Arbab Muhammad Tahir, J.--The petitioner, through this constitutional petition seeks the following prayer: "It is, therefore, respectfully that this writ petition may kindly be allowed and an appropriate writ may kindly be issued directing the respondents to defreeze/release the moveable and immoveable properties of the petitioners including bank accounts, in the interest of justice.
Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded to the petitioner."
2. The facts, in brief, are that the National Accountability Bureau filed Reference No. 11/2021 against the petitioners alleging that they were involved in cheating the public at large by collecting deposits through illegal investment plans by offering attractive profits/returns. The said Ponzi scheme was launched in the name of All Pakistan Projects and as per report filed by the Bureau more than Rs. 1.81 billion have been collected from around 12,000 persons. Initially 26 persons approached the Bureau, which number, as per report has now reached to 105 persons. The Reference wherein the petitioner was being proceeded against has been returned to the Bureau by the learned Accountability Court No. III vide order dated 0I.O9.2022, pursuant to amendments in the applicable law. During trial, the learned Accountability Court No. I vide order, dated 27-05-2021, passed under Section 12 of the National Accountability Ordinance, 1999 ("Ordinance of 1999") had confirmed the freezing of the assets/accounts of the accused. After return of the Reference, petitioner filed W.P. No. 3375/2022 before this Court seeking direction to the Bureau for unfreezing of the assets/bank accounts. The said petition was dismissed vide order dated 14.09.2022 by observing that the petitioner may first approach the Bureau. Pursuant to the said order, the petitioner filed an application dated 30-10-2022, before the Bureau, but in vain hence this petition.
It is pertinent to mention that earlier an application for release of surety in the instant matter was dismissed vide order dated 28.10.2022, by the learned Accountability Court No. III, Islamabad on the ground that the accused have neither been acquitted nor discharged in the criminal case.
3. The learned counsel for the petitioners has argued that the order passed by the learned Accountability Court regarding freezing of the assets/bank accounts has lost efficacy; the main Reference is no longer pending; the assets were frozen pending final disposal of the case; Section 12 of the Ordinance of 1999 is no more applicable; assets/bank accounts of the petitioners cannot be kept frozen for indefinite period without there being inquiry or trial; the inaction of the Bureau is without lawful authority and jurisdiction.
4. On the other hand, the learned Additional Prosecutor General Accountability has argued that pursuant to the amendments, the learned Accountability Court has merely returned the Reference; the petitioners have neither been discharged nor acquitted; the petitioners have cheated the public at large by offering attractive return/profit on investment; interim Reference was filed and the number of aggrieved persons who had approached the Bureau by that time was 26; now the total number of aggrieved persons has reached to 105; the value involved is more than the minimum threshold set by the subsequent amendments; even if the order of returning the Reference passed by the learned Accountability Court stands, the case of the accused will be referred to another competent Court for trial; the case of the petitioners passes the test of competence and jurisdiction before the learned Accountability Court.
5. The learned counsels have been heard and the record perused with their able assistance.
6. Perusal of the record shows that the petitioners were being tried by the learned Accountability Court in Reference No. 11/2021 under Section 9(a)(vi)(ix) and (xii) of the Ordinance of 1999 read with Sections 3 and 4 of the Anti-Money Laundering Act, 2010. During pendency of the trial, the Ordinance of 1999 was amended through two separate legislative instruments i.e. The National Accountability (Amendment) Act, 2022 and the National Accountability (Second Amendment) Act.
2022. In the facts and circumstances of the case, the question, which has emerged before us and needs consideration, is, whether after return of the Reference by the learned Accountability Court, the order relating to freezing of assets/accounts has lost its effectiveness? In order to answer this question, the order whereby the Reference has been returned by the learned Accountability Court and the law relevant and applicable i.e. the Ordinance of 1999 and the subsequent amendments made in the year 2022 needs to be examined. Needless to mention that notice to the learned Attorney-General for Pakistan was issued under Order XXVII A of the Code of Civil Procedure, 1908.
7. The National Accountability (Amendment) Act, 2022 (the "First Amendment") received the assent of the President with effect from 22nd of June, 2022. The relevant provisions of the First Amendment, which are necessary for adjudication of the lis in hand are reproduced: "1. Short title and commencement.-
(2) This Act shall come into force at once and shall be deemed to have taken effect on and from commencement of the National Accountability Ordinance, 1999.
"4. Application.-
(2) The provisions of this Ordinance shall not be applicable to the following persons or transactions, namely:-
(c) any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office except falling under clauses (ix), (x) and (xi) of sub- section (a) of Section 9:
(3) Upon the National Accountability (Amendment) Act, 2022, coming into force, all pending inquiries, investigations trials or proceedings under this Ordinance, relating to persons or transactions mentioned in clause (a) of sub-section (2), shall stand transferred to the concerned authorities, departments and Courts under the respective laws.
