Intikhab A. Syed (Petitioner) VS Chairman NAB and Ors (Respondent)

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rN THE HIGH COURT OF SINDH, r{ARACHT Before:- Mr. Justice Ahmed Ali M. Shaikh, C,J.

Mr. Justice Mohammed Karim Khan Agha, J

Petltlon No. and nome o f tloner alono utlth counsel.

1.C.P. No.D-633 of 2016, C.P. Nos.D-584, D-585, D-586, D-813 and D-117O of 2OI3 Intikhab A. Syed (petitioner) V Chairman, NAB & others through Mr. Mohammad Anwar Tariq and Muhammad Rehman Ghous, Advocate.

2.C.P. No. D-4394, 3149 of 2OI7 & D-786 of 2Ol2 Syed Basit Rasool Qadri (petitioner) V. Chairman NAB & others through Mr. Ahmed Hasan Rana, Advocate.

3.C.P. No. D-5856 of 2016 Rana Munir Ahmed (petitioner) V Chairman NAB & others through through Mr. Mohammad Anwar Tariq, Advocate.

4.C.P. No. D-7058 of 2OL7 Adnan Hyder Khan (petitioner) V Chairman NAB & others through Nabeel Nazeer Ahmed, Advocate.

5.C.P. No.D-S148 of 2014, D-6538 of 2015 & D-8716 of 2077 of Syed Wajahat Hussain Zaidi (petitioner) V. Federation of Pakistan i & others through Mr. Sami Ahsan, Advocate.

Counsel fgr the Respond,ents.

Mr. Mohammad Altaf and Yassir Siddiqui Special Prosecutors, NAB In all the above Constitutional Petitions.

Mr.Malik Khurshal Khan and Mr.Naveed Ul Haq, Advocates in CP.D.No 6s3lL6 Mr.Khilji Bilal Arit Advocate in CP.D.No.D-1349 and 434912017 Mr.Mansoor Ul Haq, Advocate in CP.D-No.7058 and 8716l17 Mr.Abdul Aziz Abro, Advocate in CP.D.No.5L48l2016 Ms Naheed A Shahid, Advocate in CP.D 585612016 Mehmood Nazir Rana for State Bank of Pakistan CP.D 633/2OL6 On Court Notice: Salman Talibuddin Additional Attorney General for Pakistan along with Ms Maria Ahmed

DatesofHearing: 08.03.2018,09.03.2018,28.03.2018 02.04.2018 and 16.04.20 18

Date of Order: 07-05-2018

ORDER

Mohammed Karim Khan Agha, J. By this common order, we propose to dispose of the above petitions filed on behalf of the above mentioned petitioners. In short, inquiries/investigations u

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were initiated and later references filed against the petitioners by the National Accountability Bureau (NAB) under the National Accountability Ordinance 1999(NAO) for the offense of cormption and corrupt practices under the NAO and more particularly the offense of willful default under S. 9 (viii) of the NAO.

2.In some petitions some of the petitioners are on ad interim pre arrest bail whilst in other petitions the petitioners have applied for quashment of the inquiry/ investigation and later the quashment of the references filed against them.

3.Not withstanding the prayers in their petitions all the learned counsel for the petitioners (bar one) have argued that the inquiries/ investigations and references hled against the petitioners by NAB should be quashed as NAB no longer has the jurisdiction to hear cases of willful default under the NAO. This is because following t-he promulgation of Act No.XXXVIII of 2016 (the Act) which further amended the Financial Institutions (Recovery of Finances) Ordinance 2OOl (the Ordinance) amendments were made to bring the offense of willful default under the ambit of the Ordinance. Furthermore, as the Ordinance was a special law and

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the Act was promulgated later in time than the NAO, which was also a special law, the Ordinance as amended by the Act would take precedence over the NAO when the NAO and tJ:e Ordinance were in conflict as in the instant case of willful default. In support of their contentions in this regard learned counsel for the petitioners placed reliance on the case of Syed Mushahld Shah V FIA (2017 SCMR 1218) and an unreported Order of this court in CP.D No.3673/2017 Azim Ahmed V State dated O2-|O-2O17.

4.The Act at S.1 (2) specifically provided that the Act shall come into force at once i.e on 13-08-2016 the day when it was promulgated however learned counsel for the petitioners contended that the Act had retrospective effect largely on the basis that the L amendment was in the procedural law as opposed to the substantive law. In this respect learned counsel for the petitioners placed reliance on the cases of Adnan Afzal Y Capt Sher Afzal (PLD 1969 SC 187), The State V Maulvi Muhammed Jamtl (PLD 1965 SC 681),Rana Abdul Ghaffar V Abdul Shakoor (PLD 2006 Lahore 64), Matik Gul Hasan and Co V Allied Bank of Pakistan (1996 SCMR 237), Sajid Dadabhoy v NAB (2015 P.CR.LJ 729) Tbc

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qss State V Naslm Amin Butt (2001 SCMR 1083), Haflz Muhammad Abdullah v. Imdad Ali Shah and anothet (t922 SCMR l7g), Yusuf AIi Khaa Barrlster -at-law Lahore v. Messrs Hongkonk & Shaaghal Banklng Corporation Karachl and anothet (tgg4 SCMR IOOT), Ral Naeem Shahadat v. Mst. eamar Munlr and others (2OO4 SCMR 4I2) and Air League of pIAC Employees through Presldent v. f'ederatlon of paklstan, M/O Labour and Manpower Divisiou Islamabad and others (2011 SCMR 1254),

5.One petitioner, Syed Wajahat Hussain Zaidi in CPD 8716ltT agreed with the other petitioners that the Act would take priority over the NAO in respect of the offense of willful default however he argued that it would only apply prospectively i.e. from the date when it was said to take effect in the Act and not retrospectively. In support of his contention he placed reliance on the case of Muhammed Ashfaq V State (PLD SC 1973 368).

6.Learned Additional Attorney General for Pakistan on court notice submitted that the Act would have retrospective effect if it solely concerned procedural issues however in his view the Act also made certain substantive legal amendments to the Ordinance, For example, in terms of the maximum sentence and the enlargement of the jurisdiction of the banking courts and as such the Act would not have retrospective effect. He submitted that all already initiated complaint verifications, inquiries, investigations and references under the NAO for the offense of rvillful default prior to the Act coming into effect i.e. before 13-08-2016 would continue with the NAB with the exception that in such cases the sentences which could be handed down on conviction would be governed by the Ordinance which sentences were lower than under the NAO as the accused was entitled to the rule of benelicial interpretation of legislation and in this way no one would be prejudiced. He was of the view that the Section in the NAO dealing with the offense of willful default starting from the date when the Act came into effect L^ had been impliedly repealed. In this respect he placed reliance Abdul Majid v. The State (PLD 1974 Karachi 309), Badshah Gul trIazir v. Goverument of Khyber Pakhtunkhwa (2015 SCMR 43), Samrar Jan v. Mukhtar Ahmed (PLD 2Ol2 SC 217), Saeed Ahmed v. The State (PLD 1964 SC 266), T. Barai Henry Ah Hoe (AIR 1983 SC 150), Taza Khan v. Ahmed Khan (lgg2 SCMR 1371), Kohinoor Mercantile Corporation v. Hazera Khatoon b

(sl (PLD 1963 Dacca 238), State of Orissa v. M.A. Tulloch (AIR 1964 SC 1284), Sona v. The State (PLD 1970 SC 264l'and Waqar AzTa v. The State (2002 YLR 1811). He also placed reliance on 3.60 of the General clauses Act to show that otherwise the NAO continued in force.

