TASSADUQ HUSSAIN JILANI, J.---This judgment shall disposeof Criminal Revision No,888 of 2002 (tiled by Ch. Zulfiqar Ali), Criminal Revision Nos.124 and 234 of 2003 (both tiled by Muhammad Jahafigir Badar).
2. Petitioner in Criminal Revision No,888 of 2002 (Ch. Zulfiqar Ali) is facing trial before Accountability Court No,V in Reference No,21 of 2001 filed under the National Accountability Bureau Ordinance 1999, on the allegation that he made properties disproportionate to his known sources of income. During trial petitioner moved an application under section 227, Cr.P.C. Read with section 17 of the National Accountability Bureau Ordinance 1999 for amending the charge and prayed that only those properties should be made subject of the Reference/Charge which, as per prosecution, petitioner may have acquired while he was holder of a public office and the properties made when he was not a holder of public office, should be excluded. This application was dismissed by the said Court on 11-9-2002 and held as under:-- The defence in this connection also alleged that this viewpoint has been upheld by the Supreme Court or Pakistan in Criminal Petitions No,54, 55 and 96 of 2002 titled Haji Kabir Khan v. The State, Haji Inayatullah v.The State and The State v. Haji Kabir Khan, copy of which is also available on the record. I have no courage to differ from the esteemed judgments of Superior Courts so referred.
With utmost respect to these judgments I submit that same are not helpful to the accused. The point about the use of word 'person' was not raised before these Worthy Courts. There has been no finding in this connection in these judgments we may proceed against the accused..."
3. The issue raised in Criminal. Revision No, 124 of 2003 is substantially the same as in Criminal Revision No,888 of 2002 i,e, he has (Muhammad Jahangir Badar) challenged the order dated 26-2- 2003 passed by the Accountability Court No,III, Lahore (in Reference No,39 of 2002) vide which petitioner's application for amending the charge to exclude properties which he may have acquired when he was not holder of public office, was dismissed. In Criminal Revision No,234 of 2003 (filed by Muhammad Jahangir Badar), the order dated 25-3-2003 passed by Accountability Court No,2 Lahore (in Reference No,39 of 2001) has been assailed by the petitioner vide which petitioner's application was dismissed wherein he had prayed to delete charge No,5 as on the same charge he had been tried and acquitted by the Ehtesab Bench consisting of a learned Judge of this Court vide order dated 12-9-1990 (in Case No, 1/Ref/Dis-90). In the operative part of the impugned order, the Accountability Court held as under:-- "I hardly find any force in this petition, as section 227, Cr.P.C., is confined to alter or add to any charge at any time before judgment is announced, and it never part-takes of dropping of charge. Therefore, when withdrawal of writ petition by Federation of Pakistan is also during regime of political party of the accused, application appearing delaying device is dismissed. Particularly, when, so far, neither accused has agitated item No, 5 of the charge against him nor had made his application well in time even today and further learned counsel is found creating us that first of all he be given copy of order of dismissal of his application as well as he be afforded time to agitate this order before he proceeds to examine the witness."
4. In support of Criminal Revision No,888 of 2002 .(filed by Ch. Zulfiqiar Ali), learned counsel for the petitioner (Sh. Ziaullah, Advocate) has made following submissions:--
(i) That the National Accountability Bureau Ordinance 1929 was enacted to try holders of public office or for offences which they may have committed while they were holders of the public office and the properties which the petitioner may have made, as an ordinary person, could not be made basis for a trial under the afore-referred Ordinance.
(ii) That most of the properties 'for which he is being tried, were acquired by the petitioner when he did not hold any public office. The charge so framed in these circumstances. Is not tenable in law.
(iii). That the word "person" appearing in the Ordinance is relatable to someone who may not hold public office but has committed an offence in which transaction holder of a public office is an accused or he is a person within the meaning of subsections (o)(m) to section 5 of the National Accountability Bureau Ordinance 1999.
(iv) That the intention of the law maker is clear from a bare perusal of the various provisions of the National Accountability Bureau Ordinance 1999 i,e, section 5, 9 (a)(vii) and the Schedule attached to the Ordinance.
(v) That even the charge with regard to Benami transaction is a charge without any material and it could not have been framed.
(vi) That the august Supreme Court in Criminal Petition Nos.54', 55 and 96 of 2002 had remanded the case to the learned Peshawar High Court with the consent of the counsel for NAB to decide the appeal of the convicts in the said case after excluding the properties which the said convicts may have acquired when they were not holder of public office.
