1. YAHYA AFRIDI,J.- Earlier, three writ petitions filed by Abdul Jabbar (WP No. 1292-P/2013), Ghulam Dastagir (WP No. 1567-P/2013) and Tameez Gul (WP No. 1823-P/2013) were heard by a Division Bench of Hon'ble Mr. Justice Nisar Hussain Khan and Hon'ble Justice Ms. Musarrat Hilali, after hearing the parties, have rendered conflicting findings in their judgments ("referred judgments"). In consequence thereof, the matter was placed before his lordship, the Hon'ble Chief Justice, who vide his order dated 27.3.2014 has referred the matter to me to render my opinion, as a Referee Judge.
2. It is noted that neither the worthy Chief Justice nor the worthy Judges, who heard and rendered the referred judgments, have formulated the points of difference on which opinion is to be sought from a Referee Judge. The present petitions, though relating to issues arising out of a criminal trial, were before this Court in constitutional jurisdiction. It is by now settled principle of law, that points of difference in judgments of worthy Justices, exercising constitutional jurisdiction would be dealt with by a Referee Judge under clause-26 of the Letters Patent of the Lahore High Court, which prescribes:- "26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it".
2. (Emphasis provided)
3. The extent of jurisdiction vested in a Referee Judge in cases other than purely criminal or civil appeals has been a matter of legal discourse in various judgments of our superior Courts. It was Hon'ble Justice Shabir Ahmad, who in Muzammil Niazi's case (PLD 2003 Karachi 526) rendering his opinion, as a Referee Judge, after relying extensively on past precedents, has expounded in detail the scope and extent of jurisdiction of Referee Judge in terms that: "In reference on account of difference of opinion in Constitution petitions, the procedure to be followed with reference to clause-26 of Letters Patent of Lahore High Court and Rule 5, Chapter IV- N, Volume V of High Court Rules (applicable to the proceedings of this Court), was elucidated after extensive review of case-law in Muhammad Sayyar v. Vice-Chancellor University of Peshawar (PLD 1974 SC 257) by the Supreme Court. The observations made by Hamoodur Rahman, C.J. are as follows:- "In a case in which the members of a Division Bench are equally I divided they must either deliver descending judgments brining out the points of difference or formulate the points of difference for reference to third Judge and the third learned Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgments as held in the Full Bench case of the Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda (AIR 1943 Lahore 84). This is also the procedure prescribed by Lahore High Court Rules vide rule 5.
3. Chapter IV-N, Volume V".
4. It was further observed that: "the High Court in this sub-continent have predominantly held that only the point of difference is to be referred and not the whole case, and that in such a difference the referee Judge should return the case to be disposed of to the Division Bench with his opinion on the point of difference".
5. The final conclusion was stated as follows: "From the above review of the decision, it would appear that there is a consensus of opinion in all the High Courts. In a case of this nature, it is the only of difference that is referred to the third Judge and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges, who constituted the Division Bench. Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the points on which there is a difference of opinion, as the whole case or appeal is not before him".
6. A somewhat similar situation had arisen for decision on account of disagreement between the two learned Judges of the Division Bench of this Court in Mir Muhammad v D.M., Nawabshah (PLD 1965 Karachi 494), Inamullah, J. (as he then was) to whom the case was referred as referee Judge observed that:--- "the learned Judges have not acted strictly in compliance with the provisions of clause 26 of the Letters Patent inasmuch as they have not stated expressly the point or points on which the difference of pinion arose between them. It is, however, unnecessary to remit the case back to the Division Bench for the formal formulation of the points in difference. The two judgments clearly indicate the points of difference."
7. The procedure and practice adopted by the referee Judge in Mir Muhammad (supra) was approved by Supreme Court in Muhammad Sayyar (supra) and has been followed in subsequent cases by learned Judges of this Court.
8. In Zaibtan Textile Mills Ltd v. Central Board of Revenue (PLD 1971 Karachi 333)also similarly the questions on which the learned Judges of the Division Bench had disagreed were not framed, but the third learned Judge before whom the case was placed proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Division Bench and by himself framing the questions on which there appeared to be difference of opinion between the first two Judges.
9. The same procedure was adopted by Zaffar Hussain Mirza, J. as referee Judge (as he then was) in Maher Alvi v. Pakistan and 5 others (PLD 1980 Karachi 609) in that case too, the questions on which the learned Judges of the Division Bench had disagreed were not framed, he proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Bench on which there appeared to be the difference of opinion between the Judges.
