IRSHAD HASAN KHAN, C.J.--This petition is directed against the order dated 17-10-2000 passed by a learned Full Bench of the Lahore High Court, Lahore in Writ Petition No,20242 of 2000.
2. It is pleaded that, on 5-11-1996, a Reference bearing No, 6 of 1997 was filed against the petitioner before the learned Ehtesab Bench of the Lahore High Court, which was later split into four separate References bearing Nos. 6A to 6D of 1997 and on promulgation of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance), the above four references were transferred to the Accountability Court, Lahore-respondent No, 2 herein and renumbered as 4A, 4B, 4C and 4D of 1999. It is alleged that no investigation was held in any of the four cases till after 13-1- 2000 and that fresh references under section 18 read with section 24 of the Ordinance were filed before respondent No,2 in March, 2000. Mr.Shahid Harnid stated that in one of the References No,4B
(68) the allegation against the petitioner is that he misused his authority in the matter of appointment of 145 persons in the Oil and Gas Development Corporation. The petitioner moved applications before respondent No,2 under section 265-K, Cr.P.C., for acquittal in all 4 references, which were dismissed vide order dated 19-1-2000. This order was challenged by the petitioner through Writ Petition No,1653 of 2000. Writ Petitions Nos.1651, 1652 and 1654 of 2000 were also filed challenging the orders in other three references. These four petitions and Writ Petitions Nos.1187 to 1190 of 2000, challenging respondent No, 2's order dated 19-1-2000, dismissing the petitioner's applications for bail, were heard by a Full Bench of the Lahore High Court and the same were dismissed vide order dated 11-7-2000. It is submitted that respondent No,2 had taken up Reference No,4B(6B) for trial and, on 15-5-2000, framed charge against the petitioner under section 9(a)(vi) of the Ordinance. It is submitted that after completion of the prosecution evidence, the petitioner again filed an application under section 265-K, Cr.P.C. For his acquittal in this Reference. This application of the petitioner was dismissed by the Accountability Court vide order dated 20-9- 2000.
3. The order dated 20-9-2000 passed by the Accountability Court was unsuccessfully challenged by the petitioner through Writ Petition No,20242 of 2000, which has been dismissed through the impugned judgment dated 17-10-2000. It would be advantageous to reproduce the impugned order hereunder:- "Petitioner a former Senator and Minister for Petroleum and Natural Resources inter alia having been indicted by Judge Accountability Court-II, Lahore in Accountability Reference (ACR No,4B of 1999) under the National Accountability Bureau Ordinance, 1999 (No, XVIII of 1999) (hereinafter to be referred as NAB Ordinance) having stemmed out of Ehtesab Reference No,6 of 1997 initially envisaging quadruple counts, under the Ehtesab Act, 1997 upon its entrustment in terms of section 33 of the NAB Ordinance in the following terms:--- Anwar Saif Ullah Khan son of Saif Ullah Khan resident of Lakki Marwat, N.-W.F.P. As under:---
(1) That you while holding public office as Federal Minister for Petroleum and Natural Resources, Incharge Oil and Gas Development Corporation, by misusing your authority, directed the Chairman, Oil and Gas Corporation of 16-9-1996 to appoint 145 persons in Oil and Gas Development Corporation in flagrant violation of the Rules and procedure as laid down in Service Rules of OGDC and subsequently approved their appointment on 16-10-1996, without lawful authority.
(2) That 27 persons amongst 145 approved by you joined service while the remaining could not join service due to the ban imposed by the Government in November, 1996.
(3) That you as a holder of public office misused your authority by way of allowing pecuniary advantage to 27 persons and attempting to allow pecuniary advantage to the remaining 118 persons and thus you committed the offence of corruption and corrupt practices as defined under section 9(a)(vi) read with the Schedule of Offences annexed to the said Ordinance and punishable under section 10 of the NAB Ordinance No, XVIII of 1999 which is within the cognizance of this Court. And I hereby direct that you be tried by this Court on the above charge' ."
"Intending to seek quashment thereof preferred Writ Petitions Nos.1651 to 1654 of 2000 subsequent to the turning down of the identical request by the trial Court under section 265-K, Cr.P.C., being premature with a right to move the trial Court on 11-7-2000 which adventure was re-embarked subsequent to the recording of the entire prosecution evidence, which was dismissed by the Judge Accountability Court No,2, Lahore primarily for the reason that with the conclusion of the prosecution evidence the case has riped for recording of the petitioner's statement in terms of section 342 ibid as well as defence evidence if any he opts to adduce vide the impugned order dated 20-9-2000, hence the present petition reiterating the request solely contending that the offence charged cannot be pressed into service with retrospectivity in terms of the bar envisaged by Article 12 of the 1973 Constitution."
