Barrister Arsalan Raja
Sharifs argues that there are several inconsistencies, legal lacunas and contradictions in the evidences that were provided by the prosecution in the Evan Field Case. If this is so, the Sharifs can still question the legality and correctness of the conviction and sentence awarded to them by the Accountability Court and can still sought bail and suspension of the sentence. The grant of bail and suspension of sentence during pending adjudication of Appeal is an additional and identical power of the Appellate Court (High Court) and Islamabad High Court being an Appellate Court is empowered, to do so while hearing the appeal under the NAB Ordinance and to exercise its power under section 426 Criminal Procedure Code read with Sec 561-A of Criminal Procedure Code to suspend the sentence and grant bail to the appellants (Sharifs).
Section 426 of the criminal procedure code specifically says that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recons to be recorded by in writing, order, that the execution of the sentence or order appealed against be suspended and , also, if he is in confinement, that he be released on bail or on his own bond. As per the Section 9(b) of the National Accountability Ordinance, a person accused of an offence under the NAB Ordinance can invoke the constitution jurisdiction of the High Court as no ordinance or law how special it may be, can curtail or take away the powers given to the High Court by the Constitution of Pakistan. The Honourable High Court has the power to grant bail under Article 199 of the Constitution of Pakistan, independent of any statutory source of jurisdiction. It is worth mentioning that the Honourable High Courts and Honourable Supreme Court of Pakistan have granted bail and suspended the sentences related to NAB cases such as Hakim Ali Zardari vs The State, Adnan A Khawaja vs The state, Usman Farooqui vs The State, Zulfiqar Ali vs The State.
It is also significant to mention that in the case of Mirza Ashfaq vs The State, Honourable High Court also gave consideration on the point that the appellants were of advanced age and included ladies and hence granted bail and suspension of the sentence awarded by the Accountability Court. In the case of Hakim Ali Zardari, the High Court suspended the sentence awarded by the Accountability Court and granted bail by merely considering the medical reports and health of the appellant (Hakim Ali Zardari).
It is also worth mentioning the case of Sh. Muhammad Munir Vs Chairman NAB, in which the Honourable High Court granted bail to the appellant and suspended the sentence by considering several law points and further held that “Due to pendency of large number of appeals filed under National Accountability Ordinance, hearing of appeals of the petitioners was not within sight in near future” hence they were granted bail and suspension of the sentence awarded by the Accountability Court.
The same point was considered by the Honourable Supreme Court in the case of Khan Muhammad Mahar vs The State in 2003. It is pertinent to mention that by virtue of section 32(b) of the national accountability bureau ordinance specific period of 30 days had been prescribed for the disposal of appeals however numerous of appeals related to NAB are still pending in High Courts for several years.
It is a well established law that a deeper appreciation of evidence cannot be done by the High Courts in the initial stage nevertheless High Court can suspend the sentence and grant bail if a bare perusal of judgement would reflect that appraisal of evidence made by the trial court was against the law. The principle of administration Justice provides that justice would always tilt in favour of the accused, if there were two probabilities one favouring to the accused and one to the prosecution.
—The writer is Advocate High Court and practices law in Karachi.
Barrister Arsalan Raja