Toshakhana reference: Zardari's petition for transfer declared 'Not Entertainable'

ISLAMABAD: Former president Asif Ali Zardari prayed before the Supreme Court to set aside the Registrar Office's order dated 10th November 2020, declaring his petition for transfer of Toshakhana reference from Islamabad to Karachi as "Not Entertainable".

Zardari had filed a Civil Miscellaneous Application (CMA) for transfer of Toshakhana reference from Accountability Court Islamabad to AC Karachi.

However, the Registrar Office dismissed it, and returned the petition on November 10.

In his appeal, the ex-president stated that the impugned order was based on misreading and non-reading of the Order dated 7-1-2019 passed by this Honourable Court in HRC Case No.39216-G of 2018 as well as provisions of Section 16A(c) of the National Accountability Ordinance, 1999.

It is the constitutional right of the appellant to knock the door of the apex court but however impugned order shows that the rights of the appellant have been blocked at the institutional level, which is not the practice of the Supreme Court. The impugned order is based on misconception of law and rules framed by this Court. The question of returning the application on non-maintainability relates to the judicial work, which cannot be taken up on the executive side or through delegation of powers for exercising judicial work. The impugned order has been signed by Assistant Registrar (Civil-II) for Registrar, which is violative of Order 5, Rule 1 of Supreme Court Rules, 1980.

Order V, Rule 1 of the Supreme Court Rules lays down the powers of the court, which may be exercised by the registrar.

A perusal of Order V Rule 1 of the Supreme Court Rules shows that the power of returning the application in original alongwith paper books being "Not Entertainable" is not within the ambit and power of the registrar what to speak about assistant registrar as laid down in Order V Rule 1 of the Supreme Court Rules.

The impugned order is thus, not only unlawful but also without jurisdiction.

The impugned order has erred in holding that in view of Order dated 7-1-2019 passed by the apex court in Human Rights Case No.39216-G of 2018 under Article 184(3) of the Constitution, the instant Reference has been filed by the NAB before the Accountability Court Islamabad and against which order Review bearing Cr.P. No.19 of 2019 was filed which was dismissed vide Court Order dated 19-2-2019 and as there is no provisions of second review under Order XXVI the Supreme Court Rules, 1980, the application tantamount to second review in this behalf and is therefore being returned in original alongwith paper books being "NOT ENTERTAINABLE".

The assistant registrar exercising the powers of registrar did not consider the law on the subject matter and has arbitrarily returned the application of the appellant. The assistant registrar did not take into consideration para 38 of the Order dated 7-1-2019 passed by the Supreme Court wherein, it is held that: "it is, however, made clear that the matter may be resurrected at any time on the application of any of the parties or at the discretion of the implementation bench."

Consequently the appellant had the legal right to file the application which has been returned by the impugned order by terming it as Second Review.

That furthermore, investigation has been completed and reference has been filed before the Accountability Court, Islamabad.

The appellant has invoked the provisions of Section 16A(c) which lays down: "the accused may also make an application to the Supreme Court for the transfer of a case from a court in one province to a court in another province...."

Copyright Business Recorder, 2020