1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the judgment dated 2-4- 2001 by the learned Judge Accountability Court' No,II, Karachi, in Reference No,45 of 2000, whereby the appellant has been convicted under section 10(a) of National Accountability Bureau Ordinance, 1999 and sentenced to suffer R.I. For 7 years and fine of Rs,2 crores, in default whereof he has to undergo further simple imprisonment for 2 years. He has further been disqualified for 21 years from seeking or from being elected, chosen, appointed or nominated as a Member or a representative of any Public Office or any statutory or local authority of the Government of Pakistan.
2. ' The relevant facts are that, on 23-4-1998 complainant Abdul Sattar Mandokhail submitted an application to Chairman, Ehtesab Bureau Islamabad, which reads as follows:-- "To, ' The Chairman, Ehtesab Bureau, Islamabad.
3. ' The Joint Secretary, Ehtesab Bureau at Karachi.
4. ' Subject: COMPLAINT AGAINST ABDUL SATTAR DERO, MEMBER BOARD PORT QASIM AUTHORITY.
5. ' Sir, ' I am a contractor owing a Civil Engineer and contractor firm namely TECHNO INTERNATIONAL, KARACHI. During 1993-95, I was awarded three contracts of Bulk Water Supply in the Port Qasim Authority by their management. However, during execution of the said work, inspite of completing the work as laid down in the contract, I had been facing great difficulties in execution of my work and getting my bills cleared. The various steps in the above process were at the level of design, construction, survey and acquisition of land.
6. ' All this was being done with the sole purpose of extorting illegal gratification from me, on almost every stage of work. I will produce two Video Tapes recorded by my nephew namely Khuda-e- Rahim in which Mr. Abdul Sattar Dero, the then Member Board Port Qasim Authority (P&D Special Land Development) was accepting from me currency notes worth Rs,10,00,000 at one occasion and Rs,5,00,000 at other occasion. Both these transactions of passing bribe money, to Mr. Abdul Sattar Dero took place at his House No,53/2, 15th Street, Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi. The Tape in which transaction of Rs,10,00,000 took place was made during mid of 1995. I am also shown there seated with longer hair, while the second Tape in which transaction of Rs,5,00,000 is shown, the amount is being counted in the close up. I made payments on both the occasions at his residence No,53/2, 15th Street Khayaban-e-Mujahid, Phase-V Defence Housing Authority, Karachi at about Maghrib Prayers.
7. ' Sir, I had to pay the amount of Rs,10,00,000 on the demand of Mr. Abdul. Sattar Dero, as even after the work order having been issued to me, I was not handed over the site and my work was getting delayed and I was suffering loss by continuously paying labour charges without any work. This pertains to contract Nos.PQA/M.P./1-94, dated 25-2-1995 (2) MGD R.C.C. Gravity Conduit). It was only after payment of bribe money of Rs,10,00,000 to Abdul Sattar Dero that I was allowed to commence the work. The design of the project had some intrinsic flaws, which were deliberately created there to cause hindrance. Abdul Sattar Dero removed this hindrance by changing the previous Engineer Shaukat Hussain and bringing in his place another Engineer Irshad Sheikh, from whom he got the design modified to allow me to work, (after accepting the bribe of Rs,I0,00,000 as shown in the video tape). The amount of Rs,5,00,000 was paid by me to Abdul Sattar Dero on his demand, as my bills for the same contract were held up by him for several months.
8. ' It is, therefore, requested that necessary legal action may kindly be taken against Abdul Sattar Dero and others who had forced me to pay the illegal gratification. Yours faithfully, (Sd.)
9. (ABDUL SATTAR MANDOKHAIL)"
10. ' This complaint was forwarded to Director, Crime F.I.A. Headquarter, Islamabad, and was ultimately sent by the Deputy Director, F.I.A., ECC, Karachi to Assistant Director F.I.A., ECC, Karachi for registration of case, and an F.I.R. Was registered on 25-4-1998 by incorporating the same in 154, Criminal Procedure Code book. The F.I.R. Was registered under section 161, Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act-II, 1947.
11. ' After completion of investigation, the appellant/convict was challaned to face trial in the Court of Special Judge Anti-Corruption Central-I, Karachi. The case was subsequently transferred to the Court of Judge Accountability Court Noil, Karachi.
12. ' A charge was framed by the trial Court alleging commission of offence of corrupt practices under section 9(a)(1) of the National Accountability Bureau Ordinance 1997, punishable under section 10(a) of the said Ordinance. The appellant pleaded not guilty to the charge.
13. ' The prosecution -examined complainant P. W.1, Abdul Sattar Mandokhail, Exh.4, P.W.2 Khuda-e- Rahim, Exh.30., P.W.3, Shujjat Ali Qarni, Exh.31 and P.W.4, Abu Bakar Bhatti, Assistant Director F.I.A., Karachi, Investigating Officer, Exh.33, in support of the charge. The appellant/accused was examined under section 342 of Criminal Procedure Code Exh.39. He did.Not examine himself on oath under section 340(2) of Criminal Procedure Code. However, he filed a written statement under section 265-F(5) of Criminal Procedure Code, which was placed, on record as Exh.39-B.
14. ' The appellant submitted list of Defence Witnesses, containing 50 names, but examined D.W.1, Khalid Hussain Makhdoom, Exh.47, D.W.2, Muhammad Yousif Shaikh, Exh.48, D.W.3, Bawar Tautik, Exh.
15. 49, D.W.4, Saifullah Channa, Exh.52, D.W.5, Muhammad Yakoob Kalhoro, Exh.55, D.W.6, Kamran Afzal, Exh. 62, D.W.7, Noor Muhammad Kaka, Exh, 71, D.W.8, Ejaz Saeed, Exh.74, D.W.9, Allah Nawaz Qabulio, Exh. 79, D.W.10, Afsar Din Talpur, Exh. 85, D.W.11, Syed Mumtaz Hussain Shah, Exh.102 and D.W.12, Rizwan Shakzad, Exh.119.
16. The learned trial Court framed a single point for determination as follows:- "Whether the accused accepted illegal gratification in total amounting to Rs,15,00,000 for showing favour in the exercising of his official function and committed the offence of corruption. Is the accused guilty of charge?"
17. ' During the course of trial P.Ws. 1 and 2, fully supported the prosecution case and produced two video cassettes showing delivery of illegal gratifications by complainant/P. W. 1, Abdul Sattar Mandokhail to the appellant and acceptance thereof by the appellant in two episodes. The video cassettes were displayed before the trial Court, during the Course of proceedings. The learned trial Court after considering the prosecution as well as defence evidence came to the conclusion that, the evidence of P.Ws Abdul Sattar Mandokhail and Khuda-e-Rahim corroborated by the video cassettes showing the passing of, illegal gratification to the appellant has connected the appellant with the offence. The learned trial Court further held that the film contained in the video cassettes were prepared in the house of appellant signifying the receiving of money by appellant from complainant Abdul Sattar Mandokhail and except the contract referred to in the charge, there was no other concern whatsoever, between the parties. No other piece of evidence was brought on record to point out any other sort of relationship between the appellant Abdul Sattar Dero and the complainant Abdul Sattar Mandokhail, except that appellant was an officer of Port Qasim Authority and the complainant was contractor. Thus, the passing of money could be illegal gratification only.