7.Learned special prosecutor NAB submitted that a later special law did not automatically take precedence over an earlier special law and based on the objects and purpose of the NAO its provisions regarding the offense of willful default would prevail over the Act. In this regard he placed reliance on I.G HQ Frontier Corps V Ghutam Hussain (2004 SCMR 1397). Even if this was not the case in tJ:e alternative he submitted that the Act was only prospective in effect and was not retrospective. According to him the rationale behind the Act which amended the Ordinance was to give effect to this courts decision in the case of AmJad Hussain V NAB (2017 YLR 1) concerning NAB's own SOP on pecuniary jurisdiction which was upheld by the Hon'ble Supreme Court whereby cases involving less that RS1OOM would not be taken up by NAB in all but a few exceptional cases with the permission of the Chairman NAB and the purpose of the Act in making the amendment was to allow the ordinance to deal with default "villful cases of less than 1O0M after its promulgation and allow NAB to deal with willful default cases of over RS100M as per its own SOP' He also submitted that as a general rule legislation was only retrospective if the legislature had expfessly provided that it was to be the case in the concerned legislation and since this had not been done in the Act the Act took effect from the date specilically mentioned i.e 13-08-20 16, In this respect he placed reliance on the case of Muhammed Hussain V Muhammed and others (2000 scMR 367).

8.Other learned counsel for the respondents notably on behalf of the State Bank of Pakistan and Bank Islami adopted the arguments of special prosecutor NAB and in particular stressed that the Ordinance as amended by the Act could not override the NAO which would prevail over the ordinance in cases of willful default; that in the alternative the Ordinance as amended by the Act was only prospective in nature and would come into effect on 13.08.2016 as expressly provided in the Act and not retrospectively as it contained substantive changes in the law and b

1(o not purely procedural ones, that rights of the parties would be adversely effected if the 1aw was made retrospective which would be unjust, that Article 264 of the Constitution in cases of repeal did not effect the cases pending under that law prior to repeal; that 5.6 of the General Clauses Act had a similar effect and that since an investigating agency had not even been appointed by the Federal Government under S.2O(7) of the Ordinance despite it being in the field for over 18 months such retrospective effect would further delay the disposal of pending cases which would lead in effect to justice detayed being justice denied'

9.We have considered the submissions of the parties, perused the record, considered the relevant law and authorities cited at the bar.

10.At the outset we observe that we have found the Parliamentary debates surrounding t]-e promulgation of the Act to be of little assistance in understanding why the Act was passed in the face of the similar provision dealing with willful default under the NAO which we assume the existence of which Parliament would have been aware of. We also do not find NAB's argument r that the Act was passed following the case of Amjad Hussain (Supra) to be of much substance since if the Ordinance was to deal only with cases of willful default being less than RS1OOM and cases above that level being left to the NAB under the NAO then the Act would have expressly and specifically stated this to be the case which it did not

11.When the National Accountability Bureau Ordinance 1999 (NABO) was promulgated and repealed the Ehtesab Act 1997 fot the first time in Pakistan's history in its endeavor to thwart corruption and cormpt practices S.9 (viii) NABO made willful default as defined in S.5 @ NABO an act of cormption' Traditionally such an offense had been left to the recovery methods under the civil law. In the case of Asfandyar Wali Khan V Federation of Paklstan (PLD SC 2OOt 60T) when the NABO was challenged and in particular the offense of willful default such offense was upheld by the Honble supreme court as being in line witJl the constitution. The Preamble of the NAO also supported such an offense. For ease of reference the relevant parts of the preamble, S.9(viii) NAO and S.5 @ NAO and are set out below'

1r\ Preamble

"Whereas there is an emergent need for the recovery of outstandlng amounts from those persons who have committed default ln the rdpayment of amounts to Banks, - Flnancial Institutions' [Government agencies and other Agencies].

"S.9 (a) 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 cormption and corrupt practices:--

(i)if he accepts.............

(ii).....

(iii).....,....

(v)....,.........

(vii)............

(viii)If he commlts an offence of wlllful default;

v "S.5@ Willful default"; a person or a holder of public office is said to commit an offence of willful default under this Ordinance if he does not pay, or continues not to pay, or return or repay the amount due from him to any bank hnancial institution, cooperative society, Government department, statutory body or an authority established or controlled by Government on the date that it became due as per agreement containing the obligation to pay, return or repay or according to the laws, rules, regulations, instructions issued or notified by the State Bank of Pakistan or the bank, financial institution, cooperative societ5r, Government of Pakistan statutory body or an authority established or controlled by a Government, as the case may be, and a thirty days notice has been given to such person or holder of public office' Provided that it is not willful default under this Ordinance if such person or holder of public office was unable to pay return or repay the amount as aforesaid on account of any willful breach of agreement or obligation or failure to perform statutory duty on the pari of any bank, financial institution, cooperative society, Government department, statutory body or an authority established or controlled by a Government. Provided further that in the case of default concerning a bank or a financial institution a seven days notice has also been given to such person or holder of public office by the Governor, State Bank of Pakistan:

tsz Provided further that the aforesaid thirty days or seven days notice shall not apply to cases pending trial at the time of promulgation of the National Accountability Bureau (Amendment Ordinance, 2OO1). (bold added)

12.Since the offense of "willful default" remains a part of the NAO today over 18 years since it was promulgated during which period a number of different governments have been in office it appears that successive Parliament's have been satisfied with this offense of *willful default" being a part of the NAO especially as no attempts have been made to expressly amend or delete the offense from the NAO to date.

13.In fact safeguards have been put in place under the NAO to ensure that S.9(viii) as defined by S.5 @ is not abused through S,31 O and (D) NAO which are set out below for ease of reference.

"S.31 (C). Court to take cognizance of offeace wlth prior approval of the State Bank. No Court established under this Ordinance shall take cognizance of an offence against an officer or alr employee of a bank or financial institution for writing off, waiving, restructuring or refinancing any financial facility, interest or- mark up wlthout prlor Y approval ofthe State Bank ofPakistan. (bold added) S.31 (D). Inquiry, investigation or proceedings in respect of imprudent bank loans, etc. Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re-scheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from the Governor, State Bank ofPaklstan:

Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2OOO, shall continue to be prosecuted and bonducted without reference from the Governor, State Bank of Pakistan'.

