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Petitioner: ABDUL AZIZ MEMON and others VS Respondent: The STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Amir Hani Muslim Title: ABDUL AZIZ MEMON and others vs The STATE and others Case No.:Criminal Appeal No, 140 of 2005 and Criminal Miscellaneous Applications
JUDGMENT
Reported As: 2013 PSC (Crl.) 420, PLD 2013 Supreme Court 594 Result: Order accordingly Judgment JUDGMENT ASIF SAEED KHAN KHOSA, J.---There are two features common to all these appeals and petitions for leave to appeal and they are, firstly, the persons affected have been proceeded against under the National Accountability Ordinance, 1999 and, secondly, such persons claim not to be holders of any public office during the period relevant to the offences regarding which they have been proceeded against. These two common features in these appeals and petitions have given rise to a common question as to whether the provisions of the National Accountability Ordinance, 1999 are applicable to a person who is not holder of a public office or not. Thus, before taking up these appeals and petitions for decision in terms of their individual factual and legal merits we have decided to resolve and answer the said common question in the first instance and have heard the arguments of the learned counsel for the parties regarding the said issue. 2. Mr. Abid Hassan Minto, Senior Advocate Supreme Court appearing for the appellants in some of the appeals has submitted that a close examination of the provisions of section 9(a) of the National Accountability Ordinance, 1999 shows that three categories of persons can be proceeded against by the National Accountability Bureau for the offences mentioned in that section and they are:
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(a) a person who is holder of a public office, (b) a person who aids and abets or conspires with holder of a public office, and (c) any other person who may not be holder of a public office and may have nothing to do with holder of a public office. ' He has taken us through different provisions of sections 9(a)(i) to 9(a)(xii) of the National Accountability Ordinance, 1999 pointing out which provision relates to which of the categories of persons mentioned above. While Mr. Minto was making his submissions Mr. Wasim Sajjad, Senior Advocate Supreme Court interjected and maintained that there is also a fourth category of persons who have held a public office at some point of time and they are proceeded against for an offence under section 9(a) allegedly committed before and during the period of holding the public office and he has maintained that such persons cannot be proceeded against for an offence allegedly committed during the period when they were not holding any public office. Mr. Minto has acknowledged that there indeed exist some provisions of section 9(a) of the National Accountability Ordinance, 1999 whereunder any private person who may not be holder of a public office himself and who may have nothing to do with any holder of a public office may independently be proceeded against by the National Accountability Bureau if the offence committed by him affects the public at large. 3. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court appearing for the appellants/petitioner in some of the appeals and a petition has argued that holder of a public office is a trustee and for dealing with the offence of corruption committed by such a person different laws have been framed in this country from time to time. He has argued that if a private person is also covered by such laws then an .Uncertainty is to creep in as to whether in a given case such private person ought to be tried under the normal laws of the land or under the special law generally meant for holders of public offices and in matters of penal laws any uncertainty is to be avoided. He has referred in this respect to the cases of Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111), In the matter of: Reference No, 2 of 2005 by the President of Pakistan (PLD 2005 SC 873) and Jibendra Kishore Achharyya Chowdhry and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9). He has gone on to contend that any law which allows the authorities to pick and choose at their whims as to which person is to be proceeded against under which law is bad law. He has maintained that a law which is capable of discriminatory applicability is violative of the Fundamental Right guaranteed by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Mr. Sheikh has referred in this regard to the cases of Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563), Sh. Liaquat Hussain and others v. Federation oPakistainistoLaw,IParliamentary Affairs, Islamabad and others (PLD 1999 SC 504) and Rauf Bakhsh Kadri v. The State and others (2003 MLD 777). 4. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court appearing for some of the parties to these matters has contended that the words "any other person" appearing in different parts of section 9(a) of the National Accountability Ordinance, 1999 ought to be read as any person who has benefitted from a person holding a public office because beneficiaries from the offences committed by holders of public offices are covered by different provisions of section 9(a) and he has referred in this respect to the cases of Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 SC 46) and Vijant Kumar and 4 others v. State through Chief Ehtesab Commissioner, Islamabad and others (PLD 2003 SC 56). He has maintained that the National Accountability Ordinance, 1999 is a very harsh and stringent law as there is no provision therein for bail, it allows freezing of properties, the sentences provided therein are high was excessive, remissions are not available to convicts, a conviction also entails disqualifications
