ISLAMABAD: The case law has upheld a key section of the National Accountability Ordinance (NAO) that excludes powers of courts to grant bail to the accused persons arraigned under this statute.
While dismissing the bail plea of ousted Prime Minister Nawaz Sharif, the Islamabad High Court (IHC) held that the crux of certain cited judgements of Supreme Court is that under Section 9-b of NAO, provisions of 426, 497, 498, & 561-A Criminal Procedure Code (CrPC) are excluded and no court, including the IHC, has the jurisdiction to grant bail under these clauses.
When contacted, prominent constitutional expert Wasim Sajjad told The News that one of these sections deals with suspension of conviction; another relates to grant of normal bail and yet another pertains to pre-arrest bail.
He said that although the bail applications can’t be moved under Section 9(b) by those arrested by NAB, they can approach the concerned high courts under Article 199. “The objective is to find a way to provide the bail facility to such accused persons.”
That is why, Wasim Sajjad said, Chief Justice Asif Saeed Khosa has recommended that the accountability courts should be given the power to give bail. “Section 9-b has been too harsh against the accused, held under the NAO.”
The IHC judgement also said that under Article 199 [a high court may, if it is satisfied that no other adequate remedy is provided by law, may intervene] of the Constitution, the IHC has the jurisdiction to suspend a sentence or to release a prisoner on bail (whether under trial or convicted); however, such jurisdiction is to be exercised sparingly, in extraordinary circumstances and in cases of extreme hardship.
The IHC referred to the judgements, among others, in the Tallat Ishaq Vs NAB through its chairman (Civil Petition No.632-2018), NAB through its chairman Vs Murad Arshad & Others’ (Civil Petition No1707- 2018), and NAB chairman through Prosecutor General Accountability (Civil Appeal Nos1340, 1341 and 1342 of 2018 and Civil Miscellaneous Application No9985 of 2018 in Civil Appeal No1340-2018). The last mentioned verdict relates to the NAB appeal against the grant of bail by the IHC to Nawaz Sharif in the London apartments case.
Section 9(b) of the NAO ousts the jurisdiction of courts from giving bails to the NAB accused. It says all offences under the NAO shall be non-boilable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the CrPC, or any other law for the time being in force no court shall have jurisdiction to grant bail to any person accused of any offence under the NAO.
Justice Khosa recently twice underlined incorporation in the NAO of bail facility to the accused persons, arraigned by the anti-graft watchdog. “The concept of bail should be introduced in NAO so that we [superior courts] should not have to use our constitutional powers [to deal with such bail matters].”
In mid-November last, Justice Khosa, who had authored the judgement of the three-member bench led by the then chief justice, had suggested that 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 bail before the relevant accountability court in the first instance.
He wrote that the intention behind introduction of Section 9(b) of the NAO, which ousts the jurisdiction of the superior courts regarding grant of bail, already stood neutralised due to opening of the door for bail through exercise of constitutional jurisdiction of a high court.
Resultantly, the judge noted, the entire burden is being shouldered by the high courts, which is an unnecessary drain on their precious time. He said that the high courts and the Supreme Court had always felt difficulty in adjusting the requirements of “without lawful authority” and “of no legal effect” relevant to a writ of certiorari [Article 199(1)(a)(ii) of the Constitution] with the requirements of bail provided in Section 497 of the CrPC.
All the CrPC provisions--426, 497, 498, & 561-A-- mentioned in Section 9(a) of the NAO deal with powers of courts to grant bail or provide other similar relief.
