The Supreme Court of Pakistan on Tuesday rejected the request of Farooq H. Naik to suspend the decision of the NAB Amendments case and adjourned the hearing till the detailed judgement of the Practice and Procedure Act case is announced.

The court issued the directives while hearing the first-ever intra-court appeals (ICAs) against its Sept 15 judgement announced by a three-member bench headed by former chief justice Umar Ata Bandial which struck down amendments to the accountability law by 2-1.

The five-member bench took up the appeal in line with full court’s October 11 short ruling on the Supreme Court (Practice and Procedure) Act 2023 which aimed at clipping chief justice’s power in the name of regulating apex court affairs.

The larger bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and including Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Syed Hasan Azhar Rizvi took up two ICAs — one filed by the federal government and the other by former SSGCL managing director Zuhair Ahmed Siddiqui.

On Oct 26, the Supreme Court had issued a circular that any appeal filed in the court against the decisions taken on petitions moved under Article 184(3) of the Constitution should be moved in the form of ICA.

The circular issued by the registrar’s office had explai¬ned that “Section 5 of the Supreme Court (Practice and Procedure) Act 2023 provides that an appeal will lie before this court against an order passed by this court while exercising jurisdiction under Article 184(3) of the Constitution”.

Today, the federal government requested the court to adjourn the hearing till next week due to the unavailability of its counsel.

The plea, submitted by Advocate on Record Anis Muhammad Shahzad, stated that the counsel for the government, Makhdoom Ali Khan, had been “granted general adjournment” till Nov 3, and went to Paris.

Attorney General for Pakistan (AGP) Mansoor Usman Awan appeared before the court as the federal government’s counsel while Farook H. Naek was present as Siddiqui’s lawyer.

PROCEEDINGS TODAY

At the outset of the hearing, AGP Awan informed the court that Khan was abroad and had sought adjournment of the hearing.

CJP Isa acknowledged that the court has already received a few other applications in this regard.

He asked Naek if he was supporting the SC verdict on the NAB law or opposing it, to which the latter replied that he was opposing it.

The chief justice observed, “You have written that according to the practice and procedures [law], a five-member bench should hear the NAB amendments case.” He asked Naek to present his arguments if he was still maintaining the same position.

“If you satisfy [the court] on this point, then we won’t proceed to the merits of the appeal. In that case, we will restore the petitions against the NAB amendments and constitute a new bench,” the CJP stated.

He questioned if the counsel would “take back his point” and directed him to wait for the detailed verdict on the law clipping CJP’s powers.

Naek requested to proceed with the current appeals. If this is done, then cases in the NAB courts would begin. Chief Justice Isa noted that Makhdoom Ali Khan has taken this ground in his application.

Naek again requested that he be made a respondent in the case as well.

The CJP mentioned that Justice Mansoor Ali Shah’s dissenting note on the apex court’s verdict had also been released. “If the petitioner wants, he can also make amendments in the plea after the dissenting note,” he added.

Justice Isa observed, “If you would file a review petition, then we will not hear the intra-court appeal.” Naek then informed the court that he was withdrawing his review petitions.

At this point, the CJP asked the assistant lawyer of the federal government’s counsel whether he was “using the attorney general’s office as a shield”, to which the lawyer replied in the negative.

The chief justice noted that if the merits were reviewed under the Practice and Procedures Act, the appeals would be restored. He reiterated that the detailed verdict of the NAB law case should be waited for.

However, Naek said that waiting for the order would cause a delay and urged the court to continue with the proceedings “without delay”.

CJP Isa observed that the Practice and Procedures Act had now come into force and under Article 184(3) of the Constitution, the right of appeal had been granted.

Justice Minallah noted that the case was of “interpretation”.

“How the federal government is affected party in this case?” he asked.

He noted that the word used in the practice and procedures law was “person” and therefore, an affected party could file an appeal.

CJP Isa said, “Not everything was done away with through the NAB amendments. Only the forum was changed through the NAB amendments. No one was acquitted from allegations through the amendments.”

Siddiqui’s lawyer, Naek, argued, “Going to the NAB court again in the verdict would affect my right.”

AGP Awan then asserted that the federal government was the affected party, hence, it had filed an appeal.

The chief justice observed that after the detailed verdict of the practice and procedures law, the NAB would hear ICAs. Expressing the apprehension that “NAB courts would pronounce a sentence”, Naek urged the SC to suspend the verdict on the accountability law tweaks.

CJP Isa said, “We can say that till the Supreme Court’s verdict [is announced], the NAB courts do not give a final decision.” AGP Awan also requested that the apex court suspend the directives issued in its previous order.

Justice Isa then asked if any of the amendments made to the accountability laws were retained or if all had been struck down, to which Naek answered that the changes made under the third amendment to the law had not been altered.

He informed the court that some of the changes made under the first and second amendments had been repealed whereas others had not been.

Justice Minallah observed that the grounds emphasised in the majority judgment pertained to the third amendment introduced to the NAB laws. He asked how the court could have made a decision without the changes under the third amendment being affected.

Khan’s assistant lawyer informed the court that when the first amendment had been challenged, a second amendment was introduced, after which the petitioner revised his plea.

Justice Minallah noted that according to the practice and procedures law, the case challenging the NAB amendments should have been taken up by a five-member bench as well. “The practice and procedures bill was suspended. The act was never suspended,” he stated.

CJP Isa noted that the detailed judgment of the case had not been released yet and it was possible that it would include a verdict on that point as well.

“In such a situation, we cannot proceed ahead with this case today,” the chief justice said. He then asked, “Are testimonies recorded in one trial court acceptable in another court after the forum is changed?”

“We do not wish to put the burden of interpretation on the trial court judge. A trial court judge should only be limited to the trial,” Chief Justice Isa observed.

THE APPEAL

The federal government in its appeal had requested the apex court to set aside the September 15 majority judgement that had declared amendments to the Natio¬nal Accountability Ordina¬nce (NAO) illegal.

Moved through senior counsel Makhdoom Ali Khan, the government contended that the majority judgement was opposed to the facts of the case and contrary to the law.

On Sept 15, the Supreme Court by a majority of two-to-one had ruled that the public representatives who benefited from the amendments made by the PDM government in the NAO will have to face corruption references again.

Through the ICA, the federal government had arg¬u¬ed that the PTI chairman, who had challenged the amendments, was given opportunities during the hearing not only to make verbal submissions for 27 hearings but also to make submissions in rebuttal, wher¬eas the federation was restricted only to answering queries from the bench.

Similarly, the ICA said the respondent (PTI chief) was allowed three months’ time to file his written submissions but the federation’s request for a grant of the same time or at least three weeks had not been entertained.

Having left with no other option, the written submissions were hurriedly prepared and filed by the federation on Sept 12, as yet another government’s request seeking postponement of the case or constitution of a full court bench for hearing the petition in view of the SC (Practice and Procedure) Act, 2023 was also not decided.

Thus, the majority judgement is contrary to the principles of natural justice and due process of law and against the dicta law laid down by the SC larger bench in the 1990 Amanullah Khan case, it added.

The ICA emphasised that a number of references were returned or transferred to other fora under the amendment act and as per the information provided by the National Accountability Bureau (NAB), no acquittals were ordered under the amendment act.

On the contrary, a number of acquittals were ordered pursuant to the amendment ordinances promulgated during the PTI government and in some cases NAB had gone in appeal and in others, the accused had done so.

The majority of the appeals and petitions are pending before the high court but none of the accused, whose references were returned or transferred pending to other fora or appeals, were parties before the SC and the facts of their cases were not before the top court, the ICA contended.