Daily Times

The Sharifs argue that there are several inconsistencies, legal lacunas and contradictions in the evidence that was provided by the prosecution in the Avenfield case. If this is true, the Sharifs can still question the legality of the conviction and the subsequent sentences awarded to them by the National Accountability Bureau (NAB) Court. They could also seek bail or even an outright suspension of their sentences. The granting of bail and the suspension of a sentence pending adjudication of Appeal is an additional power of the Appellate Court (High Court). As such, the Islamabad High Court (IHC) can exercise its power to suspend the sentence and grant bail to the appellants, under section 426 and section 561-A of the Criminal Procedure Code (CPC).

Section 426 of the criminal procedure code specifically states that, pending any appeal by a convicted person, the Appellate Court may order that the execution of the sentence be suspended and, if the accused party is under confinement, that they be released on bail or bond. As per section 9(b) of the National Accountability Ordinance (NAO), a person accused of an offence can invoke the constitutional jurisdiction of the High Court, as no ordinance or law can curtail or remove the powers given to the High Court by the Constitution of Pakistan. They have the power to grant bail under Article 199 of the constitution of Pakistan, independent of any statutory source of jurisdiction. It is also worth mentioning that the High Courts and the Supreme Court (SC) of Pakistan have granted bail and suspended the sentences of people involved in other such cases, including Hakim Ali Zardari, Adnan A. Khawaja and Usman Farooqui among several others.

In the case of Sh. Muhammad Munir Vs Chairman NAB, the High Court granted bail and suspended the sentence of the appellant based on the following reason,”due to pendency of large number of appeals filed under National Accountability Ordinance, 1999, hearing of appeals of petitioners was not within sight in the near future”

In the case of Mirza Ashfaq Vs the State, the High Court exercised their power in light of the advanced age of the appellants, while in Hakim Ali Zardari’s case, the High Court suspended the sentence and granted bail by studying the medical reports provided by the accused. In the case of Sh. Muhammad Munir Vs Chairman NAB, the High Court granted bail and suspended the sentence of the appellant based on the following reason, that “due to pendency of large number of appeals filed under National Accountability Ordinance, 1999, hearing of appeals of petitioners was not within sight in near future”. This same law was cited by the SC in the case of Khan Muhammad Mahar Vs the State in 2003, even though according to section 32(b) of NAB ordinance, a specific period of only 30 days has been prescribed for the disposal of appeals.

It is a well established law that, even though the High Court cannot delve too deep in to the evidence and the judgement presented in the courts in its initial stages, they can still suspend the sentence and grant bail, if a bare examination of the judgement passed down by the previous courts is deemed to have been erroneous or biased in nature. It is important to note that the principle of Justice provides that, if there are two probabilities in the case with one favouring the accused and one favouring the prosecution, then the final judgement will always tilt in favour of the accused.

The writer is an Advocate of the High Court

Published in Daily Times, July 14^th 2018.