' AHMED ALI M. SHAIKH, J.--Through instant Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner has sought following relief(s):--
(a) "Declare that the impugned order dated 26.3.2015 (annexure "I") ab initio void, un-constitutional, _unlawful, illegal and without considering law as mentioned above in the matter, when the petitioner has already undergone the entire sentence in view of section 386(1) Cr.P.C.
(b) Declare that the impugned order dated 26.3.2015 passed by the learned Accountability Court No.1 in violation of Art.12(1)(a&b) of the Constitution of Islamic Republic of Pakistan 1973, the offence was committed in the year 1996 and the petitioner was convicted on 22.9.2001 and the section 33E of NAO 1999 was inserted by Ordinance No.CXXXIII of 2002 dated 23.11.2002 in the National Accountability Ordinance, 1999.
(c) Any other better and efficacious relief/s may be granted by this Honourable Court in the Circumstances of the case."
2. Brief facts of the case are that on 10.9.1996 petitioner was arrested in crime No.15/1996 registered under Sections 409/468/471 and 34, P.P.C. Read with Section 5(2) of Prevention of Corruption Act, 1947, by FIA CBC, and interim charge sheet was submitted before the Special Judge (Offences in respect of Banks) Sindh at Karachi, in Special Case No.66 of 1997. However, during pendency of the case, on promulgation of National Accountability Ordinance, 1999, the case was transferred to Accountability Court and renumbered at NAB Reference No.44 of 2000. Ultimately, on 22.9.2001 petitioner was convicted and, sentenced to suffer RI for seven years and to pay fine of Rs.22.389 Million and in default of payment of fine to further suffer SI for three years. On 7.11.2005, this Court dismissed Cr. Accountability Appeal No.39 of 2001, filed by the petitioner and maintained the conviction and sentence awarded to the petitioner. Against the aforesaid Judgment, petitioner filed Criminal Appeal No.368 of 2007 before the Honourable Supreme Court but on 25.5.2011 same was dismissed for want of prosecution.
3. On 21.2.2014, NAB issued a notice to the petitioner for recovery/payment of fine of Rs.22.389 Million within seven days from the date of issuance of notice failing which the same was to be recovered from the petitioner as arrears of land revenue as envisaged in Section 33E of National Accountability Ordinance, 1999. Thereafter, in Reference No.44 of 2000, NAB filed an application under Section 386 Cr.P.C. Read with Sections 17 and 33-E of the Ordinance of 1997, which was allowed by the Accountability Court vide impugned order dated 26.3.2015.
4. Learned counsel for the petitioner contended that the impugned order dated 26.3.2015, allowing the respondent No.1/NAB to initiate recovery proceedings against the petitioner, is illegal as the petitioner had already suffered the imprisonment, including that of awarded in lieu of payment of fine. He further submitted that petitioner was convicted on 22.9.2001 while Section 33E of Accountability Ordinance, 1999, was inserted by Ordinance No.CXXXIII of 2002 dated 23.11.2002, in the National Accountability Ordinance, 1999, therefore, amount of fine cannot be recovered retrospectively as arrears of land revenue. According to learned counsel, provisions of Section 386(1) Cr.P.C. Provides levy and recovery of fine and as the petitioner has suffered the imprisonment, including sentence in lieu of payment of fine, no proceedings for recovery of fine as arrears of land revenue can be initiated against him. He, therefore, prayed that the instant petition be allowed.
5. On the other hand, learned ADPG, NAB, supported the impugned order, more particularly, when the conviction and sentence awarded to the petitioner was maintained and the appeal filed by the petitioner was dismissed for want of prosecution by Honourable Supreme Court.
6. Heard learned counsel for the petitioner, ADPG NAB and perused the record. The question of law involved in these proceedings is whether amount of fine imposed by the trial Court, maintained in appeals, can be recovered from the petitioner when he has served out not only substantive sentence of imprisonment but also imprisonment in lieu of payment of fine; and whether Section 33E, inserted in the National Accountability Ordinance, 1999, on 23.11.2002 by virtue of amending Ordinance No.CXXXIII of 2002, can be given retrospective effect as the appellant was convicted on 22.9.2001 in Reference No.44 of 2000 in relation to an offence committed somewhere in the year 1996, much before the amendment.
