' AHMED ALI M. SHAIKH, J.---To promote national reconciliation, foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimization, etc., the President of Pakistan on 5th October, 2007 promulgated so-called Ordinance known as "National Reconciliation Ordinance." However, the Honourable Supreme Court of Pakistan in short order rendered in case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 1), declared the said Ordinance as an instrument void ab-initio being ultra vires and violative to various Constitutional Provisions, and all cases in which the accused persons were either discharged or acquitted under Section 2 of the Ordinance or where proceedings pending against the holders of public office had got terminated in view of section 7 thereof, and any other such cases/proceedings which may not have been brought to the notice of the Supreme Court, were revived and relegated to the status of pre-5th October, 2007 position and all the trial, appellate and revisional Courts were ordered to summon the persons accused in cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end.
2. After promulgation of NRO, 2007 and termination of NAB proceedings, petitioner Nayar Bari, indicted in NAB References, filed an application before the Accountability Court for release of properties seized by the FIA during investigation. The Accountability Court No.II vide order dated 30.6.2008 allowed such application. Relevant portion of the order is reproduced hereunder:-- "Since the proceedings in the above Reference Nos.20, 30, 31 and 39/2005 against the applicant have been terminated and withdrawn with the implication of National Reconciliation Ordinance, 2007, vide order dated 27.3.2008, therefore, the properties as mentioned in the Charge Sheet No.16/1998 dated 31.8.1998 bearing 600 special savings bearer Certificates Nos.H-092001 to H- 092212, H-078933 to H-079000, H-092301 to H-092580, and H-092261 to H-092300 each of Rs .50, 000/- , Challan No . 26/1998 dated 31.8.1998 bearing Cash of Rs.28,959.06 lying in Account No.0040534 in the name of applicant Nayar Bari, Challan No.27/1998 dated 31.8.1998 bearing cash of Rs.19,670.59 lying in Account No.005199-2, US$ 3708.27 in account No.1003935 and Gold Ornaments of various descriptions weighing 3449 grams in Locker No.S-204 and M-57 lying in National Bank of Pakistan Model Branch, Kehkeshan Clifton, Karachi and Challan No.35/1998 dated 31.8.1998 bearing US$ 21,875 lying in foreign currency Account No.31009-0 in Habib Bank FTC, Karachi, in the name of applicant Nayar Bari, are no more required, the concerned Banks/Authorities are hereby ordered to release the above said properties in the name of applicant Nayar Bari after proper verification."
3. Pursuant to the Judgment of the Honourable Apex Court in Dr. Mobashir Hassan case, NAB Reference No.20 of 2005 against the petitioner and others got reopened and on 31.5.2011 the Accountability Court framed amended charge against the accused persons whereafter on 30.09.2013, NAB filed an application for recalling the earlier order dated 30.06.2008, which application was allowed by the Accountability Court vide impugned order dated 12.08.2014, operative excerpt of which is reproduced hereunder:-- "Thus in view of the above facts and circumstances, I have come to the conclusion that the instant application as filed by the learned Prosecutor merits consideration which is allowed accordingly as result of which the order dated 30.06.2008 is treated as to never have existed in the eyes of law and the accused Nayar Bari is directed to surrender the aforestated properties before the concerned NAB authorities to keep the same under their safe custody till further orders."
4. Being aggrieved, Nayar Bari, petitioner, has challenged aforesaid order through Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, praying that:- "(i) It be declared that the impugned order passed is illegal improper and impracticable as the properties released/returned to the petitioner after the termination of the case were never by any competent court and/or any authority authorized under the law as such the impugned order dated 12.08.2014 be set-aside being illegal ultra vires and impracticable.
(ii) That the further action on the impugned order dated 12.08.2014 be suspended with and declared as void having no force of law and interim relief by way of suspension of the above order is being sought and is prayed.
(iii) Any other or further relief which may deem fit in the circumstances of the case may be granted."