10. Following the above authoritative pronouncement, I am clearly of the opinion that as a referee Judge my jurisdiction is limited to resolve the difference between the Judges of the Division Bench who continue to retain the jurisdiction over the matter. Myself as referee Judge have no jurisdiction to decide anything else beside the point on which there is difference of pinion as the whole case is not before me".
11. (Emphasis provided)
12. In view of the 'ratio decidendi' of the above judgment, when the points of difference in the referred judgments in constitutional jurisdiction are not specifically mentioned, then the Referee Judge has to take the following steps:- I. Highlight the conflicting findings recorded by the worthy Justices in the referred judgments; II. Render opinion on each point of difference in the referred judgments; and III. Refer back the case to the worthy Division Bench to pass the final decision in the case on the basis of the majority opinion; Justices who heard the case in the Division Bench and the Referee Judge.
4. Before I proceed to highlight the points of difference in the referred judgments, it would be 6 pertinent to first point out that the facts leading to the three petitions have already been discussed threadbare in the valuable referred judgments. Hence, the same would not be recounted herein.
13. However, suffice it to state, that the essential admitted factual position is as under: I. All the petitioners were proceeded against for "corrupt and corrupt practices" under the National Accountability Bureau Ordinance, 1999 ("Ordinance") by the Accountability Court and finally convicted.
14. II. All three petitioners were sentenced to undergo imprisonment and also pay fine of a specified amount and on failure to do so were to undergo further six months simple imprisonment.
15. III. National Accountability Bureau ("NAB") did not challenge the said conviction and in particular the additional period of imprisonment in case of default to pay the fine.
16. IV. The appeals of all the three petitioners against their conviction were maintained by this Court.
17. V. The petitioners served their substantive sentence and also served the term of imprisonment in default of the payment of the fine.
18. VI. NAB filed separate applications before the Accountability Court under Section 33-E of the Ordinance, seeking the recovery of fine from each of the petitioner.
19. VII. Accountability Court served notices upon the petitioners, which have been challenged before this Court and led to the difference of opinion of the worthy Judges. Hence, the present Reference.
5. At the outset, it would be unjust if not unfair on my part not to appreciate the valuable legal discussion contained in the rendered judgments.
6. After reading the enlightening legal discourse rendered by my worthy Justices in the referred judgments, the points of difference, which arise and require opinion of the Referee Judge, are enumerated hereunder: Issue No.I Whether the amount of fine imposed by the learned trial Court and upheld by this Court can be recovered from the petitioners when they have served out not only substantive sentence of imprisonment but also imprisonment in default of payment of fine?
20. Issue NO.II If so, who may recover the said fine and before which legal forum?
21. Issue No.III If so, whether such fine can be recovered after six years of passing of sentence by the trial Court, in terms of section 70 of the PPC? And Issue No.IV Whether recovery of such fine would amount to double jeopardy?
7. The opinion of this Court as a Referee Judge on each issue, in 'seriatim'. is as under: Issue No.I The Hon'ble Justice Nisar Hussain Khan has given his findings on the Issue No.1 in the following manner: "In view of the principle enunciated herein above, the sentence awarded for default of payment of fine is actually the sentence for non-payment of fine. It cannot be termed as a consideration of the fine. Having undergone the sentence in default of payment of fine, the petitioners have not discharged their liability of payment of fine which was imposed under the special law for corruption and corrupt practices, particularly, when it is visualized in terms of section 11 of the Ordinance which manifests that the Legislature requires the recovery of the whole misappropriated amount in lieu of fine. If the interpretation and the view propounded on behalf of the petitioners is followed, it would certainly frustrate the very object of the Ordinance itself. It would be an easy task for the convict to undergo imprisonment in default of payment of fine and absolve from the liability of the benefit derived through corruption and corrupt practices and thereby grab the whole misappropriated amount. Such an interpretation would be in sheer derogation of the very object of the Ordinance itself. Thus this objection on behalf of the petitioners is repelled ".
22. "So far as reliance of the petitioners on the provision of Section 386 Cr.P.C. for non-issuance of warrant is concerned, that is also misplaced as it has already been held that provision of Section 386 Cr.P.C. are not applicable when the Ordinance provides its own mechanism for recovery of fine in Section 33-E. Recovery Procedure provided, in the Land Revenue Act is more effective and exhaustive, as such, there is no room for having a recourse to Section 386 Cr.P.C. When procedure for recovery of fine is self contained in special law, provision of Section 386 Cr.P.C. cannot be invoked".