18. The learned trial Court further placed reliance on section 14 of the National Accountability Bureau Ordinance, 1999, which provides that, where it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, shall be presumed, unless the contrary is prayed, that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive Or a reward such as is specified in sections 161 to 163 of the Pakistan Penal Code.
19. ' The learned trial Court held that, the contrary was not proved by the appellant therefore, the video cassette showing acceptance of money by the appellant from complainant Abdul Sattar Mandokhail shall be presumed to be illegal gratification. The point for determination was decided in affirmative and consequently, the appellant was convicted and sentenced as narrated in the opening part of this judgment.
20. ' Being aggrieved with the conviction and sentence, the appellant has preferred this appeal.
21. ' We have heard Mr. Azizullah K. Shaikh, learned counsel for the appellant and M/s. Sarfraz Khan Tanoli, Special Prosecutor and Muhammad Anwar Tariq, D.P.G.A. For the State.
22. ' Mr. Azizullah Shaikh, learned counsel for the appellant has assailed the impugned judgment, conviction and sentence on various points of law and facts. Before embarking upon the points of law and facts dealing with the merits of the case, first, I would like to dilate on the objection pertaining to the jurisdiction of the Accountability Court, established under the NAB Ordinance, 1999.
23. ' Mr. Azizullah Shaikh, has submitted that, the admitted facts are, that, the interim charge-sheet was submitted by the Assistant Director, FIA, ECC Karachi in the. Court of Special Judge (Central-1), Karachi on 11-5-1998 which was registered as Special Case No,3 of 1998. The appellant was challaned to face trial for the offence punishable under section 161 of Pakistan Penal Code, read with section 5(2) of the Prevention of Corruption Act-II, 1947. The case was pending before the Court of Special Judge (Central-1), Karachi and in the wake of promulgation of NAB Ordinance, 1999, the appellant was arrested on 26-11-1999, without affording any chance of being heard and without intimation about the reasons and substance for his arrest. On 10-10-2000 Mr. Muhammad Anwar Tariq, Deputy Prosecutor General, Accountability, Sindh, Karachi, submitted an application signed by him only, to the learned Special Judge (Central-1), Karachi, requesting for transfer of the case of the appellant to Accountability Court No,II, Karachi, under section 16-A of the NAB Ordinance, 1999. On the very same day the learned Senior Special Judge (Central-1), Karachi.
24. Transferred the case pending before the said Court, to the Accountability Court, without affording any opportunity of being heard to the appellant. The learned counsel for the appellant has submitted that the fatal deficiency in the transfer application submitted by Mr. Muhammad Anwar Tariq, was that it was not signed by the Chairman, NAB, as "Persona Designata". According to him an application under section 16-A(a) of the NAB Ordinance, 1999, could be moved by the Chairman, NAB only and thus, the application signed, by Mr. M. Anwar Tariq, Deputy Prosecutors General, NAB was unauthorised and not warranted in law which was liable to be summarily rejected. According to Mr. Shaikh, it was an extremely serious and fatal lapse on the part of the Special Senior Judge, while transferring the case of the appellant to the Accountability Court, first, because no opportunity was provided to the appellant of being heard and secondly, it was without adhering to the provisions of law. He has further submitted that, being aggrieved with the order of learned Senior. Special Judge (Central-1), Karachi, the appellant filed a Constitutional Petition No,95 of 2001, on 17-1-2001 praying for setting aside the order of the learned w Senior Special Judge (Central-1), Karachi, dated 10-10-2000, whereby he transferred the case of appellant from his Court to the Accountability Court. However, a Division Bench of this Court, disposed of the petition vide order dated 19-1-2001 as follows:- "We are, of the view that, all the pints raised by the petitioner before us can be urged before the trial Court in the final arguments on conclusion of trial and in appeal if the petitioner/accused is convicted, as the final order is appealable before the High Court and all the points of facts and law can be considered by the High Court."
25. ' He further maintained that, the appellant's counsel, vide application dated 23-1-2001, submitted before the Accountability Court, contended that, the transfer of the case was illegal. The learned Accountability Court after referring to the provisions contained in section 16-A (a) of the NAB Ordinance and several other provisions rejected the application.
26. ' The learned counsel for the appellant has contended that, after the conclusion of trial and at the time of final arguments, the question of jurisdiction was again raised after re-producing the contents of order dated 12-2-2001, whereby the application dated 23-1-2001 was dismissed, the learned trial Court; disposed of the objection involving extremely important point which goes to the roots of the case, by a finding comprising one sentence only, "Thus no violation of justice has occasioned to the accused with the shifting of case from Senior Special Judge (Central-1), Karachi to this Court under the above law".
27. ' Mr. Azizullah Shaikh, has proceeded on to argue that, the entire exercise in the trial Court is an exercise in futility, because the learned Accountability Court has no jurisdiction at all for the reason that, the case was transferred to Accountability Court from the Court of Special Judge (Central-1), Karachi in flagrant violation of the provisions of NAB Ordinance and thus, the entire proceedings held by the Accountability Court and the resultant conviction is unlawful, ultra vires and of no legal effect, ' Elaborating his point of view, the learned counsel for the appellant has submitted that, an Accountability Court can take cognizance of an offence under the NAB Ordinance, either on a direct reference made under section 18(a) of the NAB Ordinance or on transfer of a case from any Court of law or Tribunal under section 16-A (a) of the NAB Ordinance, followed by a reference under section 18(a) NAB Ordinance. He has submitted that, admittedly no reference was made under section 18(a) of the NAB Ordinance. The case against the appellant was pending before the Special Judge (Central-1), Karachi and he Chairman, NAB, did not apply to Special Judge (Central-1), Karachi seeking transfer of case from his Coda to the Accountability Court-II, Karachi. Mr. M. Anwar Tariq, D. P . G . A submitted an application under his signature before the Senior Special Judge (Central-1), Karachi, requesting for the transfer of the case of appellant stating therein that, the Chairman, NAB who has exercised his discretion under section 16-A (a) of the_ NAB Ordinance, 1999 and has been pleased to apply to the Special Judge (Central-1), Karachi with a request for the transfer of case to Accountability Court No,II, Karachi on 29-3-2000, but inadvertently the application has been addressed to Honourble Chief Justice Sindh High Court and perhaps it was not received in the Court of Special 'Judge (Central-1), Karachi. A fax message was received by the D.P.G.A., NAB, Karachi on 7-10-2000 and the same was filed in the Court of Special Judge (Central- 1), Karachi on the same day, which remained without any order. On 9-10-2000, the Special Prosecutor NAB, persuaded the Court to entertain application but it was not kept on record. A fresh request was, therefore, made by application dated 10-10-2000, to the effect that, the discretion exercised by the Chairman, NAB for transfer of the case as vested in him, may pleased be considered and the above case may be ordered to be transferred without notice to the other side.
28. Alongwith the application, a faxed copy of the application dated 29-3-2000 addressed to the Honorable Chief Justice Sindh High Court was also filed. The learned Senior Special Judge (Central-1), Karachi' allowed the application on the same day without notice to the appellant and the case was transferred to the Accountability Court No,II, Karachi.
