After conducting 53 hearings, the Supreme Court reserved its decision on Tuesday on former prime minister Imran Khan's petition, challenging the amendments to the National Accountability Ordinance (NAO) 1999.
A three-judge special bench, led by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Mansoor Ali Shah, heard the matter. During the proceedings, a division among the bench members was visible.
The federal government was represented by Makhdoom Ali Khan, while Imran Khan hired the service of Khawaja Haris.
It is learnt that the attorney general for Pakistan (AGP) office would submit a written submission in favour of amendments to NAB law on Wednesday (today)). However, no one argued on behalf of the AGP in defence of the amendments.
During the hearing, Justice Shah consistently questioned the maintainability of the petition. On the other hand, Chief Justice Bandial and Justice Ahsan remained critical of some of the amendments in the NAB law by the previous government.
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Chief Justice Bandial is expected to announce the ruling in this case before his retirement. The judgement will have far-reaching implications on the national politics.
The leaderships of the PML-N and the PPP are the beneficiaries of these amendments.
Chief Justice Bandial's opinion is consistent about the financial integrity of the political leaders. In this regard, he gave several judgments as superior court judge.
Political analysts believe that if the Supreme Court struck down the amendments, the cases against political leaders would be revived. This would also be a victory of Imran's narrative about corruption against the rival political parties.
It will be interesting to note, whether the chief justice would endorse the legislative competence or strengthen the 'powerful circles', which always used NAB for political engineering since former military ruler Pervez Musharraf era.
During the hearing, Justice Shah asked the counsel for the petitioner as to why NAB law was not applicable on the judges and generals. Was it not the violation of the Article 25 of the Constitution, he asked.
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Justice Shah was also asked how the amendments were violative of the fundamental rights. On the other hand, both Chief Justice Bandial and Justice Ahsan wondered whether parliament could change the shape of an offence through the amendment to the NAB law.
Both judges expressed concern that amending act had been made applicable retrospectively.
Imran's attorney contended that it was the clear intention of the legislature – Commencing day would be deemed to be January 1, 1985 in view of the deeming clause relating to the enactment of the original NAO, 1999.
The lawyer further contended that even if the commencing day was taken as October 12, 1999, the amendments would be deemed to have come into force from that date.
Hence, it would be applicable to all pending inquiries and investigations; pending trials in accountability courts; matters in appeal or revision, or in terms of Constitutional jurisdiction before the high court or the Supreme Court.
Besides, he added, it would be applicable to all plea bargain/voluntary return (PB/VR) matters, where, under the terms of the respective agreements, the amount/s due from the accused had not yet been fully paid; cases of convictions where sentences had not yet been undergone; and cases of convictions and sentences which have already been served and of PB/VR where payments had already been made. Likewise, the amendments would affect the ongoing PB/VR matters, which were agreed to before the amendments.
Both judges are also expressing concern over the new definition of benami in amended law. They also questioned the amendment which was allegedly nullifying the admissibility of those documents and evidence, relied upon by NAB in ongoing inquiries, investigations and trials, which had been obtained by them through Mutual Legal Assistance (MLA) from a foreign government.
Senior lawyers say that matter may again be referred to parliament for reconsideration of some amendments. They wonder as what will be the final fate of those who already benefited from amendments since enactment of the law. No stay was granted on the NAB law amendments.
Beneficiary of amendments
According to a report, former prime minister Shehbaz Sharif is the major beneficiary of the amendments. Other beneficiaries include Nawaz Sharif, Asif Zardari, Maulana Fazlur Rehman, Maryam Nawaz, Faryal Talpur, Ishaq Dar, Khawaja Asif, Khawaja Saad Rafiq, Rana Sanaullah, Javed Lateef, Makhdoom Khosro Bakhtiar, Amir Mehmood Kayani, Akram Durani , Saleem Mandiwala, Noor Alam Khan, Nawab Aslam Riasani, Dr Abdul Malik Baloch, Nawab Sanaullah Zehri, Barjees Tahir, Nawab Ali Wasan, Sharjeel Memon, Anwarul Haq Kakar, Liaqat Jatoi, Amir Maqam, Goram Bugti, Jaffer Mandokhel and G-B Governor Syed Mehdi Shah.
