' SALMAN HAMID, 9-9-2000, the Deputy Chairman, National Accountability Bureau, (NAB.) had sent a reference under section, 18 of National Accountability Ordinance, 1999, (NAB Ordinance) for proceeding against Khan Muhammad Mehar, appellant on the charges of corruption and corrupt practices, as defined under section 9 and punishable under section 10 of NAB Ordinance which was registered as Ehtasab Reference No,39 of 2000, (Ehtesab Reference) and was proceeded against the appellant by the Accountability Court No,III, Karachi, (Accountability Court), and vide judgment dated 10-2-2001, (Impugned Judgment) the appellant WAS convicted under section 9 and was therefore, punished/sentenced under section 10 of NAB Ordinance to suffer rigorous imprisonment for ten years and also to pay a fine of 140 million and in case of default to,undergo further rigorous imprisonment for 2-1/2 years along forfeiture of moveable and immovable properties. The appellant was also declared disqualified for 21 years in seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or local authority of government of Pakistan. Against the Impugned Judgment present Appeal was filed. While the Appeal was still pending, the appellant preferred application for suspension of sentence pending final decision of the Appeal which application was heard by this court on 18-7-2002 and by its Order dated 5-8-2002 (announced on 6-8-2002) the application was dismissed. Order dated 5/6- 8-2002 was assailed by filing Criminal Petition No,85-K of 2001 before the apex court, which was allowed vide judgment dated ' 3-10-2002 when the petition was converted into appeal and the sentence of-the appellant was suspended subject to his furnishing bail bond in the sum of Rs,10 million with two sureties each in the like amount to the satisfaction of the Nazir of the Sindh, High Court.
2. While the Appeal was still pending before this court, National Reconciliation Ordinance, 2007, (NRO 2007) was promulgated. The appellant moved Miscellaneous Application No,5353 of 2007
(MA) under section 7 of the NRO 2007 in the Appeal before this court for acquittal, which MA was dismissed by this court in terms of Order dated 12-6-2008, against which dismissal Criminal Petition No,190 of 2008 was filed before the apex court which was allowed on 3-7-2008 after converting the petition into appeal. Subsequently after a decision of the Supreme Court in the case of Dr. Mubashir Hussain V. Federal Government, reported in PLD 2010 SC 1, the Hon'ble Supreme Court of Pakistan declared NRO 2007 to be an instrument void ab initio being ultra vires and violative of various constitutional provisions, including Articles 4, 8, 25, 62(t), 63(i) (p), 89, 175 and 227 of the Constitution. As a consequence of such declaration all steps, taken action suffered and all orders passed by whatever authority, any order passed by court of law, including the orders of discharge and acquittals, recorded in favour of the accused persons, were declared as if such never existed in the eyes of law and were resultantly of no legal effect. Therefore all cases in which the accused persons were either discharged or acquitted under the provisions of NRO 2007 which were proceeding against the holders of public office stood revived and relegated to the status of pre 5th October, 2007 position. Resultantly all the concerned courts, including the trial courts, the appellate courts and the revisional courts were 'ordered to summon the persons accused in such case and then to proceed in the respective matters- in accordance with law from the stage from where the proceedings had been brought to an end in pursuance of the above provisions of NRO 2007. This Appeal being one of such cases also stood revived for its hearing and disposal in accordance with law.
3. Appellant preferred present miscellaneous application (MA), under section 18 of NAB Ordinance, read with section 561-A, Criminal Procedure Code with prayer that this court be pleased to declare that the Ehtesab Reference was filed without lawful authority and the entire proceeding conducted by the trial court, including the conviction of the appellant are void ab initio and liable to be quashed. It was argued that Ehtasab Reference was signed by the acting Chairman NAB, Major General Usman Shah on 9-9-2000 on which date the Chairman, NAB was Lt. General Syed Muhammad Amjad who assumed the charge as Chairman, NAB on 16-11-1999 and relinquished it on 25-9-2000. It was therefore asserted that on 9-9-2000 when the acting Chairman, NAB signed Ehtesab Reference, the Chairman, NAB was neither on leave nor was he unable to perform his duties nor did he have any authority at such point in time to delegate his functions and powers as stipulated in section 34A of the NAB Ordinance, inasmuch as section 34A was inserted in the NAB Ordinance on 10-8-2001. It was emphatically argued that since the Ehtesab Reference did not bear the signature of the Chairman, NAB, therefore, the Accountability Court should have not taken cognizance of the matter and that the entire proceedings, therefore, vitiated. In support of his arguments, learned counsel for the appellant relied upon the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and the case of Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109).