23. The Hon'ble Justice Musarrat Hilali has recorded her findings on Issue No.1 in the following terms:- "So far as the question that National Accountability Ordinance is a special law having its own procedure and has overriding effect over the general laws. It does not provide any solution to the respondents with regard to the controversy involved, as the judgment dated 15.6.2006 has attained finality and as such can no longer be subject of interpretation "
24. "Thus, for the aforementioned reasons, I am of the opinion that the judgments of learned Accountability Court dated 15.6.2006, 17.10.2007 and 13.4.2006 have been fully acted upon and the petitioners have suffered the sentence imposed upon them, therefore, while accepting these writ petitions, the proceedings initiated against the petitioners for recovery of fine amount are declared null and void, without any lawful authority and of no legal effect. Consequently, the impugned orders dated 19.4.2013, 27.5.2013 and 10.6.2013 are set aside".
25. Opinion on Issue No.I I am in complete consonance with the findings rendered by Mr. Justice Nisar Hussain Khan on Issue No.1. The reasons that have led me to this opinion, are as follows:- Firstly, Ordinance is a special law, aimed "to eradicate corrupt practices and hold accountable all those persons accused of such practices and matter ancillary thereof", as has been expressly recorded in the Preamble ibid. The punishment for the offence of "corrupt and corrupt practices" has been provided under Section 10 ibid, which expressly provides for rigorous imprisonment for a term which may extend to 14 years and with fine and confiscation of the tainted assets and pecuniary sources of the convicted person. Allowing the convicted person to undergo simple imprisonment in default of payment of sentenced fine or the confiscation of the tainted acquired property would surely be against the spirit and aim of the Ordinance.
26. Secondly, it was argued by the learned counsel for the petitioners, that subsection (a) of Section 17 of the Ordinance provides that the provisions of Code Criminal Procedure, 1898 ("Cr.P.C.") to mutatis mutandis apply to the proceedings under the Ordinance. And thus, provisions of section 386 of Cr.P.C. would be applicable to the convicted petitioners. This line of argument though appealing is not correct appreciation of the Ordinance being a special law enacted for a specific purpose and aim, as enshrined in its "preamble".
27. It is noted that subsections (a) and (c) of Section 17 of the Ordinance, clearly provides the 'rider' to the general application of Cr.P.C. to the proceedings before an Accountability Court under the Ordinance. The general application of provisions of Cr.P.C. would not apply, when the same are inconsistent with any provision of the Ordinance or the Accountability Court for reasons to be recorded dispenses with the provisions of the Cr.P.C. and follow such procedure, as it may deem appropriate, in the circumstances of the case.
28. Hence, the applications of all the provisions of Cr.P.C. are not to be blindly followed by the Accountability Court under all circumstances.
29. The most crucial issue remains: "whether the bar of issuance of warrant against a convict, who has undergone the period in default of payment of fine, provided under "proviso" to Section 386 of Cr.P.C. has been excluded any of the provisions under sub-clause (a) of Section 17 of the Ordinance or otherwise?
30. The specific provisions provided in the Ordinance, which exclude the general provisions of the Cr.P.C. are enumerated for reference, as under :- Section 9 (b)
31. Corruption and Corrupt Practices. (a) --------------- -----------
(b) All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in Ss. (426, 491), 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court, shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
32. Section 10(d)
33. Punishment for corruption and corrupt practices.
(a) .
(d) Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence.
34. Section 31-A.
35. Absconding to avoid service of warrants. (a) Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance, shall be guilty of an offence under this Ordinance punishable with imprisonment which may extend to three years notwithstanding the provisions of Sections 87 and 88 of Code, or any other law for the time being in force.
36. Section 32.
37. Appeal and revision. (a) Any person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB aggrieved by the final judgment and Order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court, prefer an appeal to the High Court of the Province where the Court is situated: Provided that no appeal shall lie against any interlocutory order of the Court.
(b) All appeals against the final Judgment and Order filed before the High Court will be heard by a Bench of not less than two Judges constituted by the Chief Justice of the High Court shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any interlocutory order of the Court.
(d) (e) ."
