SC mulls over forming larger bench against NAB appeal on Sharif verdict

Published: November 12, 2018
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Supreme Court of Pakistan. PHOTO: AFP

Supreme Court of Pakistan. PHOTO: AFP

ISLAMABAD  : As the Supreme Court on Monday admitted an appeal from the National Accountability Bureau (NAB) against the Islamabad High Court (IHC) verdict in the Avenfield reference, Chief Justice of Pakistan (CJP) Mian Saqib Nisar observed that mistrust in the Supreme Court should end.

The IHC had suspended the conviction of deposed prime minister Nawaz Sharif, his daughter Maryam Nawaz and son-in-law Captain (retd) Muhammad Safdar in the Avenfield properties case by an accountability court, and released all three on bail.

SC issues notices to Sharifs over NAB petitions

A three-judge special bench of the top court, headed by the CJP, raised 17 legal questions to adjudicate on the matter. It also said it would see if there was any need to constitute a larger bench to hear the appeal.

However, in a big relief to the Sharifs, the top court adjourned the hearing of the case till December 12.

The bench, in its four-page order, questioned whether the IHC can take up a constitutional petition when main appeals were already fixed for hearing.

It also asked whether a detailed order is permissible while dealing with the suspension of sentence and whether or not the IHC had ignored guidelines laid down by the top court in the case reported as Muhammad Shakeel vs the State and others (PLD 2014 SC 458).

The court questioned if the IHC properly interpreted provisions of Sections 9(a)(v) and 14(c) of the Ordinance read with Articles 117, 122 to 129 of the Qanun-i-Shahadat Order, 1984 with regard to burden of proof and presumption.

The bench noted whether ground of hardship can be considered while suspending sentence in a NAB case.

It asked whether merits of a case can be discussed and conclusive findings can be given, as done by the IHC in its order dated 19.09.2018.

It also probed whether in a case where there is a statutory ouster of jurisdiction of courts to grant bail pending appeal, the constitutional jurisdiction to grant bail can be invoked on the same principles or grounds as are available under the general law.

The bench questioned whether the scope of the constitutional jurisdiction for grant of bail during investigation/trial or release on bail by way of suspension of sentence is much wider than the scope of the grant of bail under the general law, or otherwise.

The 17 questions raised by the top court inquired about the parameters of tentative assessment of evidence and how they can be differentiated from the deeper appreciation of evidence, particularly in cases involving grant of bail, by suspending the sentence and ordering release on bail during pendency of the appeal.

During the hearing, the bench asked Sharif’s attorney Khawaja Haris whether he had any objection to Justice Asif Saeed Khosa being a part of the larger bench to decide these questions as he had been a part of the bench that disqualified the former prime minister through its April 20 judgment.

Upon this, the counsel said there would be no objection if Justice Khosa was a part of the larger bench to decide the legal points and not the factual questions in the matter.

NAB challenges IHC ruling on Sharif family’s conviction

However, a member of the Sharif family’s legal team told The Express Tribune that some questions apparently suggested by NAB were not in order as these either prejudged the IHC order or raised issues which would have direct bearing on the merits of the main appeal.

The court also inquired whether “principles regulating bail under Sections 497 and 498 Cr PC will also be applicable while considering the matter of suspension of sentence; and if in a case the convict is entitled to suspension of sentence but the judgment suspending it is not happily worded, what would be the effect thereof”.

Moreover, the bench also questioned if in a constitutional petition, “a miscellaneous application filed under Section 561-A Cr PC can be filed for adjudication where the Cr PC is not applicable”.

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