(vii) Distinguishing the judgment of the learned Sindh High Court in Criminal Accountability Appeal No,58 of 2002 he submitted that before the said Court the afore-referred judgment of the august Supreme Court and that of the learned Peshawar High Court were not referred to and no proper assistance was rendered.
5. With regard to Criminal Revisions No,234 of 2003 and 124 of 2003 (filed by Muhammad Jahangir Badar), he submitted as under:--
(i) That section 32(c) of the National Accountability Bureau Ordinance, 1999 inserted through Ordinance No,133 of 2002 is no longer part of the said statute as the said Ordinance lapsed having not been presented before the National Assembly in terms of Article 89 of the Constitution;
(ii) That the framing of charge No,5 in Accountability Reference No,39 of 2001, which is subject- matter of Criminal Revision No,234 of 2003, is bad in law as the petitioner was tried by the learned Special Court comprising of a learned Judge of this Court (Mr. Justice Munir A. Sheikh), was acquitted vide order dated 12-9-1990 and he cannot be retried on the same charge. Reliance was placed on Article 13 of the Constitution read with section 403, Cr.P.C.
6. Learned counsel for the NAB Mr. Jawaid Shaukat Malik raised preliminary objections qua the maintainability of Criminal Revisions No,124 and 234 of 2003 on the ground that by virtue of Ordinance 133 of .2002 an Interlocutory order passed by the Accountability Court cannot be challenged in revision. On the merits of the grounds of double jeopardy.,, n Criminal Revision No,234 of 2003. He could not controvert petitioner's learned counsel on factual plan with regard to charge No,5 framed in Reference No,39 of 2001 but left to the Court to decide as to whether the second trial on the same charge is bad or not. On the question whether petitioners could be tried for properties which they may have acquired when they were not holders of public offices, he contended that a careful scrutiny of the NAB Ordinance would show that even an ordinary person can be tried if he is accused of an offence which falls within the ambit of section 9 of the Ordinance. He relied on an unreported judgment of the High Court of Sindh at Karachi in Criminal Accountability Appeal. No,58 of 2002 (Abdul Aziz Memon v. The State).
7. Learned counsel for the petitioner, in reply to the submissions made by the learned counsel for NAB, submitted as under:-
(i) That Proclamation of Emergency Order 1999 was issued on 14-10-1999 and the Provisional Constitution Order 2002 was issued on 21-8-2002. Sub-article (2) of the Proclamation of Emergency Order 1999 read with Articles 2 and 3 of the Provisional Constitution Order 2002 indicate that the Chief Executive had the power to issue Ordinances under Article 89 of the Constitution.Under the afore-referred Proclamation of Emergency Order 1999, the National Accountability Bureau Ordinance 1999 was issued on 16-11-1999, Legal Framework Order was issued on 21-8-2002, the Assembly was restored on 17-4-2002, the Prime Minister took Oath on 21-11-2002 and Members of Senate took Oath on 12-3-2003. The Amending Ordinance though issued on 15-11-2002 but it was notified in official Gazette on 23-11-2002 much after the promulgation of the Legal Framework Order 2002, the restoration of the National Assembly and the taking of Oath of the Office of the Prime Minister. In the afore-referred circumstances he contended that since Assemblies stood revived, the Ordinance promulgated on 15-11-2002 had to be placed before the National Assembly in terms of Article 89(2) of the Constitution and this having not been done, the amending Ordinance has lapsed. He placed reliance on a judgment of the august Supreme Court reported in The Collector of Customs Karachi and other v. Messrs New Electronics (Pvt.) Limited and 59 others (PLD 1994 Supreme Court 363).
(ii) That in absence of any provision to the contrary, the operation of the amending Ordinance has to be prospective and it would not be applicable to the pending cases. In support of the submissions made, he relied on Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and Nabi Ahmad and another v. Home Secretary etc. (PLD 1969 SC 599).
(iii) That the revision is a substantive right and it accrued to the petitioner ever since the commencement of the proceedings. It cannot be taken away by a subsequent amendment in law and this Court has got adequate power to convert these revision petitions into writ petitions if relate to the enforcement of a substantive right. He placed reliance on Karainat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139).
(iv) That the revisional jurisdiction and writ jurisdiction have certain common features and the august Supreme Court has allowed conversion in such circumstance. Reliance was placed on.
Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) and Manager Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678).
8. The learned Deputy Attorney General Mr. Sher Zaman Khan, who was called to assist in Criminal Revision Nos.124 and 234 of 2003, made following submissions:--
(i) That by virtue of Article 2(a) of the Proclamation of Emergency Order 1999, the Constitution of Islamic Republic of Pakistan (1973) was held in abeyance but the President was to continue in the office.Article 3 of the Provisional Constitution Order No,1 of 1999 mandates that the President shall act on the advice of the Chief Executive. On 15-11-1999 Article 5-A was added in the Provisional Constitution Order No, 1 of 1999 (PLD 2000 Central Statutes page 18). It provides that no order passed under the Provisional Constitution Order shall be subject to the time limitation provided in the Constitution. The power to issue Ordinance vested in the Chief Executive during the period when the Constitution remained in abeyance. On 20-6-2001 the Chief Executive issued Order No,2 of 2001 in terms of which the President ceased to hold office. The Presidential Order No,2 of 2001 was issued which provided that upon the Office of the President falling vacant the Chief Executive shall exercise all the powers under clause (2) of the same Order. It further stipulated that the Chief Executive shall hold office of the President till the new incumbent takes over and the Chief Executive continues to be the President with effect from 16-11-2002 When he took Oath of office as President under the Constitution of Islamic Republic of Pakistan, (1973).
(ii) That General Pervez Musharraf being Chief of Army Staff held two posts from 20-6-2001 to 16-11- 2002 i,e, the Office of the Chief Executive and of the President of Pakistan; that on 21-8-2002 Legal Framework Order was issued which amended 29/30 provisions of the Constitution of Islamic Republic of Pakistan; that on the afore-referred date the LEO merely amended certain provisions of the Constitution which was in abeyance but its revival is regulated by Article 4 of the Legal Framework Order and the first step taken towards revival of the Constitution was Notification dated 15-11-2002 which was published in the official Gazette on 16-11-2002 in terms of which certain Articles of the Constitution were revived. It also had the effect of validating the acts done, orders passed and the Ordinances issued, the appointments made by the Chief Executive and President of Pakistan during the period preceding the issuance of the Notification dated 16-11-2002 (S.R.O.799(l)/2002). Thereafter yet another Notification was issued (S.R.O.828(I)/2002) on 22-11-2002 and more Articles of the Constitution were revived. The Constitution was finally revived on 12-3- 2003 when the Senate elections were completed and the Senators took Oath.
(iii) That Ordinance No,133 of 2002 whereby the revisional jurisdiction of this Court against an Interlocutory order of the trial Court was done away with, was promulgated by the President on 15- 11-2002, was an order under Chief Executive's Order No,9 of 1999 (issued on 15-11-1999); that General Pervez Musharraf took Oath as President of Pakistan on 16-11-2002, the Ordinance, therefore, is ofa prior date and is protected in terms of Article 5-A of the Chief Executive Order No,9 of 1999 referred to above. Even otherwise he contended that the Ordinance in question is protected under Article 270-AA read with Sixth Schedule of the Constitution (in terms of Legal Framework Order, 2002).
(iv) That having become part of the National Accountability Bureau Ordinance, 1999, the amending Ordinance No,133 of 2002 cannot be altered or amended without previous sanction of the President of Pakistan as amended through Legal Framework Order.
9. The learned Additional Advocate General Mr. M. Bilal Khan, adopted the arguments of the learned Deputy Attorney General for Pakistan Mr. Sher Zaman Khan.
10. We have heard learned counsel for the parties, have given anxious consideration to the arguments addressed and have also gone through the record and the precedent case law cited at the bar.
11. The questions which have cropped up for consideration in these petitions are as under:--
(i) Whether Criminal Revision No,888 of 2002 (filed by Ch. Zulfiqar Ali), Criminal Revision Nos.124 and 234 of 2003 (both filed by Muhammad Jahangir Badar) are maintainable in view of Ordinance, 133 of 2002 which bars criminal revision against interlocutory orders passed by the Accountability Courts?
(ii) Whether a 'person' other than holder of a public office can be tried under the NAB Ordinance for any act which falls within the mischief of the said Ordinance?
(iii) Can the holder of a public office being tried for an act committed when he held the said office, be tried alongwith the afore-referred act for an offence relatable to a period when he did not hold the office?
