to address this omission and believed that bail issues would be decided by the FCC.
Justice Musarrat Hilali observed that the amendments to the NAB Act remain 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 wherever a favor is to be granted?” she observed.
On the other hand, Ibadur Rehman Lodhi, counsel for an accused in an NAB case, argued that while all appeals, including those currently pending in the Supreme Court, would be heard by the FCC, questions of bail under the NAO, 1999, should remain within the jurisdiction of the top court.
Lodhi cited the example of cases related to the Hudood Act, 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 had granted bail to an accused in an NAB case.
“For God’s sake, the Supreme Court should not relinquish its authority for ‘clandestine’ executive motives,” Lodhi said.
On this, Justice Mazhar emphasized that the apex court has not renounced its authority; instead, the 27th Constitutional Amendment stipulated that appeals would be made to the FCC.
A senior lawyer wondered how Justice Mazhar could have deviated from his own judgment when he transferred the Dewan Motors case from the bench headed by Justice Syed Mansoor Ali Shah.
While Justice Shah held that an ordinary judiciary had the power to determine its own jurisdiction, some judges, including Justice Mazhar, maintained that only the constitutional judiciary could decide the issue.
