1. GULZAR AHMED, J.---The Chairman NAB has filed this Criminal Accountability Acquittal Appeal challenging the order dated 6-6-2008 passed by the Accountability Court-I, Sindh Karachi, by which the respondents' application under section 265-K, Cr.P.C. was allowed and they were acquitted.
2. The Deputy Prosecutor-General, NAB has contended that the application under section 265-K, Cr.P.C. of the respondents was allowed by the Accountability Court on the basis that another co- accused Syed Muzaffar Hussain Shah was acquitted under section 265-K, Cr.P.C. and proceedings against the co-accused Ghulam Rasool Rahoo, Khan Muhammad Qureshi, Ghulam Abbas Soomro and Ramesh Uddeshi were withdrawn and terminated under section 7 of NRO, 2007. He has contended that main thrust of the order of Accountability Court in acquitting the respondents was the NRO, which the Hon'ble Supreme Court has declared ab initio void.
3. Mr. Shafi Muhammad Rajput, the counsel for the respondents, on the other hand, contended that respondents have been issued a letter by NAB asking them to approach the Land Regularization Committee for regularization of the land allotted to them and that Syed Muzaffar Hussain Shah was acquitted with the consent of NAB Authorities. He has supported the impugned order.
4. We have considered the submissions made by learned counsel and have gone through the record.
5. It appears that Reference No, 8 of 2007 was filed by the Chairman NAB against the respondents and other co-accused in the Accountability Court-I, Sindh at Karachi. One of the co-accused namely Syed Muzaffar Hussain Shah seems to have been acquitted with the consent of NAB Authorities vide order dated 2-5-2008; subsequently, the proceedings against the other co- accused namely Rasool Bux Rahoo, Khan Muhammad Qureshi, Ghulam Abbas Soomro and Ramesh Uddeshi were withdrawn and terminated under section 7 of NRO, 2007. The respondents seem to have been filed application under section 265-K, Cr.P.C. for acquittal on which impugned order was passed.
6. So far the question of acquittal of Syed Muzaffar Hussain Shah is concerned, neither the counsel for the appellant nor of the respondents were able to show as to on what ground he was acquitted under section 265-K, Cr.P.C. ' In the circumstances, we are unable to come to rational conclusion regarding extending of benefit to the respondents of acquittal of Syed Muzaffar Hussain Shah. Mere issuance of a letter by NAB Authorities asking the respondents to approach the Land Regularization Committee for regularization of the land, after payment of differential amount, in itself is not sufficient to make out a case that there is no probability of conviction of the respondents in the crime alleged against them. It seems that respondents are beneficiaries of allotment of land alleged to have been illegally made by the official functionaries. In case such an act of official functionaries is held to be altogether unlawful and they are convicted, the very act of allotment of land to the respondents will itself become inoperative and they will cease to be valid allottees of the land. In face of such implication, the very letter dated 6-5-2004 signed by Lt. Col. (R) Siraj-ul- Arfin Siddiqui, Investigation Expert of NAB Sindh becomes very doubtful more particularly when no authority is shown to be vesting in the said Lt.-Col.(R) Siraj-ulArfin Siddiqui, Investigation Expert for the regularization of the land which is subject matter of the very case pending before the Accountability Court.
7. The trial Court in the impugned order has observed that as the proceedings against Public Office Holder, from whom the benefit of allotment of land was drawn by the respondents, have been withdrawn and terminated under section 7 of NRO, 2007; consequently, it came to the conclusion that there is no likelihood that the respondents being convicted of the offence. The Hon'ble Supreme Court in the case of Dr. M. Mobashir Hassan v. Federation of Pakistan reported in PLD 2010 SC 265 at page 29 has observed as follows:--
(i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Articles Nos. 4, 8, 25, 62(t), 63(i)(p), 89, 175 and 227 of the Constitution;
(ii) that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect;
(iii) that all cases in which the accused persons were either discharged or acquitted under section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position that all the concerned courts including the trial, the appellate and the revisional courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO.
8. Apparently, though the respondents have been acquitted under section 265-K, Cr.P.C. but in other words such benefit of acquittal has, been extended to them on the basis of withdrawal and termination of proceedings against the Public Office Holder under the NRO 2007, which as noted in the judgment of hon'ble Supreme Court, have been declared void, ab initio and ultra vires of various provisions of the Constitution and all proceedings which were terminated or withdrawn under the NRO stand revived. The result of the order of Hon'ble Supreme Court would be that the public office holder against whom the reference was withdrawn and terminated under the NRO stands revived and the justification for acquitting the respondents under section 265-K, Cr.P.C. will also evaporate. This being the main ground on the basis of which the application under section 265-K, Cr.P.C. being allowed by the trial Court, the same in terms of order of Hon'ble Supreme Court as noted above stands vacated and thus the respondents will not be entitled to obtain benefit of withdrawal and termination of proceedings against the public office holder under the NRO.
9. For the foregoing reasons, we admit this Criminal Accountability Acquittal Appeal to regular hearing, allow the same, set aside the impugned order and remand the matter back to the trial Court for deciding the same in accordance with law.