14.Likewise under 25 A NAO where a person has been arrested or is in the custody of the NAB or apprehends such arrest or custody for the investigation of the charge against him of willful default he may at any such stage apply to the Governor of the State Bank of Pakistan (SBP) for reconciliation of his liability through the conciliation committee which the Governor if he deems fit may refer the matter. An elaborate mechanism as to how the

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conciliation committee is to function and go about its task is then set out in the rest of S.25 A NAO.

15.On conviction under S.9 (viii) NAO S.10 NAO sets out the punishment whilst S,15 NAO also imposes certain other disqualifications on the convict. S.10 and 15 are set out below for ease of reference:

'S. 1(). Punlshment for corruptlon 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 nay 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 cormption and corrupt practices whether in his name or in 'the name of any of his dependents, or benamidars shall be [....] forfelted to the appropriate Government or the concerned bank or financial institution as the case may be.

(b)The offences specified in the Schedule to this Ordinance shall be punishable in the manner specilied therein.

(c)The Federal Government may, by notification in the

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official Gazette, amend the Schedule so as to add any entry thereto or modi$z or omit any entry therein.

(d)Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an of,fence under this Ordinance, shall not be entitled to any remission in his sentence."

"S.15. Disqualification to contest elections or to hold public office.-(a) Where an accused person is convicted of an offence under Section 9 of the Ordinance, he shall forthwith cease to hold public ollice, if any, held by him and further he shall stand disqualified for a perlod of teu years, to be reckoned from the date he is released after serving the sentence, or seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province;

Provided that any accused person who has availed the benefit of sub-section (b) of Section 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or ofany Province.

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(b)Any person convicted of an offence under Section 9 of the Ordinance shall not be allowed to apply for or be granted or allowed any fiuanctal facllltles in the form of aay loan or advances or other llnanclal accommodatlon by any Bank or Flnanclal Instltutlon owned or controlled by Government, for a period of 10 years from the date of conviction." (bold added)

16.When the Ordinance was promulgated in 2001 (in order to repeal and with certain modifications re enact the Banking Companies (Recovery of loans, Advances, Credits and Finances) Act 1997) after the NAO it did not mention the offense of willful default so it can be deemed that so far as Parliament was concerned right up to 13-08-2O16 when the Act was passed the offense of Willful default was covered by the NAO and not the Ordinance.

17.When the Act was passed the following amendments which are relevant to the case in hand were made to the Ordinance whereby a new S.2 (g) was added and S.20 (6) was substituted and new subsections 2O(b) (7), (8) and (9) were added which are set out below for ease of reference:

i' "S. 2(g|"willful default" means

(i)deliberate or intentional failure to repay any finance, loan, advance or any hnancial assistance received by any percon from a fiuancial lnstitutlon after such payment has become due under the terms of any law or an agreement, rules or regulations issued by the State Bank of Pakistan;

(ii)utilization of finance, loan, advance or financial assistance or a substantial part tltereof, obtained by any persort from a flnanclal instltutlon for a purpose other than that for which such finance, loan, advance or financial assistant had been obtained and payment in part or full not made to the financial institution; or

(iii)removal, transfer, misappropriation or sale of any assets collateralized to secure a finance, loan, advance or financial assistance obtained from a flnancial instltutlon wlthout permlssion of such instltution. (bold added)

*s. 2O(b) (61, (71, (8)and (91.

(6)AII offences under this Ordinance shall be triable by a Banking Court in accordance with section 7. A1l offences, except for the offence of willful default, shall be bailable, non-cognizable and compoundable.

(7)Notwithstanding anything to ihe contrary provided in any other law for the time being in force, action in respect of an 4,1, t, k2"

q(t offence of willful default shall be taken by an investigatlng agency, to be nomlnated in this behalf by the Federal Government, on a complaint in writing filed by an authorized officer of a financial institution after it has served thirty days notice upon the borrower demanding payment of the loan, advance or linancial assistance.

(8)An offence of willful default shall be cognizable, non- bailable and non-compoundable and punishable wlth lmprlsonment which may extend to seven yeara or flne, not exceeding the amount of default, or with both.

(9)Any person convicted of the offence of willful default by a Banking Court shall not be eligible to receive any loan, advance or finance from any financial institution for a perlod of ten years and shall not be permitted to contest any election aa a member of the MaJlls-e-shoora (Parllamentf, any Provlnclal Assembly or a local body for a perlod of llve yeara, after senrlng out a sentence after coavictlon.

18.Thus, it would appear that for the first time Parliament with deliberate intent through the express language of the above referred sections intended that cases concerning willful default could also be tried under the Ordinance from 13-08-2016 which was the date when the Ordinance, as amended by the Act, came into effect t

19.The first issue before us is therefore whether the offense of willful default can be applied under both the NAO and the Ordinance i.e. in essence have two similar cases running in parallel or only under either the NAO or the Ordinance especially as the offense of willful default has not been expressly repealed from the NAO and if so under which of the two laws. i.e the NAO or the Ordinance as amended by the Act.

20.In considering this issue we have been mindful of the fact that both the NAO and the Ordinance are both special laws with non obstante clauses, the intention of Parliament, the principle of law of redundancy whereby no part of a statute can be rendered redundant and if the Ordinance is found to prevail over the NAO from which date it would be applicable and how such existing cases should be treated.

21.As can be seen from a comparison of the definition and offense of willful default under the NAO and the Ordinance they are similar in nature but NOT identical especially bearing in

< t6 mind that since the case of Abduf Aziz ]Memon V Federation of Pakistan (PLD SC 2013 594) the NAO applies equally to individuals as to public office holders. To a certain extent it can be said that through the Act Parliament has simply added the offense of willful default from the NAO to the Ordinance which appears to be a logical step to take since it is the Ordinance which primarily deals with defaulted loan cases as opposed to the NAO which deals I with all manner of other cormption cases under S.9 NAO.

22.The slgnlflcant dilferences however between S.5@ NAO and S.2 (g) of the amended Ordinance seem to be that whilst the Ordinance only applies to financial institutions and their customers the NAO is of wider application. Financial Institutions is defined in S.2 (a) of the Ordinance as under

"(a) ulinancial institution" means and includes- (il any company whether incorporated within or outside Pakistan whlch transacts the buslaess of banking or any associated or ancillary business in Pakistan through its branches within or outside Pakistan and includes a Government savings bank, but excludes tJre State Bank of Pakistan;

(i1) a modaraba or modaraba management x conpatry, leaslng compeny, investment bank, venture capital company, flnancl.g compatry, unit trust or mutual fund of any klnd aad credit or lnvestment lustitution, corporatlon or conPany,; and (ii| any conpalry authorized by law to carry on any similar business, as the Federal Government may by notification in the official Gazette, speciff; (bold added)

23.The scope of S.5 @ NAO therefore appears to be a little wider as a part from financial institutions it'also applies to co-operative societies, government departments, statutory bodies, and authorities established or controlled by a Government which appear to be missing from the definition of "financial institution" under the Ordinance which in simplistic terms seems only to cover the relationship between banker and customer during the ordinary course of banking business,

24.Not withstanding this slight difference in definition in our view to a certain extent it could be said that some of the provisions of the NAO vis a vis willful default ar-e more advantageous to the accused/defaulter as he has the safe guard of S.31 (D) and the

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benelit of the conciliation committee and ability to make a plea bargain under S.25 NAO. However one of the key and most important differences in our view is the sentence and disquali{ication period entailed in each piece of legislation. In the NAO it is up to 14 years imprisonment whilst in the Ordinance it is up to 7 years imprisonment which is signilicantly lower whilst the disqualilication period in the NAO is 10 years and the + disqualification period in the Ordinance as amended by the Act is 5 years.

