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Petitioner: Mian MUHAMMAD NAWAZ SHARIF VS Respondent: The STATE through Chairman, National JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Mohsin Akhtar Kayani Title:Mian MUHAMMAD NAWAZ SHARIF vs The STATE through Chairman, National
JUDGMENT
Reported As: KLR 2018 Criminal Cases 154, 2018 P Cr. L J 521 Result: Petition dismissed. Judgment JUDGMENT AAMER FAROOQ, J.---This judgment shall decide instant petition as well as W.Ps. Nos,3884/2017 and 3885/2017, as common questions of law and facts are involved. 2. The petitioner is facing trial in three References (References Nos,18/2017, 19/2017 and 20/2017) filed by National Accountability Bureau on the directions of the Hon'ble Supreme Court of Pakistan vide judgment dated 28.07.2017 in case titled 'Inman Ahmad Khan Niazi and others v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan and others (C. P. No,29-2016, C.P. No, 30-2016 and Constitution Petition No,03-2017). 3. During course of trial, charges were framed in the above mentioned References separately, however, the petitioner filed applications before respondent No,2 for consolidation of charges. The referred applications, filed by the petitioner in three References, were dismissed by respondent No,2 vide the impugned order dated 08.11.2017. 4. It is pertinent to observe that earlier, respondent No,2 dismissed applications filed by the petitioner, which orders were assailed before this Court in three petitions under Article 199 of the Constitution i,e, W.Ps. Nos,3663/2017, 3664/2017 and 3665/2017 and the same were allowed vide judgment dated 02.11.2017 and the matter was remanded back to respondent No,2 for decision afresh in light of section 17(d) of National Accountability Ordinance, 1999 (the Ordinance) and the relevant law. 5. Learned counsel for the petitioner, inter alia, contended that under section 17(d) of the Ordinance, a person, accused of more offences than one, of the same kind, committed during the space of any number of years, may be charged with and tried in one trial; that the offence in
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question, for which the petitioner has been charged with, is section 9(a)(v) of the Ordinance on the basis that during his stint as the Chief Minister of Punjab and the Prime Minister of Pakistan, he acquired assets in the name of his Benamidars/co-accused, which are beyond his known sources of income. It was further contended that respondent No,2 dismissed applications filed by the petitioner without taking into consideration the requirements of section 17(d) of the Ordinance and the relevant law, despite a clear direction by this Court vide judgment dated 02.11.2017 in the afore- noted writ petitions. Learned counsel, in support of contention that consolidation of charges is permissible under the law, placed reliance on cases reported as 'Noorshad v. Chairman, National Accountability Bureau and 5 others' (2017 PCr.LJ 1258), 'Ramesh M. Udeshi v. The State' (2002 PCr.LJ 1712), 'State through Deputy Prosecutor General, Camp Office, Karachi v. Ramesh Udeshi, Ex- Secretary, Board of Revenue (Land Utilization), Sindh and others' (PLD 2003 Supreme Court 891) and 'Tariq Shahbaz and another v. National Accountability Bureau through Chairman and 4 others' (2008 YLR 2688). Reliance was also placed on the decision of Accountability Court No,III, Sindh in case titled 'Anwar-ul-Haq Abbasi etc. Muhammad Irshad Parachi etc., whereby vide judgment dated 15.06.2015, joinder of charges was allowed. Learned counsel further contended that in References Nos,18-2017 and 19-2017, charge is one under section 9(a)(v) of the Ordinance, whereas in Reference No,20-2017, charges are under section 9(a)(iv) of the Ordinance as well therefore charges in References Nos,18/2017 and 19/2017 should be tried together. It was further contended that in Reference No,20-2017, charge under section 9(a)(iv) of the Ordinance has been added, which is not made out in facts and circumstances of the case; that if any penal provision is incorporated in a statute, it should be interpreted, so as to favour the accused rather than State. Reliance was placed on case reported as 'Waris Ali and 5 others v. The State' (2017 SCMR 1572). 6. In response to the query of the Court regarding the maintainability of the petitions, especially when under section 32 of the Ordinance, there is no remedy of appeal or revision against an interlocutory order, learned counsel placed reliance on case reported as 'Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others' (PLD 2001 Supreme Court 607) to contend that the petition under Article 199 of the Constitution is maintainable. Reliance was also placed on cases reported as 'Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and another (PLD 1963 Supreme Court 322) and 'Government of West Pakistan and another v. Begum Agha Abdul Karim Sorish Kashmiri (PLD 1969 Supreme Court 14). It was further contended that separate trial shall prejudice case of the petitioner inasmuch there are common witnesses and since the cross-examination is to take place separately, the petitioner shall disclose his defence to the witnesses and when they appear in the subsequent References, they will cover up the shortcomings. 7. During the course of arguments, it was brought to attention of the Court that petitioner had filed a petition under Article 184(3) of the Constitution of Islamabad Republic of Pakistan, 1973 before the Hon'ble Supreme Court of Pakistan for trial under one Reference, wherein the Office had raised objections, against which, appeal was dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 16.11.2017 in C.M. Appeal No,198-2017. 8. Learned counsel for National Accountability Bureau, inter alia, contended that separate charges have been framed and trial is to take place on the principles of parity as provided in sections 222 and 233, Cr.P.C.; that section 17(d) of the Ordinance is not mandatory; that in any case, the petitioner had disclosed his defence on 05.04.2016 as soon as he made a statement regarding the acquisition of the assets on the floor of the Parliament. It was further contended that since the years, in which the assets have been acquired, are separate therefore charges are distinct requiring separate trial. It was further contended that under the law, it is prerogative of the prosecution to decide, whether to proceed with one trial or have separate trials. Moreover, it was contended that under section 17(c) of the Ordinance, the Accountability Court can follow the