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and transfer of property is not allowed, even to those facing an investigation or trial and, therefore, such a law is to be interpreted quite strictly and beneficially towards a citizen. 5. Mr. Wasim Sajjad, Senior Advocate Supreme Court appearing for the appellant in one of the appeals has argued that the accountability laws introduced in the country from time to time were meant to apply mainly to holders of public offices and the purpose invariably was to curb the menace of public sector corruption. According to him a "Holder of Public Office" has been defined in section 5(1) of the National Accountability Ordinance, 1999 quite elaborately and the words "holder of a public office or any other person" appearing in section .9(a) of the said Ordinance are to be treated as ejusdem generis. By referring to the Black's Law Dictionary and 2nd Edition of Mr. S. M. Zafar's book `Understanding Statutes' he has elaborated that it is an established principle of interpretation of statutes that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. He has gone on to submit that if the intention of the legislature was to include every person within the scope of section 9(a) of the National Accountability Ordinance, 1999 then there was no need to refer to holder of a public office specifically in that section. Mr. Wasim Sajjad has also referred to Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. To maintain that every citizen has an inalienable right to enjoy the protection of law and if the ordinary law of the land covers the allegations levelled against a private person then subjecting him to a harsher special law adversely affects his constitutional right under Article 4. He has also drawn our attention towards the National Accountability Bureau Ordinance, 1999 as introduced originally (published in PLD 2000 Central Statutes 57) and has pointed out that the originally introduced provisions of sections 9(a)(i) to 9(a)(vii) were relevant only to holders of public offices and any other person who aided such holder of public office or who was a beneficiary of the corruption of such holder of public office. According to him subsequent widening of the net through amendments introduced in the main Ordinance was not in consonance with the spirit and scope of the original law. He has lastly pointed out that the High Court of Sindh in the case of Abdul Aziz Memonv. The State (2003 YLR 617), the Lahore High Court in the case of Ch. Zulfiqar All v. Chairman, NAB, and others (PLD 2003 Lahore 593) and the Peshawar High Court in the case of Haji Kabir Khan v. The State (2003 YLR 1607) have rendered divergent views regarding interpretation of the words "any 'other person" appearing in section 9(a) of the National Accountability Ordinance, 1999 and, thus, there is a pressing need that the said words may be interpreted by this Court so that the prevalent ambiguity in that regard may be brought to an end. 6. Mr. Sardar Muhammad Ghazi, Mr. Kamran Murtaza, Raja Bashir Ahmad and Dr. A. Basit, Senior Advocate Supreme Court appearing in some of the appeals and petitions have adopted the arguments advanced by Mr. Muhammad Akram Sheikh and Mr. Wasim Sajjad and have maintained that a private person not holding a public office, other than a private person aiding or abetting or conspiring with holder of a public office or a beneficiary from holder of a public office, cannot be proceeded against under the National Accountability Ordinance, 1999. Written synopses of their arguments have also been submitted before us'by some of the learned counsel mentioned above. No other learned counsel has addressed arguments or submitted written synopsis in support of the submissions noted above. 7. As against the arguments and submissions noted above Mr. K.K. Agha, the learned Prosecutor- General Accountability appearing for the National Accountability Bureau, has taken us through the legislative history of this country and the laws introduced from time to time concerning accountability of holders of public offices. He has particularly highlighted how different laws were amended or new laws were enacted extending the jurisdiction of the agencies established for
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curbing corruption not only in high public places but also in the public at large. According to him the National Accountability Ordinance, 1999 is a hybrid law in its present form and the same is now applicable not just to holder of a public office or a person aiding or abetting or conspiring with holder of a public office but also to any other person who is neither holder of a public office himself nor has anything to do with holder of a public office. He has extensively compared the provisions of the erstwhile Ehtesab Act, 1997 with the provisions of the National Accountability Ordinance, 1999 to show how through the latter legislation the net has deliberately been spread wider even to cover large-scale corruption in the private sector and in the public at large-. He has also extensively read out many portions of the judgment handed down by this Court in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) to maintain that this Court has already recognized the enlarged scope of the provisions of the National Accountability Ordinance, 1999 and that the question being debated before the Court already stands answered by this Court in that judgment. Referring to the judgment delivered by this Court in the case of Justice Khurshid Anwar. Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483) he has submitted that while interpreting the words in a statute the ordinary meanings of the words are to be the preferred option unless the context requires otherwise and, thus, the words "any other person" appearing in section 9(a) of the National Accountability Ordinance, 1999 ought to be understood to mean any other person not necessarily connected with holder of a public office. Mr. Agha has emphasised that different High Courts in the country have understood and applied the said words differently and, thus, this Court may clarify the correct legal position in this regard. As regards the submission made by some of the learned counsel mentioned above regarding the power of the Chairman, National Accountability Bureau to pick and choose cases for their_ handling under the National Accountability Ordinance, 1999 he has maintained that the National Accountability Bureau has a safe mechanism for deciding as to which case is to be handled by it and the decision of the Bureau in that regard is subject to judicial scrutiny, as held by the. High Court of Sindh in the case of Rauf Bakhsh Kadri v. The State and others (2003 MLD 777). He has gone on to submit that this aspect of the jurisdiction of the National Accountability has already been examined by this Court in the case of Khan Asfandyar Wali (supra) on the touchstone of the Fundamental Rights guaranteed by the Constitution and no violation of the Constitution had been found by this Court in that regard. 8. Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court appearing for the respondents in an appeal and a petition has also traced the legislative history qua accountability in this country and has referred in this respect to the case of Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26). He has also made a reference to the case of Chaudhary Aamir Ali v. The State (2002 YLR 1902) wherein a view identical to that in the case of Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) had been taken by the Lahore High Court on the issue being considered by this Court. 9. After hearing the learned counsel for the parties and the learned Prosecutor-General Accountability and after going the relevant laws and provisions and attending to the precedent cases cited before us we have found that the stance that a person can be proceeded against under the National Accountability Ordinance, 1999 only if he is holder of a public office is clearly misconceived. It may be true that the accountability laws in this country introduced till the Ehtesab Act, 1997 were mainly directed against holders of public offices and persons aiding and abetting or conspiring with holders of public offices but at the same time it is equally true that, in the words of Mr.K.K. Agha, the National Accountability Ordinance, 1999 had brought about a "sea change" by expanding the jurisdiction of the National Accountability Bureau far beyond holders of public offices and by covering corruption of high scale even in the public at large. For a proper understanding of this change a look at the legislative history in this field may be in order and
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fortunately the same has already been summed up by this Court in the case of Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26) as follows: "Before we proceed to consider the above contentions of the learned counsel for the patties, it may be stated here that transparent, even-handed and across the board accountability of holders of all public offices, is the essence of Islamic polity and a democratic set-up. Presence of accountability process in a system of governance not only deter those who hold sway over the populace from misusing and abusing the power and authority entrusted to them but it also ensures principles of good governance. It would be pertinent at this stage to briefly refer to the legislative history of accountability laws in Pakistan. ' Soon after the establishment of State of Pakistan, Public and Representative Offices (Dis.Qualification) Act, 1949 (PRODA) was passed by the Legislature which became effective from 15th August, 1947. This Act provided for debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office. It remained enforced until 21st September, 1954 when it was repealed by Public and Representative Offices (Disqualification) (Repeal) Act, 1954. After the repeal of PRODA, there was no special law on the statute book dealing with the accountability of holders of public offices between the period from 21st September, 1954 to 6th August, 1959. On 7th August, 1958 While the country was under the Martial Law, Elective Bodies (Disqualification) Order, 1959 (President s Order No,13 of 1959) (EBDO) was promulgated which remained enforced only until 31st December, 1960 (EBDO provided for disqualifications of certain categories of persons from being a member or a candidate for the membership of any elective body until 31st December, 1966. EBDO was amended by P.O. No,7 of 1960 dated 10-2-1960; P.O. 9 of 1960 dated 5-3-1960; P.O. 27 of 1960 dated 28-11-1960 and P.O. 29 of 1960 dated 27-11-1960. On 7th January, 1963, Elective Bodies Disqualification (Removal and Remission) Ordinance,1963 was promulgated which authorised the President to reduce the period of disqualification of a person disqualified under EBDO. Once again, after expiry of EBDO on 31st December, 1960, no special law existed on the subject of accountability of holders of public offices until 8th of January, 1977. On 9th January, 1977, Holders of Representative Offices (Prevention of Misconduct) Act IV of 1976 and Parliament and Provincial Assemblies (Disqualification from Membership) Act V of 1976 were passed which provided for trial of offences of misconduct of holders of public offices before a Bench of the High Court consisting of not less than two Judges. On 13th November, 1977 Holders of Representative Offices (Punishment for Misconduct) Order (President's Post Proclamation) Order No, 16 of 1977 (P.P.P.0.16) and Parliament and Provincial Assemblies (Disqualification for Membership) Order (President's Post Proclamation Order 17 of 1977 (P.P.P.O. 17) were promulgated. P.P.P.Os. 16 and 17 of 1977, however, did not repeal Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 with the result from 13-11-1977 onwards we had on the Statute Books Act IV of 1976, Act V of 1976, P.P.P.O.16 of 1977 and P.P.P.O. 17 of 1977, all dealing with punishment for misconduct and disqualification of the holders of public offices. Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 were finally repealed by Parliament and Provincial Assemblies (Disqualification for Membership) (Amendment) Act, 1991 which was assented to by the President on 28-4-1991. P.P.P.0.16 of 1977 was amended through P.P.P.O. 5 of 1978 dated 17-1-1978 and President's Order I of 1981. Similarly, P.P.P.O. 17 was also amended by Ordinance IX of 1990 dated 15-10-1990 and Act VII of 1991 dated 28-4-1991. ' On 18th November, 1996, Ehtesab Ordinance CXI of 1996 was promulgated which repealed P.P.P.O. 16 and P.P.P.O. 17 of 1977. Ordinance CXI was amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997. Ordinance XX was repealed by Act IX of 1997. Act IX of 1997 was amended