38. In addition to the above clear sections, excluding the specific provisions provided under Cr.P.C., there is a specific mode of recovery of fine provided under Section 33-E of the Ordinance, which was inserted vide Ordinance No. CXXXIII of 2002 promulgated on 23.11.2002. The said section provides that: "Recovery of amount of fines, etc., as arrears of land revenue. Any fine or other sum due under this Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue".
39. In view of the insertion of Section 33-E ibid, the authority to recover the fine from a convicted person under the Ordinance vests in NAB. Needless to mention, that prior to the insertion of Section 33-E on 23.11.2002, the provisions of Section 386 of Cr.P.C. were fully applicable to any decision rendered by the Accountability Court 'qua' the sentence awarded and the period of imprisonment in default of payment of fine. However, after the insertion of Section 33-E ibid, a specific mode of recovery was provided in the Ordinance, which has to prevail over the general provisions provided under Cr.P.C.
40. Thirdly, it would be pertinent to review the various modes of recovery provided under Cr.P.C. in juxtaposition with that provided under the Ordinance. Mode of Recovery of Fine under Cr.P.C.
41. Section 386.
42. "Warrant for levy of fine. (1) Wherever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may:
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the District Officer (Revenue) authorizing him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter; Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant.
(2) The Provincial Government may make rules regulating the manner in which warrants under sub-section (1), clause (a) are to be executed, and for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the District Officer (Revenue) under sub-section (1) clause (b), such warrant shall be deemed to be a decree, and the District Officer (Revenue) to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender".
43. Reviewing the aforementioned provision, it is noted that the trial Court has the jurisdiction to initiate recovery of fine against the person convicted and sentenced for the same. It is also noted that the trial Court has an option to adopt one of the two modes of recovery provided therein. Firstly, it may issue a warrant for the amount fined to be recovered through attachment and sale of the moveable property of the convict. Secondly, in case, the trial Court does not proceed with recovery of fine itself, it may issue a warrant to the District Officer (Revenue) to recover the fine, assuming all powers of a decree- holder and apply the procedures provided for executing a decree under the enabling provisions of Civil Procedure Code, 1908. By adopting the latter option, the scope of recovery of fine extends to the moveable and immoveable properties or both of the convict. However, in such proceedings, no warrant can be executed for the arrest or detention in prison of the fined convict offender.
44. Mode of Recovery of Fine under Ordinance Section 33-E of the Ordinance provides for the sentenced fine to be recovered as arrears of land revenue. The enabling law providing the legal forum and procedure for the recovery is West Pakistan Land Revenue Act, 1967 ("Act"). Thus, providing a distinct mode of recovery from that already provided under Section 386 of Cr.P.C.
45. In view of the distinct mode of recovery of sentenced fine prescribed under Section 33-E of the Ordinance, the general provisions provided for the same in Section 386 of Cr.P.C. would not be applicable to the case of the present petitioners.
46. Fourthly, under no circumstances, can the sentence of fine awarded by the Accountability Court under the Ordinance be condoned. The sentence of fine shall remain till its recovery under the law. In the present case, as provided under Section 33-E of the Ordinance, the recovery of fine is to be recoverable as arrear of land revenue under the enabling provisions of the Act. To my mind, it would not matter, if the decision of the Accountability Court was upheld by this Court, as the recovery of sentenced fine would always remain in the field till its realization. At best, it can be said that after undergoing the imprisonment in default of payment of fine, the convicted petitioners cannot be arrested and put behind bars in case the recovery process under the Act is not materialized positively.
47. Finally, having held that the provisions of Section 386 of Cr.P.C. do no apply to the facts and circumstances of the present case, it would still be important to clarify that the judgments cited at the bar and in the referred judgments, have as 'obita dicta', referred to the "proviso" to Section 386(1) of Cr.P.C. vesting the trial Court to proceed with issuance of a warrant against an accused by rendering reasons, despite his undergoing the period sentence in default of payment of fine.
48. This authority of the trial Court to render reason for issuance of warrants under Section 386 of Cr.P.C. has in fact been deleted vide Law Reforms Ordinance, 1972.