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procedure, which it deems appropriate. 9. The facts, leading to filing of instant petition as well as W.Ps. Nos,3884/2017 and 3885/2017, have been mentioned with brevity hereinabove therefore, need not be reproduced. 10. The petitioner is aggrieved of dismissal of his applications under section 17(d) of the Ordinance for joinder of charges in three References and insertion of section 9(a)(iv) of the Ordinance in Reference No,20/2017. 11. The above mentioned References were filed against the petitioner and others on the directions of the Hon'ble Supreme Court of Pakistan vide judgment dated 28.07.2017 in case titled 'Imran Ahmad Khan Niazi etc. v. Mian Muhammad Nawaz Sharif Prime Minister of Pakistan etc.' (C. P. No,29-2016, C.P. No,30-2016 and Constitution Petition No,03-2017). The august Apex Court, in the referred judgment, directed as follows:- "The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:- a) Reference against Mian Muhammad Nawaz Sharif, (respondents No, 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No, 6), Hussain Nawaz Sharif (Respondent No, 7), Hassan Nawaz Sharif (Respondent No, 8) and Capt. (Retd.) Muhammad Safdar (Respondent No, 9) relating to the Avenfield properties (Flats Nos, 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments; b) Reference against respondents Nos, 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment; c) Reference against respondents Nos, 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; Const. Ps. Nos, 29-30/2016 and 03/2017. d) Reference against respondent No, 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents Nos, 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income; f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered" 12. Under section 17(a) of the Ordinance, the Code of Criminal Procedure, 1898 is to apply mutatis mutandis to the proceedings under the Ordinance, however, under section 17(c) ibid, notwithstanding sections 17(a) and 17(b) of the Ordinance, the Court may, for the reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case. Moreover, under section 17(d) of the Ordinance, notwithstanding anything in section 234 of the Code, a person, accused of more than one offences of the same kind, during the space of any number of years from the first to the last of such offences, may be charged and tried at one trial for any number of such offences. Section 222 of the Criminal Procedure Code provides that a charge shall contain such particulars, as to the time and place of
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the alleged offence, and the person, if anything is against whom or the thing, if any, in respect of which, it was committed and other particulars which are reasonably sufficient to give the accused notice of the matter, with which, he is charged; section 233 of the Code provides that for every distinct offence, for which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned in sections 234, 235 and 239 of the Code. Under section 17(d) ibid, section 234, Cr.P.C. has been excluded, as the referred Section starts with non-obstante clause. For the ease of convenience, section 17(d) of the Ordinance is reproduced below:- "(d) Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences". The bare reading of the above provision shows that the same is directory in nature and the usage of words 'may' by the legislature, gives an impression that it is for the convenience of Trial Court (NAB) and if the Court comes to a conclusion that a person is accused of more than one offence, of same kind, committed during the space of any number of years, it means the time limitation for all offences, is immaterial. In this behalf, it is needless to mention that, the entire discussion regarding single trial, revolves around the offence under section 9-A of N.A.O., 1999 i,e, 'corruption and corrupt practices'. 13. The legislative intent is visible with the usage of word 'may' and under the principles of interpretation, it is settled that word used by legislature, would be read and understood in plain and ordinary meaning. Reliance is placed upon (2009 CLD 661) 'Ameen Riaz v. Al-Zamin Leasing Modarba'. Similarly, when the plain language of a statute reflects no other interpretation then, the intention of the legislature conveyed to such language, is to be given full effect. Reliance is placed upon (PLD 2012 SC 501) `Ghulam Haider v. Murad'. However, the usage of word 'may' has to be seen in its natural meaning which is a permissive or enabling word and imports discretion. Ordinarily, the word 'may' is not to have a mandatory effect. The usage of word 'may' in section 17(d) of the Ordinance has to be seen with reference to an open ended timeline in respect of the offence of corruption and corrupt practices allegedly committed by the accused, therefore, the legislative intent is clear that discretion has been extended to the Accountability Court for framing