This is an application (filed in W. P. No. 77-2020) seeking clarification of judgment dated 20.01.2021 passed in W. P. No.77-2020, W.P. No.87-2020 and Criminal App. No. 360-2019.
2. At the very outset, learned counsel for the applicant submits that instant application has become infructuous inasmuch as through National Accountability (Amendment) Act, 2022, section 23 of National Accountability Ordinance, 1999 has been omitted and the effect of the amendment is retrospective as is borne out from section 1(2) of Act of 2022. Learned Special Prosecutor NAB, when was confronted with the situation, submits that through amendment, section 23 of 1999 Ordinance has been omitted but contested that it has no effect on the already passed orders.
3. Arguments advanced by learned counsel for the parties have been heard.
4. Through W. P. No. 77-2020, the petitioner challenged 'CAUTION' imposed by National Accountability Bureau during course of investigation, which was allowed vide judgment dated 20.01.2021.
5. The instant application seeks clarification that despite judgment, the petitioner is entitled to use his personal assets including bank accounts, lockers etc.
6. During subsistence of instant application, National Accountability Ordinance, 1999 was amended through National Accountability (Amendment) Act, 2022 and section 15 of the Act of 2022 omitted section 23 of National Accountability Ordinance, 1999. As per section 1(2) of the Act of 2022, amendment takes effect from the date of enforcement of National Accountability Ordinance, 1999, meaning thereby that retrospective effect has been given to the amendment. In this behalf, generally substantive law operates prospectively unless its application is made retrospective.
There is catena of case law on the subject, however, for reference, the following three cases are being cited:- i) 'Abdul Mannan v. Haji Karam ILahi' 51981 SCMR 257); the issue related to an eviction application, during the pendency of which, the law was amended and plea was taken that the benefit of amendment ought to have been granted to the tenant. The Hon'ble Supreme Court, while relying on an earlier judgment of the Supreme Court reported as 'Hassan and others v. Fancy Foundation'
(PLD 1975 SC 1), held that the amendment was prospective ' and would not govern pending proceedings. ii) `Sardar Sher Bahadar Khan v. Election Commission of Pakistan' (PLD 2018 SC 97) the matter related to local government elections in Khyber Pakhtunkhwa, the schedule of election was announced where-after section 78A of Khyber Pakhtunkhawa Act, 2013 was introduced disqualifying candidates for election. The plea that such amendment shall affect present election as process has commenced was rebuffed and it was reiterated that statute or any amendment thereto operated prospectively unless by express enactment or necessary intendment, retrospective operation had been given to it. iii) 'Commissioner Inland Revenue v. Messrs Olympia Chemicals Ltd.' (2021 PTD 1512); the case was about adjustment of minimum tax in the return of tax year 2009 in terms of section 113(2)(c) of Income Tax Ordinance, 2001 which was paid during tax years 2004 to 2008 but the same was declined on the ground that the referred provision was not available in the statute in 2009. Section 113 was omitted from statute through Finance Act, 2008. The Division Bench, in the referred backdrop, dilated upon the scope of amendment in laws and after making reference to a series of judgment on the object, observed as follows:- "10. Regarding retrospective application of a legislation, it is well-settled now that the Courts lean against giving retrospective operation where no vested rights or past transactions prejudicially affected or exist. A legislation does not operate retrospectively if it touches a right in existence at time of passing of legislation. Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Statute needs not to be read in such a way as to change accrued rights, the title to which consists in transaction past and closed. Rights of parties are to be decided according to law existing when action began unless provision made to contrary. Where statute itself does not make its operation retrospective, it would be extravagant to claim that by necessary implication it has retrospective operation. Change in substantive law, which divested and adversely affected the vested rights of the parties should always have prospective application, unless by express word of the legislation and/or by necessary intendment/ implication such law had been made applicable retrospectively. Substituted section cannot obliterate accrued rights."
7. In view of referred position, section 23 stands omitted since 1999; the consequences naturally follow and all actions taken thereupon would extinguish. Needless to observe that the omission albeit operates from 1999 shall not prejudice past and closed transactions.
8. For the above reasons, instant application has become infructuous, as no clarification of above referred judgment is required, hence is disposed of accordingly.