ISLAMABAD - Former President Asif Ali Zardari on Monday requested to the Supreme Court of Pakistan to set aside its Registrar Office order of declaring his petition for transfer of Toshakhana reference from Islamabad to Karachi as “Not Entertainable.”
The former president 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 on 10-11-2020 and returned the same.
In his appeal, Asif Zardari said that the impugned order was based on misreading and non-reading of the Order dated 7-1-2019 passed by this court in HRC Case No.39216-G of 2018 as well as provisions of Section 16A(c) of National Accountability Ordinance, 1999.
He said that it was the constitutional right of the appellant to knock the door of the apex court but the impugned order showed that the rights of the appellant had been blocked at the institutional level which was not the practice of the Supreme Court.
He further said that the impugned order was based on misconception of law and rules framed by this Court. The question of returning the application on non-maintainability related to the judicial work which could not be taken up on the executive side or through delegation of powers for exercising judicial work.
Zardari said that the impugned order had 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.
He continued that a perusal of Order V Rule 1 of Supreme Court Rules shows that the power of returning the application in original along with 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 the Supreme Court Rules. The impugned order is thus not only unlawful but also without jurisdiction.
The former president contended that 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 along with paper books being “Not Entertainable”.
He argued that 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.”
Zardari said that consequently the appellant had the legal right to file the application which has been returned by the impugned order.
He also said that 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 ...”
Zardari said that in view of the above provisions of the law the impugned order which has been passed is unlawful and has snatched the right of the appellant to invoke the jurisdiction of this court for the purpose so provided under Section 16A(c) of National Accountability Ordinance, 1999.