' Impugned herein is order dated 19-5-2016 passed by the learned Judge Accountability Court Multan whereby he declined to send for the respondents in pending NAB Reference No,4 of 2014 being "Bainamidarans" of Qutab Ali accused confronting indictment before him on the ground that their summoning at pre-judgment stage would bring them into the array of accused and that "if at the end accused is convicted and sentence of forfeiture of his assets is likely to be imposed, then such "Bainamidaran" may be asked to explain their position and such a sentence of forfeiture of assets of an accused".
' Learned Law Officer contends that issue of trial of an accused for ill-gotten gains and retention thereof by his proxies cannot be determined/decided in piecemeal, as according to him, after announcement of a guilty verdict, the Court would become functus officio and as such it needs to be simultaneously adjudicated at the time of announcement of a judgment after affording an opportunity of hearing to a person likely to be adversely affected therefrom; the same view has been canvassed by Mr. Muhammad Suleman Bhatti appointed as an amicus curiae by the Bench.
' The respondents have contested the plea on the ground that properties owned by them had no nexus with the charges being contested by the accused.
2. Heard. Record perused.
3. Corruption and corrupt practices as defined in Section 9 of the National Accountability Ordinance, 1999, hereinafter referred to as the Ordinance, include retention of assets either by the accused himself or through his proxies i,e, dependents/Bainamidars incommensurate with ostensible means and in addition thereto, Section 10 of the Ordinance ibid provides forfeiture thereof in the event of a guilty verdict and as such the determination of the issue is an integral part of the trial being indissolubly linked with the indictment with repercussions on fundamental rights guaranteed under Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 and thus can only be taken away under due process of law, therefore, any such determination adversely impinging upon the proprietary rights of a person is to be adjudged on the strength of evidence during the course of trial itself after affording him an opportunity to defend his title; it cannot be held in abeyance to a stage subsequent to announcement of judgment. Yet another reason is mutatis mutandis application of provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) under section 17 of the Ordinance, in view whereof, after announcement of the judgment, the bar provided under Section 369 of the Code ibid would come into play and no alteration with regard to punishment in terms of forfeiture could be made therein. Reliance is placed in the cases of Syed`Qaim Shah v. The State (2009 SCM R 790), Syed Zahir Shah and others v. National Accountability Bureau and others (2010 SCM R 713) and Tang Sultan and others v. National Accountability Bureau through Chairman and 2 others (2012 PCr.L.T 1983). In the last case, a learned Division Bench of this Court after acquittal of accused quashed issuance of notices to the Bainamidars, called upon to justify ownership of assets/properties suspected to have been acquired through means other than valid. In the case of Syed Zahir Shah and others supra, piecemeal adjudication was set aside and the issue was remanded for decision afresh. Thus, we feel no hesitation to hold that question of retention of assets/properties by a person other than the accused, having nexus with indictment and believed to have been acquired through corruption or corrupt practices is to be essentially agitated during the trial so as to be decided alongside the indictment. Consequently, order dated 19-5-2016 is set aside with a direction to the learned trial Court to attend the issue after affording opportunity of hearing to the respondents for decision in accordance with law.