PESHAWAR: A larger bench of the Peshawar High Court on Monday stayed trials by the two Ehtesab courts established by the provincial government and asked them not to proceed further in the cases pending with before them till further orders.

A five-member bench headed by Chief Justice Mazhar Alam Miankhel heard a dozen of petitions filed by three former provincial ministers and some government officials challenging different provisions of the Khyber Pakhtunkhwa Ehtesab Commission (KPEC) Act 2014 and related issues including appointment of the commission’s director general and their arrests by the commission on different charges.

The lawyers for petitioners were giving arguments when the bench rose for the day. It will resume hearing today (Tuesday).

The bench directed the commission to continue with inquiries and investigations into cases of corruption and misuse of powers but stopped the Ehtesab courts from hearing the cases pending before them until further orders.

Asks KPEC to continue with probe into cases of corruption, misuse of powers

Keeping in view importance attached to these petitions, a two-member bench had on Nov 10 decided to constitute a larger bench for hearing into them.

Until now, the commission has filed seven references with Ehtesab courts.

Prominent among the petitioners are former provincial minister Senator Sitara Ayaz, who has challenged KPEC proceedings against her and also sought pre-arrest bail; former ministers Ziaullah Afridi, who is also an MPA, and Liaquat Shabab; district coordination officer of Kohat Noor Daraz Khattak, who is also father of PTI MPA Gul Sahab Khan; additional secretary finance Imtiaz Ayub; former director general of mines department Dr Liaquat Ali; provincial industries secretary Sajid Khan Jadoon; owner of Iqra National University Obaidur Rehman, and others.

While Sitara Ayaz was earlier granted interim pre-arrest bail, Ziaullah Afridi, Sajid Jadoon and Dr Liaquat have still been behind the bars whereas other petitioners were earlier granted interim bail by the high court.

The petitioners were represented by several prominent lawyers including Shumail Ahmad Butt, Ameenur Rehman, Barrister Mudassir Ameer, Arshid Ali, Qazi Jawad Ahsanullah, Sardar Ali Raza, Khalid Afridi, Ghulam Mohiuddin Malik, Barrister Waqar and others. Advocate General Lasteef Yousafzai appeared for provincial government whereas the commission was represented by its prosecutor general, Yahya Zahid Gillani, deputy prosecutor general Zahid Aman and prosecutors Lajbar Khan and Qazi Babar Irshad.

Ameenur Rehman argued that the provincial assembly had last year passed the KPEC Act 2014 under which the commission comprised of a chief ehtesab commissioner and four commissioners and the said commission had to appoint a director general.

He said while the commission started inquiries against different person last year it started arresting suspects in Apr 2015.

The counsel said the chief secretary had issued a notification on Sep 14, 2015, for the setting up of the commission, which meant that prior to that notification all the acts done by the said commission and the provincial government in that regard were illegal including the appointment of the DG.

He added that instead of the commission the DG was appointed by the provincial government, which was contrary to the provisions of the KPEC Act. The counsel said the commission had also been given powers to deal with cases since the year 2004, which was against the Constitution as retrospective effect could not be given to this law.

Shumail Butt argued that in the presence of National Accountability Ordinance (NAO) 1999 the provincial government had no powers to enact another law for setting up a new body for the same purpose of conducting accountability. He argued that under Article 137 of the Constitution in any matter with respect to which both Parliament and provincial assembly of a province had powers to make laws, the executive authority of the province shall be subject to the executive authority expressly conferred by the Constitution or by law made by Parliament upon the federal government.

He contended that enacting a law on same subject matter amounted to double jeopardy which was prohibited by the Constitution. He added that when the federal government had set up accountability courts for dealing with accountability cases then the provincial government had no authority to establish Ehtesab courts for dealing with same nature of cases.

The counsel said several provisions of the KPEC Act were copy of the provisions of the NAO, which proved that both these laws were identical and in that case the federal law will prevail.

He requested the court to stop Ehtesab courts from proceedings further in trails pending before it till final disposal of these petitions.

DPG Zahid Aman opposed his contentions and requested that the courts may not be restrained from conducting trial.

He suggested that the courts be allowed to continue with the trials but it may not pronounce the final verdict.

Advocate Ghulam Mohiuddin Malik said if the courts conducted trial and finally the high court decided the setting up of these courts as illegal then what would be the fate of those convicted by it.

Published in Dawn, November 24th, 2015