25.In the case of Syed Mushahid Hussain (Supra) a detailed, exhaustive and elaborate Judgment was passed by the Hon'ble Supreme court dealing with the consequences of special laws which provided similar, if not identical provisions, and which would prevail based on the fact that both laws contained non obstante clauses as in the case in hand.

26.The question of law in that case was whether the Banking Courts constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance, 2OOl) have exclusive jurisdiction to try the offences mentioned therein to the exclusion of the Special Courts constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (the ORBO), the courts of ordinary criminal jurisdiction under the Code of Criminal Procedure, 1898 (the Code) read with the Pakistan Penal Code, 1860 (the P.P.C.) and from inquiry and investigation by the Federal Investigation Agency (the Agency) under the Federal Investigation Agency Act, 1974 (the Act, 1974l,.

27.The question, it appears, was whether a special law would trump a general law which was answered in the affirmative and if two special laws were in conflict which would prevail. Generally speal<ing it was found that the special law later in time on the same subject matter would prevail however other relevant factors would also need to be considered such as the object, purpose and policy of both statutes and the legislature's intention through the language used in the statutes before making a final determination

28.While dealing with the above proposition the Honble Supreme Court seems to have reached the conclusion that where offences in ORBO were not covered in the Ordinance then the

lcs cases would proceed under the ORBO but where the offenses were similar or the same they would proceed under the Ordinance and aot under the ORBO. In reaching this conclusion the court took into consideration factors such as which special law was later in time, the severier of the relevant law on the accused, the question of the banks being able to pick and chose their forums, Iegislative intent, redundancy of law, parallel proceedings, + discrimination, equality before the- law, the requirement of certaint5r in the law for the accused and implied repeal. In this respect we rely on Para's 15-17 on P.1244 onwards of the aforesaid judgment which are set out below for ease of reference.

15."On the other hand, the Ordinance, 200 1 established Banking Courts which deal with dispute (civil and criminal) between financial institutions and customers in respect of finances availed by the latter and investigate and try offences stipulated therein. Section 20 of the Ordinance, 2OOL indicates that there are numerous elements of each offence, making such offences far more specific than those triable by the Special Courts under the ORBO. Thus, perchance if a customer commits an act which constitutes an offence under any of the provisions of section 20(1) of the Ordinance, 2001 and the same act also constitutes an offence under the ORBO, and but for the Ordinance, 2O0 1 being in force, such customer would have been tried under the ORBO, then it x could be said that there was/is a definite overlap between the two laws and the Courts established under the ORBO may not exercise concurrent jurisdiction with respect to those acts / omissions which constitute offences under the Ordinance,20Ol. The examples of cases listed above, falling within the purview of the ORBO, demonstrate that they do not extend to customers who are alleged to have committed offences which fall squarely within the purview of the Ordinance, 2OOl; rather they are restricted to the employees of the banks, any third parties (vis-d-vis customer and financial institution) or in some instances customers but only when the act / omission does not fall within the ambit of the offences in the Ordinance, 2OOI. Therefore, it is categorically held that the Ordlnance, 2OOl shall have an overriding effect on all those cases which are covered by it. Concomitantly, offences not covered by the Ordlnance, 2OOl would be trlable under the ORBO. A comparative analysis shows that generally, proceedings before the Special Courts under the ORBO are more onerous and relatively disadvantageous to the accused. Under the person or a report by a police officer (as opposed to onlg a complaint bg a financial institution under the Ordinance, 2OO1) the accused is not to be released on bail if there appear reasonable grounds of guilt (u.thereas all offences apart from willful default are bailable under the Ordinance, 2001lr most offences are non-compoundable, punishment of the offences is generally of greater severit5r, the accused and persons acting on his behalf are barred from dealing with moveable and immovable property without permission of the Special Court, the accused can neither leave Pakistan nor be

1r1 employed for any service without the permission of the Special Court, and there is presumption of guilt and the burden ofproofis on the accused.

16.The learned counsel for the respondents have argued that the Banking and Special Courts under ttre Ordinance, 2OO1 and the ORBO respectively enjoy concurrent jurisdiction, giving the financial institutions/banks a choice of forum before which the trial should take place; in this behalf they have relied upon section 20(1) of the Ordinance 2OOl, + according to which whoever commits any of the offences made out in parts (a) to (d) would be punishable to the extent mentioned therein, "without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force" [Emphasis supplied]. Provisions enacted lvithout prejudice' to other provisions means that tJ e former would not affect the operation of the latter. The \rithout prejudice' clause reproduced above can be divided into two parts:- (i) any other action which may be taken against him under any other law for the time being in force. As regards the first part, it means that if a person commits an offence which falls within the purview of Section 20 of the Ordinance, 2OOl, action can be taken against him under the said Ordinance, including, inter alia, a civil suit filed by a banking company before the Banking Court under section 9 thereof quite apart from action for committing another offence. As far as the second part is concerned, when the Ordinance, 2001 came into force, the ORBO was already in existence. Would this mean that if a person committed an \ offence which fell within the purrriew of section 2O of the Ordinance, 2OOL, parallel action could be taken against him under the ORBO? The answer depends on the scope of the phrase 'wlthout preJudlce'. Ia isolatlon thls expression would speal to the legislature's intentlon that a fiaanclal institutlon be not confined to havlng recourae to only oue speclflc remedy agalnst a custoner for offences committed by htm in relation to the obligations of the finance avalled, but to allow the banklng conpany to choose its remedy. However, we cannot subscribe to this polnt of view. Were both laws to apply concurrently and permlt of parallel platforns for the adJudication of offences under both laws then banks/Ilnaucial institutlons would always choose to initiate proceedings under the more orerous law, ln thls case the ORBO. Such an lnterpretatlon would glve banks / Ilaanclal lnstltutlons unbridled power to choose the forum before which trial of offences should take place, and they would obviously choose the Speclal Courts under the ORBO belng more burdenaome aad preJudiclal

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to the accused las demonstrated above). A natural corollar5r is that ln such clrcumstaaces the Ordlnance, 2OOl would, in fact, be rendered redundant. Thls ls not permisslble under any princlple of interpretation of law when the Courts are trying to reconcile two potentially conflicting [aws: our duty ts to brtdge the gap between what ls and what was lntended to be. [Ie are not willlng to attrlbute redundancy to the leglslature. We do not wish to give financial lnstltutions the unrestricted power to choose, when there has been an alleged dishonour ofa a

