ISLAMABAD: A citizen on Monday approached the Supreme Court challenging National Accountability Bureau (NAB)’s domain to probe into matters already pending adjudication before the superior courts.

Iqbal Ahmed through his counsel Afshan Ghazanfar filed an application with a request to the apex court to allow him to become a party in the appeal moved by NAB challenging the Sept 19 order of Islamabad High Court (IHC) that suspended the jail term awarded to Nawaz Sharif and his daughter Maryam Nawaz.

A three-judge Supreme Court bench headed by Chief Justice Mian Saqib Nisar has already constituted a larger bench which on Dec 12 will consider the superior court’s jurisdiction about granting bail in cases where there is a statutory ouster.

“Can NAB probe into the acquisition of properties by a person before Jan 1, 1985, which is the date of commencement of the National Accountability Ordinance (NAO) 1999, and can the acquisition of such properties become a charge before the accountability court under the ordinance.”

Can NAB probe acquisition of properties by a person before Jan 1, 1985, petition filed in SC asks

Mr Ahmed also asked if the bar contained under Section 9-B of NAO was in violation of the fundamental rights enshrined in the Constitution, adding constitutional guaranties as provided under Articles 3, 4, 8, 9, 13 and 25 do not protect the freedom of a person.

Section 9-B holds that all offences under NAO will be non-bailable and notwithstanding anything contained in sections 497, 498 and 561A or any other provision of the Criminal Procedure Code (CrPC) or any other law, no court will have jurisdiction to grant bail to any person accused of any offence.

The applicant requested the Supreme Court to declare section 9-B as illegal, null and void ab initio.

Mr Ahmed contended that he had a locus standi to file the application, adding prior to the promulgation of NAO he had pending cases before the Sindh High Court.

Arising out of his litigation, several other petitions were filed by him in different courts, including the Supreme Court, and that the property being tried or investigated by NAB was already a subject matter of a reference.

He recalled that he was aggrieved by the recent acts of NAB where the bureau had initiated investigations and finally on Oct 26, 2018, a reference was filed.

Thus it has become all the more important for the larger bench of the apex court to determine the points he had raised.

The applicant said through section 9-B, an attempt had been made to preclude the judicial review through statutory provisions that purported to strip the superior courts of their jurisdiction.

“Thus serious questions about the relationship among different organs of the government, judicial independence and their constitution have emerged in view of these ouster clauses,” the applicant stated.

The larger bench will also determine the scope of the constitutional jurisdiction for grant of bail during investigation/trial or release on bail by way of suspension of sentence.

Besides, the court will ascertain parameters for tentative assessment of evidence and how it can be differentiated from deeper appreciation of evidence, particularly in cases involving grant of bail by suspending the sentence and release on bail during pendency of the appeal.

Other points included the question whether guidelines provided by the superior courts regarding ouster of Section 426 of the CrPC were required to be followed for the suspension of sentence in NAB cases.

And if so, what were the principles regulating suspension of the sentence under Section 426 of the CrPC.

The court would also ascertain if the principles regulating bail under Sections 497 and 498 of the CrPC would be applicable while considering the suspension of sentence.

Besides, if the convict was entitled to suspension of sentence but the judgment/order suspending the sentence was not happily worded, what would be its effect?

Published in Dawn, November 20th, 2018