IHC stops Hanif Abbasi from working as SAPM
ISLAMABAD – The Islamabad High Court (IHC) Tuesday directed Pakistan Muslim League – Nawaz (PML-N) leader Hanif Abbasi to “refrain from performing his duties” as Special Assistant to Prime Minister (SAPM).
A single bench of IHC comprising Chief Justice Athar Minallah issued directions while hearing Sheikh Rashid’s petition wherein he stated that Abbasi had been appointed Special Assistant (with status of federal minister) to Prime Minister of Pakistan vide notification dated 27th April. He adopted that both notification and appointment were illegal, unlawful, unconstitutional and violative of the principles of good governance and the rule of law.
The Islamabad High Court (IHC) remarked that a person sentenced in any case is ineligible to hold any public office in the country. The court hoped that Hanif Abbasi will not use the public office till the next hearing. Muhammad Ahsan Bhoon, Hanif Abbasi’s counsel, argued that the post of SAPM is not similar to the other public offices. At this, the court said that the special assistant’s job is to advise the prime minister, adding that a person can give his advice to the premier without notification as well. During the hearing, the IHC bench was informed that pursuant to its order, dated 9th May, a summary had been sent for placing the matter before the worthy Prime Minister to reconsider appointment of respondent no.2, Muhammad Hanif Abbasi as Special Assistant.
Then, counsel for the petitioner referred to the judgment of the august Supreme Court in the case titled “Malik Munsif Awan, Advocate, Chairman Pakistan Justice Party, Lahore v. Federation of Pakistan through Secretary, Law and Justice, Islamabad and others” [PLD 2021 SC 379] and the relevant observations were reproduced as follows;- “On the basis of doctrine of trichotomy of powers certain discretionary powers have been vested in the Prime Minister in order to facilitate him in the performance of his functions and conducting business of the State. Respondents Nos.6 to 13 have been appointed in exercise of such powers and unless it is specifically shown that the said Respondents suffer from any blot or blemish on their names or reputation for having been convicted for an offence of any nature or are under a cloud for having committed an illegality for which they have been convicted by a Court of competent jurisdiction, the exercise of discretion by the PM is not justifiable and the flexibility provided by the Constitution to the Prime Minister is best left unfettered.”
| Convicted person cannot hold public office, remarks court
Suspension of the sentence by an appellate court does not in any manner affect the conviction
Justice Athar noted in his written order, “In the light of the above observations, it would be appropriate for respondent no.2 (Hanif Abbasi) to refrain from performing his functions pursuant to the notification, dated 27th April, as Special Assistant to the Prime Minister till his appointment is reconsidered by the competent authority.” He added that the worthy Prime Minister is expected to, inter alia, take into consideration the above observations of the august Supreme Court including the observations of this Court vide order, dated 09-05-2022.
The IHC Chief Justice maintained, “The worthy Prime Minister is further expected to restrain respondent no.2 from performing his functions till the date fixed.” Later, the bench deferred the hearing till May 27 for further proceedings in this matter. In its previous written order, the IHC bench had directed respondent no. 1 (secretary cabinet division) to place the matter before the worthy Prime Minister. Justice Athar observed, “In case the conviction has not been set aside then the worthy Prime Minister will be expected to reconsider the appointment of respondent no. 2 (Abbasi).”
The IHC Chief Justice noted, “Suspension of the sentence by an appellate court does not in any manner affect the conviction. The distinction between ‘conviction’ and ‘sentence’ has been highlighted by the august Supreme Court in the case titled “Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif.” In his petition, Sheikh informed the court that the First Information Report (the “FIR”) No. 41 dated 21-07-2012, was registered against the Respondent No. 2 (Hanif Abbasi) at Police Station Anti-Narcotics Force RD North Rawalpindi under Sections 9(c), 14 and 15 of Control of Narcotic Substance Act, 1997 (the “CNSA 1997”). He added that the brief facts as alleged in the said FIR are that Abbasi (along with others) obtained 500 kilograms of the medication Ephedrine for his firm i.e. Gray Pharmaceutical.
He further said that thereafter, he instead of using Ephedrine for lawfully authorized medical / industrial purposes sold it to drug smugglers and profited illegally.
The petitioner continued that pursuant to the abovementioned FIR, a Narcotics trial against him (along with others) commenced before the learned District and Sessions Judge/judge Special Court (CNS), Rawalpindi. Consequently, upon the conclusion of said Narcotics trial, the trial court vide its judgment dated 21-07- 2018 convicted Abbasi followed by sentence of rigorous imprisonment for life.
He added that Abbasi assailed the conviction judgment before the Lahore High Court (LHC) Rawalpindi Bench, in Criminal Appeal No. 663 of 2018 while the LHC vide order dated 11.04.2019 suspended the sentence of Abbasi.
He contended that it is important to mention here that the LHC vide its order dated 11.04.2019, only suspended the sentence of the Respondent No. 2 and not the conviction; resultantly the conviction stood intact for all intents and purposes.
He pointed that in the middle of April 2022, due to change in regime, a new government was formed and Abbasi was appointed as the Special Assistant to the Prime Minister of Pakistan.
He argued that the said appointment of Hanif as Special Assistant is illegal, unlawful and unconstitutional as he is inherently disqualified from holding this prestigious public office. He added the petitioner beseeches the kind indulgence of this court to declare the appointment of Abbasi as arbitrary, unlawful, utterly unconstitutional and non-est.
He maintained that the office of the Special Assistant is a public office carrying high prestige and it is an office recognized by Article 260 of the Constitution, and one of the few public offices recognized and identified by the provisions of the Constitution itself.
“Owing to the important nature of the office, those holding the office must naturally shoulder great responsibility. One of the foremost duties entrusted to the appointing authority – in this case the Prime Minister – is that people possessing high virtues and strong moral fiber are appointed to these important public offices,” said the petitioner.
He also argued, “Admittedly a person with criminal conviction particularly a conviction for dealing in narcotics which is an offence involving ‘moral turpitude’, cannot be someone suitable or fit to hold such high office.
Sheikh contended that in criminal jurisprudence, there is indeed a marked difference between conviction and sentence. “Conviction is finding someone guilty positively of the offence(s) charged with, whereas sentence is the punishment (imprisonment or fine or both) for being guilty of that offence. That Respondent No. 2 was convicted and sentenced by the learned Trial Court. However, in appeal the Honorable Lahore High Court, only suspended the sentence of the Respondent No. 2 meaning thereby that he still carries the conviction,” said the petitioner.