"(3) Wherein we are not persuaded to interfere because admittedly as on date not only the prosecution evidence stands concluded but also petitioner's statement contemplated by section 342, Cr.P.C. Also stands recorded and now the case has matured for arguments save for any evidence in defence to be adduced by the petitioner, thus, any intervention at this juncture would tantamount to usurping functions of the trial Court where inter alia the solitary contention could also be canvassed and taken care of in accordance with law when conclusion of the proceedings is in sight, with a right to the aggrieved party to avail the statutory remedy of appeal contemplated by section 32 of the Ordinance as well if circumstances so warrant, specially visualized in the light of the fact that the law doesn't encourage piecemeal adjudication of causes, and would further prolong the proceedings."
"Accordingly the same is hereby dismissed in limine."
4. Hence this petition.
5. The main grievance of the petitioner is that section 9(a)(vi) of the Ordinance creates a new offence which cannot be given retrospective effect, in that, such a course would be violative of Article 12 of the Constitution. In the alternative, it was argued that even if section 9(a)(vi) of the Ordinance is treated to be pari materia with the charge of misconduct as defined in Article 2A of the President's (Post-Proclamation) Order (No, XVII of 1977) the maximum disability that can be imposed on the petitioner is seven years disqualification for contesting elections.
6. As to the above plea, suffice it to say that an eleven-member Bench of this Court in the case of Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), authored by one of us (Irshad Hasan Khan, CJ), observed vide paragraph 12 of the Short Order, as follows:-- "That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order." (Underlining is by way of emphasis).
7. Mr. Shahid Hamid next contended that there was no lawful basis for the Lahore High Court to refuse grant of relief to his client in terms of the prayer made in Writ Petition No,20242 of 2000, in that, vide its order dated 11-7-2000 the High Court itself observed that: "The petitioner will be within his right to move an application for acquittal at appropriate time before the original Court".
8. Be that as it may, Mr. Shahid Hamid has made a statement at the Bar that the case is fixed for final arguments before the Accountability Court on 22-11-2000. If that is so, without expressing any opinion as to the merits of the case lest it may prejudice the case of either side, we would exercise judicial restraint by not dilating upon the submissions made by Mr. Shahid Hamid about merits of the case. It is wrong, in principle, to interfere with the impugned order passed by the High Court for the simple reason that law abhors fragmentary/piecemeal resolution of causes. The same view was taken by a five-member Bench of this Court in the case of Mohtarma Benazir Bhutto v. The State (PLD 1999 SC 937), wherein the judgment was authored by one of us (Irshad Hasan Khan, J.) as he then was. Clearly, interference by this Court at this stage i,e,, when the case is fixed for final arguments before the Accountability Court, would defeat the ends of justice requiring final determination, after completion of the preliminaries. Needless to observe that if finally an adverse order is passed against the petitioner he shall be within his right to approach the appropriate forum under the Ordinance, for available relief on available grounds. Any interference by this Court by rendering judgment on the merits of the controversy involved herein arising out of the references pending in the Accountability Court, would have the effect of curtailing the remedy of appeal to an aggrieved party before the appellate forum.
9. Mr. Shahid Hamid argued that, in the facts and circumstances of the case, leave to appeal be granted to examine the validity of sections 9(a)(vi) and 14(d) of the Ordinance on the touchstone of Article 12 of the Constitution, in that, according to him, although a number of Constitution Petitions have been admitted to regular hearing to examine the vires of the Ordinance yet there is no reference to the above sections in the admitting order. Be that as it may, since Constitution Petition No,26 of 2000 and other connected petitions have already been admitted to regular hearing, the petitioner at the time of argument of the above petitions, shall be at liberty to raise the above plea. It is not appropriate to grant leave in this petition.
10. When faced with the above situation, Mr. Shahid Hamid vehemently argued that in order to safeguard the interests of the petitioner an observation may be made to the effect that any order passed by the Accountability Court adversely affecting the interests of the petitioner shall be subject to the final decision rendered in Constitution Petition No,26 of 2000 and others. As observed in paragraph 6 above, paragraph 12 of the Short Order is a complete answer to the pleas raised by Mr. Shahid Hamid in this petition.
11. Accordingly, the petition stands disposed of.
(Sd.)
Irshad Hasan Khan, C J.
(Sd.)
Ch. Muhammad Arif, J.
(Sd.)
Qazi Muhammad Farooq, J.