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Petitioner: Abdul Wahab and another VS Respondent: The State
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha, Omar Sial Title: Abdul Wahab and another vs The State Case No.: Criminal Accountability Appeals Nos. 15 and 16 of 2001 Date of Judgment:2019-02-06 Reported As: 2020 P Cr. L J 556 Result: Order accordingly
Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Abdul Wahab and Adil Hayat Akhter appellants, were tried by learned Judge, Accountability Court No.III, Karachi for offences under section 409, P.P.C. read with section 109, P.P.C. section 9(a)(iii) and Sr.No.2 of Schedule of offences of the NAB Ordinance, 1999 (N.A.O.). After full-dressed trial, vide judgment dated 26.01.1997, appellants were convicted and sentenced to suffer R.I. for 07 years and to pay a fine of Rs.1,50,00,000/ (One Crore Fifty Lacs) each and in case of default in payme nt of fine each appellant was to undergo R.I. for 03 years more (the impugned judgment). The appellants were extended the, benefit of section 382-B, Cr .P.C. 2. The appellants filed these appeals against the impugned judgment. The appellants' sentences were suspended and they were released on bail by this court vide orders dated 19-3-2003 and 21-08-2003 respectively pending decision on their appeals. After promulgation of the National Reconciliation Ordinance, 2007 (NRO) the appeals stood withdrawn however after the later striking down of the NRO by the Hon'ble Supreme Court in the case of Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 1) these appeals were revived and the appellants' bail was restored vide orders dated 12-01-2010 and 17-08-2010 respectively pending final determination of their appeals. 3. This larger bench has been formed pursuant to order dated 29.01.2016 since there appears to be a conflicting judgment and Order of this Court on the same point of law which needs to be resolved in order to ascertain as a preliminary matter whether the impugned judgment is maintainable or not in terms of jurisdiction of the accountability court to try cases, like the instant case, which have been transferred to it from another court under section 16(A); N.A.O. without being directly referred to the accountability court by the Chairman NAB -under section 18(g), N.A.O. in terms of cognizance under section 18(a), N.A,O. In essence one Divisional Bench of this court in the case of Abdul Sattar Dero v. State (2002 YLR 1870 ) found that transferred
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cases under section 16(A), N.A.O. needed to be filed as references by the Chairman NAB before the accountability court before the accountability court could take cognizance of the case whilst another Divisional Bench of this court through a later order mentioned below took the opposite view and hence the formation of this larger bench. For ease of reference order dated 29.01.2016 is set out hereunder:- "Mr. Rasheed A Rizvi, learned counsel for the Appellant referred to the order dated 26.11.2002 passed by this Court. Relevant paras of the order are reproduced as under:- "In view of the above discussions, we are unable to agree with the view expressed by learned Members of the Bench in Abdul Sattar Dero v. State in Cr. Accountability Appeal No.14 of 2001 on first point as the same is against the view expressed by the apex Court in C.F. No.957-K of 2001 (Sardar Ahmed Siyal.v . National Accountability Bureau ), we are bound to follow the view expressed by the Supreme Court. We are also unable to agree with the reasoning and the conclusion arrived by the learned Bench on second point that the Accountability Court on receipt of the cases under section 16-A, has no jurisdiction to try the same unless a reference is filed by Chairman National Accountability Bureau or by an Officer authorized in this regard under section 18, therefore, we refer the matter to the Chief Justice for formation of larger Bench on the principle laid down in Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) for decision on second point ". (bold added) Thereafter , a larger Bench was constit uted by Honorable Chief Justice and larger Bench vide order dated 26.01.2009 pissed the following order: "Learned counsel submits that applicant Abdul Wahab has been released under NRO, therefore this appeal has become infructuous. This position is not disputed by Mr . Mohammad Aslam Butt, learned DPGA, NAB. Disposed of accordingly". In the case of Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 1) NRO 2007 was declared to be an instrument void ab initio being ultra vires and violative of the various Constitutional provisions and all the cases which were disposed of under NRO were revived including the present appeal. Mr. Rasheed A. Rizvi learned counsel for the appellant submits that again matter may be referred to the Honourable Chief Justice for formation of a larger Bench. This position is not disputed by learned Special Prosecutor , NAB. In view of above, office is directed to place the matter before the Hon'ble. Chief Justice for formation of a larger Bench or pass any order , which his Lordship deems fit and proper ." 4. These appeals initially in terms of maintainability and jurisdiction (as opposed to merit) which issue we intend to decide through this order revolve around a single point of law which concerns whether on transfer of a case under section 16(A) of the National Accountability Ordinance, 1999 (N.A.O .) from a Special Court to an accountability court under the N.A.O . the transferred case would thereafter require the Chairman, NAB to refile the transferred case by way of a reference under section 18 (g) before the accountability court before the accountability court could take cognizance of the same by way of a Reference under section 18(a) of the N.A.O . bearing in mind that the subject matter of these appeals were transferred before the amendment dated 23-11-2002 was made to section 16(A), N.A.O ., whereby such transferred cases were to be deemed to be a reference under the N.A.O . 