29. ' On the basis of above admitted factual position, Mr. Azizullah Shaikh, learned counsel for the appellant has submitted that under section 16-A (a) of the NAB Ordinance, 1999, the Chairman, NAB is empowered to apply to any Court of law or Tribunal where a case involving a scheduled offence under the NAB Ordinance, is pending for the transfer of the case to an Accountability Court, as a persona designata and therefore, it is the Chairman, NAB only who can apply to any other Court or Tribunal for the transfer of a -pending case to the Accountability Court. He has not been empowered to delegate the authority to any other person and in any case no such authority, directions or instructions have been produced by Mr. M. Anwar Tariq, the learned D.P.G.A., while submitting application for the transfer of case in the Court of Senior Special Judge (Central-1), Karachi.
30. ' Mr. Azizullah Shaikh, has raised another point in his written arguments, to the effect that, section 18(a) of the NAB Ordinance, 1999, specifically states that, the Accountability Court shall not take cognizance of any offence -Wider this Ordinance except on a reference made by the Chairman, NAB or any officer of the NAB duly authorised by him while section 16-A inserted by Ordinance'' 4 of 2000 dated 3-2-2000 states that; "(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance."
31. ' It is contended that in the nonabstante clause the words used are "notwithstanding anything contained in any other law for the time being in force" and the words" or under this Ordinance" have not been enacted by the Legislature. Either the provisions in section 16-A(a) suffer from the deficiency due to inadvertence or the Legislature has deliberately intended to empower the Chairman, NAB for transfer of a case involving offence under the NAB Ordinance from any other Court or Tribunal to the Accountability Court and intended that, after the transfer of case under section 16-A(a), the Chairman, NAB was required to make a reference under section 18(a) of the NAB Ordinance, enabling the Accountability Court to take cognizance of the offence under the NAB Ordinance. He submitted that, the glaring over lapping and conflict in the provisions of sections 16- A(a) and 18(a) of the NAB Ordinance, 1999, circumscribe, the jurisdiction _of an Accountability Court more particularly when section 16-A(a) does not provide any expression to override the provisions of section 18(a). He has submitted that, it is patently a mistake on the part of Legislature.
32. However, unless such mistake is rectified the orders of transfer of cases from any other Court to the Accountability Court shall have the effect of transfer of case only to the Accountability Court but the Accountability Court shall not be empowered to take the cognizance of any offence under the NAB Ordinance until and unless a reference is made under section 18(a) enabling the Accountability Court to take cognizance of the offence under the NAB Ordinance afresh. It is admitted that no such reference has been made under section 18(a) of the NAB Ordinance and therefore, notwithstanding, the transfer of case from the Court of Special Judge (Central-1), Karachi to the Accountability Court No,II, Karachi, the latter Court was debarred from taking cognizance of the offence under this Ordinance.
33. ' The learned Advocates appearing for the NAB/State, have addressed arguments on the merits of the case only and have not addressed any arguments on the point of jurisdiction. They have merely submitted that the Accountability Court has considered the fact of transfer of the case from the Court of Special Judge (Central-1), Karachi to the Accountability Court under section 16-A(a) of the NAB Ordinance, from page 59 to page 73 of the impugned judgment and has held that no violation of justice has occasioned to the accused with the shifting of case from the Special Court to the Accountability Court and that there is no illegality or irregularity in the impugned finding.
34. They have not filed any written notes of arguments in rebuttal, although the copy of the written notes of arguments submitted by the learned counsel for the appellant were furnished to the learned Advocates for the State.
35. ' I have carefully considered the contentions raised by the learned counsel for the appellant and have minutely examined the relevant provisions of the law and the material available on record.
36. ' The admitted fact is that the challan against the appellant was initially submitted in the Court of Special Judge (Central-1), Karachi and the said Court had taken cognizance of the offence punishable under section 161 of Pakistan Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. The interim challan was submitted on 11-5-1998 and subsequently, final challan was submitted and the case remained pending before the learned Special Judge (Central-1), Karachi till 10-10-2000, when it was transferred to Accountability Court No,II, Karachi on the application of Mr. M. Anwar Tariq, D.P.c.A., (RAB) NAB, Sindh at Karachi. It would be appropriate to reproduce the transfer application alongwith the copy of fax message received by Mr. M. Anwar Tariq and enclosed with the application, as well as the transfer order passed by the learned Senior Special Judge (Central-1), Karachi dated 10-10-2000 which read as follows:-- ' IN THE COURT OF SPECIAL JUDGE (CEATRAL) COURT NO.', KARACHI Special Case No,3 of 1998 ' The State ' versus ' Abdul Sattar Dero ' F.I.R. No,2 of 1998, P.S. F.I.A. (SBC), under section 161, P.P.C., read with section 5(2), of Act II, 1947 TRANSFER OF THE CASE ' It is submitted on behalf of the National Accountability Bureau as under:-
1. That in exercise of its discretion vested in the Chairman under section 16-A(a) of the NAB Ordinance, 1999, he has been pleased to apply to this Honourable Court with a request that the case vide the subject F.I.R. May be transferred to the Accountability Court No,II, Karachi.
2. That such application was moved on 29-3-2000 but somehow inadvertently the same has been addressed to the Honourable Chief Justice, Sindh High Court, Karachi and, perhaps, has not been received in this Honourable Court.
3. That a copy of the said application was again received by Fax Message dated 7-10-2000 at 11-41 a.m. In the office of Dy. P.G.A. From the NAB Office Islamabad and the same was filed in this Honourable Court in the late hours of 7-10-2000 but, somehow, remained without any order.
37. ' That on 9-10-2000 the Special Prosecutor appointed in the NAB had persuaded this Honourable Court to entertain this application but the same was not kept on the record.
38. ' In the circumstances, it is again requested that the discretion exercised by the Chairman, NAB for transfer of the case as vested in him, may please be considered and the above case may be ordered to be transferred without notice to other side as the Chairman has exercised discretion and, as such, the case probably, shall stand transferred since then.
39. ' Copy of fax message is enclosed herewith. Karachi Dated:10-10-2000 (Sd.)
40. ' DY.P.G. A . (RAB) , NAB Sindh at Karachi"
41. "BEFORE THE CHIEF JUSTICE SINDH HIGH COURT KARACHI ' State ' versus ' Abdul Sattar Dero ' Subject: TRANSFER OF CASE F.I.R. NO.2 of 1998 OF FIA/SBC/ KARACHI STATE v. ABDUL SATTAR DERO UNDER SECTION 16-A (a), NAB ORDINANCE, 1999.
42. Respectfully Sheweth.
(i) That the above mentioned case is pending before the Senior Special Judge (Central-1), Karachi.
(ii) That the stated case involves a Scheduled Offence under the National Accountability Bureau-.
43. Ordinance of 1999 - and therefore, Exclusively triable by ap Accountability Court.
(iii) It is requested that the subject case may be transferred to Accountability Court No,II, Karachi.
44. (Sd.) Chairman, National Accountability Bureau Islamabad. 29th March, 2000"
45. ORDER 10-10-2000 ' Heard Legal Consultant/Prosecutor NAB Mr. Shahabuddin Memon who has filed an application for the transfer of the case pending in this Court bearing Case No,3 of 1998 (F.I.R. No,2 of 1998 of Police Station FIA State Bank Circle, Karachi, for an under section 161 of Pakistan Penal Code reference with section 5(2) of P.C.A.,1947, the State versus accused Abdul Satar Dero).
46. ' The said application moved by the Prosecutor Mr. Shahabuddin Memon bears the signature of Mr. Muhammad Anwer Tariq Advocate/ D.P.G.A. (RAB Sindh, Karachi). According to the statement given in writing by the learned Prosecutor Mr. Shahbuddin Memon that Mr. Muhammad Anwer Tariq, Advocate is busy in the Honourable High Court and instructed him to file the application and to argue the same before this Court.