5. Definitions.-
(o) "Offence" means the offences of corruption and corrupt practices and other offences as defined in this Ordinance and includes the offences specified in the Schedule to this Ordinance:
(s) "Public at large" means at least one hundred persons"
8. The National Accountability (Second Amendment) Act, 2022 (the "Second Amendment") received the assent of the President on 11th August, 2022. The relevant provisions of the Second Amendment, which are necessary are reproduced.- "1. Short title, extent and commencement.-
(2) This Act shall come into force at once and shall be deemed to have taken effect on and from commencement of the National Accountability Ordinance, 1999.
5. Definitions.-
(o) "Offence" means the offences of corruption and corrupt practices and other offences as defined in this Ordinance of the value not less than five hundred million rupees and includes the offences specified in the Schedule to this Ordinance:
16. Trial of offences.-
(e) Notwithstanding anything contained in this section, an accused shall be tried for an offence under this Ordinance in the Court in whose territorial jurisdiction the offence is alleged to have been committed: Provided that NAB shall file the reference, after the investigation is fully completed, which shall be treated as the final reference, and no supplementary reference shall be filed thereafter, unless investigation reveals new facts and with the permission of the Court."
(Underlining is ours)
9. Perusal of the above provisions shows that retrospective effect has explicitly been given to the First and Second Amendments. The First Amendment has restricted application of the Ordinance of 1999 to matters directly or indirectly connected with the holder of a public office, except offences falling under clauses (ix), (x) and (xi) of sub-section (a) of Section 9 thereof. Therefore, all other matters, hit by the bar contained in sub-section (2) of Section 4, shall stand transferred to the concerned authorities, departments and Courts under the respective law by virtue of sub-section
(3) thereof. Furthermore, the expression "public at large" although earlier used in clauses (ix) and
(x) of Section 9(a) of the Ordinance of 1999 has been specifically defined as "at least one hundred persons" under Section 5(s) for the first time. Through the Second Amendment Section 5(o) has been further amended and application of the Ordinance of 1999 has been restricted to matters involving value not less than five hundred million rupees. The Proviso to Section 16(e) envisages filing of one final reference after investigations are fully complete. Furthermore, bar has been imposed on filing of supplementary references, unless investigation reveals new facts and that too with the permission of the Court. The expression "Court" has been defined as Accountability Court established under Section 5A of the Ordinance of 1999.
10. In a nutshell, in matters involving value of less than five hundred million rupees and where the victims of an offence of under Section 9(a) (ix) of the Ordinance of 1999 are less than one hundred persons, the jurisdiction of the Bureau has been ousted and a bar on filing of supplementary reference has been imposed, except where investigation reveals new facts and that too with the permission of the Court.
11. The significant and crucial aspect of the Second Amendment is imposition of bar on filing of supplementary reference. However, if during investigation new facts surfaced on record that were not part of the earlier reference filed before the Court, then the legislature has left the room for filing of supplementary reference but with the permission of the Court. The legislature has used two expressions "during investigation" and "new facts". The expression "new facts" connotes "facts that have not been previously submitted in the proceedings". The two expressions i.e. "during investigation" and "new facts" have been used in an eventuality where the filing of reference is considered as final. In other words, the legislature was cognizant of the fact that in some cases investigations may continue after filing of the reference and new facts can emerge, which may be necessary for fair and just decision of the rights of the litigating parties. During investigation, almost 87 new victims (other than the 26 victims who were already before the Bureau) approached the Bureau. This is indeed significant change in the circumstances, when we are passing through a thin line of determining jurisdiction of the Court on the basis of number of victims. This definitely is a "new fact" for the purposes of the proviso to Section 16(e) of the Ordinance of 1999.
12. Now let us advert to sub-section (3) of Section 4 inserted through the First Amendment in the Ordinance of 1999. It provides that upon its coming into force, all pending inquiries, investigations, trial or proceedings under the Ordinance of 1999, relating to persons or transactions mentioned in clause (a) of sub-section (2) thereof, shall stand transferred to the concerned authorities, departments and Courts under the respective laws. The expression "transfer" means "an act of moving something from one place to another", whereas the expression "return" means "an act of sending something back to a place or person". Both the words carry different meanings and are used in different eventualities, not interchangeable and cannot be construed as such. The expression "transferred" used in Section 4(3) is in relation to "a competent Court" and not the Bureau. The amendments have ousted the jurisdiction of learned Accountability Court in some cases; other Courts can still take cognizance of the matter. Therefore, if the learned Accountability Court lacked jurisdiction, even then the proceedings were to be transferred to a competent Court under the respective laws. This is the explicit mandate of law.
13. The august Supreme Court in the case titled "Muhammad Akram v. Mst. Zainab Bibi" [2007 SCMR 1086] held that "when the law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner". In the case titled "Muhammad Anwar and others v. Mst. Ilyas Begum and others" [PLD 2013 SC 255] the august Supreme Court has held that "it is a well-known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality."
14. In the case in hand, the learned Accountability Court has "returned" the Reference to the Bureau, whereas, as per the spirit of Section 4(3) it is to be "transferred" to a competent Court. The learned Accountability Court was dealing with trial in the Reference and had passed various judicial orders.