(iv) Can the Criminal Revisions No,124 and 234 of 2003 be converted into writ petitions or petitions under section 561-A Cr. P. C. If in these petitions, the question of maintainability is decided against the petitioners?
Reply to Question No,(i).--Whether Criminal Revision No,888 of 2002 (filed by Ch. Zulfiqar Ali), Criminal Revision Nos.124 and 234 of 2003 (Both filed by Muhammad Jahangir Badar) are maintainable in view of Ordinance 133 of 2002 which bars criminal revision against interlocutory orders passed by the Accountability Courts?
12. In terms of Provisional Constitution Order No,1 1999 it was provided that notwithstanding the abeyance of the provisions of the Constitution of Islamic Republic of Pakistan 1973 and subject to any order passed by the Chief Executive, the country would be governed "as nearly as may be, in accordance with the Constitution" {(Article 2(1)). The Provisional Constitution Order No,9 of 1999 stipulated that "the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province, may issue and promulgate Ordinances which shall not be subject to the limitation as in their duration prescribed in the Constitution", can issue and promulgate Ordinances on the advice of the Chief Executive (Article 4). Article 5-A(1) of the said Order mandated that "An Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution". On 20-6-2001, the Chief Executive issued Order No,2 of 2001 which declared the then President ceased to hold office. Thereafter Presidential Order No,2 of 2001 was issued which mandated that upon the office of the President falling vacant, the Chief Executive shall exercise all the powers under clause
(2) of the said Order. On 15-11-2002, the President/Chief Executive issued Ordinance No,133 of 2002 which was notified in the Official Gazette on 23-11-2002. On 21-8-2002 the Legal Framework Order was issued which amended 29/30 provisions of the Constitution but the revival of the Constitution was regulated by Article 4 of the LFO. Certain provisions of the Constitution were revived through Notification dated 15-11-2002 which was published in the Official Gazette on 16-11-2002. Article 270- AA(2) of the Legal Framework Order 2002, inter alia, reads as under:-- "270-AA(2).--All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, notifications, rules, order, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever." (Underlining is ours).
Ordinance 133 of 2002, promulgated on 15-11-2002, which had the effect of doing away with the revisional power of this Court against an interlocutory order passed by any Accountability Court stands fully protected in the afore-referred provision of the LFO and it cannot be argued that since this Ordinance was never placed before the National Assembly within a period of tour months of its promulgation, it had lapsed. Article 5-A of the Provisional Constitution Order No,1 of 1999 had specifically declared that no order shall be subject to any limitation of time provided in the Constitution. In these circumstances he cannot justifiably argue that the Ordinance in question had lapsed on account of the time framework provided in Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. The amending provision, therefore, is part of the National Accountability Bureau Ordinance and both A the Criminal Revisions Nos.124 and 234 of 2003 (filed by Muhammad Jahangir Badar) are not maintainable. Coming to Criminal Revision No,888 of 2002 (filed by Ch. Zulfiqar Ali) we note that the order impugned in this petition was passed much before the promulgation of Ordinance 133 of 2002, therefore, the right of revision, which had accrued, could not have been taken away retrospectively. The said petition is maintainable and the learned counsel for NAB rightly did not raise-the question of maintainability qua the said petition.
Reply to Question (ii).--Whether A "PERSON" other than holder of a public office can be tried under the NAB Ordinance for any act which falls within the mischief of the said Ordinance?
13. This is the foundational question so far as the ambit and scope of the law under which the petitioners are being tried, is concerned. To appreciate the import of the expression "a holder of a public office or any other person" (section 9) it is essential to examine the context in which it has been used i,e, the Pre-amble of the enactment, its various provisions and the mischief it sought to remedy. The preamble of the National Accountability Bureau Ordinance XVIII of 1999 declared the objective of the enactment as under:-- "An Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary.