47. ' It has been submitted by the learned Prosecutor Mr. Shahabuddin Memon that the alleged offence of this case is a Scheduled offence of NAB Ordinance, 1999 and, therefore, the Chairman, NAB has requested for the transfer of the present case to the Accountability Court No,II, Karachi. In support of his contention he has submitted copy of the request made through fax by the Chairman, NAB. He has further submitted that as per amendment made in section 16-A(a) dated 3-2-2000 the Court has got power to transfer the case to the Accountability Court on the request of Chairman, NAB.
48. ' I have myself gone through the amendment made in the NAB Ordinance and also perused the fax copy of the Chairman, NAB. I, therefore, in the interest of justice allow the prayer with the result the case No,3 of 1998 (F.I.R. No,2 of 1998) of Police Station, FIA State Bank Circle, Karachi, for an under section 161 of Pakistan Penal Code read with section 5(2) of P.C.A., 1947, the State versus accused Abdul Sattar Dero) pending in this Court is transferred to the Accountability Court No,II, Karachi as prayed. - (Sd.)
49. (SYED YAMIN YOUSAF)
50. SR. SPECIAL JUDGE, (CENTRAL-I), KARACHI.
51. 10-10-2000"
52. ' I would further like to reproduce the relevant provisions of law on which Mr. Azizullah Shaikh, learned counsel for the appellant has placed reliance and the provisions which require consideration in this behalf.
53. 16-A. Transfer of cases:---
(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of Law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.'
(b) In respect of any case pending before a Court established under this Ordinance, the Chairman, NAB having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of witnesses it is necessary that such case is transferred for trial may direct the Prosecutor General Accountability to apply for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court to a Court in another Province or from one Court in a Province to another Court in the same Province, ' Provided that :-
(i) in case the transfer is intended from a Court in a Province to a Court in another Province to the Chief Justice of Pakistan; and
(ii) in case the transfer is intended from one Court in a Province to another Court in the same Province to the Chief Justice of High Court and if the Chief Justice of Pakistan or, as the case may be, the Chief Justice of. High Court considers it expedient in the interest of justice so to do, he may transfer the case from one Court to another Court and case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded] ' Clause (b), above has been substituted by Ordinance No,XXXV of 2001, dated 10-8-2001, which reads as follows:-
(b) In respect of any case pending before a Court, the Prosecutor General Accountability or any Special Prosecutor authorised by him in this behalf, having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of witnesses, considers it necessary that such case is transferred for trial, he may apply, for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court in a Province to another Court in the same Province.
(i) to the Supreme Court of Pakistan in case the transfer is intended from a Court in a Province to a Court in another Province, and
(ii) to the High Court of the Province in case the transfer is intended from one Court in a Province to another Court in the same Province; and the Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the case from one Court to another Court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded.
8. Prosecutor General Accountability:
(a) The Chairman, NAB may appoint any person to act as the Prosecutor General Accountability, notwithstanding any other appointment or office the latter may concurrently hold, upon such terms and conditions as may be determined by the Chairman.
(b) The Prosecutor General shall give advice to the Chairman, NAB upon such legal matters and perform such other duties of a legal character as may be referred or assigned to him by the Chairman, NAB and in the performance of his duties, he shall have the right of audience in all Courts established under this Ordinance and all other Courts and Tribunals in Pakistan.
(c) The Prosecutor General Accountability Bureau in consultation with the Attorney General for Pakistan may, with prior approval of the Chairman, NAB, appoint Special Prosecutor to conduct prosecution of specific cases under this Ordinance, before any Accountability Court or any other Court or Tribunal.
54. ' On 10-10-2000, when the application for transfer was submitted by Mr. M. Anwar Tariq, learned D.P.G.A., section 8 of NAB Ordinance, read as above; Clauses (a) and (c) have been amended by Ordinance No,XXXV of 2001, dated 10-8-2001, and now they read as follows:- (a)(i) The President of Pakistan, in consultation with the Chief Justice of Pakistan and Chairman, NAB, may appoint any person, who is qualified to be appointed as a Judge of the Supreme Court, as Prosecutor General Accountability.
(ii) The Prosecutor General Accountability shall hold independent office on whole time basis and shall not hold any other office concurrently.
(iii) The Prosecutor General Accountability shall hold office for a period of three years.
(iv) The Prosecutor General Accountability shall not be removed from office except on the grounds of removal of a Judge of Supreme Court of Pakistan.
(v) The Prosecutor General acceptability may by writing under his hand addressed to the President of Pakistan, resign his office.
(e) The Prosecutor General Accountability, with the approval of Chairman, NAB, and in consultation with the Law and Justice Division, Government of Pakistan, may appoint Special Prosecutors to conduct prosecution of cases and to appoint Advocates to institute or defend cases, appeals, petitions, applications and all other matters before any Court including the High Courts and Supreme Court in matters arising out of or relating to proceedings under this Ordinance.
6. National Accountability Bureau:
(a) There shall be constituted a National Accountability Bureau for the whole of Pakistan.
(b) Chairman, National Accountability Bureau:
(i) There shall be a Chairman, NAB, to be appointed by the President and he shall hold office during the pleasure of the President.
(ii) The Chairman, NAB shall be appointed on such terms and conditions and shall have the status and privileges as may be determined by the President.
(iii) The Chairman, NAB may resign his office by writing under his hand addressed to the President.
(iv) The Chairman, NAB may delegate any of his powers to, and authorise performance of any of his functions, by, an officer of the NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order, for carrying out the purposes of this Ordinance.
55. ' Para,(iv) of clause (b) of section 6 above, was inserted vide Ordinance No,XXIV of 2000, dated 5-7- 2000. Clause (b) of section 6 has been substituted by Ordinance XXXV of 2001, dated 10-8-2001 and now section 6(b) reads as follows:-
(b) Chairman, National Accountability Bureau:
(i) There shall be a Chairman, NAB to be appointed by the President in consultation with the Chief Justice of Pakistan for a period of three years on such terms and conditions as may be determined by the President and shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan.
(ii) The Chairman, -1 TAB may, in writing under his hand, addressed to the President, resign his office.
28. Appointment of officers and staff in the National Accountability Bureau-
(a) The Chairman, NAB, or an officer of the NAB duly authorised by him, may appoint such officers and staff, as he may consider necessary for the efficient performance of his functions and exercise of powers under this Ordinance.
(b) The officers and members of staff shall be appointed by the Chairman, NAB or by a person authorised by the Chairman, NAB.
(c) The officers and members of staff shall be entitled to such salary, allowances and other terms and conditions of services as the Chairman, NAB may, with the approval of the Chief Executive determine.
(d) Subject to subsection (e) the provisions of the Civil Servants Act, 1973 (LXXI of 1973), shall not apply to the persons appointed in NAB.
(e) Nothing contained in subsection (d) shall apply to a person who is a civil servant within the meaning of the law relating to appointments as civil servant of the Federation or a Province and is deputed to or posted in NAB.
