Nawaz Sharif's bail.

Byline: Saad Rasool

On Friday, Mian Muhammad Nawaz Sharif was granted post-arrest bail, 'purely on medical grounds', by the honorable Lahore High Court, in the NAB inquiry relating Chaudhry Sugar Mills (CSM). Simultaneously, the honorable Islamabad High Court has also granted bail to Nawaz Sharif , against his conviction in the Al-Azizia case.

While written orders of the honorable Islamabad High Court are not yet available, judgment of the Lahore High Court, authored by a division bench headed by honorable Justice Ali Baqar Najafi, is categorical in its conclusions about Nawaz Sharif's health and the relevant law concerning grant of bail in NAB cases. But prior to discussing the specifics of this judgment, it is important to first overview some of the underlying legal principles involved.

At the very outset, it is important to point out that the National Accountability Ordinance, 1999, does not contain any provision relating to grant of bail. In fact, section 9(b) of the NAB ordinance stipulates that 'All offences under this Ordinance shall be non-boilable' in nature, and that 'no Court?shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.' As a result of this provision, individuals accused/convicted of offences falling within the jurisdiction of NAB, cannot apply to the Accountability Court for grant of bail. However, in 'exceptional circumstances', the accused/convict may invoke the extraordinary jurisdiction of the honorable High Court (under Article 199 of the Constitution) for suspension of sentence or grant of bail. This, for intents and purposes, is an equitable remedy, allowing the courts to do 'justice' in the peculiar circumstances of any particular case.

Next, it is important to ascertain what would qualify as 'exceptional circumstances', warranting grant of bail to an individual accused/convicted of NAB offences. Thankfully, in this regard, the honorable Supreme Court of Pakistan has already provided the requisite guidelines. Specifically, in past judgments, including the one through which Nawaz Sharif was granted bail for six weeks, in March of this year, the august Court deliberated the issue of what constitutes 'exceptional circumstances' relating to medical ailment. Specifically, the honorable Supreme Court clarified that, in the absence of an enabling provision in the NAB law, bail on medical grounds could only be granted if continued incarceration would 'threaten the life' of the...