In the Khan Asfandyar Wali Vs Federation of Pakistan, case NAB Ordinance issued by General Pervaiz Musharraf was challenged through many writ petitions under article 184 (3) in the Supreme Court of Pakistan stating that it was repugnant to many articles of the Constitution of Pakistan 1973. In Asfandyar Wali Khan vs FOP, the Supreme Court decided in the favour of respondent.

Asfandyar Wali Khan Vs. Federation of Pakistan PLD 2001 SC 607

Asfandyar Wali Khan case is explained below in easy words.

Background

On the 12th of October 1999, Chief of Army Staff General Pervaiz Musharraf when returned from his visit to Sri Lanka, he was prevented from landing on the order of Prime Minister Mian Muhammad Nawaz Sharif. Mian Muhammad Nawaz Sharif also suspended General Pervaiz Musharraf and appointed a new Chief of Army Staff but the senior officers of the army did not accept the orders of the Prime Minister. They managed the safe landing of COAS General Pervaiz Musharraf and also took over the country.

General Pervaiz Musharraf issued a “Proclamation of Emergency Order” and announced that he had taken the office of Chief Executive of Pakistan. He also dismissed National and Provincial Assemblies and the Senate.

Chief Executive of Pakistan General Pervaiz Musharraf also issued an order named as “NAB Ordinance”. This order established Accountability Courts in the country.

Writ in the Supreme Court

Asfandyar Wali Khan and others filed writ petitions in the Supreme Court under article 184 (3) and challenged the NAB Ordinance saying that it is contrary to the Constitution. These petitions were mainly based on the following grounds:

1. It creates a parallel and non-Federal Judicial system

The first ground of challenge was that this ordinance established a judicial system parallel to the conventional judicial system which violated articles 175, 202 and 203 of the Constitution.

2. Retrospective Effect under Article 2

It was stated that the NAB Ordinance shall be supposed to be effective from the 1st January 1985 and have a retrospective effect, so it is repugnant to article 12 of the constitution.

3. Willful Default under Article 5R

A new offence known as willful default was also introduced by this order and defined as “if a public office holder incurs debt from any bank or any other financial institution but fails to repay”. It is repugnant to Article 18 which deals with freedom of profession and trade.

4. Extra Time of Remand under Article 14 D

Remand time was also increased to 90 days which was also contradictory to section 167 of CrPC.

5. Shift of Burden of Proof under Article 14 D

It shifted the burden of proof onto the accused instead of the prosecution which is against articles 4 and 25 of the constitution.

6. Extra powers to the Chairman under Article 16 D

Chairman NAB had the authority to choose the venue for the trial of any accused, which was meaningless and ultimately made him more powerful.

7. Extra powers to Accountability Courts under Article 17 C

Accountability Courts had the authority to dispense with any provision of the Code of Criminal Procedure and by overriding it choose and apply any other procedure which is suitable according to the circumstances, which is again the violation of articles 4 and 25 of the constitution.

8. No Special Provision for Women

There was no special treatment of women for remand which again violated section 167 of CrPC and Article 25 (3) of the constitution.

9. Approval of Chairman on Plee Bargain

Chairman NAB also had the power that even if the Court accepts a plea bargain, it must be endorsed by the Chairman.

10. Restriction on Disposal of Property under Article 23

Any accused person under investigation cannot dispose of i.e. sell, exchange etc his property, it also violates articles 23 and 24 of the constitution.

Decision of the Supreme Court

These petitions were heard by 4 members bench of the Supreme Court headed by Chief Justice Mr Irshad Hassan Khan including Justice Mr Basheer Jahangir, Justice Mr Chaudhry Arif and Justice Mr Qazi Muhammad Farooq.

This bench consolidated all the petitions into a single judgement and held the following main observations in the Asfandyar Wali Khan case:

• NAB Ordinance is a special law issued for censorship of all influential people, public office holders, bureaucrats, bankers, industrialists, etc
• It has recovered 1064 million rupees in a short period through a plea bargain.
• It did not violate fundamental rights because fundamental rights have already been suspended due to the emergency.
• It only penalizes the accused person who is deliberately involved in any offense but does not violate Article 18.
• The procedure for inquiry and investigation is also justified because it is time time-consuming process.
• Hence the time period for remand is also justified and it does not violate Article 10 (2).
• It was also said that the restriction to dispose of property was an interlocutory measure just to protect the rights of a third person in case he gets involved in any disposition of property, it was not a permanent restriction.

Conclusion

In Khan Asfandyar Wali vs Federation of Pakistan case, the Supreme Court of Pakistan proposed some amendments in the NAB Ordinance by providing guidelines in the judgement which was made to it.