56. ' So far, the facts pertaining to the transfer of the case are concerned, they are admitted and have been narrated in sufficient detail, in the earlier part of this judgment. Now, I proceed to examine the contentions raised by Mr. Azizullah Shaikh, learned counsel for the appellant, first, that the transfer of case was in derogation of the specific provisions of law contained in the NAB Ordinance and secondly, the Accountability Court No,II, Karachi could not take cognizance of the offence under the NAB Ordinance, merely by transfer of the case to his Court in the absence of reference under section 18(a) of the NAB Ordinance.
57. ' Examining the first leg of arguments, I find that, the case was transferred from the Court of Special Judge (Central-1), Karachi to the Accountability Court No,II, Karachi, under section 16-A (a) NAB Ordinance. A perusal of section 16-A(a) shows that, after non-abstante clause it vests discretion with the Chairman, NAB, who may, apply to any Court of Law or Tribunal that, any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under NAB Ordinance and then such Court or Tribunal shall transfer the case to any Court established under the NAB Ordinance. The expression used in this provision of law is very clear and unambiguous. It vests discretion in the Chairman, NAB only as persona designata to apply for the transfer of the case. This appears to be the reason for the submission of application before the Chief Justice Sindh High Court, Karachi on 29-3-2000 under the signature of Chairman, NAB, Islamabad. However, due _to lack of proper advice the application was wrongly 'addressed to the Chief Justice Sindh High Court, Karachi and therefore, it appears that, the said application did not receive any attention and endorsement on the said application shows that, the complete case was sent to J.S/NAB, Karachi and copy of the application was faxed subsequently to Mr. M. Anwar Tariq, also but this application was not pursued. The authorities concerned, could purve this application and request the Honourable Chief Justice Sindh High Court to transmit the application to the learned Special Judge (Central-1), Karachi for appropriate orders. However, this course was not adopted and the said application was left unattended. After about 7 and half months, the transfer application was submitted in the proper Court but under the signature of Mr. M. Anwar Tariq, D.P.G.A. (RAP) NAB Sindh, with the copy of fax message i,e, the application dated 29-3-2000 referred to above.
58. ' A perusal of section 16-A(a) shows that, it does not empower the Chairman, NAB to delegate his authority under this section to any other person, Prosecutor or Officer. Even otherwise, no such authority/direction/ instruction was produced alongwith the transfer application._ At this stage, I .Would like to .Refer. To, two cardinal principles of the interpretation of statutes. First, that, while interpreting and applying any provision of law, the plain language of a provision is to be seen and the purport of Legislation and the intention of legislature is to be inferred on the basis of plain language of the law. This is the golden principle of the construction and interpretation of the statutes. Secondly, the intention of Legislature can be inferred by comparison of similar or like provisions, and if, in the same statute the Legislature has used different expressions, distinct from each other than the Court can legitimately infer that by using different expressions the intention of Legislature was to enact different and distinct provisions in terms of the language in which they are couched.
59. ' Applying the first principle, I find that, section 16-A(a) states in clear terms without any ambiguity that "the Chairman, NAB may apply to any Court of law or Tribunal," It does not say that the Chairman, NAB may apply or may direct the Prosecutor General Accountability or any other Prosecutor or Officer of NAB or may authorise any other person to apply any Court of law or Tribunal or may delegate his authority so vested in section 16-A(a) to any other person. Thus, under the first principle of interpretation of statutes referred to above, the law 'is to be interpreted and applied in accordance with the plain language of the statute. Nothing is to be added and no intendment not emanating from the plain language of the law is to be inferred. Thus, under this principle, the discretion' to apply to any Court of law or Tribunal for transfer of the case vests in Chairman, NAB only which cannot be delegated to any other person and the Chairman, NAB cannot direct/instruct any Prosecutor to submit any such application. This finding is, notwithstanding, the fact that, no such authority was produced before the Special Judge (Central- 1), Karachi.
60. ' Coming to the second principle of interpretation of statutes referred to above, I find that section 16-A, envisages transfer of case from two forums. Under clause (a) application may be made to any Court, or Tribunal other than-a Court established under the NAB Ordinance for transfer of the case to a Court established under the NAB Ordinance. Under clause (b) a case pending before a Court established under this Ordinance may be transferred to another Court established under the NAB Ordinance. Thus, both the clauses of section 16-A deal with the transfer, of cases, with the difference that clause (a) deals; with the transfer of case from a Court not established under the NAB Ordinance to a Court established under the NAB Ordinance, while clause (b) deals with the transfer of case from one NAB Court to another NAB Court. A perusal of both the clauses of section 16-A, as they stood up till 9-8-2001, which is the relevant period for the purpose of issue under consideration, shows that in clause (a), it is provided that the "Chairman, NAB may apply to any Court of Law or Tribunal" while in clause (b) it is provided that "the Chairman, NAB having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of the witnesses it is necessary that such case is transferred for trial, may direct the Prosecutor General Accountability to apply for transfer of the case." (After the amendment by Ordinance XXXV of 2001 dated 10-8-2001, the authority for submitting application for transfer under clause (b) of section 16-A, has been vested in the Prosecutor General Accountability or any Prosecutor authorised by him on his behalf. However, clause (a) is still intact.) Thus, by comparison, I find that under clause (b) of section 16-A, as it stood till 9-8-2001, the Chairman was empowered to direct the Prosecutor General Accountability to apply for transfer of the case, however, this' authority has not been conferred on Chairman, NAB, at any point of time under section 16-A(a).
61. Legislature enacted two different provisions distinct from each other on their face, pertaining to the transfer of cases as discussed above and therefore, under the second principle of interpretation of statutes referred to above, the intention of the Legislature can be inferred that under clause (b) section 16-A, the Chairman, NAB was conferred authority to direct the Prosecutor General Accountability to apply for the transfer of the case, which provision remained in force till 9-8-2001, while under clause (a) of section 16-A, no such authority was conferred on Chairman, NAB by the Legislature, with the result that the Chairman, NAB could apply himself only to any Court of law or Tribunal for the transfer of case under section 16-A(a), as a persona designata, and neither he could delegate this authority nor direct/instruct any other person to submit any such application.
62. The application submitted by Mr. M. Anwar Tariq, was thus, not in accordance with the mandate of law contained in section 16-A (a) of the NAB Ordinance.
63. Adhering to another principle of the interpretation of statutes that while interpreting any provision of law contained in a statute, the entire statute and the scheme contained therein is to be looked into and no provision of law is to be interpreted or applied in isolation, I have gone through the entire NAB Ordinance, very closely and minutely. I found that section 6, clause (a) and clause (b) paras. (i),(ii) (iii) as they stood up to 9-8-2001, were contained in the original NAB Ordinance promulgated on 16-11-1999. Para. (iv) in clause (b) to section 6 (which has been reproduced in the earlier part of this judgment) was inserted by Ordinance XIV of 2001 dated 5-7-2000. This para. Empowered the Chairman, NAB to delegate any of his powers to, and authorise performance of any of his functions by, an officer of the NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order, for carrying out the purpose of NAB Ordinance.
