MUSARRAT HILALI, J.- Petitioner, through this petition, seeks issuance of an appropriate writ declaring the impugned Reference(s) filed by respondents 1, 2 and 4 in the court of respondent No,3 and all proceedings consequent thereto or arising therefrom as illegal, unlawful, without lawful authority and of no legal effect. Further, the impugned Reference being void ab initio and even otherwise fraught with number of incurable defects, improbabilities and impossibilities are sought to be quashed, set aside and put at naught.
2. The petitioner is a Grade-20 officer and served in the capacity of Secretary to the Provincial Government in various Government Departments. He is also the President of Provincial Civil Services Officers Association and representing stake of over 400,000 Provincial Government employees. After promulgation of Khyber Pakhtunkhwa Ehtesab Commission Act 2014, a Committee meant for bringing meaningful betterments in the said Act was constituted of which the petitioner was made a member by giving suggestions and recommendations. Later on, a questionnaire form was issued to the petitioner alleging therein purchase of certain weapons, wireless sets, bullet proof jackets and allotment and retention of confiscated vehicles being Ex- Secretary Excise and Taxation Department, Government of Khyber Pakhtunkhwa, which was replied by him on 27.7.2015. On 26.8.2015, when the petitioner was called to attend the office of respondent No,2, he was suddenly arrested from the office and was handed over grounds of arrest. It is stated that petitioner was issued the questionnaire even before initiating a formal inquiry against him, which was authorized later on 24.8.2015. Subsequently, he was produced before respondent No,3 where his 14 days physical custody was granted. He sought his release on bail through W.P. 3011-P of 2015, which was dismissed on 2.11.2015. Against the said order, he approached the apex court, where he was allowed bail vide order dated 27.1.2016. Meanwhile, amendment was brought in the Act by way of Khyber Pakhtunkhwa. Ehtesaab Commission (Amendment) Ordinance, 2016 Ordinance No, II of 2016) promulgated on 9th February, 2016.. Later, the petitioner received a letter dated 2.3.2016 from respondents alleging that earlier a letter was issued to him on 27.8.2015 requiring therein details of assets and properties held by him on a pro forma that was appended with the letter. It is stated that the Khyber Pakhtunkhwa Ehtesab Commission (Amendment)
Ordinance, 2016 had already brought necessary changes in the law with retrospective effect and since the inquiry had not been converted into investigation within 90 days of its initiation, it was deemed to have been automatically closed. It is pointed out that being retrospective in nature, the benefit of Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Ordinance, 2016 was also extended by this court to those accused, who were arrested earlier than its promulgation and a number of accused were released on bail in line with this Ordinance, notwithstanding their arrest much before advent of the Ordinance. The Governor Khyber Pakthunkkhwa, in exercise of its powers under Article 128(2) (b) of the Constitution while acting on the advice of Provincial Government withdrew the Khyber Pakhtunkhwa Ehtesab Commission Ordinance, 2016 on 2.5.2016. It is averred that as provided by the express language of Article 264 of the Constitution, even the withdrawal of KPEC Ordinance, 2016 does not affect the rights accrued under the law, thus, notwithstanding its withdrawal, if the Ordinance caused to automatically close inquiry after 90 days of its initiation, the same remain closed and cannot be revived by virtue of such withdrawal. On the said view subscribed by respondent No, 1/KPEC itself, which earlier filed review petitions against the judgment of this court allowing bails to a few accused in line with provisions of KPEC (Amendment)
Ordinance, 2016 when the Ordinance was withdrawn on 2.5.2016 but later withdrew these review petitions. Subsequently, respondents filed a Reference in the court of respondent No,3, which according to the petitioner, should have been closed automatically because he has been appalled to see news clips appeared on 17.6.2016 in Daily Aaj and other newspapers reporting therein factum of filing an asset Reference against him, hence this petition.
3.It was emphatic contention of learned counsel for petitioner that by virtue of amendment in Section 17 of the Ordinance II of 2016, the filing of Reference against the petitioner and the subsequent proceedings thereupon are illegal, without lawful authority and of no legal effect; that after amendment in Section 35 of the Khyber Pakhtunkhwa Ehtesab Commission Act 2014, there remains no case against the petitioner; that as per the amendment made in the said Section the inquiry was to be completed within 90 days of its initiation followed by investigation which was to be completed within 30 days; that the inquiry against the petitioner was neither completed within the requisite period nor was it converted into any investigation; that the rights accrued to the petitioner by virtue of amendment in the repealed Ordinance are protected under Article 264 of the Constitution read with Section 6 of General Clauses Act, 1956; that the Reference filed by the respondent against the petitioner together with subsequent proceedings thereto are void ab initio as after the lapse of the stipulated period, the respondents had seized to have any authority to file Reference against the petitioner.
