Landmark SC judgment suggests enabling ACs to grant bail

November 15,2018

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Islamabad : The Supreme Court (SC) has suggested foremost amendments relating to grant of bail and timeframe to decide references by accountability courts in two key clauses of the National Accountability Ordinance (NAO), which have always been widely decried by the lawyers’ community.

“The suggestion made by the apex court has to be taken very seriously by the government as well as the legislature,” prominent constitutional expert Wasim Sajjad told The News when asked to interpret the latest judgment, delivered by a five-member bench headed by Chief Justice Mian Saqib Nisar. It was authored by Justice Asif Saeed Khosa.

The lawyer said what the Supreme Court has stated was a suggestion and not a direction. It can’t issue direction to the Parliament. He said it was unreasonable to oust the jurisdiction of all courts to grant bail to the accused on any ground whatsoever, charged under the NAO. “This provision has to be altered, and this is what the apex court has recommended,” Wasim Sajjad said.

“The second irrational section of the NAO provided for decision by the accountability court on a reference in thirty days, which was also impracticable because the cases can’t be concluded sticking to this timeline.”

Section 16(a) provides that the reference shall be heard from day to day and shall be disposed of within thirty days. Section 9(b) says all offences under the NAO shall be non-bailable and no court shall have jurisdiction to grant bail to any person accused of any offence under this law.

However, the latest verdict released on Monday said in the changed scenario the legislature may, if so advised, consider amending the NAO appropriately so as to enable an accused person to apply for his bail before the relevant accountability court in the first instance. It recommended that the unrealistic timeframe for conclusion of a trial specified in section 16(a) may also be reconsidered and revisited by the legislature.

The judgment observed that the original intent behind introduction of Section 9(b) ousting jurisdiction of the courts regarding grant of bail already stands neutralised by opening of the door for bail through exercise of constitutional jurisdiction of a High Court and resultantly the entire burden in that regard is being shouldered by the high courts which is a huge and an unnecessary drain on their precious time.

Wasim Sajjad said that when even persons accused of murders are at times granted bails by different courts, the denial of this facility to those facing charges under the NAO is unfair and unjustified.

However, he said that while dealing with bail pleas filed by the accused caught by the NAB, high courts, despite the ouster of jurisdiction by the NAO, have been following the general principles they apply to other bail matters under their writ jurisdiction.

The judgment said the constitutional jurisdiction of a high court is, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course.

Section 16(a) speaks of day to day prosecution of accused person and disposal of case within thirty days and it does not speak of the period of his custody before or during the trial. Section 16(a) does not contemplate or provide for bail for an accused person if the timeframe for the trial mentioned therein is overstepped, the judgment noted.

Justice Khosa concluded that the word “shall” used in Section 16(a) has been used in the context of conclusion of a trial by an accountability court and it is directory in nature and not mandatory because it does not provide for a penalty or a consequence in case of its non-observance or non-compliance. It does not provide that if the stipulated timeframe is not adhered to the prosecution of the accused person would stand terminated and he would be deemed to have been acquitted or that he would be entitled to be admitted to bail on such ground.

The senior judge wrote that even in cases where a direction is issued by the high court or apex court regarding conclusion of a trial within a specified fixed period admission of the accused person to bail upon non-compliance of such direction is not always automatic, be it a case under the NAO or under any other law. It goes without saying that a direction issued by a superior court to the trial court to conclude a trial within a specified period is an administrative direction and non-compliance of it by the trial court for whatever reason may not entitle the accused person to claim bail as of right.

Justice Khosa said that ordinarily bail is allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise. The primary consideration for grant of bail on the ground of such delay is undue hardship and more often than not prima facie merits of the case against the accused person are also looked into before admitting him to bail on the ground of delay.


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