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cheque, between section 2O(af of the Ordinance, 2OO1 and sectlon 489-F of the P.P.C., ae they would of a certalnt5z opt to ialtlate proceedlags under the latter which offence carries a greater punlshment than the former. In this coatext, the Judgment reported as War{s Meah u. The State l2t The State Bdnk o f Pa,klstc,n 7957 SC 15 is relevant in which a five member bench of this Court held as under:-

In the present case, th.e question to be determined is + whether tlw impugned Act is ex facie discriminatory, and ue haue no lrcsitation in saging that it is. Three tribunals with different pouers and procedures haue been set up. Tle Act creating them contains no indication as to which class or classes of ca.ses @re to go before a Court and which before tlrc Tibunal and tte Adjudication Officer and. it does not impose upon t?e Central Gouettment, tlw obligation, or expressly confer on it the power, of making rules with a uiew to classifuing th.e cases to be tied bg each of these (sic) tibunals. Nor does it define tle pinciple of policg on uthich such classification mag be made by tte Central Gouernment or tle State Bank. The Central Gouemment hrrs not exercised its power of issuing ang directions to the State Bank or of making ang tules under section 27 for carrying into effect the prouisions of the AcL The result, tlrcrefore, is that in tlrc present state of tlqe law no person uho is alleged to haue contrauened ang prouision of the Act can knout bg uhich Court he is to be tried, and the question whether on conuiction he shall be punislrcd withimprisonment or should be punished uith imprisonment qnd fine uthich mag ertend to ang amount, or uhether he should be let off with a mere penaltg of tlvee times the ualue of tle amount inuolued rests entirelg on the actton that the Central Gouernment or the State Bank mag choose to take.

It was contended on behalf of the State that in the present cases, it could not be said that discretion had not been exercised in a fair and reasonable manner bg the State Bank, in electtng to send the cases to a T?ibunal. On tle allegations, the cases utere of a senbus characte4 and merited seuere gruni,shmenL The mischief of the Act is, houteuer, not suseptible of so simple a cure. It confers discretion of a uery uide chnracter upon stated autlwities, to act in relation to subjects fallirq uithin the same class fn tlvee different modes uarying greatlg in seueritg. Bg fumishing no guidance uhatsoeuer in regard to tlw exerase of this discretion, the Act, on tle one hand, leaues tle subject, falling within its proubions, at tle mercg of tlte arbitrary uill of such authoity, and, on the otler, preuents him from inuoking his fundamental ight to equalitg of treatment under the Constitution.

Tle Constitution declares in Article 5 (I)ttnt "All citizens are equal before lana and are entitled to equal protection of lau" and Article 4 (I) prouides that "Ang exbting 1aut......... in so far as it is inconsistent utith tlrc prouiiions of this Part, shall, to the ertent of such

1'l \ inconsistencg, be uoid." Thnt dutg of declaring that a laut is uoid, for uiolating a htndamental Right defined in Part II rests on the Courts. That dutg cannot be performed, so as to ensure that a lana operates equally in relation to all persons within its mischief, if tle laut itself prouides for differential operation in relation to such persons, not in accordance with ang pinciple expressed or implicit in tte latu, not on the basis of ang classification made by or under the latu, but according to tlw unfettered discretion of one or more stafutory authoities.

Here, not onlg is there di.scretion in the specified authoities uheth.er theg uill proeced at all against ang member of tlrc class concemed, uiz. offenders against th.e Act, but there is also an unfettered choice to pursue tte offence in ang one of three different modes which uary greatly in relation to the opportunitg allowed to tte alleged offender to clear'himself, as well as to the quantum and nature of tlw penaltg which lrc mag inanr. TTw scope of tlw unguided discretioru so allowed is too great to permit of application of the pinciple that eqtalitg is not infinged bg the mere anferment of unguided pou)er, but onlg bg its arbitrary exercise. For, in the absence of any discemible pinciple guiding the choice of forum, among the tlvee prouided bg tlrc lau, the choice must alwags be, in tte judicial uieutpoint, arbitrary to a greater or lesser degree, The Act, as it is framed, makes prouision for discimination betueen persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for b the Courts to determine, in a particular case, uhether it is being applied with strict regard to the reqtirement of Article 5(I) of tlrc Constitution.

In our vieu such a law has the effect of doing indirectlg i.e., bg leauing tlte discimination within the unguided and unfettered discretion of statutory authoities, u.that it rculd not do directlg i.e. to treat unequallg persons falling uithin the same class, upon a basi.s uthich bears no reasonable relation to the purposes of the law. Tle Act is, tlerefore, in our opinion, in relation to its di.scriminatory prouisions, inconsistent with tlrc declaration of equalitg in Article 5(I) of the Constitution."

t7 In additlon to our oplnlon expressed above about the redundancy of the Ordlnance, 2OO1 (see paragraph No.16), to allow forums under tbe Ordlnance, 2OOl and - the ORBO to operate concurrently would offend the provisions of Article 25 of the Constltutloa of the Islamic Republic of Pakistan, 1973 (the Constltutionl whlch provldes that all citizens are equal before the law and are entitled to equal protection of the law; there beiag no deflned guideliaes on the basis of whlch cases may be tried under either law, it would tantamount to conferring unfettered discretion on flnancial instltutions to pick and choose the forum as per their free will. Allowing them to do so would be violatlve of the rule agalnst dlscrlminatlon therefore we deem it best to restrict the

1-l z applicability of the ORBO and hold that the Ordinance, 2OO1 is to have an overriding effect on the former. Furthermore, Article 4 of the Constitution confers upon the citizens tlre inalienable right to enjoy the protection of law and to be treated in accordance with law. This provision is reflective of the seminal concept of the rule of law, one of the elements of which is, as identified by Tom Bingham, that the law must be accessible and so far as possible intelligible, clear and predictable. If both the Ordinance, 2001 and the ORBO were to enjoy -citizens concurrent jurisdiction, alleged to have committed an offence in respect of finance would be left wondering which offence they would be charged with, which Court they would be tried in and under what procedure. Thus, to our minds, such a situation would also be an affront to the provisions of Article 4 of the Constitution."