' Whereas it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. And whereas there is an emergent need for the recovery of outstanding- amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institutions, Governmental agencies and other agencies. And whereas there is a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority. And whereas there is an urgent need to educate the society about the causes and effects of corruption and corrupt practices and to implement policies and procedure for the prevention of corruption in the society. And whereas there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutur legal assistance in matters concerning corruption and for matter connected, ancillary or incidental thereto." Section 4 of the Ordinance provides:-- "It extends to the whole of Pakistan and shall apply to all persons in Pakistan, all citizens of Pakistan and persons who are or have been in the service of Pakistan wherever they may be, including areas which are part of Federally and Provincially Administered Tribal Areas". (Underlining is our). Section 5(a) defines the accused in the following:-- "Accused" shall include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under this Ordinance or is subject of an investigation or inquiry by the National Accountability Bureau, or any other agency authorized by the National Accountability Bureau, in this regard under this Ordinance." (Underlining is ours). Section 5(o) stipulates as under:- " 'Person' unless the context otherwise so requires, includes in the case of a company or a body corporate, the sponsors, Chairman, Chief Executive, Managing Director, elected Directors, by whatever name called, and guarantors of the company or body corporate or anyone exercising direction or control of the affairs of such company or corporate body, and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having any interest in the said firm, partnership or proprietorship concern or direction or control thereof" Section 9 further spells out the scope of the enactment, those who can be tried and lists the offences. It stipulates as under:-- "9. Corruption and corrupt practices.--(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code 1860 (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or for bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceedings or business transacted or about to be transacted by him, or having connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage; or
(v) if he or any of his dependents or Benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in. Respect of any assets or pecuniary resources disproportionate to his known source of income, which he cannot reasonably account for , or maintained his standard of living beyond that which is commensurate with his source of income; or
(vi) if he misses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority;
(vii) if he issued any directive, policy, or any S.R.O. (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or
(viii) if he commits an offence of willful default; or
(ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly. Includes members of the public at large to deliver any property including money or valuable security to any person; or
(x) if he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large;
(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent commits any breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has dominion; and if he aids, assists, abets, attempts or acts in capacity with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).
(b) All offences under this Ordinance shall be non-boilable and, notwithstanding anything contained in section 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
(c) If after completing the investigation of an offence against holder of public office or any other person, the Chairman is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody."
In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word "either" (Crawford's Interpretation of Laws). The word "person" has been used in the general sense and includes every person. It is one of the fundamental rules of Construction that the general words should be given a general construction unless the statute in some manner reveals that the legislative intent was otherwise. We have not been able to find any contrary intent after going through various provisions of Ordinance referred to in the preceding paragraphs. A close examination of section 9, reproduced above would show that with reference to subject-matter there are three kinds of offences. Those kinds are as under:--
(i) Offences which are holder of public office specific;
(ii) offences which are committed by the holder of a public office along with any other person and in which the latter are also liable;
(iii) offences committed by person who do not hold any public office.
14. The arguments of the petitioner's learned counsel that the "person" used in section 9, only refers to a person who abets, the offence with a holder of public office, is not tenable as the offence of abetment has been separately dealt with in clause (xii) of section 9.
15. Even in section 10 of the NAB Ordinance which relates to punishments, "the holder of public office" and "person" have been separately described. It reads as under:--
10. Punishment for corruption and corrupt practices:
(a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government or the concerned bank or financial institution as the case may be. (Underlining is ours).
Similarly, the legislative intent of making it applicable to all persons is clear from a reading of section 20 of the Ordinance.
16. Precisely, this question came up for consideration before a learned Division Bench of this Court in an unreported Ehtesab Criminal Appeal No,753 of 2001 (Ch. Amir Sher Ali v. The State) and it was held as under:- "There is weight in the submission made by the learned Law Officer that not only holder of a public office but also "any other person" can be tried for the offence of corruption and corrupt practices under section 9 of the Ordinance. This is clear from the plain reading of section 9 of the Ordinance.
Therefore, the prosecution need not establish any nexus with the exercise or powers by the appellants as Mayor of the Corporation and acquisition of the disputed properties by him. He can be tried in his position as an ordinary person and be held guilty of the offence of corruption and corrupt practices."