NAB, while giving details of Shehbaz's cases, informed the Supreme Court that the case regarding misuse of illegal allotment of 1,400 kanal of government land near Lal Suhanra National Park would be affected by those amendment as the amount involved in the matter was less than Rs500 million.
Similarly, another matter regarding the misuse of authority against Shehbaz and others would be affected as the amount involved in this alleged scam was also less than Rs500 million.
Thirdly, the inquiry against Shehbaz and others regarding the illegal use of the prime minister jet from 2014 to 2018 would also be affected under Section 5 (o) of the NAB Amendment Act 2022.
Moreover, the investigation against former finance minister Ishaq Dar regarding the illegal appointment of the ZTBL CEO in violation of the Nationalisation Act 1974 would be affected.
The investigation against former railways minister would also be closed under sections 4 (2)(b)(d)(e) and 9(a)(vi) of the National Accountability Amendment Act 2022.
NAB has also informed the apex court that an inquiry against PTI leader Shaukat Yousafzai over the alleged misuse of authority as Khyber-Pakhtunkhwa information minister would be affected as the amount involved in it was less than Rs500 million.
Similarly, an inquiry against former health minister Amir Kayani regarding the misuse of the authority and obtaining pecuniary advantage through dishonest and illegal means while framing the drug pricing policy would be affected under Section 4(2)(a).
NAB also said that the inquiry against former PTI minister Khosro Bakhtiar, Makhdoom Hashim Jawan Bakht, and other family members on the offence of accumulation of assets would be affected under the first amendment to Section 4(2)(c).
The inquiry of the offence of assets beyond known sources of income against PPP Co-Chairman Asif Zardari, and his sister, Faryal Talpur, would also be affected under Section 4(2)(a).
The inquiry against JUI-F chief Maulana Fazlur Rehman would be closed as the property in the name of the accused person was of nominal amount and linkage of benamidars in light of the new amendment act was very difficult.
NAB also informed the Supreme Court that the inquiry against Public Accounts Committee Chairman Noor Alam in the assets beyond means case would be affected as the amount in the case was less than Rs500 million.
According to the report, 755 cases at the inquiry stage as well as 292 cases at the investigation stage would be affected under the new amendments.
Out of them, 510 cases were those where the amount involved was less than Rs500 million and they would be affected by an amendment to the Section 5(o) through Section 3 of the amendment act.
Some 168 cases relating to the offence of assets beyond means under Section 9(a)(v) and some 213 cases relating to the charge of assets beyond means under Section 9(a)(vi) will be affected under new amendments. Similarly, 89 cases were relating to cheat would be affected.
Moreover, NAB informed the Supreme Court that the inquiry against former defence minister Khawaja Asif on allegation that he got the Kent Housing Society approved and obtained occupied land of private individuals, and cheated members of the general public by misusing his authority would be affected under the recent amendments.
The investigation against former MPA Abdul Aleem Khan on the charge that in 2002-18 period, he acquired assets, which had been found to be disproportionate to his known sources of income, to the tune of Rs1.4 billion, would be affected.
The investigation against the Chaudhry Sugar Mill owned by the Sharif family, including Nawaz Sharif and Maryam Nawaz, would be affected.
The investigation against former interior minister Rana Sanaullah on the charge of assets beyond known sources and assets in the name of benamidars, amounting to Rs95 million, and illegal gains amounting to Rs100 million would be affected under the new NAB law.
A total of six cases against Nawaz Sharif would be affected in view of the recent amendments to the NAB law. The inquiry against Pakistan chairman of Transparency International, Syed Adil Gilani, would also be affected.
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