29.Thus, whilst relying on and being guided by the above case and keeping in view that (a) the Act which amended the Ordinance is later in time than the NAO (b) that the provisions on willful default are similar but NOT identical in both laws (c) that since parliament would have been aware bf the existence of such a similar offense of willful default in the NAO it has deliberated and consciously intended to give preference to the offense of willful A default as provided in the Act and as a general principle of statutory interpretation the offense of willful default under the Ordinance will prevail to the exclusion of the offense of willful default under the NAO in so far as it relates to cases as deflned under s. 2(a) of the Ordinance ln respect of willful default which are covered by S.5 @ NAO but not to cases which are not covered by S.2 (a) of the Ordinance but are still covered under S.5@ of the NAO (as discussed above). As Such it appears that tlose parts of the definition of S.5@ NAO relating to willful default which are covered by the definition of "financial institution" under S.2 (a) of the Ordinance are hit by the doctrine of implied repeal based on the principles laid down in the case of State v Syed Mlr Ahmed Shah and Another (PLD l97O Quetta 49) as it appears that the two laws on willful default cannot run concurrently and in parallel. With regard to the doctrine of implied repeal reference may be made to "Constitutional and Administrative law" 5*' Ed. by O.Hood Phillips at P.55 which reads as follows, "The power of express repeal is so well established that it has not been contested in the courts. Lord Reid has said extra judicially: "It is good constitutional doctrine that Parliament cannot bind its successor.'

q13

There are two cases, however, in which it has been argued by counsel that a provision in an earlier Act precluded implied repeal in a later Act. The Acquisition. of Land (Assessment of Compensation) Act 1919, s.7 (1), stated: oThe provisions of the Act or order by which the land is authorized to be acquired....shall....have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or + shall not have effect.....'The marginal note (which is not binding) to section 7 reads: "Effect of Act on existing enactments." In Vauxhall Estates Ltd. u. Liverpool Corporation the plaintiffs claimed that compensation for land compulsorily acquired from tJrem should be assessed on the basis ofthe Act of 1919 and not on the less favorable terms provided by th9 Housing Act 1925. The Divisional Court held that even if the Act of 19i9 could be construed as intended to govern future as well as existing Acts assessing compensation, which construction was doubtful, yet the relevant provislons must be regarded as lmpliedly overridden by the lnconsistent provlslons of the Act of 1925. ln Ellen Street Estates Ltd. u. Mini.ster of Health a similar argument on the relation between the provisions for compensation contained in the Act of 1919 and the Housing Acts 1925 and 1930 was raised in the

I

Court of Appeal. Here the decision that the Housing Acts impliedly repealed the Act of 1919 in so far as they were inconsistentwith it was part of the ratio. eThe Iegislature cannot, according to our constitutlon,'said Maugham L.J., "bind itself as to the form of subsequent leglslatlon, and it is lmpossible for Parllament to enact that ia a subsequent statute dealing wlth the same subJect-matter there can be ao tmplied repeal. If ln a subsequent Act Parliament chooses to make it plain that the earlier statute is being to eome extent repeated, effect must be given to that intentioa Just because lt is the wlll of the Legislature.' (bold added) (d) that as a general principle of law the law will be applied which is less severe on the accused in terms of sentence which in this case is the Ordinance (e) the requirement of equality before the law under Article 4 of the Constitution (f) the requirement that there be no discrimination under the law under Article 25 of the Constitution (g) that by adopting such an approach an accused will have certaint5z as to which law he will be proceeded with and before which forum (h) that the offense of willful default falls more neatly into tJle Ordinance which deals primarily with bank default and recovery cases (i) that it seems

1'l Ll more appropriate t}lat cases of willful default not be proceeded with as corn-rption cases and fi) to put an end to the practice whereby financial institutions initiate recovery proceedings under the Ordinance and then refer the matter to the SBP as a case of willful default under S.31 (D) with a view to NAB taking up the case as a tactic by the banks to pressurize the accused into entering into a settlement. Thus for all the above reasons we find that cases of willful default will proceed exclusively under the Ordinance and exclusively before the Banking courts under the Ordinance and not under the NAO as discussed in this paragraph subject to the question of retrospectively which is dealt with in the later parts ofthis order.

30.Further reliance in this respect is placed on the case of Namdar Hussain (2OI7 CLD 1101) which dealt with an almost identical issue, although related to a bail matter, as to whether the case fell under the Ordinance or the NAO and found that the case fell under the Ordinance a decision which the NAB initially appealed but which it later withdrew indicating that it accepted the legal reasoning behind the decision.

)t

31.With regard to redundancy we do not consider that we have made the offense of willful default redundant under the NAO as there are still some caaeg where the definition of S.5@ NAO is not covered by the definition set out in S.2 $) of the Ordinance in respect of willful default and thus can proceed as willful default cases under the NAO. It is also pertinent to point out in terms of redundancy of any part of a statute that in the case of Syed Mushahid Hussaln (Supra) when the,Honble Supreme court held that certain offenses which were also triable under ORBO and which were now exclusively to be tried under the Ordinance tltat those offenses under ORBO were not held to have become redundant. Thus, the same reasoning can be applied in this case where we have tried to achieve a harmonious interpretation of two .f special statues where some aspects may be in conflict.

Turalng to the next issue which is the date when the Ordlnance as amended by the Act shall take effect.

32.At the outset we do not consider the cases of Muhammed Ashraf (Supra) and SaJid Dadabhoy (Supra) to be of much "q assistance in decidine this issue.

(rs

33.In our view as a general rule of legal interpretation of statutes an Act will take effect from the date it is promulgated unless it is specifically stated in the Act tJ at it will take effect from a given date. A good example is the NAO which at S.2 specifically provides that it will be deemed to come into force on 01-01-1985 despite being promulgated on 17-tl-1999.

34.However there may be some exceptious to this general rule. For example, in the case Adnan Afzal (supra) which followed the 1965 case of Maulvi Muhammed Jamil (supra) it was held that an Act may be given retrospective effect if it related to procedural issues only such as change of forum provided that in the process no existlng rights were effected and the gtvlag of retrospectlve effect would not cause inconvenience in the following terms at P.191 to 192:

"The general principle witll regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Relining Company Limited v. Irring (1) is that "if the matter in question be a matter of procedure onl5/, the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, lf lt touches a right ln existence at the a passlng of the Act', then 'in accordaace wlth a loag llne of authorities exteading from the tlme of Lord Coke to the present day', the legislation would not operate retrospectlvely, unless the Leglslature had either *b-y express enactment or by necessery intendrnent' given the legistratlon retroactlve effect.

To the same effect are tlte observations of Jessel, Master of tJle Rolls, in the case of In re : Jospeh Suclrc & Co. Limited (2), where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It ls satd that there ls one exceptlon to that rule, namely, that, these euactments merely affect procedure aad do not extend to rights of action, they have been held to apply to existlng rights.'

{ The question for consideration there was regarding the right of a secured creditor of a company to prove for the futl amount of his debt without deducting the value of his Securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively.

1'r t

The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 58 1, as follows:---

"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subJect to the rule that statutes should not be given retroactive operation. Similarly' the presumption against retrospective construction ls inapplicable. In other words, such statutes constitute { an exception to the ryle pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future action."

This principle has also been fully adopted by this Court in the cases of The State v. Muhammad Jamil (1) and Muhammad Alam v. The State (2).