64. This provision remained in force from 5-7-2000 to 9-8-2001. (Clause (b) of section 6 was substituted by Ordinance XXXV of 2001 dated 10-8-2001 and in the substituted clause no provision analogous to para. (iv) of the omitted clause (b) of section 6 was enacted). I will now, examine the scope and impact of the para. (iv), clause (b) of section 6 as it stood between 5-7-2000 and 9-8- 2001, vis-a-vis the application dated 10-10-2000, submitted by Mr. M. Anwar Tariq, in the Court of Special Judge (Central-1), Karachi for transfer of case against the appellant to Accountability Court No,II, Karachi. The sole document produced alongwith the application was the transfer application dated 29-3-2000 addressed to the Honourable Chief Justice Sindh High Court. A perusal of the transfer application signed by Mr. M. Anwar Tariq, learned D.P.G.A., dated 10-10-2000 and the order of transfer passed by the learned Senior Special Judge (Central-1), Karachi dated 10- 10-2000 shows that the learned D.P.G.A. And the learned Senior Special Judge (Central-1), Karachi both have taken the application dated 29-3-2000 signed by the Chairman, NAB, as an authority empowering learned D.P.G.A. To apply for the transfer of case under section 16-A(a) NAB Ordinance, 1999. I am constrained to observe that the learned D.P.G.A., and the learned Senior Special Judge (Central-1), Karachi both fell in serious error. Both of them failed to notice that the application dated 29-3-2000 signed by the Chairman, NAB and addressed to a wrong forum cannot be treated, by any stretch, of imagination, to confer authority on the learned D.P.G.A. For applying to Special Judge (Central-1), Karachi for transfer of, case to the Accountability Court. The reason being, that, first, it is a simple application signed by the Chairman, NAB in consonance with the provisions contained in section 16A(a) and does not purport to authorise any other person to apply for the transfer of a case by a fresh application to the Special Judge (Central-1), Karachi.
65. Secondly, no other letter of authority, direction or instruction was produced by the learned D.P.G.A., empowering him to apply for the transfer of case. Thirdly, under section 16-A(a) or any other provision in NAB Ordinance,- Chairman, NAB had no authority in law on 29-3-2000, when the application addressed to the wrong forum was signed by the Chairman, NAB to delegate the authority to any other person. Fourthly, para. (iv) of omitted clause (b) of section 6 was inserted by Ordinance No,XXIV of 2000 dated 5-7-2000 and thereafter Chairman, NAB was conferred the power to delegate any of his powers to, and authorise performance of any of his functions by, an Officer of NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order. The application signed by the Chairman, NAB, addressed to the wrong forum which has been taken as authority to submit application by the learned D.P.G.A. On 10-10-2000 was signed on 29-3- 2000,. And no direct or in-direct, explicit, implicit or implied or delegated authority in favour of the learned D.P.G.A. Has been produced, having been made after 5-7-2000, the date on which Chairman, NAB got authority to delegate his powers and functions to an Officer of the NAB. Fifthly, under the omitted para.(iv) of clause (b) of section 6 of the NAB Ordinance, an order in writing was required to be made to show the extent of delegation of the powers and authorisation of the performance of the functions of the Chairman by an Officer of the NAB and the conditions subject to which the delegated authority is to be exercised. Expression "order in writing" has not been used in the omitted para.(iv) clause (b) of section 6 of the NAB Ordinance, but from the tenor of the language used therein an order in writing is envisaged, because without an order in writing it is not possible to show as to what is the extent of delegation of authority and the conditions subject to which the same can be exercised. Thus, although on 10-10-2000 the Chairman, NAB, had an authority to delegate his powers under section 16-A(a) by virtue of the provisions contained in omitted para.(iv) clause (b) of section 6, but it was required to be exercised by an order in writing and subject to the conditions specified in the said order. No such order has been produced purported to have been made by the Chairman, NAB and thus, the learned D.P.G.A. Had no authority on 10-10-2000 to submit an application under his own signature, before the Special Judge (Central-1), Karachi for the transfer of the case. Sixthly, under the omitted para.(iv) clause (b) of section 6, the Chairman, NAB had the authority to delegate his powers .To, and authorise performance of any of his functions by an Officer of the NAB. The learned D.P.G.A., cannot be treated as an Officer of the NAB for the reason that, the Prosecutor General Accountability and other Special Prosecutors are appointed under section 8 of the NAB Ordinance. The provisions contained in section 8 of the NAB Ordinance have also undergone extensive amendments by Ordinance XXXV of 2001 dated 10-8-2001 and the original as well as amended provisions have been reproduced in the earlier part of this judgment. The original and amended section 8 deal with the appointment of the Prosecutor General Accountability and the other Prosecutors under the NAB Ordinance. It is not provided in section 8, (original or amended) that the Prosecutor General 'Accountability or any other Prosecutor shall be treated as an Officer of NAB. Duties and functions of the Prosecutor General are confined to give the advice to the Chairman, NAB upon such legal matters and performing such other duties of a legal character as may be referred or assigned to him by the Chairman, NAB and in the performance of his duty, he shall have the right of audience in all Courts established under the NAB Ordinance and all other Courts and Tribunal in Pakistan. In substituted clause of action 8, which was on the statute book 01 -8-2001 the Special Prosecutor other than Prosecutor General Accountability could be appointed to conduct prosecution of specific cases under the NAB Ordinance before any Accountability Court or any other Court or Tribunal. Thus, the Deputy Prosecutor General, who submitted an application on 10-10-2000 could conduct the prosecution of specific cases under the NAB Ordinance before any Accountability Court or any other Court or Tribunal. This is the only authority which could be exercised by learned D.P.G.A. On 10-10-2000, under the omitted clause (c) of section 8 of the NAB Ordinance. Under this provision he could never be treated as an Officer of the NAB. It is interesting to note that, the perusal of the R&Ps: of the case shows that, when the transfer application under the signature of Mr. M. Anwar Tariq, learned D.P.G.A., was submitted before Special Judge (Central-1), Karachi by Mr. Shahabuddin Memon, Prosecutor/Legal Consultant (RAB), Karachi, no document was produced to show the appointment of Mr. M. Anwar Tariq, D.P.G.A. To conduct prosecution of this specific case and likewise no such appointment letter was produced by Mr. Shahabuddin Memon, giving authority to him to conduct the prosecution in this specific case. In the application submitted by Mr. Shahabuddin Memon, it is stated as follows: "Application for filing the application under section 16(a) of the N.A.B. Ordinance.
66. ' It is submitted on behalf of the state that learned Dy. P.G.A. Mr. M. Anwer Tariq, Advocate has directed me to file the application and to argue the same before' this Honourable Court as he is busy before the Honourable High Court of Sindh (before my Lord Justice Sabihuddin Sahib) and unable to appear before this Honourable Court today for hearing of the above said application.
67. ' Prayed in the interest of justice."
68. ' Notwithstanding, the fact that neither the learned D.P.G.A., nor Mr. Slrahabuddin Memon, the Prosecutor (RAP) Karachi produced any document showing their appointment to conduct this specific case in the Court of Special Judge (Central-1), Karachi nor they produced any order of the Chairman, NAB, delegating authority under omitted clause (b), para.(iv) of section 6, no delegation of powers was possible in favour of the D.P.G.A. Or any other Prosecutor appointed under section 8 of the NAB Ordinance, to exercise the authority, powers or functions of the Chairman, NAB. Such delegation was possible to an Officer of the NAB only and the Prosecutors are not the Officers of the NAB. The reason being that the Officers and staff in the NAB are appointed under section 28 of the NAB Ordinance, 1999, which has been reproduced in the earlier part of this judgment. Thus, the expression, "an Officer of the NAB" used in the omitted para.(iv) of clause (b) of section 6 refers to the Officers appointed under section 28 of the NAB Ordinance and not to the Prosecutors appointed under section 8 thereof.
