KARACHI, Aug 29: Counsel for the federation has maintained that Ms Benazir Bhutto’s petition is not maintainable because the petitioner is an absconder and a fugitive, and, therefore, cannot seek benefit in equity jurisdiction.
This is stated in the written reply to Ms Bhutto’s contentions, filed in the Sindh High Court by counsel Maqbool Elahi Malik, who is also advocate-general, Punjab.
It is his contention that the matter being agitated through the present constitutional petition is already under consideration by the Lahore High Court, Rawalpindi Bench, where writ petitions are pending adjudication. These petitions challenge what is also being challenged through the present petitions and since the law and the courts abhor multiplicity of proceedings, this petition merits to be dismissed, he claimed.
He maintains that the petitioner wants the SHC to sit in judgment over an order passed by the Lahore High Court in writ petition No. 26421/98 and to interpret the same. He claimed that the SHC lacks territorial jurisdiction to sit in judgment over an order of the Lahore High Court.
Considerations of equity and fair-play demand that the court should not exercise its equitable jurisdiction in favour of an absconder/fugitive from law, he claimed.
The fact that the apex court has twice upheld the dismissal of the petitioner’s government on charges of corruption etc. is enough to belie the self-projection campaign unleashed through the present petition. The petitioner, while narrating events, has challenged section 31-A of the NAB Ordinance as also Article 8(d)2(n) of Chief Executive Order No.7, amended by Chief Executive Order No.21 of 2002 as being malicious, discriminatory and arbitrary and has attributed abuse of legislative authority to the law-maker.
Counsel Malik has maintained that the petitioner wants to avoid punishment and likewise the court of competent jurisdiction, which is the National Accountability Court which in the present case had adjudged the petitioner guilty of an offence; therefore, it is not correct to say that the petitioner has not been connoted.
With regard to Ms Bhutto’s conviction, the federation’s counsel has submitted that by virtue of section 31-A, the court has convicted the petitioner and sentenced her to imprisonment on account of operation of the law in question.
It has also been averred in the petition that the petitioner has been disqualified without being convicted for any substantive offence. This, he said, is fallacious and unwarranted because the substantive offence for which the petitioner has been convicted, is the offence contained in Section 31-A of the NAB Ordinance.
The petitioner has maintained that she never absconded but went abroad with the permission of the court.
It was Maqbool Illahi’s contention that since the NAB Ordinance contains Section 31-A, which was not there in the earlier Ordinance, it follows that the order of the Lahore High Court, whereby the petitioner was allowed to proceed abroad and whereby the trials were allowed to proceed in her absence, is no more in the field since it has been taken over by Section 31-A of the NAB ordinance.
He did not agree with the contention of petitioner that the guilt under section 31-A is determined by operation of law and not as a result of conviction.
With regard to the petitioner’s contention that the impugned provisions are violative of Article 4 and 9 of the Constitution, the federation’s counsel contended that the petitioner had over- looked the provision of Article 63(P) of the Constitution. Article 63tP) provides that a person shall be disqualified if he is for the time being disqualified for election under any law, for the time being in force. Section 31-A of the of the NAB Ordinance is such a law in force, and, therefore, this argument be consigned to the dustbin.
It would be important to mention here that Article 8 (d) 2(n) of Chief Executive Order 7 of 2002 has been introduced to bring the accused to the book. If the accused cannot face the trial, how and why should she be allowed to contest elections in the country?
The petitioner contends that section 31-A violates Article 175 of the Constitution insofar as it interferes with judicial functions to be performed by the court, in accordance with the Cr.P.C. But the counsel for the federation disagreed wit the contention and said that while dealing with the similar arguments about section 17-C of the NAB Ordinance, the Supreme Court has held in the Asfandyar Wali’s case that no vested rights exist in the matters of procedure.