A Division Bench, of Sindh High Court Karachi in an unreported Ehtesab Appeal No,58 of 2002 (Abdul Aziz Memon v. The State) held as under:- "Thus the purpose of setting up of National Accountability Bureau is not confined to eradication of corruption committed by the holders of public offices only but to hold accountable to all those persons who are found involved in corruption. Again in section 4 of the NAB Ordinance, dealing with the application of said Ordinance,it is provided that, 'it extends to whole of Pakistan and shall apply to all persons in Pakistan'. Again it is stated by the legislature in very clear and unambiguous terms that the NAB Ordinanc extends to all persons in Pakistan. Thus, no section or group of persons or individuals have been excluded from the applicability of the NAB Ordinance." In an unreported judgment of the Peshawar High Court in Ehtesab Criminal Appeal No,5 of 2001 (Haji Kabeer Khan v. The State) copy of which was placed before us, a contrary view has been taken. The operative part of the judgments is para 13 wherein the learned Bench held as under:-- .......Though past member of Parliament can be tried under the Ordinance, the definition by no means can be stretched retrospectively so as to make an accused accountable for acts done by him prior to his becoming a member of Parliament. Again by section 2 the Ordinance has been given retrospective effect from 1-1-1985. By this retrospectively no doubt persons who have held public office since the commencing date of the Ordinance can be tried thereunder. It does not however mean that the holder of public office can be tried under the Ordinance for acts, though committed after 1-1-1985, but during the period when he did not hold any public office. To hold otherwise would be going against the very subject of the Ordinance as stated in the Preamble that is, 'to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto.'.
The corruption, corrupt practices and misuse of power obviously must relate to the periods during which a person is in a position as a holder of public office to misuse his office for private gains. If wealth is acquired by illegal means at a time when the accused did not hold a public office, it may constitute an offence under some other law but not under the NAB Ordinance." Having held so, the case was remanded to the trial Court for a re-trial in terms of the observations made. This judgment was challenged before the august Supreme Court in Criminal Petitions Nos.54, 55, and 96 of 2002. The august Supreme Court allowed the appeal in terms of an agreement between learned counsel for the appellant and the NAB. The operative part of the order reads as under:-- "Grievance as canvassed by both the learned counsel for the petitioner Mr. Abid Hasan Minto, Advocate Supreme Court as well as Mr. Muhammad Afzal Siddiqui, Advocate Supreme Court for NAB was that sufficient material existed before the High Court to resolve the controversy instead of remanding the case to the trial Court. The contention raised by both the learned counsel has force, because we feel that no ground existed for re-trial, inasmuch as, inadmissible evidence could have been bifurcated from the admissible evidence, and thus the High Court itself ought to have decided the question of guilt or innocence of the petitioner in the light of admissible evidence.
Accordingly, we convert these petitions into appeal and allow the same with direction that High Court shall decide the appeal on the basis of admissible evidence with regard to properties, which the petitioner had allegedly procured after 1993."
17. We are bound by the law declared by the august Supreme Court. However, it is a settled principle of law that a judgment rendered on concession given by a counsel is not a law declared.
The Supreme Court of India was called upon to decide a similar issue in Municipal Corporation of Delhi v. Gurnam Kaur (AIR 1989 Supreme Court 38) and it held as under:- "It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Equitability as 'Law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judges is the principle upon which the case was decided. Statements which are not the part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, it. Could not be assumed whether a similar direction must or ought to be made as a measure of social justice. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should notbe allowed to be re-opened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge; however eminent, can be treated as an ex cathedra statement, having the weight of authority."
As reflected in the operative part of the judgment of the Hon'ble Supreme Court reproduced in the earlier part of this para, learned counsel for the NAB had conceded for remanding the case. That judgment, therefore, cannot be classified as declaring a law. The judgment of the Peshawar High Court, therefore, shall have to be examined on its own merit. With utmost humility and respect for the Court, we have not been able to persuade ourselves to agree with the view expressed therein for following reasons:--
(i) The Court was persuaded to render the judgment solely with reference to a portion of the preamble. It did not appreciate that the expression 'corruption, corrupt practices' used in the preamble stand defined and exemplified in section 9 of the NAB Ordinance and it includes criminal acts which may be committed by any other person as well;
(ii) the learned Court did not take note of the fact that the word 'person' (section 9) has been used in the general sense and it includes every person;
(iii) the import of section 3, 4, 5, 10, and 20 of the NAB Ordinance escaped the attention of the Court.
The legislative intent and the meaning of the word 'person' could not have been appreciated without a careful glance at these provisions.
Reply to Question No, (iii).---Can the holder of a public office being tried for an act committed when he held the said office, be tried alongwith the afore-referred act for an offence relatable to a period when he did not hold the office?
18. In view of answer to Question No,2 above we hold that the holder of a public office can be tried alongwith an offence which may have been committed when he was not holder of a public office as there is no bar in any law and an ordinary person can be tried under the National Accountability Bureau Ordinance, 1999.