49. Issue No.II Hon'ble Justice Ms. Musarrat Hilali has clearly rendered her finding that neither NAB nor the Accountability Court had the jurisdiction to issue the impugned notices, in terms that: "The impugned notices do not show any special reasons for realization of fine amount as is required under the law. Even that apart, the learned trial Court cannot directly take cognizance of this case and execute its own judgment. The learned trial Court was required to adopt the procedure given in Section 33-E of the National Accountability Ordinance, however, without adopting the said procedure, the Senior Prosecutor/Head of Recovery Wing, NAB Khyber Pakhtunkhwa has haphazardly issued notices to the learned Accountability Court asking it to pay the fine amount ignoring the law on the subject".
50. Hon'ble Mr. Justice Nisar Hussain Khan has not rendered any specific finding on this issue.
51. Opinion on Issue No.II As discussed in Opinion on Issue No.1, hereinabove, Section 33-E of the Ordinance expressly provides a clear mode of recovery of sentenced fine as arrears of land revenue. Hence, the mode adopted by NAB and the jurisdiction assumed by the Accountability Court for the recovery of sentenced fine is without lawful authority. The recovery of the sentenced fine has to be applied for by the NAB through the respective Revenue Collectors under the enabling provisions of the Act.
52. Issues No. III and IV.
53. Mr. Justice Nisar Hussain Khan has also rendered his findings on Issues No. III and IV, which reads as under: Issue No.III The contention of the learned counsels for the petitioners that recovery proceedings by virtue of section 70 PPC are time barred having been filed after six years of the conviction, is also misconceived. The petitioners were tried and convicted under the provisions of the Special Law of NAO, 1999. The provision of PPC have got no nexus with it nor the principles of the PPC have been given any room in the Ordinance. As such the limitation provided in section 70 is inapplicable to the instant proceedings. More so, this principle is further supplemented by the provision of section 17(d) of the Ordinance which stipulates that regardless of Section 234 of Cr.P.C. a person accused of more offences than one of the same kind, committed during the span of any number of years, from the first ot the last of such offences, may be charged with and tried at one trial for any number of such offences. Whereas in general law Section 234 Cr.P.C. provides for joint trial of only three cases of same nature committed during the period of one year only. Even Cr.P.C. is applicable in those matters which are not provided in the Ordinance. Whereas provision of Pakistan Penal Code or application thereof has altogether been left out of the scope of the Ordinance. There is no such limitation provided in NAO for recovery of fine. As such this objection of the petitioners is also not tenable.
54. Issue No.IV The objection of the petitioners with regard to double jeopardy is primarily based on Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973. ....................... ......................
55. For what has been discussed above, the propositions formulated in earlier part of the judgment are answered accordingly and consequently these petitions being devoid of merits are dismissed".
56. Justice Ms. Musarrat Hilali has not rendered any findings on the above two issues.
57. Opinion on Issues No. III & IV.
58. I am in complete consonance with the findings of Justice Nisar Hussain Khan on the aforesaid two issues.
59. Summary of the Opinion.
60. In view of my deliberations above, I summarize my opinion as under: I. After the insertion of Section 33-E in the Ordinance vide Ordinance No. CXXXIII of 2002, the worthy Accountability Court while convicting the petitioners could not sentence the petitioners to undergo period of imprisonment in default of payment of fine in addition to the substantive term which could only be upto 14 years of rigorous imprisonment.
61. II. The provisions of Section 386 of Cr.P.C. do not apply to the petitioners in view of Section 33-E of the National Accountability Bureau Ordinance, 1999 and the recovery of fine from the petitioners could be realized as arrears of land revenue under West Pakistan Land Revenue Act, 1967.
62. III. The notices issued by the Accountability Court were beyond the mandate vested in the Accountability Court under the National Accountability Bureau Ordinance, 1999.
63. IV. The competent forum to proceed against the petitioners for recovery of fine was the relevant Collector under the enabling provisions of West Pakistan Land Revenue Act, 1967.
64. Conclusion With utmost respect and with all the humanity at my command, it is, thus my opinion that I am in consonance with the findings of my brother Judge Mr. Justice Nisar Hissain Khan on Issues No. I, III & IV. However, as far as Issue No. II is concerned, I have my sincerest reservation regarding the same, as the appropriate forum for recovery of fine, would not be the Accountability Court but the worthy Collector having jurisdiction to recover the fine from each of the petitioners under the enabling provisions of West Pakistan Land Revenue Act, 1967.
65. My opinion as a Referee Judge in the three Writ Petitions be placed before the worthy Division Bench of Hon'ble Mr. Justice Nisar Hussain Khan and Hon'ble Justice Ms. Musarrat Hilali, to pass the final decision.