7. It is settled principle of law that any amendment in law will not take away, empower, nullify or destroy a vested right, which has A attained finality and has become past and closed transaction.
Admittedly, in the instant case, petitioner was arrested on 10.9.1996; his case was transferred to Accountability Court on 7.10.2000, pursuant to promulgation of National Accountability Ordinance, 1999; and he was convicted and sentenced by the trial Court on 22.9.2001, which attained finality as on 25.5.2011, the Honourable Supreme Court dismissed the Criminal Appeal filed by the petitioner.
Therefore, admittedly, registration of case against the petitioner, his arrest, initiation of trial and conviction were all prior to the insertion of Section 33E made on 23.11.2002. Even the superior Courts have held that where a law was altered during pendency of an action the rights of the parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of judgment/order. Since the amendment and insertion of section 33E in the Ordinance of 1999, was not in vogue at the time of either commission of crime, commencement of proceedings or even pronouncement of judgment, it cannot be given retrospective effect.
8. We, in the circumstances, are in agreement with the submission of the learned counsel for the petitioner that in view of Article 12 of the Constitution, Section 33E, inserted on 23.11.2002, cannot be given retrospective effect. In this regard it would be beneficial to reproduce here-under Article 12 of the Constitution:- "12. Protection against retrospective punishment.--(1) 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.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
9. In view of our above discussion we are of the considered view that proceedings for recovery of fine as arrears of land revenue cannot be initiated against the petitioner as prior to insertion of Section 33E in the Ordinance of 1999, the petitioner was convicted and sentenced by the trial Court and if the impugned order with regard to recovery of fine as arrears of land revenue at this stage is allowed to remain in field, the same would tantamount to sheer violation of Article 12 of the Constitution.
10. We may also observe that the amending Ordinance No.CXXXIII of 2002 does not stipulate the date of commencement or that it would have retrospective effect. It is settled law that any amendment in law cannot take away, nullify or destroy a vested right of a party unless the same is given retrospective effect. The Honourable Supreme Court of Pakistan in the case of Jamshaid Gulzar v. Federation of Pakistan reported in 2014 SCM R 1504 has held that:- "13. A plain reading of above reproduced section 2 of Act V of 2006, relating to amendment in section 4 of the Ordinance XLV of 1977, makes it clear that firstly, so far as its language is concerned, it is word to word same as was the language of earlier four above referred Ordinances issued by the President in the same context. Moreover, it is also crystal clear that by providing deeming provision, the amendment made in section 4(1) of the Ordinance XLV of 1977, has been given retrospective effect from the date when the Ordinance XLV of 1977 was promulgated. In addition to it, by providing subsection (1A) starting with non obstante clause "notwithstanding", the legislature has further ensured the applicability of this amending Act with retrospective effect, covering the case of all the serving Chairman/Members of the Commission. The legal position that legislature has the authority to promulgate or amend a law with retrospective effect by intendment has not been disputed or denied by the learned Advocate Supreme Court for the appellants and further it is fully supported from the ratio of case-law cited at the Bar, as discussed above."
' In the same Judgment, the Honourable Supreme Court further held that:- ' In so far as the language of Act V of 2006 is concerned, we are fully satisfied and are in agreement with the submission of the learned Deputy Attorney-General that when the legislature has given an amending enactment retrospective effect with clear intendment spelt out from its language, than no protection to the alleged vested rights of appellants can be offered contrary to it."
' The above view, was also followed by the Honourable Supreme Court in the case of Irshad Ahmed Sheikh v. National Accountability Bureau reported in 2015 SCM R 588.
11. Apart from above, it has been general practice that the Accountability Courts after conclusion of the trial in accordance with law, while awarding conviction and sentence to an accused person found guilty of the offence under the law, also levy fine and/or in case of default of payment of fine to undergo sentence of any/certain period. The practice in vogue of passing sentence in lieu of payment of fine, for following reasons, is contrary to law, as National Accountability Ordinance is a special law, which excludes application of general law.
12. During course of hearing, we noticed that Section 10 of National Accountability Ordinance, 1999, provides punishment for corruption and corrupt practices while section 11 provides imposition of fine. Both sections are reproduced hereunder:---
10. Punishment for Corruption and Corrupt Practices:-
(a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years, and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known. Sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be."
(b) ...........
