1. ' SAJJAD ALI SHAH, J.---The maintainability of these Criminal Accountability Acquittal Appeals has been questioned by all the respondents/accused persons on two grounds i,e, (i) that the Acting Prosecutor-General NAB, who has filed these appeals was/is not empowered/competent under the National Accountability Bureau Ordinance to file an appeal on behalf of NAB; and (ii) that all the appeals are hopelessly barred by time. It was, therefore, proposed that since all these appeals contain common preliminary objections/questions of law therefore, before admitting these appeals parties be heard on these preliminary objections. Consequently, at joint request all concerned were heard and their objections to the maintainability of these appeals are being decided through this common order.
2. ' As to first preliminary objection it was jointly contended that section 32 of the NAB Ordinance requires filing of appeal by the Prosecutor-General if so directed by the Chairman NAB, whereas the instant appeals were filed by the Acting Prosecutor-General and during the period when neither there was any Chairman nor Prosecutor-General therefore, the filing of appeals by the Acting Prosecutor-General National Accountability Bureau (NAB) was totally incompetent. It was further contended that the apex Court through its verdict dated 1-9-2010 in the case of Bank of Punjab v. Haris Steel Mill (PLD 2010 Supreme Court 1109) removed Mr. Irfan Qadir from the post of Prosecutor-General NAB and thereafter Mr. Justice (Retd.) Syed Deedar Hussain Shah on 8-10-2010 assumed the charge of Chairman, NAB and during his entire tenure there was no Prosecutor- General and consequently the Chairman NAB on 2-11-2010 authorized Mr. Muhammad Akbar Tarar to act as Prosecutor-General Accountability. Thereafter, the Government vide Notification dated 2- 2-2011 cancelled the appointment of Mr. Justice (Retd.) Syed Deedar Hussain Shah and on the same date again appointed him as Chairman NAB till he was removed by the Hon'ble Supreme Court vide its Judgment dated 10-3-2011 (Shahid Orakazi and another v. Pakistan through Secretary Law (PLD 2011 Supreme Court 365) by declaring the appointment of Mr. Justice (Retd.) Syed Deedar Hussain Shah as Chairman NAB as illegal and ultra vires and directed that he shall cease to hold that office forthwith. It was submitted that on 16-10-2011 Mr. Fasih Bukhari was appointed as Chairman NAB and thereafter on 20-11-2011 Mr. K. K. Agha was appointed as Prosecutor-General NAB. Consequently, it was contended that since during the period when these appeals were filed, the office of the Chairman NAB as well as of Prosecutor-General NAB were lying .Vacant and further that the Acting Prosecutor-General had no authority to file these appeals, therefore, the appeals being incompetently filed, are liable to be dismissed. Reliance was also placed on an unreported order of the Hon'ble Supreme Court in Criminal Petition No, 383 of 2011 and Criminal Miscellaneous Applications Nos. 508 and 509 of 2011 (State through Chairman NAB v. Khalid Mahmood) wherein the apex Court dismissed the appeals by recording statement of Additional Prosecutor-General to the effect that "neither Chairman NAB nor Prosecutor-General NAB, who were competent to file such like petitions, have been appointed by the Government so far, and that, petitions are incompetent unless filed by the said authorities".
3. ' As to the second preliminary objection, it was contended that the record would reflect that all the certified copies were made ready within a week from announcement of impugned judgments but the Prosecutor without any reason failed to receive the copies for months altogether and the delay 'during the period when the certified copies were made ready and received is not explained and consequently in terms of the judgment of the Apex Court in the case of Cantonment Board Khariyan Cantt. v. Muhammad Shafi (PLD 1999 Supreme Court 400) all the appeals are liable to be dismissed being hopelessly barred by time.