' We have heard learned counsel for petitioner at length and have gone through the relevant law and amendments.
4.The Government of Khyber Pakhtunkhwa introduced Khyber Pakhtunkhwa Ehtesaab Commission Act, 2014 for the purpose to combat corruption. Under the said Act, legal proceedings were initiated against the petitioner by issuing questionnaire alleging purchase of certain weapons, wireless sets, bullet proof jackets, allotment and retention of confiscated vehicles being ex-Secretary Excise and Taxation Department on 24.7.2015 followed by his arrest on 26.8.2015. It is admitted fact that all these proceedings took place well before the amendment brought about by way of Khyber Pakhtunkhwa Ehtesab Commission (Ammendment) Ordinance, 2016 (Ordinance No,II of 2016) promulgated on 9th of February, 2016. Through the said Ordinance, Section 35 of the Act was amended, wherein, a specific timeframe was given for completion of inquiry and investigation. The petitioner, in the light of the said amendment, has come forward with the present petition seeking quashment of the proceedings pending in the Ehtesab court against him. In our view, the amendment so brought in the law would hardly be applicable to the petitioner's case. Whether a particular provision of law is retrospective or prospective in its operation has to be gathered from the language used in the enactment. When the language is capable of only one interpretation, then that meaning should be given irrespective of other consideration. Notwithstanding the in applicability of the Ordinance II of 2016 to the petitioner's case, on a close reading of the amended Section, one thing is loud and unambiguous that after initiation of an inquiry if no evidence is found or likely to be collected during the stipulated period of 90 days, the inquiry shall be closed automatically.
6.In the case in hand, during the course of investigation, the petition in applicability of the Ordinance II of 2016 to the petitioner's case, on a close reading of the amended Section, one thing is loud and unambiguous that after initiation of an inquiry if no evidence is found or likely to be collected during the stipulated period of 90 days, the inquiry shall be closed automatically. er was served with a questionnaire on 24.7.2015 for his response over the allegations regarding illegal purchase of various articles, mentioned herein above, for his personal gains by causing losses in millions to the Government.
7.After receipt of the questionnaire, the petitioner submitted his reply on 27.7.2015, which was not found satisfactory, therefore, the investigative machinery was put into motion and after collecting evidence the petitioner was arrested by the respondents on 26.8.2015. The petitioner sought his post arrest bail through W.P. 3011-P of 2015, however, the same was dismissed by this court on 2.11.2015. The said order was assailed before the august Supreme Court in Civil Petition No,3532 of 2015, which was allowed and the petitioner was released on bail vide order dated 27th January, 2016.
8.At the time of promulgation of Ordinance II of 2016, the inquiry/investigation in the instant matter was at the verge of its completion. It may be noted that the amendment brought in Section 35 is conspicuously silent about its impact where the prosecution was able to collect some evidence, as is in the present case.
9.It was contended by learned counsel for petitioner that the rights accrued to the petitioner by virtue of amendment in Section 35 are protected under Article 264 of the Constitution as well as Section 6 of the General Clauses Act, 1956. We are of the view that the argument of learned counsel has no force. Section 6 of the General Clauses Act is with regard to the effect of repeal. It commands that unless a different intention appears, the repeal shall not (a)revive anything not in force or existing at the time of which the repeal takes effect; or (b)affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
10. Similarly, Article 264 mentions about the effect or repeal of laws. For convenience sake, the same is reproduced as under:- Article 264. Effect of repeal of laws. Where a law is repealed, or is deemed to have been repealed, by, under, only by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution:- (a)<i>revive anything not in force or existing at the time at which the repeal takes effect; (b)affect the previous operation of the law or anything duly done or suffered under the law; (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
11. The perusal of the provisions of the General Clauses Act and the Constitution would make it crystal clear that both the provisions of law and the Constitution are of no help to the petitioner rather goes against him. The legal proceedings, as earlier stated, initiated under the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 have to reach its logical conclusion under the same Act and not under the Ordinance promulgated thereafter.
' In the case in hand, Reference has already been filed in the court where notices have been issued to the parties, hence in the circumstances we are not inclined to admit this petition for regular hearing, therefore, the same is dismissed in limine.