of charges keeping in view its convenience and objectivity for the purpose of clarity of offences which the accused faces so that he may not be confused while understanding the charge. The word 'may' involves a choice whereas in comparison, the word 'shall' refers an order and this is the customary usage of these terms of art when they appear in the statute, although the court cannot read the word `may' as carte blanche to use its discretion injudiciously under misconception that the word 'may' gives the court unchecked, unfettered and un-interfered discretion to exercise its own authority. In order to understand the true meaning and usage of word 'may', we have gone through the case laws reported as (PLD 1996 SC 182) 'Muhammad Sadiq v. University of Sindh' (PLD 1999 Quetta 78) `A. Karim v. Returning Officer' (1999 PTD SC of India 3828) `Commissioner of Income Tax v. SMT Pk Noor Jahan' and (1976 SCMR 82) `Marker Employees Union v. Marker Alkaloids'. In view of above case laws, we are of the opinion that the word 'may' is a discretionary and enabling word, unless the subject matter shows that the exercise of the power given by the provision using the word 'may', was intended to be imperative by the person to whom the power is given. It is now well settled that the word 'may', in isolation from the context in which it is used in a statute, would be treated as permissive in nature and, thus, imports a discretionary power. 14. The above referred discussion, if seen with the nature of events on the basis of charge by the learned Trial Court keeping in view the position, office, status of accused from 1985 till 2017 in which he has allegedly accumulated assets and wealth beyond known income sources, which have been enlisted by the NAB authorities in References Nos,18, 19 and 20 of 2017, it is difficult to frame a joint
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charge at this stage, as it will amount to ambiguity, confusion while referring each and every property/assets to the accused for the purpose of getting the answer or the defence from the accused. 15. The comparison of Section 17(d) of the Ordinance and section 234, Cr.P.C. shows that former has been made more open-ended, as there is no restriction in the same as to the time and number of offences, with which, a person may be charged and tried in one trial. The Ordinance does not define offences of the same kind, however, definition/explanation of the concept, is provided in subsection (2) of section 234, Cr.P.C. and under the same, offences are of the same kind when they are punishable with the same amount of punishment, under the same section of Pakistan Penal Code or any special or local law. 16. There is not much of reported case law on the interpretation of section 17(d) of the Ordinance, which is quite similar to section 234, Cr.P.C. therefore for the ease of convenience, in order to determine the import and scope of section 17(d) of the Ordinance, reference may be made to the case law propounded on the subject and interpretation rendered to section 234, Cr.P.C. In case reported as 'Anwar Hussain Talukdar and another v. Province of East Pakistan and others' (PLD 1961 Dacca 155), it was observed as follows:- "19. It will thus be observed from the authorities relied upon by the learned Advocate that it is now well settled that writ of certiorari will issue not only when an inferior body or Tribunal acting in a judicial or at least a quasi judicial capacity has exercised a jurisdiction which it does not possess or acted in flagrant disregard of the principles of natural justice or acted mala fide or on matters collateral to the matter being enquired into, but also to correct such errors of law as may be said to be errors apparent on the face of the record. As pointed out in the cases referred to earlier it is not, however, always easy to determine what are errors of law apparent on the face of the record" "In our opinion, a misjoinder of charges is a defect in the mode of the trial, namely, in the procedure to be followed for the trial, and this does not render the trial itself without jurisdiction, for the trial Court must inevitably, whenever this question arises, decide whether the person accused can or cannot be tried jointly in view of the accusations levelled in that particular case. Thus it has furthermore the jurisdiction to decide rightly or wrongly. A mere non-compliance, therefore, with the rules of procedure will not, in our opinion, amount to an illegal exercise of jurisdiction. In taking this view we find support also from another well considered and well reasoned decision of the Supreme Court of India in the case of Janardhan Reddy and others v. The State of Hyderabad and others (AIR 1951 SC 217), where Fazal Ali J. delivering the judgment of the Court clearly held that the question of misjoinder of charges was not a question relating to the jurisdiction of the Court. The point was expressly raised in that case, and his Lordship, after an exhaustive review of a large number of authorities, came to the conclusion that the question of misjoinder of charges was not a question of want of jurisdiction of the Court". Similarly, in case reported as Ahmad Khan v. Commissioner, Rawalpindi Division and another' (PLD 1965 (W. P.) Peshawar 65), it was observed as follows:- "It will be manifest from reading the language of the section that it has two parts and each part lays down a general rule. The first part lays down that for every distinct offence of which any person is accused there should be a separate charge, and the second part lays down that every such charge shall be tried separately, except the cases mentioned in sections 234, 235, 236 and 239. It will therefore be plain that criminal cases cannot, like civil suits, be consolidated, and tried together on the same evidence, except within the limits as to the joinder of charges laid down in the Criminal Procedure Code (see Emperor v. Chamask Lal (1941 Bom. 156). Again, sections 234 to 239 are merely permissive and not mandatory, i,e,, it is for the prosecution to try the accused on different offences in one trial as provided by those sections, but in case the prosecution decides to split the charges and try him separately on those charges the accused cannot insist on joinder of