5. After issuance of notice of the petition, Mr. Noor Muhammad Dayo, ADPG, NAB, filed para wise comments.
6. Learned counsel for the petitioner contended that the Accountability Court first passed released order on 30.6.2008, which was recalled vide impugned order dated 12.8.2014, therefore, surrendering the said moveable assets and bank accounts after lapse of five years is impracticable. He further submitted that the investigation officer/respondent No.3 purportedly sought orders from the trial Court without concurrence of the competent authority, therefore, it carries no sanctity. He next contended that in absence of any order in terms of Section 12 of the National Accountability Ordinance, 1999, the impugned order is illegal and liable to be set-aside. He also submitted as the proceedings under NAB Reference against the petitioner were terminated and properties were released in accordance with law, provisions of Section 23 of the National Accountability Ordinance, 1999, are not attracted. He further contended that in terms of Section 517, Cr.P.C. The Accountability Court after termination of proceedings under NAB Reference ordered restoration of seized properties to the petitioner, therefore, petitioner may be permitted to execute personal bond equivalent to the value of the returned assets/properties.
7. Per contra, the learned ADPG, NAB, opposed the petition on the ground that proceedings were revived in terms of pronouncement of the Honourable Supreme Court, as such the trial Court has rightly directed the petitioner to surrender the properties seized by the HA and restored to him vide order dated 30.06.2008.
8. We having heard the learned counsel for the petitioner and ADPG, NAB, scanned the record. From the record it appears that petitioner had served the Government of Sindh and Federal Government in different capacity. On 12.4.1997. Consequent upon an inquiry report, FIR No.5/1997 was registered against the petitioner and others at FIA, State Bank Circle, Karachi, and challans were submitted before learned Senior Special Judge (Central), Karachi. However, upon promulgation of National Accountability Ordinance, 1999, the cases culminating from FIR No.5/1997, were transferred to Accountability Court in terms of Section 16-A(a) of the Ordinance and references were filed. On 05.10.2007, the National Reconciliation Ordinance, 2007, was promulgated, which was challenged before the Honourable Supreme Court and the Honourable Apex Court vide short order passed in the case of Dr. Mobashir Hassan supra held that:-- "(i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Articles Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution;
(ii) that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect;
(iii) that all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position;
(iv) that all the concerned courts including the trial, the appellate and the revisional courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO;
(v) that the Federal Government, ali the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent courts in the said connection;
(vi) that similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law;
(vii) that it may be clarified that any judgment, conviction or sentence recorded under section 31-A of the NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect;
(viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum;
(ix) that since the NRO stands declared void ab initio, therefore: any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/ authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect therefore, it is declared that the initial requests for Mutual Legal Assistance: securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status;
(x) that in view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection;
(xi) that we place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAB Ordinance as also in terms of the observations of this Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). However,till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment;
(xii) that a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the .Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the NAB Ordinance.
Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO; (xiii)that the Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases;"
' In the aforesaid short order, the Honourable Apex Court, declared the NRO, 2007 as void ab-initio and ultra vires to various provisions of the Constitution and as a consequence of such declaration all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons were also declared never to have existed in the eyes of law and resultantly of no legal effect; and all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof stood revived and relegated to the status of pre-5th of October, 2007 position; and concerned courts were ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO.
9. It is apparent from the record that on petitioner's application, the Accountability Court vide order dated 30.6.2008, ordered release of movable assets seized by the FIA, which order on an application filed by the NAB was recalled, vide impugned order. It is settled principle of law that in terms of Article 189 of the Constitution every principle of law laid down by the Honourable Supreme Court of Pakistan has force of binding precedent on all other courts. In the circumstances, as case of the petitioner was reopened and amended charge has also been framed, the order dated 30.6.2008 passed by the Accountability Court on the petitioner's application, after termination of NAB proceedings against him in terms of section 7 of the NRO, was rightly recalled vide impugned order and no exception can be taken to it.
10. So far the contention of the learned counsel that case property were restored to the petitioner in terms of Section 517, Cr.P.C. The same is misconceived, inter alia, for the reason that the Honourable Supreme Court in aforesaid short order has already declared any order passed by the courts of law including the order of discharge and acquittals recorded in favour of the accused persons, like petitioner herein, as never to have existed in the eyes of law and of no legal effect.
' For the foregoing reasons, we do not find any merit in the instant petition, which for the aforesaid reasons was dismissed by our short order dated 27.4.2016.