5. If our answer to/ determination of the question mentioned in the above paragra ph is in the affirmative then the impugned judgment will have been passed without jurisdiction by the concerned accountability court and will be null and void and there will be no need to decide the appeals on merits. If, however , our answer to/ determination of this question is in the negative then the impugned judgment will have been passed by the concerned accountability court with jurisdiction and these appeals will then need to be decided on merits. 6. Learned counsel for the appellants submitted that the earlier decision of this court in Abdul Sattar Dero v. State (2002 YLR 1870 ) had through its reasoning rightly decided the issue of whether a transfer case under section 16(A), N.A.O. had to be converted into a reference before it could proceed before an accountability court. Namely , that it did have to be converted into a reference as under the N.A.O. the accountability court under section 18(a), N.A.O. could only take cognizance of a reference if it was sent to it by the Chairman NAB and by no other way. As
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such the reasoning by another later order dated 26-11-2002 by another Division bench of this court in Criminal Acc. Appeals Nos.15/16/17/20/39/58 (the Order) had misinterpreted the law by holding that transfer cases under sections 16(A), N.A.O. did not need to be filed by the Chairman by way of a reference and the accountability court did not need to take fresh cognizance of the transfer case under section 18(a) and as such the case of Abdul Sattar Dero (Supra) should prevail. In particular he contended that the wording in section 16(A) at the time when the references were filed in respect of the current petitions did not include the words, "shall be deemed to be a reference under section 18(a) of the Ordinance" and as such since the Statute had to be read as a whole the legislative intent was that such transfer cases under section 16(A) had to be re-filed by way of a reference before the concerned accountability court as an accountability court could only take cognizance of a case under the N.A.O. if it was filed by the Chairman under section 18(a), N.A.O.. In support of his contentions he emphasized that once Abdul Sattar Dero's case (Supra) was decided the legislature immediately moved to fill this loop hole by amending section 16(A) by adding the words, "shall be deemed to be a refere nce under section 18(a) of the Ordinance" by an amendment to section 16(A) dated 23-11-2002 whereby transfer cases were deemed to be references which was a recognition of the fact that this was not originally the legislative intent in respect of cases under section 16(A), N.A.O. which should have been prior to the amendment routed through the Chairman in order for the accountability court to take cognizance under section 18(a), N.A.O. This being the case since the above process had not been followed the accountability court had no jurisdiction to try the case and as such the impugned judgment was null and void and should be set aside. 7. He also submitted that in any event the Order was per incuriam. This was because the amendment in the law had already been made before the Order was announced and as such the Order was void and of no legal effect and thus Abdul Sattar Dero's case (Supra) would prevail along with the new wording added by legislative amendment shortly after to section 16(A ) where a transfer case was in effect deemed to be a reference for the purposes of section 18(a), N.A.O. 8. On the other hand learned Special Prosecutor , NAB submitted that the reasoning in the Order was correct regarding the lack of requirement for the Chairman NAB to refer a case transferred under section 16(A), N.A.O. from another court to an accountability court under the N.A.O. by way of a new reference under section 18(g), N.A.O. before the accountability court could take cognizance of the same under section 18(a), N.A.O. That this was not a legal requirement under the NAO since in effect the NAO provided two separ ate and distinct mechanisms for filing a reference. The first mechanism was under section 18(g), N.A.O. whereby the Chairman filed the reference following an inquiry and investigation initiated and conducted by the NAB in which case the Chairman was positively required to file a reference before the court could take cognizance of a reference under section 18(a), N.A.O. and the second mechanism was on the transfer of a case by the Chairma n NAB from another court to an accountability court in which case there was no requirement for the Chairman to file that case again before the accountability court as a reference before the accountability court before the accountability court could take cognizance of the same. In this respect he referred to section 16(A) of the N.A.O. which specifically provided in the unamended wording of section 16(A) that in such cases it shall not be necessary for the court to recall any witness or again to record any evidence that may have been recorded. According to him by using such language the legislative intent of section 16(A) was clear . Namely that since the court from which the case was transferred to the accountability court had already taken cognizance of the offense there would be no need to recall witnesses or re- record any evidence as the legislature had intended that in transfer cases under section 16(A) there would be no need for the Chairman NAB to then re file the transferred case as a reference. He submitted that another Division Bench of this court in the case of Abdul Sattar Dero (Supra) had misinterpreted the unamended section 16(A) and as such the Order referred to above should prevail in terms of its reasoning. That the legislature only amended section 16(A), N.A.O. after the case of Abdul Sattar Dero (Supra) by adding the words "shall be deemed to be a reference under section 18(a) of the Ordinance" not because this was originally an omission by the legislature but because this was required to make its original legislative intent clear following the misinterpretation of such intent in the case of Abdul Sattar Dero (Supra). Thus, for all the above reasons he submitted that the newly added .words in section 16(A) were superfluous as the legislature had always intended that such transferred cases under section
