SARMAD JALAL OSMANY J.--- This appeal impugns the judgment dated 22-12-2001 passed by the learned Accountability Court No, IV Karachi, whereby the appellant and other co-accused were convicted of an offence under section 15 of the NAB Ordinance and sentenced to cease to hold public office if any held by them and were also disqualified for a period of ten years from seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in the service of Pakistan or any Province. They were also barred from applying or being granted any financial facility in the form of any loan or advance from any bank or any financial institution controlled by the Government for the said period of ten years.
2. The brief facts of the matter, per Reference No,29 of 2001, are that the appellant Mansoor Ahmed Qureshi along with co-accused Muhammad Alam Arian being Land Acquisition Officers were alleged with passing awards on the basis of tampered Revenue Record as a result of which excessive amounts were paid to fake landowners/beneficiaries (who have also been made Accused) thereby causing huge losses to the exchequer. Co-accused Muhammad Kalim Farooqui and Qazi Muhammad Shuja being the senior Officers of WAPDA were alleged with willfully having failed to exercise their authority in order to prevent the aforementioned losses.
3. During the course of investigation only Accused Muhammad Alam Arain could be arrested where after the reference above named was filed before the learned Accountability Court upon receipt of which NBWs were issued for the arrest of the absconding accused which could not be executed.
However, accused Qazi Muhammad Shuja and appellant Mansoor Ahmed Qureshi as well as some other co-accused/Beneficiaries surrendered before the learned Court and filed applications under section 25 of the NAB Ordinance praying that as they had voluntarily returned the amounts which had allegedly been defalcated to the Chairman NAB, hence they may be acquitted. Upon filing of such applications, the said accused were released on P.R. Bonds by the learned Accountability Court.
4. Thereafter the trial commenced against the absconding accused as a result of which the learned Accountability Court found that they had deliberately concealed themselves from the proceedings and hence convicted them under section 31-A of the NAB Ordinance and sentenced them to undergo three years R.I. Whenever they were arrested. Insofar as the accused who had filed applications under section 25 of the NAB Ordinance were concerned, the learned Accountability Court found that the voluntary return of the money in question by them to the NAB Authorities amounts to an admission of the offence and hence they were deemed to have been convicted. Consequently, they were sentenced to the punishments as mentioned above.
5. Mr. Rasheed A. Rizvi, learned counsel for the Appellant, has submitted that per the proviso to section 15(a) of the NAB Ordinance as it reads at the present time (viz. Vide amendment dated 10- 8-2001) where any accused person has availed the benefit of a plea bargain under section 25, he shall also be deemed to be convicted of an offence under the Ordinance and shall forthwith cease to hold public office, if any, held by him and further shall stand disqualified for a period of ten years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in the service of Pakistan or in the Province.
However, per learned counsel, on 14-7-2001 when the reference was filed the proviso to section 15(a) of the NAB Ordinance in its unamended form did not provide the punishment of ceasure of holding of public office by an accused upon a plea bargain. Per learned counsel, this punishment was added on 10-8-2001 vide Ordinance No, XXXV of 2001, therefore, per well-settled principles the appellant could only be punished according to the law prevailing on the date when the offence was committed and not on the date of conviction. Consequently, learned counsel has prayed that the impugned order insofar as it imposes the punishment of the appellant ceasing to hold public office be set aside.
6. In support of his contentions, learned counsel has relied upon Article 12 of the Constitution which provides a. Safeguard against retrospective punishment. He has also relied upon Nabi Ahmed v.
Home -Secretary (PLD 1969 SC 599), Abdul Majid v. The State (PLD 1974 Kar. 309), Abdul Rehman v.
The State (1978 SCM R 292), Muhammad Yunus v. The State 1981 SCM R 422, Mian Muhammad Nawaz Sharif v. The State (PLD 2002 Kar. 152), Lal Bux v. The State (2000 YLR 137), Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), Syed Ali Nawaz Shah v. The State (PLD 2003 SC 837), Rao Shiv Bahadur Singh v. The State of Vindya Pardesh (AIR 1953 SC 394), G.P. Nayyar v. The State (AIR 1979 SC 602) and Ratanlal v. The State of Punjab (AIR 1965 SC 444).
7. On the other hand Mr. Shaukat H. Zubedi learned D.P.G., NAB has submitted that vide section 2 of the Ordinance it applies with retrospective effect from the year 1985 and hence this would also include all amendments thereto.
