SC stops accountability courts from issuing final verdict in NAB cases

Published October 31, 2023
From left to right: Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi and Justice Athar Minallah. — Photo courtesy: SC website
From left to right: Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi and Justice Athar Minallah. — Photo courtesy: SC website

The Sup­reme Court on Tuesday stopped accountability courts from issuing a final verdict in graft cases.

The court issued the directives while hearing the first-ever intra-court appeals (ICAs) against its Sept 15 majority judgment, which struck down amendments to the accountability law.

It adjourned the hearing till the detailed verdict on the law clipping the chief justice’s powers is released.

The larger bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and including Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Syed Hasan Azhar Rizvi took up two ICAs — one filed by the federal government and the other by former SSGCL managing director Zuhair Ahmed Siddiqui.

The five-judge SC bench took up the ICAs in line with its Oct 11 short order in which the PDM government-made law to regulate the affairs of the top court — namely the Supreme Court (Practice and Procedure) Act 2023 — was upheld.

On Oct 26, the Supreme Court had also issued a circular for the information of all concerned that any appeal filed in the top court against the decisions taken on petitions moved under Article 184(3) of the Constitution should be moved in the form of ICA.

The circular issued by the registrar’s office had explai­ned that “Section 5 of the Supreme Court (Practice and Procedure) Act 2023 provides that an appeal will lie before this court against an order passed by this court while exercising jurisdiction under Article 184(3) of the Constitution”.

Today, the federal government, in an application dated Oct 30, urged the apex court to adjourn the hearing till the week starting from Nov 6 due to the unavailability of its counsel.

The plea, submitted by Advocate on Record Anis Muhammad Shahzad, stated that the counsel for the government, Makhdoom Ali Khan, had been “granted general adjournment” till Nov 3, and went to Paris.

He was scheduled to return on Nov 4 but found out on Saturday (October 28) that the hearing had been fixed for today. The application further said that all return flights to Pakistan on Oct 28 and 29 were “completely sold out, making a timely return impossible”.

During the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan appeared before the court as the federal government’s counsel while Farook H. Naek was present as Siddiqui’s lawyer.

Naek urged the court to suspend its verdict on the accountability law tweaks. However, it was rejected. Noting that the detailed verdict on the law clipping the CJP’s powers was not released yet, the apex court adjourned the hearing till then.

The hearing

At the outset of the hearing, AGP Awan came to the rostrum and informed the court that Khan was abroad and had sought adjournment of the hearing.

Here, CJP Isa noted, “We have also received a few other applications.”

He then asked Naek if he was supporting the SC verdict on the NAB law or opposing it, to which the latter replied that he was opposing it.

The chief justice then observed, “You have written that according to the practice and procedures [law], a five-member bench should hear the NAB amendments case.” He then asked Naek to present his arguments if he was still maintaining the same position.

“If you satisfy [the court] on this point, then we won’t proceed to the merits of the appeal. In that case, we will restore the petitions against the NAB amendments and constitute a new bench,” the CJP stated.

He went on to ask if the counsel would “take back his point” and directed him to wait for the detailed verdict on the law clipping CJP’s powers.

At this, Naek said, “Please do not do this. Proceed with the current appeals. If this is done, then cases in the NAB courts would begin.” Justice Isa then noted, “See, Makhdoom Ali Khan has taken this ground in his application.” Here, Naek requested that he be made a respondent in the case as well.

The CJP then mentioned that Justice Mansoor Ali Shah’s detailed dissenting note on the apex court’s verdict had also been released. “If the petitioner wants, he can also make amendments in the plea after the dissenting note’s [release],” he added.

Justice Isa observed, “If you would file a review petition, then we will not hear the intra-court appeal.” Naek then informed the court that he was withdrawing his review petitions.

At this point during the hearing, the CJP asked the federal government counsel’s assistant lawyer whether he was “using the attorney general’s office as a shield”, to which the lawyer replied in the negative.

The chief justice then noted that if the merits were reviewed under the Practice and Procedures Act, the appeals would be restored. He reiterated that the detailed verdict of the NAB law case should be waited for.

However, Naek said that waiting for the order would cause a delay and urged the court to continue with the proceedings “without delay”.

CJP Isa stated that the Practice and Procedures Act had now come into force and under Article 184(3) of the Constitution, the right of appeal had been granted.

At this point during the hearing, Justice Minallah observed that the case was of “interpretation”. “How is the federal government the affected party in this case?” he asked.

The judge went on to note that the word used in the practice and procedures law was “person” and therefore, an affected party could file an appeal.

Here, CJP Isa said, “Not everything was done away with through the NAB amendments. Only the forum was changed through the NAB amendments. No one was acquitted from allegations through the NAB changes.”

Siddiqui’s lawyer, Naek, argued, “Going to the NAB court again in the verdict would affect my right.”

AGP Awan then asserted that the federal government was the affected party, hence, it had filed an appeal.

