LAHORE - Constitutional petitions questioning legitimacy of the NAB Ordinance, conviction of former prime minister Nawaz Sharif, election of Imran Khan to the National Assembly and bail of a pregnant woman remained prominent at the Lahore High Court last week.

A full bench of the provincial top court headed by Justice Shahid Waheed and consisting of Justice Atir Mahmood and Justice Shahid Jamil Khan turned down all petitions challenging the National Accountability Ordinance 1999 as well as conviction of Nawaz Sharif, Maryam Safdar and Capt (r) Muhammad Safdar.

The bench, after hearing lengthy arguments of the petitioners, the NAB and the federal government, arose, assembled few minutes later and announced the judgement. Three long hearings took place last week on these petitions moved by Lawyers Foundation for Justice and Advocate Saad Saleem.

A NAB additional prosecutor general defended the law while objecting to maintainability of the petitions and a federal law officer also said the NAB Ordinance was protected by the Constitution.

In his arguments, NAB Additional Prosecutor General Jahanzeb Bharwana said that Legal Framework Order 2002 gave the status of “Act” to the NAB Ordinance under Article 270 –AA of the Constitution. And that the same ordinance was duly approved as an Act of Parliament through 17th Amendment Act 2003, he said.

He also said certain president’s orders mentioned in Article 270-AA  were declared as having been made without lawful authority and of no legal effect in the light of 18th amendment. He said all laws made between Oct 12, 1999 and Oct 31, 2003 are still in force as they were allowed to continue to be in force until altered, repealed or amended by the authority concerned.

Bharwana contended that the limitation of 120 days was not applicable to the laws made under the PCO No. 1 of 1999 and the NAB law is protected under the Constitution. Deputy Attorney General Imran Aziz argued that the laws were effective in the 18th amendment under Article 270 –AA of the Constitution.

The petitioners’ counsel Advocate AK Dogar said that the NAB law was promulgated by military dictator Pervez Musharraf under Provisional Constitutional Order (PCO) No 1 of 1999 as well as Order No 9 of 1999.

They said order No.9 was promulgated only to amend PCO No.1 of 1999 with the insertion of section 5A (1) in it to the effect that limitation of 120 days prescribed under Article 89 of the Constitution to any ordinance by the president will not be applicable to the laws made under PCO No.1 of 1999. The lawyer contended that as the PCO No.1 was declared without lawful authority and of no legal effect, the amendments in it made under order No.9 of 1999 would also lapse and therefore the limitation period of 120 days prescribed under Article 89 would be applicable to the NAB Ordinance.

The lawyer said certain laws, which were still enforced, shall continue to remain enforced unless amended by the competent legislation under sub-article 2 of Article 270-AA of the Constitution. He said the NAB ordinance ceased to be the law and became non-existent and a dead letter. He prayed to the court to set aside all proceedings being carried out by the NAB courts under the dead law of NAB ordinance.

He said order No.9 was promulgated only to amend PCO No.1 of 1999 with the insertion of section 5A (1) in it to the effect that limitation of 120 days prescribed under Article 89 of the Constitution to any ordinance by the president will not be applicable to the laws made under PCO No.1 of 1999. The lawyer contended that as the PCO No.1 was declared without lawful authority and was of no legal effect, the amendments to it made under order No.9 of 1999 would also lapse and therefore the limitation period of 120 days prescribed under Article 89 would be applicable to the NAB ordinance.

Opposing the stance of the federal government, Dogar said the impugned ordinance was a creation under Provisional Constitutional Order (PCO) promulgated by Pervez Musharraf. The PCO was amended three times but the 18th amendment declared it null and void, he argued. He said the 18th Amendment Act 2010 had declared all acts and laws made by the dictator without lawful authority. He said the Supreme Court also in its 2009 judgement declared the PCO of Musharraf void ab initio meaning thereby the NAO stood repealed since 2000.

Another lawyer, Advocate Saad Saleem, said the PCO was void ab initio from the very first day so it could not provide life to the NAB Ordinance beyond its normal tenure of 120 days. He said NAB ordinance died after its normal life and it was never revived. After March 2000, it was nothing but a dead law, said Advocate Saleem, that could not even be revived. He said the federal government could not intervene in the judicial autonomy of the provinces while anti-corruption laws had already been there in the provinces, so dichotomy of such laws could not be allowed at this stage. He said this is beyond the scheme of Article 142 of the Constitution. He asked the court to set aside the NAB ordinance.

Last week, also a petition was moved to the LHC against election of new PM Imran Khan on the ground that every member of the National Assembly was constitutionally bound to exercise their right to vote but 69 voters did nothing, therefore, the election of Khan be declared null and void.

Advocate Sheikh Zaid Mahmood, a local lawyer, moved the petition through senior lawyer AK Dogar saying that it was mandatory under 91 (4) of the Constitution that every member of the National Assembly must cast his vote to the person nominated for the election of PM but practically the situation was different.

The petitioner said two parliamentary parties consisting of 69 members remained in the National Assembly but abstained from voting, failed to perform their function of participating in the establishment of the federal government—a constitutional duty. The chosen representatives of the people cannot abstain from casting the votes, he said.  The petitioner also made PPP and Jamaat-i-Islami respondents in the petition, saying that neither they voted “yes” nor they said “no” and this is constitutionally not allowed.

He asked the court to declare that every member of the National Assembly must exercise their constitutional duty to elect the leader of the house and chief executive of the state. He asked the court to declare that Imran Khan, the incumbent prime minister, was elected unconstitutionally due to absence of the votes of the total membership of the National Assembly.

In a separate matter, the provincial top court suspended life imprisonment of a pregnant woman and released her on bail. An LHC division bench headed by Justice Sayyed Mazahar Ali Akbar Naqvi was hearing the bail petition moved by Razia Bibi, and directed the petitioner to deposit surety bonds of Rs200,000.

Advocate Ghulam Mustafa Ch appeared on behalf of the petitioner and argued that Razia was awarded life imprisonment in a murder case and had been in Sialkot jail for a long time. He said she and two other women were accused of killing a man namely Fazal Abbas. One of them was acquitted and the other was given death penalty, he said.

He said his client Razia Bibi had been awarded life imprisonment and could not be kept in jail in the present condition. He contended that keeping a pregnant woman in jail was also against the law. The lawyer asked the court to suspend the sentence of the petitioner and release her on bail.

After hearing the arguments of the petitioner’s counsel, the bench suspended the sentence and released her on bail.

Moreover, the Federal Investigation Agency (FIA) secured four-day physical remand of an accused involved in exploiting girls by making their objectionable pictures and videos.

FIA officials produced Mughees Ahmad, the accused, before the court of a local magistrate and sought his 14-day physical remand. They said he harassed girls by exploiting them in the name of jobs with multinational companies. They said another co-accused was still at large but would be arrested soon. The officials said the accused used to extort money from the victims.

The officials said he had confessed that he had exploited a number of girls and they also recovered objectionable material from his mobile phone.

They said the accused was booked under Sections 20, 21 & 24 of PECA-2016, and Sections 420,109 of Pakistan Penal Code. The investigation officer pleaded the court to allow his 14-day physical remand so that they could complete their investigation. The court, however, allowed four-day physical remand of the accused.