4. ' On the other hand, ADPG NAB was not in a position to dislodge the first argument of the appellants as the appointment of the Chairman NAB as well as Prosecutor-General are matter of record, however, he contended that Mr. Tarar in absence of Prosecutor-General was duly authorized by Chairman NAB to act as Prosecutor-General Accountability in terms of section 8(d) of Ordinance, 1999 and therefore, the appeals were competently filed. He further contended that some of the appeals were filed by Acting Prosecutor-General Accountability after the appointment of Chairman NAB as well as Prosecutor-General, therefore, their maintainability cannot be questioned. As to the second contention, learned DPG NAB while placing reliance on the judgment of Apex Court in the case of Shujat Hussain v. Muhammad Habib (2003 SCM R 176) and Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Lands (2005 SCM R 973) has contended that in case there is no notice to the petitioner for obtaining certified copy within the time between the date when the copy was made ready and obtained the intervening period is liable to be excluded.
5. ' We have heard the learned counsel for the respective parties, perused the record and the case- law relied upon.
6. ' Section 32 Of the National Accountability Ordinance, 1999 (hereinafter referred to as "Ordinance, 1999") which provides for right of appeal against the final judgment or the order of the Accountability Court also limits such right of appeal onto the persons specified therein and therefore, in order to determine the competency of person who could file appeal on behalf of Accountability Bureau, requires reading of section 32 in conjunction with section 8(d) of Ordinance, 1999 which empowers the Chairman NAB to authorize any other Law Officer to act as Prosecutor- General Accountability. Both the referred sections reproduced herein below read as follows:-- "32. 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.
7. ' Provided that no appeal shall lie against any interlocutory order of the Court.
8. (b)
(c) .
9. "8(d) In case the Prosecutor-General Accountability is absent or unable to perform the functions of his office due to any, reason whatsoever, arty other Law Officer of the NAB, duly authorized by the Chairman NAB, shall act as the Prosecutor-General Accountability."
10. ' Perusal of the above reproduced provision of section 32 in isolation would reflect that it only confers right of appeal on a convict or the Prosecutor-General Accountability, however, Prosecutor-General Accountability can only exercise such right, if so directed by the Chairman NAB.
11. The language employed in section 32 limits the right of appeal only to the persons specified and therefore, allowing any other person to exercise such right would render the word used "Prosecutor-General" as redundant and nugatory and would further be against the settled principle of law that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, A demand that those circumstances must be accurately obeyed.
12. Notwithstanding, the fact that the provisions thereof are expressed in merely affirmative language.
13. It would also negate the principle that in cases where the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed Will be unlawful.
14. ' Beside, more or less similar proposition came up before the Hon'ble apex Court when a Division Bench of this Court dismissed several appeals filed by the Director-General Customs on behalf of Custom Department on the ground that since section 196 of the Customs Act, 1969 authorizes two persons namely, "Aggrieved person" or "Collector" to file appeal and therefore, appeals filed by any other person than "Collector" himself were incompetent. This Court further held that giving any other meaning to section 196 of the Customs Act, 1969 would redundant the word "Collector" used in section 196 of the Customs Act, 1969 which would be in negation to the settled principle of interpretation of the statutes, according to which each and every word appearing in a section is to be given effect to and no word is to be rendered as redundant or surplus. The apex Court in the case of Director Directorate General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. And others (2006 SCM R 129) uphold the opinion of this Court by observing:--
14. From the observations made by this Court in the concluding portion of the above reproduced paragraph (from PLD 1971 SC 61) it may be noted that this Court while being mindful of the observations made in the case of Liverpool Borrough Bank v. Turner (1848) 13 QB 30 that though no universal rule could be laid down as to whether a mandatory enactment would be construed directory only or obligatory with an implied nullification for disobedience, concluded that the accepted principle in this behalf would be that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. Application of the pronouncement made by this Court in the cited case can be extended with advantage to the case in hand by holding that section 196 of the Act specified a particular officer to initiate legal proceedings on behalf of the Customs Department, therefore, the demands of section 196 of the Act are to be accurately and strictly obeyed. It is not the job of this Court to question the propriety, motive prudence or object of the Legislature in conferring the power on a particular or specified officer
17. Similarly when section 196 of the Act requires filing of an appeal by the Collector then it can be filed only by the Collector and none-else. The appeals filed by the Director would be deemed to be absolutely illegal, incompetent and not maintainable. Even the appeals purported to have been filed by the Collector as the nomenclature of the petitioner appears as Collector of Customs but not signed and verified by him and instead were signed or verified either by a Deputy Collector or Assistant Collector of Customs would also be deemed not to have been filed in accordance with law in view of pronouncement made by this Court in the case of Haji Abdullah Jan and others v. The Stale 2003 SCMR 1063 and State through Advocate-General Sindh v. Hanif Ahmed and others (1994 SCMR 749)".