Reply to Question No,(iv).---Can the Criminal Revisions'No,124 and 234 of 2003 be converted into Writ Petitions or petitions under section 561-A, Cr.P.C. If in these petitions, the question of maintainability is decided against the petitioners?
19. Coming to this question it is to borne in mind that orders impugned in Criminal Revision Nos.124 and 234 of 2003 are interim orders and a writ petition against an interim order is not maintainable.
There are no special features either warranting conversion of these revision petitions into writ petitions. However, so far as Criminal Revision No,234 of 2003 is concerned we note that on factual plane, learned counsel for the NAB has not disputed the fact that on Charge No,5, deletion of which was refused through the impugned order, petitioner had already been tried by the Ehtesab Bench consisting of a learned Judge of this Court(Mr. Justice Munir A. Sheikh) and vide order dated 12-9- 1990 the same was returned and the petitioner was acquitted. It is further not denied that the said order was challenged in a Constitutional petition which was withdrawn by the then learned Attorney General for Pakistan and the order attained finality. Sub-Article (a) to Article 13 of the Constitution inter alia lays down as under:--- "13. Protection against double punishment and self-incrimination.--No person---
(a) shall be prosecuted or punished for the same offence more than once; or (b)..................................
A trial on the same charge would be violative of section 403 of the Criminal Procedure Code as well. In State v. Hadi Bakhsh (1981 SCM R 1008).The State appeal was dismissed by the august Supreme Court as trial was violative of Article 13 of the Constitution and section 403, Cr.P.C. At page 1012, the Court observed as under:--- "However, it is not merely a question of anomalous consequences. What is involved in this appeal is something much more fundamental. Whether the respondent's acquittal on the charge of murder be right or wrong there has to be an end to litigation in every legal system, and in the instant case, on the dismissal of the respondent's appeal by the High Court, his acquittal on the charge of murder by a competent Court became final. It is true that the learned Single Judge, by whose judgment this acquittal became final, had misgivings about the judgment which he was upholding. But, he had the power to prevent that verdict from becoming final by adjourning the hearing of the appeal before him in order to enable the State to decide whether it should file an appeal against the respondent's acquittal on the charge of murder. And, as I will presently show, this is precisely what Munir, C.J., had done in Sultan Mahmood's appeal when this appeal had come up for hearing before him in the Lahore High Court. But, as the learned Single Judge did not follow this precedent, the result was that the judgment of the Sessions Court acquitting the respondent on the charge of murder became final, and it cannot be re-opened on the principle of res judicata. Additionally, in my humble opinion, it would be shocking to the judicial conscience to try a man for the second time for the same offence and that is what would happen if we allow this appeal. I also venture to think that a violation of this rule about double jeopardy would be shocking to the public conscience and that is why Article 13 of the present Constitution prescribes that 'no person shall be prosecuted or punished for the same offence more than once'. This provision is of course not available to the respondent by this Article only embodies the maxim 'Nemo debet bis vexan pro una et eadem causa', on which the learned Judges relied. And as observed by Broom (Legal Maxims, tenth edition, page 223), this maxim 'expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, whethercharged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequence of the offence."
' It must also be borne in mind that this maxim is one of the oldest maxims of the common law and I may with advantage refer here to a passage from the speech of Lord Morris in Connelly v. Director of Punjab Prosecutions. This passage reads-- 'Thus Coke's Institutes (Part 3 at p.213) says that 'auterfoits acquit must be of the same felony.
Blackstone ' s Commentaries (1769), Book 4 at p.329) says that-- 'the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence' ." In Sherin Bacha and others v. Namoos Iqbal and 3 others (PLD 1993 Supreme Court 247), the judgment of the High Court remanding the case for retrial was set aside as it was violative of Article 13 of the Constitution and, at page 250, it was held as under:--- "... ... The Constitution and the Code of Criminal Procedure read with General Clauses Act do not permit the re-trial of an offence in which a person which having once been tried as accused stands finally acquitted. The said judgment by the Magistrate having attained finality the same accused cannot be re-tried for the same offence in the complaint case. Accordingly, for this reason alone this appeal merits to be accepted. The same is allowed with the result that the impugned judgment of the High Court remanding the case for fresh trial in accordance with the law is set aside."