69. For the foregoing reasons, I find substance in the contention of Mr. Azizullah Shaikh, that the application dated 10-10-2000 submitted by the learned D.P.G.A. Under his own signature before the Special Judge (Central-1), Karachi was without sanction and authority of law and consequently, the order dated 10-10-2000 passed by the learned Senior Special Judge (Central-1), Karachi directing the transfer of case from his Court to the Accountability Court No,II, Karachi, is not in accordance with the mandate of law. The result is that the order dated 10-10-2000 passed by the learned Senior Special Judge (Central-1), Karachi, is illegal, void and in-operative. Consequently, all the proceedings in pursuance of transfer order dated 10-10-2000, conducted by. The Accountability Court No,II, Karachi are comm non judice and without jurisdiction. Since the transfer order dated 10- 10-2000 made by the learned Senior Special Judge (Central-1), Karachi is not in accordance with the law, therefore, it is hereby set aside. Consequent, to the setting aside of the transfer order dated 10-10-2000, the case shall be deemed to be pending before the learned Senior Special Judge (Central-1), Karachi, at the stage where it was on 10-10-2000.
70. The transfer order dated 10-10-2000, is further held to be void and in-operative for the reason that it was without notice to the appellant. It was prayed in the application dated 10-10-2000 that the case may be transferred without notice to the other side and the learned Senior Special Judge (Central- E 1), Karachi, without issuing any notice to the appellant, accepted the application on the very date it was submitted and the case was transferred. Thus, a very basic principle of the administration of justice was violated by the learned Senior Special Judge (Central-1), Karachi that, nobody is to be condemned unheard. The principle that no man shall be condemned unheard is so firmly entrenched in the administration of justice, that it cannot be by-passed, until and unless it is specifically so stated in the law. I am supported in my views by the law laid down by the Honourable Supreme Court, in the case of Commissioner of Income Tax v. Fazlur Rahman (PLD 1964 SC 410), wherein by placing reliance on an earlier judgment of the. Supreme Court in the case of the Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC 45), it has been held that, maxim audi alteram partem (no man shall be condemned unheard) is not confined to only judicial proceedings but extends to all proceedings affecting person or property of a party. It has been, further held that mere absence of provision as to notice in statute, cannot override principle of the natural justice that order affecting rights of property cannot be passed without affording an opportunity of hearing to the parties. The principle has been reiterated by the Honourable Supreme Court in the case of Province of East Pakistan v. Nur Ahmad, (PLD 1964 SC 451) and it has been held that, the principle, audi alteram partem (no person should be condemned unheard) shall be presumed to be embodied in a, statute in absence of any provision to the contrary.
71. ' The same principles were reiterated in the case of Shaikh Abdur 'Rehman v. The Collector and Deputy Commissioner (PLD 1964 SC 461). Again in the case Off University of Dacca v. Zakir Ahmad (PLD 1965 Supreme Court 90), it was held that "this rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings. In such cases this requirement is to be implied into it as the minimum requirement of fairness."
72. ' Wisdom behind the law laid down in the above judgments is apparent in these proceedings. If the learned D.P.G.A. And the learned Special Judge (Central-1), Karachi, would not have rushed with the transfer application in undue haste and the learned Special Judge would have issued notice to the learned counsel for,the appellant, the' learned Senior Special Judge would have been more properly equipped with the assistance provided by the learned counsel for the appellant. The lacuna in the proceedings would have been pointed out at the earliest stage and with the proper assistance the learned Senior Special Judge could have asked the Prosecutor to submit the proper application i,e, under the signature of Chairman, NAB. It would have saved the precious time of the Accountability Court and the parties would also have been saved from an exercise in futility and retrial of the case.
73. ' Now I proceed to examine the second leg of argument addressed by Mr. Azizullah Shaikh, learned counsel for the appellant on the point of jurisdiction. He has submitted that the provisions contained in section 18(a) dealing with the cognizance of offences are very clear and admit of no ambiguity. His contentions which have been reproduced in the earlier part of this judgment on this point are not without substance. I find force in his contention that there is a glaring overlapping and conflict in the provisions contained in sections 16-A(a) and 18(a) of the NAB Ordinance.
74. Although, there is a nonobstante clause in section 16-A (a), but it is confined to any other law for time being in force. It means that the provisions contained in section 16-A(a), shall override the provisions contained in any law other than NAB Ordinance but shall not override any law contained in the NAB Ordinance itself as the words, "or under this Ordinance" are missing. If the intention of the Legislature would have been to override the provisions contained in section 18(a) NAB Ordinance, it would have included the words, "or under this Ordinance" after the words, "notwithstanding anything contained in any other law for the time being in force". The result is that disenabling provision contained in section 1$(a) to the effect that the Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an Officer of the NAB duly authorised by him, remained intact and unaffected. The provision contained in section 16-A(a)' is an enabling provision conferring discretion/authority on Chairman, NAB to apply for transfer of a case pending before any Court of law or Tribunal other than the Court established under the NAB Ordinance. In the absence of any overriding or deeming provision contained in section 16-A(a), an enabling provision, it will not override the provision contained in section 18(a) which in the nature of disenabling provision. When a provision of law is couched in negative term and places embargo on Court from taking cognizance of any offence, then a strict view is required to betaken, because the absence of condition precedent for taking cognizance of the offence affects the jurisdiction of the Court and any objection to the proceedings and jurisdiction of the Court goes to the very root of the case.
75. ' A perusal of the NAB Ordinance, shows that section 18(a) was enacted in the original Ordinance promulgated on 16th November, 1999, while section 16-A(a) was inserted by Ordinance No,IV of 2000, dated 3-2-2000. In the original Ordinance, the initiation of proceedings before Accountability Court was envisaged through a reference under section 18(a) only. However, subsequently, with the insertion of section 16-A(a), the provision was enacted for transfer of pending cases before any other Court of Law or Tribunal involving a scheduled offence under the NAB Ordinance. After insertion of section 16-A(a) in the NAB Ordinance, pertaining to the transfer of cases from other Courts and Tribunal to the Court established under the NAB Ordinance a corresponding amendment was required to be made in section 18(a) of the NAB Ordinance by inserting the words, "or transfer of a case under section 16-A of this Ordinance" after the words, "duly authorised by him" in section 18(a). The purpose could have been served, even by enacting a deeming provision in section 16-A(a), by inserting the words, "an transfer of the said case, it shall be deemed to be a reference under section 18(a)" after the words, "Tribunal shall transfer the said case to any Court established under this Ordinance." It would have removed the lacuna and would have empowered the Court established under the NAB to take cognizance of the offences in the cases received by transfer in addition to the taking of cognizance of any offence under the NAB Ordinance on a reference made by the Chairman, NAB or an Officer of the NAB duly authorised by him. If corresponding amendment in section 18(a) was not made then suitable provision in this behalf was required to be made in section 16-A(a) itself. Since no such provision was made, therefore, the presumption would be that, either the Legislature intentionally omitted to make the corresponding amendments leaving the taking of cognizance by a court 'established under the Ordinance, under section 18(a) only, on a reference made under the laid section, after transfer of the case or it was a mistake on the part of draft-man/Legisiature. Be that, as it may, the position of law which emerges on a reading of section 16-A(a) and section 18(a) together is that the proceedings before a Court established under the NAB Ordinance can be initiated either by a reference made under section 18(a) or by transfer of a case under section 16-A(a). In the first eventuality, the Accountability Court shall take the cognizance of an offence under the NAB immediately on receiving a reference and in the second eventuality, the Accountability Court shall receive the case but shall not take the cognizance until and unless a reference is also received under section 18(a) of the NAB Ordinance.