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through Ordinance II of 1998 on 4th February, 1998 but this Ordinance stood repealed on 3rd June, 1998 as it was not passed by the Parliament. ' From the legislative history mentioned above, two conclusions clearly emerge. Firstly, the necessary for special legislation relating to accountability of holders of public offices has been recognised both by the Civilian as well as Military Governments. Secondly, except for two brief interludes, the special laws relating to accountability of holders of public offices remained in the field from 15th August, 1947 till today.. ' At this stage, we may also mention that at least on two previous occasions, Chief justification for imposition of Martial Law and deviation from the Constitutional Rule in the country was sought to be justified on the plane of rampant corruption of the politicians. It is also not without significance that four previous elected Civilian Governments were also dismissed before completion of their tenure under the Constitution on allegations of corruption besides other allegations. In this backdrop, when the second Benazir Bhutto's elected Government was dismissed under Article 58(2)(b) of the Constitution in November, 1996, there was a public outcry for a severe accountability of the holders of public offices. The caretaker set-up which came into existence as a result of dismissal of elected Government of Benazir Bhutto, therefore. Promulgated Ehtesab Ordinance CXI of 1996, which was later amended through Ordinance CXXIII, Ordinance VII and Ordinance XI, before it was repealed and replaced by Ordinance XX of 1997. Nawaz Sharif's Government which came into power as a result of general elections in the country held in February, 1997 promulgated the Act which repealed Ordinance XX of 1997. In the light of the preceding discussion, we now proceed to consider the above contentions of the parties." ' The "sea change" regarding spreading the net wider and enlarging the scope of the accountability law referred to by Mr. K. K. Agha in his submissions with reference to the Ehtesab Act, 1997 and the National Accountability Ordinance, 1999 already stands noticed and recognized by this Court in the case of Khan Asfandyar Wali (supra) as it was observed by this Court in that case as under: "106. Mr. Minto submitted that while examining the vires of this law, the following provisions may be given deeper consideration: ' Section 5(a) wherein 'accused' has been extensively defined; ' Section 5(m) defines 'holder of public office', which has been gathered from all the previous statutes on the subject and thus the scope and purview of the process of accountability has been enlarged; ' Clause (iv) of section 5 (m) has brought all persons in the service of Pakistan within the purview of accountability, inasmuch as even the serving officers of the Armed Forces, who are employed in organizations other than the Armed Forces, have been included; ' Likewise in clause (vi) (ibid), all those persons have been included who have served in, resigned, retired, discharged or dismissed from the Armed Forces and thus only a limited class of persons employed in the Armed Forces, who are within the discipline of the Force concerned, have been excluded, with a view to maintaining integrity in the institution inasmuch as public trial in such cases would not be in the interest of the Institution. Even otherwise, such persons are amenable to the discipline of the Force concerned: The word 'person' used in various provisions of this law is wide enough to cover any person and thus no body is being spared and across the board accountability is being conducted throughout the length and breadth of the country with no discrimination whatsoever, inasmuch as there is no political bias, no provincial bias. ' The impugned law is applicable to the politicians, bureaucrats and other persons, it is vast in its application and the exceptions are very exceptional and very limited;
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157. The case of the Federation/respondents is that the NAB Ordinance does not suffer from any legal infirmity inasmuch as: - - It is a valid piece of legislation made and promulgated by the competent authority under the Chief Executive's Order No, IX of 1999 dated 15-11-1999, as amended from time to time; - - The legislation has been duly acted upon and is being administered throughout the country inasmuch as numerous Accountability Courts have been established and Judges have been appointed to such courts in consultation with the Chief Justice of Pakistan. This ensures the independence of the courts and the judiciary in general. All these Courts are presided over by serving and retired District and Sessions Judges, who are under the direct supervisory control of the Chief Justices of the respective High Courts of the four Provinces; ' The NAB Ordinance is a special law falling in the series seeking to combat the evil of high level corruption. For the first time, through the NAB Ordinance, 'members of hitherto an untouchable class of influential and powerful persons, not merely restricted to holders of public offices, but also including bankers, businessmen, industrialists, bureaucrats and other persons, who are involved in corruption and corrupt practices as defined in the NAB Ordinance, fall within the purview of accountability in an effective and coherent manner; ' The NAB…
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