15. ' However, reading of section 32 of the Ordinance, 1999 in conjunction with section 8(d) thereof, would reflect that the law empowers Chairman NAB to confer the powers and the office of Prosecutor-General Accountability on any other Law Officer of the Bureau in case the Prosecutor- General Accountability is absent or unable to perform the function of his office due to any reason whatsoever, and in the instant case prosecution claims that the appeals subject-matter of this order, except one, were filed by Mr. Muhammad Akbar Tarar an Additional Prosecutor of the Bureau who was duly authorized by Chairman NAB to act as Prosecutor-General Accountability in terms of section 8(d) of the Ordinance, 1999 and consequently were competent. On the other hand the respondent without denying such authority contended that such authority be exercised by the Chairman NAB when the office of Prosecutor-General Accountability is occupied. Now the question which needs to be addressed is as to whether the Chairman NAB could competently confer such authority onto Mr. Tarar or any other law officer of the Bureau to act as Prosecutor-General Accountability during a period when the office of the Prosecutor-General Accountability was lying vacant this order were filed on the following dates:-- S. No.Appeal No.Name of PartiesDate of filing 1 1 of 2011 The State through Chairman NAB v. Fazal Ahmed Jat 29-12-2010 2 2 of 2011The State through Chairman NAB v. Muhammad Akram Nadeem 3-2-2011 3 3 of 2011The State through Chairman NAB v. Muhammad Hussain Gaho 23-2-2011 4 5 of 2011The State through Chairman NAB v. Gul-e-Shabbir 19-4-2011 5 6 of 2011The State through Chairman NAB v. Abdul Sattar and others 23-4-2011 6 8 of 2011The State through Chairman NAB v. Aftab Ahmed and others 17-5-2011 7 9 of 2011The State through Chairman NAB v. Muhammad Kaubab Sabahuddin Ahmed27-5-2011 8 11 of 2011The State through Chairman NAB v. Ishtiaque Husain and another 28-6-2011 9 14 of 2011The State through Chairman NAB v. Waseem Mehdi Syed 15-10-2011 10 15 of 2011The State through Chairman NAB v. Begum Salma Ahmed 2-12-2011 11 8 of 2012The State through Chairman NAB v. Abdul Baqi Mahar 3-1-2012 ' It also appears to be a matter of record that after removal of Mr. Irfan Qadir from the position of Prosecutor-General NAB in consequent to Judgment of the apex Court in the case of Bank of Punjab (supra), office of Prosecutor-General was lying vacant from 2-9-2010 to 19-11-2011 when Mr. K. K. Agha was appointed as Prosecutor-General on 20-11-2011, and during this period Chairman NAB, Justice (Retd.) Syed Deedar Hussain Shah while exercising power under section 8(d) of the NAB Ordinance, 1999 through an Office Order dated 2-11-2010, reproduced below, has authorized Mr. Muhammad Akbar Tarar, an Additional Prosecutor-General, NAB, HQ, to act and perform the function of the Prosecutor-General Accountability during his absence. The office order reads as follows:-- ' GOVERNMENT OF PAKISTAN ' NATIONAL ACCOUNTABILITY BUREAU ' ATA TURK AVENUE, G-5/2, ' ISLAMABAD ' No,3(788)/HQ/2010/PM-1 November 2, 2010 OFFICER ORDER ' In exercise of powers under section 8(d) of the National Accountability Ordinance, 1999, I, Justice
(R) Syed. Deedar Hussain Shah, Chairman NAB; do hereby authorize Mr. Muhammad Akbar Tarar, Additional Prosecutor-General NAB HQ, to act and perform the functions of the office of the Prosecutor-General Accountability (PGA), NAB HQ, during the absence of PGA, with immediate effect and until further orders.