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16(A) should be regarded as references and there was no need for the Chairman NAB to re-file such cases as new references as the court where they had been transferred from had already taken cognizance of the same. He further submitted that a change of forum from another court to an accountability court would have no bearing on the need to file a new reference in respect of the transferred case as this was purely a procedural issue and did not effect any substantive rights. Thus, the transferred case did not need to be re -filed by the Chairman NAB before the accountability court could take cogniz ance of the same and as such the accountability court had jurisdiction to try the transferred case and the impugned judgment could not be set aside on this score. In support of his contentions he placed reliance on Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Khizar Hayat and others v. The Commissioner , Sargodha (PLD 1965 (W. P.) Lahore 349), Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate and others (PLD 1961 SC 119), State v. Saeed Ahmed (PLD 1962 SC 277), Siraj Din and others v. Sardar Khan and others (1993 SCMR 745) and Begum B.H. Syed v. Afzal Jehari Begum and another (PLD 1970 SC 29 ). 9. We have heard the learned counsel for the parties, considered the record and the relevant law . 10. The first issue which we consider that we need to address is whether the Order is per incuriam. So what do we mean by per incurium? 11. In the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD SC 2009 879) while dilating upon the definition of per incuriam in his separate note Justice Ch. Ijaz Ahmed (as he then was) opined as under at P .1238 "(ii) MAXIM. PER INCURIAM " 37. Incuria literally means "carelessness." In practice per incurium is taken to mean per ignoratium and ignored if it is rendered in ignoaratium of a statute or other binding authority . 38. What is meant by giving a decision per, incurium is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based on that account is demonstrably wrong. See Nirmal Jeet Kaur's case (2004 SCC 558 AT 565 para 21), 11311, Cassell and Co Ltd. 's case (LR 1972 AC 1027 at 1107, 1113, 1131, Watson's case (AEL R 1947 (2) 193 at 196), Morelle Ltd. 's case (LR 1955 QB 379 at 380), Elmer Ltd. 's case (Weekly Law Reports 1988 (3) 867 at 875 and 878) Bristol Aeroplane Co. 's case (AELR 1944 (2) 293 at page 294) and Morelle Ltd.'s case (AELR 1955 (1) 708). 39. The ratio of the aforesaid judgments is that once the Court has come to the conclusion that the judgment was delivered per-incuriam then the Court is not bound to follow such decision on the well known principle that the judgment itself is without jurisdiction and per-incuriam therefore, it deserves to be over-ruled at the earliest opportunity . In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this Court, as mentioned above, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Articles 4, 5(2) read with Articles 189 and 190 of the Constitution". 12. In the case of C.P. No.D-I 144 of 2007 Syed Iqbal Kazmi v. Federation of Pakista n dated 11-09-2018 reported as (PLD 2019 Sindh 255) a division bench of this court also undertook a review of the relevant Supreme Court law in what was meant by the maxim per incuriam at Para 42 as under; 42. The next issue is what do we mean by per incuriam? Per incuriam" is defined in Blacks law dictionary as under: "Per incuriam, adj, (Of a judicial decision) wrongly decided, usu. because the judge or judges were ill- informed about the applicable law . As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfuln ess of some inconsistent statutory provis ion or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment,
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consistently with the stare dicisis rule which is an essential part of our law, be of the rarest occurrence. Rupert Cross and J. W . Harris, Precedent in English Law 149 (4th ed. 1991)." 43. In HRC No.40927-S of 2012 Application by Abdul Rehman Farooq Pirzada (PLD 2013 SC 829) which was examining the entitlement of superior court judges who had served more than two years but less than 5 years to be entitled to a pension and whilst holding a judgment of the Supreme Court which had held such entitlement after two years at Para 77 of the Judgment it was potentially suggested/hinted that certain judgments which had been passed during periods of deliberate judici al chaos even if later protected by the constitution could be held to be per incuriam in the following terms. "77. As a corollary of above discussion, it is also imperative and significant to mention here that the judgment under challenge was passed by a learned three member Bench of this Court consisting of M/s Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmood, JJ on 6-3-2008, at a time when the whole superior judiciary of the Country was in chaos, crises and disarray due to unconstitutional measures taken by the then Presiden t/Dictator General (Retired) Pervez Musharraf of Pakistan, who by hook or crook wanted to remain in power and in that perspective attempted to destroy the institutions in the