In some cases the accused are behind the bars. The Bureau being investigating agency, cannot modify, alter or recall judicial orders in References that were pending for trial before the competent Accountability Courts. Such proceedings can be regulated further by a Court, to be seized with the trial of the case after its receipt in terms of Section 4(3).
16. The petitioners have neither been acquitted nor discharged by the learned Accountability Court.
In a situation, where no proceedings are pending, the accused approached the learned Accountability Court for release of sureties and unfreezing of their assets/bank accounts. The order whereby the Reference has been returned does not indicate the competent forum to proceed with the matter. We are afraid that the order of returning the Reference to the Bureau is in violation of Section 4(3) of the Ordinance of 1999. The accused and the victims have been left unattended and without remedies. It was the duty of the Bureau and the learned Accountability Court to have worked out and determined the forum competent to adjudicate the Reference and then to order, transfer of the Reference for further proceedings.
16. Section 31-B has been substituted through the Second Amendment. The said provision confers the power of termination and withdrawal of the proceedings upon the Chairman of the Bureau in consultation of the Prosecutor General in case the proceedings are pending before the Bureau.
Furthermore, if the proceedings are pending before a Court, then in such an eventuality, the Chairman in consultation with the Prosecutor General can recommend withdrawal of the proceedings to the Court. In both the cases the proceedings can be partly or wholly and conditional or unconditionally withdrawn on the ground that the matter is partly or wholly "unjustified". The effect of such withdrawal has been provided as "discharge" if the charge has not been framed and "acquittal" if charge has been framed. It is not the case of the petitioners that the proceedings, being partly or wholly unjustified, have been terminated or withdrawn or recommended as such to the Court and consequently they have been discharged or acquitted from the criminal case.
17. Section 369 of Cr.P.C. prohibits a Court from reviewing its judgment, after it has been signed, except to correct a clerical error. The order whereby the Reference has been returned is an interim order passed under Section 4(3) of the Ordinance of 1999, which otherwise envisage transfer of trials to competent Courts. A "judgment" is the conclusive determination of the guilt or innocence of an accused in a criminal case by a trial Court. The order whereby the Reference has been returned by the learned trial Court to the Bureau does not contain conclusive determination of the guilt or innocence of the accused and not a "judgment", therefore, the bar contained under Section 369 of Cr.P.C. is not attracted. In the absence of any explicit prohibition on review or recall of an interim order, which has been passed in violation of the explicit provision of law, such interim order can be reviewed and recalled by the concerned Court to secure the ends of justice. Next, the inherent power of the High Court under Section 561-A, Cr.P.C. This Court can exercise powers conferred under Section 561-A of Cr.P.C. to prevent abuse of the process of any Court or to secure the ends of justice. The words "secure the ends of justice" and "abuse of the process of any Court" should be construed with due regard to rest of the provisions of Cr.P.C. Such powers can be exercised by this Court when alternate remedy is not available. The main purpose behind these powers is to prevent this Court from being rendered powerless and empowers it to make necessary orders if the facts and circumstances of a case warrant doing so. The order whereby the reference has been returned, not being final judgment, passed in violation of Section 4(3) of the Ordinance of 1999, can be looked into by this Court under Section 561-A of Cr.P.C.
18. In the light of the above, we, therefore, hold and declare as follows:--
(a) Sub-section (3) of Section 4 mandates transfer of matters pending under the Ordinance of 1999 and does not envisage return of References to the Bureau.
(b) The transfer of pending matters from the concerned Court under Section 4(3) does not amount to acquittal or discharge.
(c) In matters where during investigation new facts have emerged, the Bureau will be at liberty to seek permission of the learned Accountability Court for filing supplementary reference(s) in accordance with the spirit of the Proviso to Section 16(e). In such an eventuality, the learned Accountability Court concerned will decide, in accordance with law, whether to grant permission for filing of supplementary reference or not.
(d) Any order passed by the learned Accountability Court concerned in a matter pending before it, can only be altered/amended by a competent Court which subsequently takes cognizance of the said matter. This, however, is without prejudice to the powers of this Court under Section 561-A of Cr.P.C.
(e) Since the provisions of Cr.P.C. are mutatis mutandis applicable under Section 17 to inquiries and trials under the Ordinance of 1999, therefore, the matters can only be transferred from the learned Accountability Courts to other competent Courts.
(f) The Bureau shall render every possible assistance to the learned Accountability Courts in complying with Section 4(3), which envisages transfer of cases (in respect of which its jurisdiction has been ousted) to Courts competent to proceed with the matter.
19. Insofar as the instant petition is concerned, the same being not competent, at this stage, is, therefore, accordingly dismissed. However, this order will not bar the petitioner from approaching this Court, if at a subsequent stage any grievance arises in relation to the issue in hand. Needless to mention that while rendering this judgment, we were cognizant of the fact that the question of vires of the First and Second Amendments (being ultra vires or otherwise) was neither raised nor pressed by any party, or dealt with in this judgment.