16. ' Sd/- 2-11-2010 (Justice (R)
17. Syed Deedar Hussain Shah)
18. Chairman NAB ' It appears that in consequent to such authorization under section 8(d) of Ordinance, 1999 Mr. Muhammad Akbar Tarar who was Additional. Prosecutor-General Accountability acted as Prosecutor-General Accountability and had filed appeals listed above from Serial Nos.1 to 9 and 11 whereas appeal at Serial No,10 was filed. By Mr. K. K. Agha after his appointment as Prosecutor- General NAB.
19. Our reading of the above reproduced provision of section 8(d) of Ordinance, 1999 leaves no doubt in our minds that Chairman NAB can only authorize any other Law Officer of the NAB to act as Prosecutor-General Accountability when the later is absent or unable to perform the function of his office due to any reason, whatsoever. However, in our opinion such powers can by no stretch of imagination be exercised by Chairman NAB for finding a substitute for the Prosecutor-General Accountability during a period when the office of the Prosecutdr-General is lying vacant. The power to appoint. Prosecutor-General NAB under the provision of section 8(a)(i) though exercisable on the recommendation of Chairman NAB but solely vest with the President of Pakistan and therefore, allowing a person to act as Prosecutor-General NAB during a period when the President of Pakistan has not appointed anyone to act as Prosecutor-General NAB would amount to usurpation, of President's mandate. Perhaps for this very reason learned Additional Prosecutor-General NAB on 14-9-2011 himself has conceded before the apex Court in Criminal Petition No, 383 of 2011 and Criminal Miscellaneous Applications Nos. 508 and 509 of 2011 as to his incompetency to file appeals/petitions etc., in absence of Chairman or Prosecutor-General NAB.
20. ' Additionally, a similar proposition of law came before apex Court where Deputy Chairman NAB had assumed acting charge of the office of the Chairman NAB during a period when no Chairman NAB was in the office, the apex Court in the case of Bank of Punjab (supra) had examined the provisions of section 6(c) of the National Accountability Ordinance, 1999 which are more or less pari materia to section 8(d) and provide that: 6(c) Acting Chairman, National. Accountability Bureau: ' As and when the Chairman NAB is absent or unable to perform the functions of his office due to any reason whatsoever, the Deputy Chairman NAB will act as the Chairman NAB, and in case the Deputy Chairman NAB is absent or unable to perform the functions of the office, any officer of the NAB duly authorized by the Chairman NAB shall act as Chairman NAB.
21. ' The apex Court in the said case on this issue held:--
52. It is a principle too well-established by now that no one could be heard or allowed to reap the benefits of his own omissions; misfeasance or nonfeasance. And more importantly, the provisions envisaging appointments of acting incumbents are a mere stopgap arrangement meant to cater for emergencies and such like provisions can never be allowed to be used to circumvent the law relating to the making of a regular appointment to such an office or to be used as a substitute for a regular appointment or to be abused to put an unqualified person to hold a post which the law does not permit him to hold. Reference may be made to Al-Jehad Trust Case (PLD 1996 SC 324).
53. Having thus looked at all aspects of this matter, we find that a Deputy Chairman could assume acting charge of the office of the Chairman only when a Chairman existed but was absent or was for some reason unable to perform functions of his office and not when the office had become permanently vacant.