The next question, therefore, that arises for conslderatlon ls as to what aie matters of procedure. It ls obvious that matters relatlng to the remedy, the mode of trial, the manner of taklng evidence aud forms of actlons are all matters relating to procedure Crawford too takes the view that questions relating to Jurisdlctlon l over a cauae of actlon, venue, partles pleadings and rules of evldence also pertain to procedure, provlded the burden of proof ls not shifted. Thus a statute putporting to transfer Jurlsdictlon over certain causea of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless lt must be polnted out that tf tn thte process auy exlstlng rights are affected or the glving of retroactive operation cause lnconvenlence or lnJustlce, then the Courts will not even ln the case of procedural statute, favour -an interpretation giving retrospectlve effect to the statute. On the other hand, if the new procedural statute is ofsuch a character that lts retroactlve appllcation wlll tend to promote justlce without any conaequentiat embarrassmeat or detrlment to any of the parties conceraed, the Courts would favourably lncllne towards givtng elfect to such procedural statutes retroactively." (bold added) { 35. The later 1996 case of Mallk Gul Hasan & Co V Allied Bank (1996 SCMR 237) followed the above dicta and after a detailed review of the relevant law on this issue held as under at P.243.

oFrom the principle enunciat6d in these Judgments it emerges that statute providing change of forum pecuniary or otherwlse is procedural in nature and has retrospective effect ualess coutrary is provided expressly or implledly

1-1-l

or lt alfects the existing rlght or cauaes lnJustlce or preJudlce.

8.The learned counsel for the- respondent contended that the judgments pending in the High Court which had jurisdiction before the promulgation of the said Act and, therefore, although pecuniar5r jurisdiction had been enhanced, the High Court was competent to continue with the hearing of the case. This contention has no merits. Any statute, whlch enhances or reduces the pecuniary Jurlsdlction of a Court provides a fonrm other than the one where the case is pending, falle wtthin the category of procedural law and wlll be governed by the prlnclples state above." (bold added)

36.Notwithstanding the above we are mindful however that retrospective effect can only be given to a statute in exeeptlonal cases and we must look to the legislative intent. Reliance in this regard is placed on the case of Muhammed Hussain (Supra) where a larger bench of the Hon'lcle Supreme Court held as under at

P.377.

oFrom careful reading of section 1(2) of Act X of 1992 it is quite clear that though Act X of 1992 came into force on the date of its enactment namely L6-12-1992, but its provisions were given effect to from 31-12-I99L. We are, therefore, of the view that Act X of 1992 is retrospective in its l application and its provisions came into effect from 3L-12- 1991. It therefore, follows that the period of limita'tion which was originally prescribed under section 31 of the Act as one year, stood curtailed to 120 days and the amendment was made effective from 3l-12-199L. The question which' however, arises for conslderatlon in these appeals, is whether the above retrospectlve effect given to Act X of 1992 through subsectton {21 of sectloa 1, destroyed the vested rights ofthe partles and lfso to what extent?

It ls well-settled princlple of interpretation that there is a strong presumptlon agalast the retrospectlvlty of a leglslatlon whlch touches or destro5rs the vested rlghts of the partles. No doubt the Ieglslature ls competent to gtve retrospectlve effect to an Act and can atso tate away the vested rights of the partles' but to provide for such consequences, the Legislature muat use words which are clearly, unambiguous and are not capable of any other interpretatlon or such in[erpretation follows as a ubcessary impllcetlon from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interfere with the vested rights of the parties, the words used therein nust be construed strlctly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation." (bold added)

37.Bearing in mind that we have already found that in large part the offense of willful default under the NAO has been subject z

1r-s-- to the doctrine of implied repeal it would be useful to consider how the Honble Supreme Court has considered the effect on existing cases which are proceeding under one Statute which is then repealed and retrospectively of Statutes in general.

38.In the case of Mst Sarsar Jan V Mukhtar Ahmed (PLD 2OI2 SC 2l7l in terms of retrospectivity of statutes the Supreme Court held as under atP.22l

"7. lo order to examine if as per its own force section 4 ibid has a retrospective effect, it is settled rule that any statute or a provision thereof forming part of substantive law, which creates or extinguish or affect the rights of the persons/citizen shall ordinarily have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively. "

39.In the case of Muhammed Tarlq Badr V NBP (2013 SCMR 214) P.333 it was held as under oBefore further proceeding with the matter it may be mentioned that according to the settled law a change in the substantive law which diverts and adversely alIect the vested rights of the parties shall always have prospective application, unless by express word of the legislation and/or by necessar5r intendment/implication such law has been Y made application retrospectively. In other words the vested and substanttve rights of the partles are and should be declded according to the law whlch was prevaleat when the actlon was inltiated and the door of the Court was knocked, aad/or the machlnery (of the Court) was set in motion/'(bold added)

40.In our view 3.6 of the General Clauses Act 1897 is also not without significance, especially as there is no saving clause in the Act, in dealing with statues that are repealed (express or implied or even wheri specilic parts of of a statute as in this "o*. "."iions case are subject to the doctrine of implied repeal) as was held by the Supreme Court in the case of MCB Bank Ltd V Abdul trIaheed Abro (2016 PLC 168) at P.175 as under;

"As far as the contention of the learned counsel regarding the effect of repeal of Industrial Relations Ordinance, 2OO2 is concerned, we are of the opinion that the said argument is not well founded. Section 6 of the General Clauses Act, 1897, operates in such a manncr that lt allows for the eflect of an enactment repealed by any Central Act to cortinue even after such repeal. A perusal of Section 6 of the Act ibid reflects the same:- "6 Effect of repeal: Where this Act, or any Central Act or Regulation made after tl:re commencement of this Act, repeals any enactment hitherto made Le

or hereinafter to be made then, unless a dlfferent latentlon appeara, the repeal shall not--

(a)revive anything not in force or existing at the time at which the repeal take effect; or

(b)alfect the previous operation of any enactment so repealed or anythlng duly done or suffered thereunderl or -q (cl affect any right, privllege, obllgation or Itabtltty acqulred, accrued or incurred under any enactment so repealed; or

(d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e)affect any lnvestlgation, legal proceeding or remedy ln respect of any such rlght, prlvilege, obligatton liabtltty, pendty forfeiture or punlshmeat as aforesaid; and any such investigatlon; legal proceeding or remedy may be lnstltuted, continued or enforced, and any such penalty, forfelture or punishmeut maybe imposed as if the repealing Act or Regulation had not been passed.'

In the present case Section 6 of the Act ibid shall apply Y as the initial grievance application filed in the said Labor Court was made under the Industrial Relation Ordinance, 2OO2, which was repealed by a Central Act, i.e. Industrial Relation Act, 2008, thereby fulfilling the requirement of Section 6 of the General Clauses Act, 1897, and bringing it into operation." (bold added)

4t. We also consider that Article 264 of the Constitution (which in large part replicates 5.6 of the General Clauses Act as discussed above) is to a certain extent relevant to determining the issue at hand by way of analogr (although this Article refers to the repeal of a law by the Constitution as opposed to a part of a section of a statute by virtue of a later statute by way of implied repeal) which reads as under:

"264. Effect of repeal -of l,aws. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,---

(a)revive anything not in force or existing at the time at which the repeal takes effect;

(b)affect the previous operation of the law or aa5rthlng duly done or suffered under the law;

(c)affect any right, privilege, obligation or Itabtlity acquired, accrued or lncurred under the law;

(d)affect any penalt5r, forfeiture or punishment incurred in respect of any offence committed against the law; or

(e)affect any lnvestigation, legal proceedlng or remedy ln respect of aay such rlght, prlvllege, obligation, liabillty, penalty, forfeiture or punlshment;

and any such lnvestigation, legal proceeding or remedy may be lnstltuted, contlnued or enforced and any such penalty, forfelture or punishment may be imposed, as if the law had not beea repealed.' (bold added)

42.From the above discussion and authorities the key issues on whether or not the Ordinance as amended by the Act is retrospective or prospective only appear to us to be whether the amendment is procedural only or whether it can be said to effect the substantive law, whether holding the Act to be of retrospective effect causes inconvenience or injustice or effects existing vested rights of any of the parties.

