KARACHI, Nov 6: A full bench of the Sindh High Court on Monday struck down Section 10 (D) of the National Accountability Bureau Ordinance, 1999 which disallows jail remissions to those convicted under the ordinance.
The bench, however, suspended operation of its order for two weeks to enable the federal government to challenge it in the Supreme Court.
About 33 prisoners convicted by accountability courts and serving their terms in the Central Prison Karachi, had jointly addressed an application to Chief Justice Sabihuddin Ahmed complaining that they had been singled out for discriminatory treatment even after their conviction inasmuch as an ordinance promulgated in 2001 disallowed them normal jail remissions permissible to all other convicts.
The application said that while low-level officials were invariably proceeded against, the influential ‘big fish’ were allowed to go scot-free. The NAB chairman’s discretion to make references was too wide and unbridled and amounted to delegation of excessive authority. The jail authorities also indulged in pick-and-choose practice and allowed remissions to some NAB convicts.
The chief justice converted the application into a constitutional petition in exercise of the court’s suo motu powers and assigned it to a three-member bench comprising himself and Justices M. Mujibullah Siddiqui and Mrs Qaiser Iqbal.
The petition was heard on Monday when the petitioners and jail and police officers were also in attendance. The federal government was represented by Deputy Attorney-General Akhter Ali Mahmud and the NAB by Deputy Prosecutor-General Shafaat Nabi K. Sherwani. Their arguments were mostly confined to the bar on remissions, which the bench believed to be discriminatory on the face of it.
The bench remarked that the NAB law was already harsh and prescribed more stringent penalties than the Pakistan Penal Code and the Anti-Corruption Act. Those convicted under the PPC, the anti-corruption law and even the special law for offences in banks, were all entitled to remissions while the NAB convicts were peremptorily denied the concession.
DPG Sherwani agreed that a single set of rules should regulate the jail terms of all convicts. Post-conviction treatment should be even-handed to obviate possibility of discrimination and corruption. The NAB Ordinance, he said, aimed more at recovering the looted and plundered public money and inducted both the wrongdoers and ill-gotten wealth back into the mainstream of national life and the economy. “This is the idea underlying plea bargain and no pick and choose is involved”, he argued.
Contesting the petition, DAG A. A. Mahmud said remissions were a concession and not a right and the legislature was competent to withhold it from a certain class of convicts provided the classification was reasonable and applied to all members of the class without discrimination. He agreed that banking and anti-corruption law convicts were allowed remissions but said the accused sentenced under the Anti-Terrorist Act were barred from the concession.
No discrimination, the DAG maintained, was involved in making of references. The legislature had authorised NAB chairman to file references. But the accountability courts had also been empowered to strike down a reference if it had not been made in accordance with the law. No exception could be taken to the provision. The impugned ordinance, which inserted Section 10 (D) in the NAB Ordinance was not repugnant to any constitutional provision, he submitted.
The police and jail authorities submitted that some convicts might have been allowed remissions in ignorance of the promulgation of the impugned ordinance. All NAB convicts had been treated in accordance with it ever since the law came to their knowledge. The ordinance, issued on November 23, 2002, said: “Notwithstanding anything contrary contained in any other law for the time being in force, an accused convicted by the court of an offence under the National Accountability Ordinance shall not be entitled to any remission in his sentence”.
Striking down the ordinance, the bench allowed a request by the DAG to suspend operation of its order so that the federal government might file an appeal against it.