Brief facts of the case are that the petitioner is a retired Army Officer, who served in Pakistan Army as commissioned officer from 22.4.1962 and retired as Brigadier on 30.12.1989. He while serving as Commander Corps, Signals, in Headquarter-4, Corps Lahore was appointed as Vice Chairman of Lahore Cantt. Cooperative Housing Society, now the Defence Housing Authority on part time basis from December, 1983 to March, 1986 in addition to his regular duties.
2. On receiving the information that the petitioner being holder of public office, misused his authority and accumulated assets disproportionate to his known sources of income, investigation was conducted by NAB and during investigation, it revealed that on first January, 1985 the petitioner had net saving of Rs,4,21,94,300/- from his salary including Rs,9,60,000/- received by him as advance rent of building at Plot No, 137-I, D.H.A., Lahore in December, 1984. The petitioner also owned plots, one allotted to him in Maleer Cantt. in 1976, which he sold in 1993 and the other allotted in LCCHS, Lahore in 1984 on which he got his house constructed.
3. The NAB filed a Reference No, 14/06 before the Accountability Court No, II; Lahore in which the petitioner was summoned to face the trial and during trial Court petitioner moved an application before the learned trial Court under Section 265-K Cr.P.C. seeking his acquittal, which was dismissed, vide order dated 14.4.2007. Feeling aggrieved from the aforesaid order, the petitioner filed Crl. A. No, 543/07 in this Court which was admitted for regular hearing by a learned Division Bench on 26.4.2007, however the same was withdrawn on 7.11.2007 and thereafter the -present petition was filed in this Court praying that the proceedings before learned Accountability Court No, II, Lahore in NAB Reference may be declared illegal, void and without lawful authority and the same may be quashed.
4. Learned counsel for the petitioner submits that the petitioner was retired from Pakistan Army on 30.12.1989, therefore, he cannot be tried under the NAB Ordinance promulgated on 16.11.1999 and even no cognizance can be taken on the basis of later amendment in the Ordinance. He further submits that the petitioner, a retired army officer can not be tried now on the allegations of acquiring assess disproportionate to his new sources of income which he cannot be reasonable account for or that no maintained standard of living beyond his known sources of income. He submits that these allegations are no offence under the Army Act and even it is an offence under Army Act, trial under the Army Act cannot take place after the expiry of six months in view of Section 92 of the Army Act. According to learned counsel, allegations do not constitute any offence even under the Co-operative Societies Act 1925. Lastly, by referring Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, he submits that the petitioner can only be punished according to the law prevailing on the day when he allegedly committed the offence.
5. On the other hand, Special Prosecutor submits that through an amendment, in the NAB Ordinance by amending Ordinance No, CXXXIII Of 2002 dated 23.11.2002, a person having held an office in Cooperative Societies is a holder of public service within the meaning of Section 5(m)(iv) of the NAB Ordinance. He further submits that through amending Ordinance No, IV of 2000 dated 3.2.2000 "a person who served in and retired or resigned from or has been discharged or dismissed from Armed Forces of Pakistan", was declared to be holder of public office for the purpose of trial under the NAB Ordinance. He further submits that Section 2 of the NAB Ordinance provides for its retrospective application from 01.01.1985. He by placing reliance on a case of M/s Dawood Cotton Mills Ltd. V. Government of the Punjab through Secretary Labour etc., (2001 PLC 630), submits that when the intention of legislature is clear in relation to giving retrospective operation to an enactment then the Courts are bound to give effect to the same.
6. After hearing learned counsel for the parties and perusing the record we have observed that the petitioner retired from Pakistan Army on 30.12.1989 much before the promulgation of NAB Ordinance, 1999. Under Section 92 of the Army Act, where an offence has been committed by any person while subject to Army Act and has seized to be so, he can be kept in military custody, tried and punished for such offence as if it continued to be so subject but he can be tried for an offence unless his trial has commenced within six months after he had seized to be subject to the Army Act.
In the present case, no action under the Army Act has been taken against the petitioner within a period of six months.
7. The petitioner served as Vice Chairman of Lahore Cantt. Cooperative Society now Defence Housing Authority (D.H.A.) from December, 1983 to March, 1986 but through an Ordinance CXXXIII of 2002 dated 23.11.2002 a holder of office in Cooperative Societies was included in the Section 5(m)
(iv) in the definition of Holder of "Public Office".
Under the Ehtisab Act 1997, Army officers were immune from prosecution. Section 2(i)(iv) reads as under:-- "(i) ..........
(ii) ..........
(iii) ..........
(iv) is holding , or has held an office or post in Basic Pay Scale 18 or above in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province or of a local council constituted under any Federal or Provincial law relating To the constitution of local council, or in the equivalent pay scale of management in corporations, banks, financial institutions, firms, concerns, undertakings or any other institution, or organization established, controlled or administered by or under the Federal Government or a Provincial Government, other than a person who is a member of the armed forces, or for the time being is subject to any law relating to any of the said forces except a person who is, or has been a member of the said forces and is holding or has held an equivalent post or office in any public corporation, bank, financial -institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government."
Even in the National Accountability Ordinance, 1999 promulgated on 16.11.1999, there was no provision for the prosecution of the Ex-Army officer and first time on 3.2.2000, an amendment was made and after amendment Section 5(m)(vi) is as under:-- "Holder of public office" means a person who has served in and retired or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan."
Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 provides protection against retrospective punishment which reads as under:-- "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 the offence was committed."
8. The applicability of the NAB Ordinance retrospectively came into consideration before the Hon'ble Supreme Court of Pakistan in a case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others (PLD 2001 SC 607) and in Para No, 218, it was held that:-- "Article 12 of the Constitution does not deprive the legislature of its power to give retrospective effect to an enactment, which the legislature is competent to enact. It merely provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of act or omission; or 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 the offence was committed. Seen in this perspective the act of "willful default", is not an act or omission which was punishable under the law at the time the same was committed but an act or omission committed by "willful default" under Section 5(r) was created. As stated above, it was in the nature of a continuous wrong, which was converted into an offence prospectively i,e, in a case where such wrong/willful default continued even after the expiry of 30-days of the promulgation of the impugned Ordinance and not retrospectively. In other words, it is a case where the punishment is prescribed in relation to the breach of a continuing duty which is not performed even within 30-days after the coming into force of the Ordinance. By no stretch of imagination it could be tanned retrospective in operation, particularly, in view of the statement made by Mr. Abid Haman Minto on behalf of the Federation that no prosecution was launched in respect of willful default" where re-payment of loan etc. was made good within 30-days of the promulgation of the Ordinance."
It was further held that-- "The punishment and creation of offences by the impugned Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence than the one which was available for it when committed."
9. 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 of crime. Although Section 2 of the NAB Ordinance provides for its retrospective application from 01.01.1985, but this is only with reference to the offences and punishment thereof provided in the body of the Ordinance on the day when it was promulgated i,e, 16.11.1999. Where new offences are created along with corresponding punishments or new punishments are provided for existing offences by virtue of amendments in the Ordinance, they would not apply retrospectively, so the amendments made through Ordinance No, IV of 2000 and Ordinance No, CXXXIII of .2002 will not apply retrospectively relating to persons added in the definition of holder of public office for the purpose of trying them by a Court constituted under NAB Ordinance, they can only be tried by the Accountability Court relating to the offence after the said dates and not for the offence prior to that.
10. Resultantly, the writ petition is accepted and the proceedings before the learned Accountability Court No, 1, Lahore against the petitioner in NAB Reference No, 14/06 is declared to be illegal, void and without Lawful authority and the same are hereby quashed.