The chief justice then observed that after the detailed verdict of the practice and procedures law, the NAB would hear ICAs. Expressing the apprehension that “NAB courts would pronounce a sentence”, Naek urged the SC to suspend the verdict on the accountability law tweaks.

Here, CJP Isa said, “We can say that till the Supreme Court’s verdict [is announced], the NAB courts do not give a final decision.” AGP Awan also requested that the apex court suspend the directives issued in its previous order.

Justice Isa then asked if any of the amendments made to the accountability laws were retained or if all had been struck down, to which Naek answered that the changes made under the third amendment to the law had not been altered.

He further informed the court that some of the changes made under the first and second amendments had been repealed whereas others had not been.

At this point during the hearing, Justice Minallah observed that the grounds emphasised in the majority judgment pertained to the third amendment introduced to the NAB laws. He asked how the court could have made a decision without the changes under the third amendment being affected.

Khan’s assistant lawyer informed the court that when the initial amendments had been challenged, a second amendment was introduced, after which the petitioner revised his plea.

Upon the CJP enquiring when the third amendment was passed, the lawyer replied that it was passed in May 2023. Justice Isa then noted that there was ample time even then to make edits to the petition.

“If so, it is correct that if the amendments had to be declared illegal, then the third amendment should also have been declared so. If the verdict mentions the third amendment, then a decision should have been made on those as well,” he observed.

The chief justice went on to highlight that there were six hearings conducted on the matter after the third amendment to the NAB laws.

Here, Justice Minallah noted that according to the practice and procedures law, the case challenging the NAB amendments should have been taken up by a five-member bench as well. “The practice and procedures bill was suspended. The act was never suspended,” he stated.

Here, CJP Isa noted that the detailed judgment of the procedures law had not been released yet and it was possible that it would include a verdict on that point as well.

“In such a situation, we cannot proceed ahead with this case today,” the chief justice said. He then asked, “Are testimonies recorded in one trial court acceptable in another court after the forum is changed?”

“We do not wish to put the burden of interpretation on the trial court judge. A trial court judge should only be limited to the trial,” Justice Isa observed.

At this point during the hearing, the CJP began writing the order on today’s court proceedings.

Addressing Naek, Justice Isa said the lawyer had not even requested the court to suspend the verdict on the NAB law. Naek argued that if a trial is sent from the NAB to an anti-corruption court, the trial would begin anew.

Justice Minallah observed that under the third amendment, it had been said that trial in every case would begin afresh. At this, the CJP said there should be “ease for trial court judges instead of difficulties”.

The SC then issued notices to AGP Awan, the advocate generals of all provinces and Islamabad, and the PTI chief. It issued directives that the court order be sent to Imran in the Adiala district jail through the superintendent there.

Subsequently, it adjourned the hearing till a detailed verdict on the practice and procedures act was released. Rejecting Naek’s plea to suspend the verdict on the NAB laws, the court stopped accountability courts from issuing a final verdict on graft cases till a decision was made on the current appeals.

Govt’s appeal

The federal government in its appeal had requested the apex court to set aside the September 15 majority judgement that had declared amendments to the Natio­nal Accountability Ordina­nce (NAO) illegal.

Moved through senior counsel Makhdoom Ali Khan, the government had taken the plea that the majority judgement was opposed to the facts of the case and contrary to the law.

On Sept 15, the Supreme Court by a majority of two-to-one had ruled that the public representatives who benefited from the amendments made by the PDM government in the NAO will have to face corruption references again.

Through the ICA, the federal government had arg­u­ed that PTI Chairman Imran Khan, who had challenged the amendments, was given opportunities during the hearing not only to make verbal submissions for 27 hearings but also to make submissions in rebuttal, wher­eas the federation was restricted only to answering queries from the bench.

Similarly, the ICA said the respondent (Imran) was allowed three months’ time to file his written submissions but the federation’s request for a grant of the same time or at least three weeks had not been entertained.

Having left with no other option, the written submissions were hurriedly prepared and filed by the federation on Sept 12, as yet another government’s request seeking postponement of the case or constitution of a full court bench for hearing the petition in view of the SC (Practice and Procedure) Act, 2023 was also not decided.

Thus, the majority judgement is contrary to the principles of natural justice and due process of law and against the dicta law laid down by the SC larger bench in the 1990 Amanullah Khan case, it added.

The ICA emphasised that a number of references were returned or transferred to other fora under the amendment act and as per the information provided by the National Accountability Bureau (NAB), no acquittals were ordered under the amendment act.

On the contrary, a number of acquittals were ordered pursuant to the amendment ordinances promulgated during the PTI government and in some cases NAB had gone in appeal and in others, the accused had done so.

The majority of the appeals and petitions are pending before the high court but none of the accused, whose references were returned or transferred pending to other fora or appeals, were parties before the SC and the facts of their cases were not before the top court, the ICA contended.

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