8. We have heard the learned counsel and learned D.P.G. And have gone through the record with their assistance. Our conclusions are as follows.
9. In order to appreciate the contentions put forward at the bar, it would be convenient to reproduce section 15 of the NAB Ordinance both in its original form viz. Before the amendment brought about on 10-8-2001 and thereafter. Section 15 as is stood prior to 10-8-2001 read as follows:
15. Disqualification to contest elections:
(a) Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the Schedule to this Ordinance, he shall stand disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government of Pakistan: Provided that any accused person who has availed the benefit of section 25 of this Ordinance shall also be deemed to have been convicted for an offence under this ordinance, and shall stand disqualified for 21 years as above.
(b) Any person convicted of an offence of corruption and/or corrupt practices as described at Serial No,1 of the Schedule to this Ordinance shall not be allowed to apply for or be granted or allowed any 'financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government, for a period of 10 years from the date of conviction.
10. After the amendment brought about in section 15 of the Ordinance on 10-8-2001 it reads as under:
15. Disqualification to contest elections or to hold public office:
(a) Where an accused person is convicted of an offence of corruption and/or corrupt practices as specified in the Schedule to this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province. Provided that any accused person who has availed the benefit of section 25 shall also be deemed to have been convicted for the offence of corruption and/or corrupt practices as specified in the Schedule to this Ordinance and shall forthwith .Cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
(b). Any person convicted of an offence of corruption and/or corrupt practices as specified in Serial No,1 of the Schedule to this Ordinance shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution for a period of 10 years from the date of conviction.
11. It would thus be seen that subsection (a) and proviso to section 15 were amended on 10-8-2001 to include the punishment of a convicted accused to hold public office and to be disqualified for a period of ten years from being elected as a member or representative of any public body or authority etc. Consequently, it is an admitted, position that when the Reference No,29/2001 was filed on 14-7-2001, the punishment under the proviso to section 15(a) of the Ordinance did not include the accused ceasing to hold public office which only came into effect on 10-8-2001. Hence, now it would have to be considered whether the appellant could be given a retrospective, punishment.
12. In this regard, it would be seen that Article 12(1) of the Constitution provides that no law shall authorize the punishment of a person.
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from the penalty prescribed by law for that offence at the time 4 the offence was committed.
13. The aforementioned Article has been interpreted by the superior Courts of this Country to mean inter alia that all laws shall apply prospectively viz. From the date of their promulgation and hence a person cannot be punished for an offence which did not exist on the statute book on the date when it was committed and also cannot be sentenced to a punishment higher or different than what was provided in the law at the time the crime was committed. In this respect reference can be made to Nabi Ahmed v. Home Secretary, Abdul Majid v. The State, Abdul Rehman v. The State, Muhammad Younus v. The State, Mian Muhammad Nawaz Sharif v. The State and Lal Bux v. The State (supra).
14. In this connection, it would be seen that in the case of Muhammad Younus v. The State (supra) the Hon'ble Supreme Court came to the conclusion that where the occurrence took place on 13-7- 1971, on which date the appellant/accused could only be awarded transportation for life for committing murder, he could not be sentenced to life imprisonment vide the amendment brought about in the law on 14-4-1972. The Hon'ble Supreme Court also came to the same conclusion in the case of Abdul Rehman v. The State (supra) and this Court in the case of Abdul Majid v. The State.
Consequently, we are, of the opinion, that although section 2 of the NAB Ordinance provides for its retrospective application from 1-1-1985, this is only with reference to the offences and punishments therefor provided in the body of the Ordinance on the date when it was promulgated i,e, on 16-11- 1999. Where new offences are created along with corresponding punishments or new punishments are provided for existing offences, by virtue of amendments to the Ordinance, they would not apply retrospectively. Hence in the present case, it would be seen that Ordinance XXXV of 2001 promulgated on 10-8-2001 is to have effect from the date of its promulgation. Consequently, we are of the opinion that the appellant could only be deemed to be convicted under the unamended proviso to section 15(a) of the NAB Ordinance.
15. For the foregoing reasons we would allow this appeal by ordering that the appellant could only be convicted under the proviso to section 15(a) in its unamended form i,e, as it stood prior to 10-8- 2001. Order accordingly. Appeal stands disposed of in the foregoing terms.