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charges". In case reported as 'Zia-ul-Haq v. The State' (1973 PCr.LJ 457), it was observed as under:- "The general rule is that for every distinct offence for which any person is accused, there shall be a separate charge and every such charge shall be tried separately, under section 233, Cr.P.C. Some of the exceptions to this rule are contained in sections 234, 235, 236 and 239, Cr.P.C. Section 234(1) provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three. Even the limit of three charges, with regard to cases of criminal breach of trust or dishonest, misappropriation of money, has been done away with by subsection (2) of section 222 wherein it is provided that all items of criminal breach of trust and/or misappropriation within a period of one year could be the basis for one charge. Thus it was permissible to prosecute individual appellants for all items of misappropriation within a period of one year at of trial. The argument of the learned counsel has force in the real of possibility only. In other words, it is not mandatory but only permissible for the Court to combine several charges in one trial. The combination of several items and splitting up of all the charges into twelve (in the case of Mr. Khalilur Rehman's client and into three (in the case of Mr. Bajwa's client) is not against the main provision of law, i,e,, section 233, Cr. P. C. Therefore, no illegality has been committed because, as pointed out above, this provision contains the rule while those in sections 234(1) and 222(2) contain only permissible exception. What is permissible is not always mandatory and this is the case here with regard to the interaction of the provisions contained in sections 233 and "section 222(2), Cr.P.C." In case reported as The State v. Mirza Azam Beg, P.C.S. and another' (PLD 1964 (W.P.) Lahore 339), the Hon'ble Lahore High Court observed as follows:- "Section 234, Cr.P.C. is the first exception to the general rule of one trial for each distinct offence. The principle underlying this section is that the offences of the same kind in criminal Court within a space of short period, namely, twelve months from the first to the last of such offences, may be tried together. This section lays down three limitations. They are, (1) that the offences must be of the same kind, (2) that they must have been committed within the space of one year, and (3) that more than, three offence should not be joined in the same trial. It is also important to observe here that the directions in regard to joinder of three charges stated under section 234 are not mandatory in the sense that it is not obligatory on the Magistrate not to try the offences separately, but it is entirely in the discretion of the, Magistrate whether or not to resort to section 234. The section is merely enabling section and does not in any way deprive the Court of ordering a separate trial. In other words, it is not obligatory on the Court to have joint trial of three offences committed within the period of 12 months. It is also important to notice that this section governs the case where there is only one accused. The case of several persons being accused of more offences than one of the same kind committed within the space of twelve months is dealt with in section 239 (c)". 11. Section 239, Cr.P.C. is the last of the exceptions to the rule laid down in section 233 and expressly mentioned as such in that section. This is the only section which deals with the joint trial of more than one person and the preceding five sections are intended to cover the case of one accused person but more than one charge. It will be manifest from reading the language of this section that it lays down the seven contingencies mentioned in clauses (a) to (g) in which persons may be charged and tried together. Clause (a) is to the effect that "persons accused of the same offence committed in the course of the same transaction can be tried together." Clause (b) is to the effect that "persons accused of an offence and persons accused of its abetment or attempt to commit it can be tried together." Clause (e) is to the effect that persons accused of more than
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one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months can be tried together. This provision is analogous to that of section 234, which section it would be remembered deals with only one accused. Under clause (d) persons accused of different offences committed in the course of the same transaction can be tried together. This is analogous to section 235(1). Clause (e) deals with the joint trial. Clause (I) deals with the joint trial of receivers of property stolen through one theft. Finally, clause (g) deals with counterfeiters of coin". Likewise, in case reported as `Ghulam Farooq alias Ghulam Qasim v. The State' (2000 MLD 1504), the Division Bench of Hon'ble Balochistan High Court observed that prosecution was to try an accused on different offences in one trial as provided in sections 234 and 239, Cr.P.C., but in case prosecution decided to split the charges and try the accused separately on those charges, the accused…
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