Country , particularly targeted the superior judiciary , to bring them unde r his thumb and control. The discussion regarding this aspect of the case in the present proceedings is enough to this extent. However , in this context if any further detailed discussion is felt orderly , reference can be made to the judgment of a full Bench of this Court in the case of Sindh High Court Bar Association (supra), wherein this aspect has been extensively discussed and aptly attended to." 44. We' had considered this aspect keeping in view the factual background to the case as set out above especially the alluded to "sea change" after the 11.03.2007 emergency was imposed and the 7 member bench was replaced with a new bench consisting of 5 new judges who had taken oath under the PCO (and later superannuated before or resigned after the Sindh High Court Bar Association case (Supra) when the judges who had not taken PCO were held never to have left judicial office ) who did not even have the benefit of any amicus curiae assistance or those of the lawyers of the various bar counsel's which were parties however we considered that holding the 5 member bench Judgment per incuriam, even if a 2 member bench had the power to do so, may not be the appropriate course and may set a bad precedent and might not give effect to the true meaning of per incuriam which was also discussed thoroughly in Farooq Pirzada's case (Supra) at Para-94 which generally approved Justice Ch. ljaz's separate note in the Dr. Mobashir Hussan case (Supra) as mentioned earlier in the following terms Majority view "94. Now taking up the issue of applicability and effect of this judgment after the imple mentation of judgment under challenge, so as to see whether it should have prospective or retrospective applicability , the first thing to be noted is that in our short order dated 11-4-2013 we have declared that the law enunciated in the judgment under challenge is "per incuriam" . The fallout of such declaration is that it is a judgment without jurisdiction, thus, for all intent and purposes not to be quoted as precedent, rather liable to be ignored. A useful discussion on the concept and import of per incuriam" finds place in the case of Sindh High Court Bar Association (supra), which reads as under:-- "(ii) MAXIM "PER INCURIAM". 37. 'Incuria' literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered in ignoratium of a statute or other binding authority . 38. What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong . See Nirmal Jeet Kaur' s case (2004 SCC 558 at 565 para 21),. Cassell and Co. Ltd. 's case (LR 1972 AC 1027 at 1107, 1113, 1131), Watson's case (AELR 1947 (2) 193 at 196, Morelle Ltd. 's case (LR 1955 QB 379 at 380), Elmer Ltd. 's case (Weekly Law
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Reports 1988 (3) 867 at 875 and 878), Bristol Aeroplane Co.'s case (AELR 1944 (2) 293 at page 294) and Morelle Ltd. 's case (AELR 1955 (1) 708). 39. The ratio of the aforesaid judgments is that once the Court has come to the conclusion that judgment was delivered per incuriam then the Court is not bound to follow such decision on the well known principle that the judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over-ruled at the earliest opportunity . In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this Court, as mentio ned above, is bound to review such judgments to put the nation on the right path as it is the duty and, obligation of the Court in view of Articles 4, 5(2) read with Articles 189 and 190 of the Constitution." 13. After considering the above definition of per incuriam it appears to mean in essence that in the context of judgments/orders of the court that such judgments/orders are patently wrong as they were passed in ignorance of the law which most often was not broug ht to the attention of the court before it passed the order/judgment in question. For instance contrary to a binding order/judgment of a superior court on the same point which was decided before the courts judgment/order and which had not been brought to its attention and likewise a statute which already answered the legal point which was the subject matter of the judgment/ order but which was not brought to the attention of the court before it made its judgment/order which lead to the judgment/order being wrong as a matter of law . 14. Now if we look to the factual background of this case the judgment in the case of Abdul Sattar Dero (Supra) was announced on 13-08-2002 whilst the Order was passed on 26-11-2002 approx 3 months and two weeks after Abdul Sattar Dero's case (Supra) and the Order was in full knowledge of Abdul Sattar Dero's case (Supra) as it refers to it in Para 28 and then at Para 36 where it states that it is unable to agree with the same and since Abdul Sattar Dero's case (Supra) was not binding on it this lead to this full bench being established. Thus, it cannot be said that the Order was passed in ignorance of any binding decision of a superior court on the same point of law . 15. Interestingly , the hearings of the case which lead to the Order were complete d on 08-11-2002 but the Order was not announced until 26-11-2002 in which time section 16(A) had been amended on 23-11-2002 (3 days earlier ) to include the words, "shall be deemed to be a reference under section 18 of the Ordinance and it shall". 16. The issue is therefore whether the amendment to the N.A.O. 3 days before the announcement of the Order rendered it per incuriam. 17. In our view on balance it does not. This is because, if the legislature had made an error in not intending section 16(A) to require a transfer case to be filed a fresh as a reference by the Chairman before the accountability court could take cognizance of the same why did an amending Ordinance not come immediately? Why did the…
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