76. In such ,situation the proceedings shall be kept before the Accountability Court and the cognizance shall be taken after receiving of reference only. At this juncture, I would like to clarify that receiving of a complaint or a proceedings by way of charge-sheet/challan does not amount to taking of cognizance of an offence. The receiving of a case and taking of cognizance are two distinct acts on the part of a Court and thus, the Accountability Court shall be empowered to receive a case on transfer under section 16-A(a), but shall not take cognizance without receiving of reference under section 18(a). However, on transfer of case under section 16-A(b) the receiving of fresh reference under section 18(a) shall not be required as the transferee Court shall be empowered to exercise all the jurisdiction vested in another Accountability Court from which the case is transferred, for the simple reason that the requirement for taking cognizance and the provisions of law in this behalf for both the Courts in case of transfer of case under section' 16-A(b) would be the same. However, the situation would not be the same in the eventuality of transfer of a case under section 16-A(a).
77. In such cases the other Court or Tribunal must have taken cognizance of the offences punishable under the Pakistan Penal Code or any other law for the time being in force, but must not have taken cognizance involving a scheduled offence under the NAB Ordinance. This is not a mere question of technicality but is of far-reaching consequence. Taking the example of present case, , the offence of accepting illegal gratification under section 161 of Pakistan Penal Code is punishable with imprisonment of either description for a term which may extend to 3 years or with fine or with both.
78. The same offence is punishable under section 5(2) of the Prevention of Corruption Act, 1947 with imprisonment for a term, which may extend to 7 years, or with fine or with both. The same offence is punishable as and, offence under the NAB Ordinance, being a scheduled offence with imprisonment for a term which may extend to 14 years or with fine or with both, by virtue of the provisions contained in section 10(a) of the NAB Ordinance. Thus if the Special Judge (Central-1), Karachi had taken cognizance of the offence punishable under section 161 of Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, on the basis of challan submitted before it by the FIA, he was empowered to frame the charge accordingly against the appellant and pronounce conviction and sentence accordingly. He was not empowered to take cognizance of the offence under section 9(a)(1) of the NAB Ordinance, 1999, punishable under section 10(a) of the NAB Ordinance. The Special Judge (Central-1), Karachi was not empowered to try the case involving offences punishable under the NAB Ordinance and the transferee Court i,e, Accountability Court is not empowered to try the appellant for the offences punishable under Pakistan Penal Code and the Prevention of Corruption Act, 1947. With the transfer of case under section 16-A(a) the cognizance is required to be taken of the offence punishable under the NAB Ordinance and for that purpose the sole provision available in NAB Ordinance is section 18(a). At this stage, I would like to clarify another principle of law. It is provided in section 16-A(a) that, after transfer of the case it shall not be necessary for the Court to re-call any witness or again to record any evidence that may have been recorded. The sole effect of this provision is that the evidence already recorded by the Court or Tribunal where the case was earlier pending shall be used by the transferee Court (an Accountability Court) and by fiction of law it shall be deemed to have been recorded in the proceedings under the NAB Ordinance. However, it will not absolve the Accountability Court from the requirement of re-framing the charge for the offence punishable under the NAB Ordinance. On the basis of any charge franied by the transferee Court the Accountability Court would not be empowered to convict an accused for the offence punishable under 'the NAB Ordinance. Framing of fresh charge is a mandatory requirement of law as without reframing/altering, the charge it would not be possible to, meet the mandatory requirement of section 221 of Criminal Procedure Code which provides that every charge under Criminal Procedure Code shall state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only and the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. Thus, in the eventuality of receiving a case by the Accountability Court, transfer under section 16-A(a) a fresh cognizance of the offence under the Ordinance is required to be taken and the cognizance of an offence under the NAB Ordinance cannot be taken except on a reference made by the Chairman, NAB or an Officer of the NAB duly authorised by him. The Accountability Court is not empowered to take cognizance of an offence under the NAB Ordinance, on the basis' of a charge- sheet/challan under section 173 of Criminal Procedure Code or any other law for the, time being in force.
79. ' It is an admitted fact that, the cognizance of the offence was taken by the Special Judge (Central- I), Karachi against the appellant on the basis of charge-sheet submitted by the F.I.A. I, am of the opinion that, there can be no cavil, to the proposition that Accountability Court cannot take cognizance of an offence under the NAB. Ordinance on the basis of the said charge-sheet and it is also admitted position that no reference made by the NAB has been received by the Accountability Court No,II, against the appellant in respect of an offence under the NAB Ordinance, and thus, in addition to the fact that the case was transferred to the Accountability Court, in, derogation of the provisions of law contained in the NAB Ordinance which rendered the proceedings before the Court without jurisdiction and nullity in law, the Accountability Court took cognizance of the offence under the NAB Ordinance, against the appellant in violation of the prohibitory disenabling provision contained in section 18(a) of the NAB Ordinance, For the foregoing reasons, it is held that, the entire proceedings before the Accountability 'Court No,II, including the framing of charge, recording of evidence, pronouncing of judgment, awarding of conviction and sentence to the appellant was without jurisdiction, in violation of the mandatory provisions of law as discussed above and consequently, in-operative and void in law. The impugned judgment awarding conviction and sentence to the appellant is, therefore, set aside on the point of jurisdiction.
80. ' Since I have set aside the impugned judgment, conviction and sentence on the point of jurisdiction, therefore, it would be an exercise in futility to discuss the ease on merits. The evidence recorded by a Court without jurisdiction cannot be considered for the purpose of, deciding the merits of the case and therefore, I, refrain to dilate on the evidence recorded by ,the Accountability Court No,II, Karachi and the merits of the case.
81. Consequent to be setting aside of the impugned judgment, conviction and sentence and pursuant to the view that, the case was not properly ,transferred to the Accountability Court No,II and it shall be deemed to be pending before the Special Judge (Central-1), Karachi, the case is remanded back to, the Court of Special Judge (Central-1), Karachi with the direction to proceed with the case, from the stage it was transferred from his' Court to the Accountability Court No,II, Karachi. The Special Judge (Central-1), Karachi,. Shall frame the charge afresh and the trial against the appellant shall proceed de novo in accordance with the law.
82. ' Before parting with this judgment, I, would like to observe that, the matters pertaining to the jurisdiction of Court are not mere matters of technicality and therefore, the NAB Authorities, as well as the Accountability Courts should always be cautious and careful in the matters pertaining to the jurisdiction of Accountability Court. In the case of Zahid Hussain Zaidi v. The Crown (PLD 1956 FC 58), the conviction and sentence of the appellant was set aside in which the appellant was prosecuted for offence under section 161 of Pakistan Penal Code, i,e, accepting the illegal gratification, for want of sanction of the prosecution required under section 5(5) of the Pakistan Criminal Law (Amendment) Act (XIX of 1948). I would further like to observe that, this judgment shall not operate as a bar for applying of Chairman, NAB to the Special Judge (Central-1), Karachi under section 16-A(a) seeking the transfer of case to the Accountability Court, in accordance with the law and thereafter making reference under section 18(a) to the Accountability Court, to which the case is transferred.
83. The appeal is allowed as above.