20. In Abdul Hossain Sam v. Suwalal Aqarwala and another (PLD 1962 Supreme Court 242), the Hon'ble Supreme Court considered the effect of a discharge on merit with reference to section 403, Cr.P.C. And at page 245 held as under:-- ... ....Under section 403 of the Criminal Procedure Code an acquittal operates as an absolute bar to a fresh prosecution but the section expressly provides that a discharge is not an acquittal. This however, does not mean that an order of discharge has no effect on the competence of further proceedings. The general principle that there has to be an end to litigation is applicable ex necessite re to proceedings of any kind in a Court. It would be impossible to contend that once an accused person has been discharged after the whole of the evidence produced by the prosecution has been recorded he can be proceeded against on a fresh complaint or report on the basis of the very same evidence. If this were permissible there may be proceedings ad infinitum against an accused person. Also the power granted to a revisional Court to set aside discharge and order fresh inquiry would on this view become redundant. An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction, while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted."
21. Against the petitioner (in Criminal Revision No,234 of 2003), the earlier Reference was filed under Article 4(2) of the President's (Post Proclamation) Order No, 17, Parliament & Provincial Assemblies (Disqualification for Membership) Order, 1977. Vide Order dated 12-9-1990, the Special Court established under the afore-referred Order comprising of Mr. Justice Munir A. Sheikh, the then Judge of the Lahore High Court Lahore, returned the Reference under sub-clause (a) to Clause (3) of Article 4 of the above Order which inter alia provided:--
(a) If, as a result of such scrutiny, it is of the opinion that no charge can be established, return the reference to the authority making it together with its opinion thereon. The operative part of the order of the learned Special Court reads as under:-- "3. The allegation against the respondent is that he allowed payment of Rs,7.635 Millions to ABEL i,e, a Civil Engineering Firm of Lahore in connection with two contracts regarding Quetta Gas Pipeline Project and Indus Right Bank Pipeline Project by reopening a past and closed transaction as the said Firm had already received certain amounts in full and final settlement of its claim, and while the matter was pending adjudication before the Wafaqi Mohtasib.
4 From the material placed on the record, it is clear that the decision to make payment of the disputed amount to the said firm was taken in the meeting of the Board of Directors presided over by the respondent and not by him in his individual capacity. As such no blame can legitimately be placed upon the respondent for taking that decision as if taken by him individually. It may be pertinently added that the above conclusion finds further support from the absence of any specific allegation in the reference and the material on the record to the effect that the respondent pressurized the members of the Board of Directors for taking the said decision and in particular from the absence of any plea to the effect that the said decision was motivated by a desire on the part of the respondent to acquire personal gain.
5. In the context of the foregoing discussion, I am of the considered opinion that the charge cannot be established. I accordingly return the reference as contemplated by Article 4(3) (a) of the President's (Post Proclamation) Order No,17, to the referring authority."
22. A careful perusal of the afore-referred order would indicate that the order was passed after considering the material placed before the said Court and it was passed at initial stage when no evidence had been recorded. It would not strictly be an order of acquittal in terms of section 403, Cr.P.C. And the said section specifically mandates that the dismissal of a complaint, the stopping of proceedings under section 249, Cr.P.C. Or the discharge of the accused is not acquittal for the purposes of this section". The impugned order passed in Criminal Revision No,234 of 2003 is an interim order. Neither in the said order nor in this petition there is any reference to any fresh material relied upon by the prosecution in support of the afore-referred charge in absence of which it is difficult for this Court, at this stage, to decide as to whether the petitioner is being proceeded on the same material and facts or there is some fresh material collected in support of the charge in question. The learned trial Court has proceeded to decide the application in a slip shod manner and for extraneous considerations. If the charge is based on the same material, the learned trial Court shall decide the matter strictly in the light of the law laid down by the august Supreme Court to which reference has been made above and shall not be influenced "by any observations made by it in the order which is impugned in this petition. In these circumstances, when the matter has yet to be decided by the trial Court and in view of the observations made in the preceding paragraphs, no case converting the petition into writ petition or petition under section 561-A, Cr.P.C. Is made out,
25. For what has been discussed above, Criminal Revisions Nos.888 of 2002 (tiled by Ch. Zulfiqar Ali) and Criminal Revision No,124 of 2003 (filed by Muhammad Jahangir Badar) are dismissed and Criminal Revision No,234 of 2003 (filed by Muhammad Jahangir Badar) is disposed of in terms of the observations made in the exercise of the inherent powers of this Court couched in section 561- A, Cr.P.C.