ISLAMABAD: Chief Justice of Pakistan (CJP) Mian Saqib Nisar who is set to retire shall lead a five-member larger bench to hear appeals of top anti-graft body against the suspension of former prime minister Nawaz Sharif, his daughter Maryam Nawaz and son-in-law retired Capt (r) Safdar’s sentences in Avenfield Reference on Monday.
On September 19, 2018, the Islamabad High Court (IHC) had suspended respective sentences of Sharif, Maryam and Safdar in the matter to which National Accountability Bureau (NAB) invoked the apex court’s appellate jurisdiction on October 22, 2018.
On November 12, after taking up the appeals, a three-member bench of the Supreme Court (SC) referred the matter to a larger bench to decide as many as 18 questions of law, including whether a detailed order of the IHC in the matter, consisting 41 pages, is permissible while dealing with the suspension of sentence.
The questions also include whether in a case, where there is a statutory ouster of jurisdiction of courts to grant bail pending appeal, the constitutional jurisdiction can be invoked to grant bail.
The larger bench will also consider whether the ground of hardship can be considered while suspending the sentence in a NAB case and whether the merits of a case can be discussed and conclusive findings are given, as done in IHC verdict while dealing with the case of suspension of sentence.
The bench also formed a question for the consideration of the larger bench whether the scope of the constitutional jurisdiction for grant of bail during the investigation, trial or release on bail by way of suspension of sentence is much wider than the scope of the grant of bail under the general law, or otherwise.
“What are the parameters of tentative assessment of evidence and how can it be differentiated from the deeper appreciation of evidence particularly in cases involving the grant of bail by suspending the sentence and release on bail during the pendency of the appeal?” stated the written order, wherein questions are framed.
Other points include the question whether guidelines provided by the superior courts regarding the ouster of Section 426 of the Code of Criminal Procedure (CrPC) were required to be followed for the suspension of sentence in NAB cases, and if so what were the principles regulating suspension of the sentence under Section 426 of the CrPC.
The larger bench would also determine if the principles regulating bail under Sections 497 and 498 of the CrPC would be applicable while considering the suspension of the sentence.
Besides, if the convict was entitled to suspension of the sentence but the judgement/order suspending the sentence was not happily worded, what would be its effect then?
The larger bench will further consider whether principles of cancellation of bail would also apply for withdrawal of suspension.
The questions also included if the IHC had interpreted correctly the provisions of Section 9(b) of the National Accountability Ordinance (NAO) 1999 and whether the ground of hardship case is considered while suspending the sentence in a NAB case.
The bench would further decide whether the merits of a case can be discussed and conclusive findings are given as done by the high court and if this was permissible in its constitutional jurisdiction while dealing with cases of suspension of sentence.
Whether in a constitutional petition, a miscellaneous application filed under Section 561-A of the CrPC for adjudication, where CrPC is not applicable, one of the questions written in the order stated.
The larger bench may also suggest if the high court could take up the constitutional petition when the main appeals had already been fixed for hearing and whether a detailed order comprising 41 pages was permissible while dealing with the suspension of the sentence.
Other members of the larger bench include Justice Sardar Asif Saeed Khan Khosa, Justice Gulzar Ahmed, Justice Mushir Alam and Justice Mazhar Alam Miankhel.