"11. Imposition of Fine- ' Where an accused found guilty of an offence is sentence to pay a fine the amount of fine shall in no case be less than the gain derived by the accused or any relative or associate by the commission of the offence."
(emphasis added)
13. Bare perusal of Section 10(a) stipulates that a holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years, and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited while Section 11 regulates the quantum/amount, which in no case shall be less than the gain derived by the accused or any relative or associate by the commission of the offence.
14. The language used in section 10(a) of the Ordinance of 1999 by the legislature is quite plain and simple and clearly stipulates three simultaneous punishments i.e. Imprisonment, fine and forfeiture of assets of a holder of public office or any other person who commits the offence of corruption and corrupt practices.
15. Section 10(a) of the Ordinance arid the entry at serial No.1 of the Schedule to this Ordinance, inter alia, provide punishment of rigorous imprisonment for a term which may extend to fourteen years and fine. So word "and" used in the Section 10(a) and at serial No.1 of the Schedule needs to be construed in its true perspective. In its conjunctive sense word "and" is used to conjoin words, clauses, or sentences expressing the relation of addition or connection and signifying that something is to follow. So the word "and" used in aforesaid section conjoins the punishment of rigorous imprisonment for a term which may extend to 14 years with fine with forfeiture of assets as mentioned in the Section 10 and the Schedule.
16. The NAB Ordinance, a special law, nowhere provides that in case of default and/or in lieu of payment of fine the accused shall suffer further imprisonment. However in general law Section 64, P.P.C. Provides punishment of imprisonment in default of payment of fine while Section 386 Cr.P.C.
Provides that in case of default in the payment of fine, the amount could be recovered either by attachment and sale of any property of the convict or the amount could be realized by the execution in accordance with provisions of Civil Procedure Code and the executing court could issue warrant.
17. The National Accountability Ordinance, 1999, is a special law, which was promulgated when other penal laws like Prevention of Corruption Act, 1947 and Pakistan Penal Code, 1860 were already in field. The object and necessity of the Ordinance, is reflected in its preamble, which encompasses all dimensions of corruption, corrupt practices, embezzlement and other forms of misappropriation of the public money. Paragraph No.3 of the preamble highlights the grave need for recovery of state/public money and other assets from those who have misappropriated or removed such money or assets through corruption or corrupt practices or misusing their power and or authority.
In this context and background, by virtue of section 3, provision of the Ordinance have overriding effect and shall prevail over the procedure provided in general law. Similarly for recovery of ill gotten money, Section 11 enumerates imposition of fine the amount of which shall in no case be less than the gain derived by the accused or any relative or associate by the commission of the offence. In view of our cursory discussion it is clear that provisions of National Accountability Ordinance, 1999, will prevail over general law as it is a special law, which has been enacted for specific purpose as embodied therein.
18. In the circumstances, we may observe that the provisions of National Accountability Ordinance have overriding and super imposing effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over procedure provided in general law. Therefore, we are clear in our mind that the Accountability Courts while passing conviction and sentence to an accused cannot pass/award sentence in lieu of payment of fine as the language used in Section 10(a) of the Ordinance is quite plain and simple that a holder of public office or any other persons who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a terms which may extend to fourteen years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known source of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependent, or benamidars shall be forfeited.
19. In view of our above discussion, we may also observe here that by awarding foreign sentence of any/certain term in lieu of payment of fine to an accused facing trial under the NAB Ordinance, the Accountability Courts in fact provide immunity to the persons found guilty of the offence of corruption and corrupt practices, etc, from payment of fine, thus defeating the very object, spirit and aim of the National Accountability Ordinance, 1999.
20. For the foregoing, we are of the considered view that in law the Accountability Courts while awarding conviction and sentence cannot award sentence of any/certain term in lieu of payment of fine to an accused found guilty of the offence of corruption and corrupt practices, etc, as envisaged in the National Accountability Ordinance, 1999, which is a special law.
21. In the given circumstances, we set-aside the impugned order dated 26.3.2015 passed by the Accountability Court No.1, on an application filed by the respondent under Section 386 of Cr.P.C.
Read with Section 33E of National Accountability Ordinance, 1999, and allow the petition in above terms.
' Office is directed to send a copy of this order to the Accountability Courts in Sindh for ensuring compliance.