22. ' In view of what has been discussed above, we hold that the Chairman NAB had no lawful authority to authorize any other Law Officer of the NAB to act as a Prosecutor-General Accountability during a period when the office of the Prosecutor-General Accountability was lying vacant and consequently appeals cited at Serial Nos.1 to 3, which were filed by Mr. Muhammad Akbar Tarar as Acting Prosecutor-General Accountability during the period when the office of Prosecutor-General Accountability was lying vacant and Mr. Justice (Reted.) Syed Deedar Hussain Shah was in the office as Chairman NAB are held to be incompetently filed and therefore, are dismissed. As to appeals cited at Serial Nos.4 to 9, the record reflect that the same were filed by Mr. Muhammad Akbar Tarar as Acting Prosecutor-General Accountability between 19-4-2011 to 15-10-2011 during a period when the office of Chairman NAB as well as of Prosecutor-General Accountability both were lying vacant, therefore, these appeals were not only incompetently filed but were also filed unauthorizedly i,e, without being directed by Chairman NAB and therefore, are hereby dismissed.
23. On dismissal of these appeals the second proposition regarding delay in filing the appeals to the extent of appeals cited at Serial Nos.1 to 9 becomes of an academic nature and need not to be addressed.
24. ' As to the remaining two appeals cited at Serial Nos.10 and 11, the record reflects that the appeal cited at Serial No,10 was filed by the Prosecutor-General Accountability himself, whereas, appeal cited at Serial No,11 though filed by Acting Prosecutor-General Accountability but was filed during the period when both Chairman NAB as well as Prosecutor-General Accountability were in office.
25. Consequently, the opinion given by us hereinabove on the first proposition, cannot be made applicable to these two appeals. However, we leave it open for the respondent/accused in appeal cited at Serial No,11 to bring his case within four corners of this Judgment when the said appeal is taken up for Katcha Peshi.
26. ' As to the second proposition regarding delay in filing appeals so far as these two appeals are concern, the record reflects that in appeal cited at Serial No,10 the order impugned was in respect of Reference No,4/2005 on which a stamp has been affixed by the copying branch of the Accountability Court containing the dates re-produced hereinbelow for the purposes of ascertaining period of limitation and responding the proposition. {{DATA MISS ARANGE}} Application filed on: 18-10-2011 No, of pages delivered 51 Cost received Rs, 510 Cost received on 18-10-2011 Date of delivery: 2-12-2011 Sd/- READER Accountability Court No,IV, Sindh, Karachi.
27. 2 December, 2011 Certified to be true copy Sd/- READER Accountability Court No,4 (Sindh) Karachi.
28. 2 December, 2011 ' Likewise in appeal cited at Serial No,11; the order impugned was in respect of Reference No,16 of 2008 containing the dates reproduced below:-- Applied for: 18-10-2011 Copy ready on: 3-1-2012 Copy supplied on: 3-1-2012 Sd/- 30-1-2012 Certified to be true copy Sd/- 3-1-2012 READER Accountability Court No,V (Sindh) Karachi.
29. ' Perusal of the stamp affixed by the Copying Branch of the Accountability Courts reflects that it does not specify the date when the copy was made ready, therefore, the delay, if any, during the`period when the Copy was made ready and received by the prosecution cannot be ascertained and consequently neither the proposition as propagated by the learned counsel for defence nor case-law cited can be made applicable to these cases.
30. ' Before parting with this order, we would like to observe, that the stamp maintained by the Accountability Courts and affixed while issuing certified' copies of the record are not in accordance with the standards required for making endorsement on the certified copies. In future the Presiding Officers shall ensure that the endorsement made while issuing certified copies shall contain:- A. The date on which the copy was applied for B. The date on which the application was granted. C.
31. The date on which the cost was assessed. D. The date on which the cost was paid. E. The date on which it Was made ready for delivery. F. The date of notice given to the applicant for taking delivery of the copy. G. The date on which the copy was delivered/posted.
32. ' In order to prevent unauthorized alterations, the dates should be written in letters and the endorsement be signed by some authorized officer of the Court on the day on which it was made ready.