4. Learned Senior Prosecutor, NAB, resisting the MA strenuously argued that the Chairman, NAB, Lt. General retired Muhammad Amjad did not attend the office on 9-9-2000 and was absent, therefore Ehtasab Reference was signed by Deputy Chairman, NAB, in the capacity of acting Chairman, NAB and that under section 6(c) of NAB Ordinance, 1999, when the Chairman NAB is absent or unable to perform functions of his office due to any reason whatsoever, the Deputy Chairman, NAB will act as Chairman, NAB and since on 9-9-2000 the Chairman NAB was absent, the Deputy Chairman, NAB signed the Ehtasab Reference, which was, in conformity and in accordance with section 6(c) and that Ehtasab Reference did not suffer from any illegality.
5. We have heard arguments of the learned counsel for the appellant and for NAB; gone through the entire record and the case-law cited. It may be noteworthy to observe that at no stage of time, right from the trial of Ehtasab Reference till the apex level, its maintainability was not challenged even by passing. At no level, from trial court to the apex court, a chance or an opportunity was given to rebut or refute objection, as raised by the appellant through the present MA. Had this ground raised earlier in time, and/or at the trial stage, the NAB authorities would have been in a better position to combat the same, which chance was snatched away by the appellant.
6. Be that as it may, it would be evident from sections 6(c), 18(a), 18(g) and 34A of NAB Ordinance that the case as attempted to be developed by the learned counsel for the appellant does not exist. A bare perusal of section 6(c) of the NAB Ordinance would show that as and when the Chairman, NAB is absent or unable to perform functions of his office for any reason whatsoever, the Deputy Chairman NAB will act as Chairman, NAB. No where it is stipulated in Clause (c) of Section 6 that on the date of absence or unavailability of tbe Chairman, NAB, authorization by the Chairman NAB is required, enable the Deputy Chairman, NAB to act in absence of Chairman NAB. We say so simply for the reason that clause (c) of section 6 provides that only when the Deputy Chairman, NAB is absent or unable to perform functions of his office, any officer of the NAB duly authorized by the Chairman, NAB shall act as Chairman, NAB. This postulates that it is only in the event when any officer other than Deputy Chairman, NAB is to act as the Chairman, NAB, then only, authorization by the Chairman NAB is required. Deputy Chairman, NAB becomes functional, without any authorization, the moment .Chairman NAB is unable or absent from performing functioning of his office. Similarly, under section 18(a), which was heavily relied upon by the learned counsel for the appellant, it is stipulated that the court shall not take cognizance of any offence under the NAB Ordinance except on a reference made by the Chairman, NAB or an officer of the NAB, duly authorized, by the Chairman, NAB. It may again be noted that clause (a) of section 18 provides that either the Chairman NAB will make a reference to the court and in his absence and after his authorization an officer of the NAB will make a reference to the court clearly shows that such authorization is only required upon happening of the two contingencies; firstly that the Chairman NAB, as stipulated in section 6 clause (c) is absent or unable to sign reference and secondly when a reference is required to be signed by an officer, (in absence of the Chairman, NAB, or the Deputy Chairman, NAB) such officer would only, upon authorization by the Chairman NAB could sign the reference. No authorization of the Chairman, NAB is required if he is absent or unable to perform his function for the Deputy Chairman, NAB, as in such an eventuality the Deputy Chairman, NAB would automatically, without any authorization of the Chairman NAB is competent and empowered to act as Chairman, NAB. Clause (g) of section 18 says that the Chairman, NAB shall appraise the material and the evidence placed before him during the inquiry and the investigation or an officer of the NAB, duly authorized by him and if he (Chairman) decides that it would be proper and just to proceed further and refer the same to the court, again stipulates that the only event when the Chairman, NAB, if read in conjunction to clause (c) of Section 6, is absent or unable to perform his functions, (and the Deputy Chairman, NAB is also unavailable), then only an authorization would be required from the Chairman NAB, enable the officer of the NAB to perform functions of the Chairman, NAB. Looking at the provisions of clause (c) of section 6, NAB Ordinance, Deputy Chairman, NAB, automatically becomes entitle to act as Chairman, NAB and only in the event if an officer of the NAB is required to act as Chairman, NAB (that is to say when Chairman, NAB and Deputy Chairman, NAB for any reason cannot act as such), then the Chairman, NAB has to specifically authorize officer of the NAB to act as Chairman, NAB.
7. In view of above position, it has become abundantly clear that irrespective of insertion of section 34A in NAB Ordinance on 10-8-2001, which even otherwise, to our understanding pertain to delegating powers to an officer of NAB other than Deputy Chairman, NAB did not affect the Ehtasab Reference. Section 6(c) of NAB Ordinance gives ample powers to the Deputy Chairman, NAB to act as Chairman, NAB in his, (Chairman)'s absence or because of his, (Chairman)'s inability to perform functions of his office which also included the power of signing references. There was, therefore, nothing wrong or illegal on the part of the Deputy Chairman, NAB in signing and sending the Ehtsab Reference on 9-9-2000. In this view of the matter, the two precedents of the apex court, relied upon by the learned counsel for the appellant are not even remotely applicable, therefore require no elucidation or discussion. This MA is found to be meritless and the same is therefore dismissed.