The Supreme Court has noted that Islamabad High Court (IHC) has not adhered to the guidelines issued and recommendations made by it in the case of Muhammad Shakeel vs the State regarding shorter format of orders to be passed in bail.
Chairman National Accountability Bureau on November 12, 2018 had filed an appeal to set aside the Islamabad High Court order. However, a five-member larger bench headed by Chief Justice Mian Saqib Nisar on January 14 dismissed the NAB appeal for cancellation of bail granted to ex-PM Nawaz Sharif, his daughter Maryam Safdar and son-in-law Capt Muhammad Safdar (retd).
The judgement authored by Justice Asif Saeed Khan Khosa stated that the IHC wrote a 41-page order, while deciding bails of the respondents Nawaz Sharif, Maryam Safdar and Capt Muhammad Safdar (retd) upon suspension of their sentences.
The judgement said it is a settled law that while deciding an application for bail or suspension of sentence during the pendency of an appeal, the merits of the case are not averted to or commented upon in any detail. However, the IHC had not only undertaken a detailed assessment of the merits of the case, but had also recorded some categorical conclusion regarding the same.
It held that the reasons for suspension of sentence during the pendency of an appeal are that due to the peculiarities of the case the convict may not be kept in custody till his appeal is fixed for hearing, but in these cases the writ petitions filed by the respondents had been taken up for hearing and decision was delivered at a time when the main appeals were also fixed for hearing.
The court said that in the case of Tallat Ishaq vs NAB, a larger bench of the apex court has clarified that in cases under the National Accountability Ordinance (NAO), 1999 bail may be granted through exercise of constitutional jurisdiction of the High Court only in extraordinary circumstances and in cases of extreme hardship. In the presents cases, no such extraordinary circumstances or hardship had been referred to by the High Court while granting bail.
The judgement noted that in cases under section 9(a)(v) of NAO, 1999 the top court had identified different ingredients of corruption and corrupt practices in the cases of Syed Qasim Shah vs State, Muhammad Hashim Babar vs State and Khalid Aziz vs State to be proved by which party. The apex court said it had not been appreciated by the High Court that in all those cases as referred, the accused persons had accepted the ownership or possession of the properties.
In the present cases, the respondents had maintained that the relevant properties did not belong to them nor were they in their possession. The IHC has failed to consider whether cases mentioned were relevant to cases in hand or not and whether in the present cases the principle of forfeiture of the defence would apply if the accused persons denied ownership or possession of the relevant properties but in the circumstances of the case such ownership or possession was established.
The judgement noted that the IHC while adverting to some deficiencies in the evidence vis-à-vis the ingredients of the offence under section 9(a)(v) of NAO, 1999 had failed to consider that conclusion in that regard were premature at the stage of bail or suspension of sentence because under section 428 of CrPc additional evidence could be adduced or procured during the pendency of the appeals.
Justice Khosa wrote that despite deficiencies in the IHC order, they were cognisant of the legal position that the considerations for grant of bail and for its cancellation are entirely different.
The judgement noted that respondent 1 (Nawaz Sharif) is in jail and also there is no allegation of misuse of the concession of bail, while respondent 2 (Maryam Safdar) is a woman and the law envisages concession for her in bail. In case of respondent 3, the trial court judgement is 'quite short.' "In these peculiar circumstances, we are not persuaded to interfere with the jurisdiction and discretion of the high court to grant bails to the respondents; therefore, appeals are dismissed," said the court.
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