43.We make the following findings on these key issues based on the particular facts and circumstances surrounding this case and the above discussion:

(a)That the legislature has consciously and deliberately not made the Act retrospective by exPreas intention by specifically stating that it will commence from 13-08-2016 and not from a retrospective date. It could have done so, as with the NAO, but it deliberately and intentionally did not do so.

(b)That if the intention of the legislature was to give retrospective effect to the Act apart from stating from which date it would take effect additionally in our view it would have made transitional arrangements for existing inquiries, investigations and references for the offense of willful default under the NAO. For example, when the Ehtesab Act 1997 was repealed and replaced by the NAO S.33 NAO specifically provided at S.33 for the transfer of proceedings in the following terms, "Any and all proceedings pending before a Court under the Ehtesab Act, 1997 shalt stand transferred to a Court as soon as it is constituted under the Ordinance within the same Province and it shall not be necessary to recall any witness or again to record any evidence that may have been recorded." No such transitional arrangements have been made

(c)That we do not consider that the amendments made by the Act are wholly procedural in-nature. For example, some changes to the substantive law have been made

Q

q6t especially in terms of potential sentences, the use of the conciliation committee will no longer be available, the ability to enter into a plea bargain will no longer be available etc. In this respect reliance is placed on Abdul MaJid V State (PLD L974 Kar 3O9) whereby a change in sentence was held to be a change in the substantive law.

(d)That some persons who are currently being proceeded against under the NAO for willful default by way of inquiry, investigation or reference have acquired some valuable vested beneficial rights under the NAO which should not be

I

lightly taken away from them.and to do so would be an injustice to them. For example, recourse to the conciliation committee, the ability to enter into a plea bargain, etc which if taken away from such accused may be regarded as an injustice to them and detrimental to their existing rights. In this respect even the cases cited by the petitioners in terms of procedural aspects all support this conclusion. For example, Adnan Afzal (supra) which followed the 1965 case of Maulvi Muhammed Jamll (supra) and Malik Gul Hasan & Co (Supra).

(e)That to transfer such existing inquiries, investigations and references would also not be convenient especially as to date despite a lapse of around 18 months no investigating agency has been nominated by the Federal Government under the Ordinance which failure would also further delay inquiries, investigations and references which were in full swing which would lead to delayed justice especially in respect of references whlch have already been filed and Y the requirement under the NAO for expeditious trials. Such wholesale transfer of cases may also over burden the banking courts and cause further delay in the proceedings.

44.Thus, taking into account the above factors we do not find the Ordinance as amended by the Act to be retrospective in nature. We find that the Ordinance as amended by the Act vis a vis the offense of willful default shall take effect from the date specifically mentioned in the Act i.e. 13-08-2016.

45.However in tl..e light of the rule of beneficial interpretation of statutes vis a vis accused persons in criminal cases we find that any person convicted under the NAO for the offense of willful default after 13-08-2016 which would have been an offense of willful default under the Ordinance will be subject to the same sentence, punishment and disqualifications as set out in the Ordinance as amended by the Act and NOT those prescribed under the NAO. In respect of the rule of beneficial interpretation we place reliance on the case of T. Barai Henry Ah Hoe (AIR 1983 SC 150) which held at P.158 Para.26, "In the premises, the Central Amendment Act having dealt with the same offence as the one

E

I

1sz punishable under Section 16(1) (a) and provided for a reduced punishment, the accused must have the benelit of the reduced punishment. trIe wish to make it clear that anythlng that we have said shall not be construed as gtving to the Central Amendment Act a retrospective operation insofar as it creates new olfences or provides for an enhanced punishment." (bold added).Likewise the concept of beneficial interpretation of / legislation in terms of a lesser sentence being imposed by a later statute and being applicable to an earlier statute is a well established concept under Pakistani law.

In summary and pursuant to this order.

1.The Ordinance as amended by the Act shall apply to and prevail over all cases of willful default under the NAO as per definition provided in S.2 (g) of the Ordinance from 13-O8-2016 when the Act is stated to take effect. Other matters relating to willful default, inquiries, investigations and other proceedings of willful default not covered by S.2 (g) of the Ordinance but covered by S.5 @ of the NAO will continue to be governed by the NAO

2.The Ordinance as amended by the Act shall not have Y retrospective effect and that all complaint verifications, cases pending before the Governor of the SBP in connection with the NAO, NAB inquiries, investigations and references in respect of the offense of willful default under the NAO in existence prior to 13- 08-2016 shall continue to be governed by the NAO but any convictions under the NAO for willful default will be subject to the same sentences, disqualifications etc as provided in the Ordinance and not under the NAO.

3.All persons already convicted of the offense of willful default under the NAO will remain convicted and their appeals, if any, shall be proceeded wit.l: under the mechanism provided in the

NAO.

4.All the above petitions stand dismissed in the above terms save that the petitions in so far as they contain a prayer in respect of bail either pre arrest or post arrest (namely petitions ta cP.D.No. fisfrL 584, 585, 586, 1r7o all of 2013, and 3149117) shall continue to be heard before this'court in respect only of the

prayer for bail and shall be fixed by the office before this court on 2 1-05-2018 4-a yL- Baetr-r

During the course of their arguments we were informed by learned counsel for the petitioners that in terms of S. 20(7) of the Ordinance as amended by the Act whereby the Federal Government is required to nominate an investigating agency for I taking action in respect of an offense of willful default under the Ordinance as amended by the Act that the Federal Government had not done so despite the lapse of about 18 months since the Act was passed. The learned AAGP could not controvert the above and as such we deem it appropriate to direct the Federal Government to nominate an investigating agency in terms of S.2O (7) of the Ordinance as amended by the Act in order to give effect to the aim of prosecuting offenses of willful default under the Ordinance within 15 days of the date of this order. A compliance report shall be sent to this court through MIT II within 28 days of the date of this order.

A copy of this order shall be transmitted by the office to the Secretar5r's of the Ministry of Interior and Ministry of Law Y Government of Pakistan, the Governor of the State Bank of Pakistan, the Chairman NAB, the DG NAB Karachi and Sukkur, all accountability court judges in Sindh and the Administrative Judge of the Banking Courts established under the Ordinance for Karachi for information and compliance.

JUDG

CHIEF

+lflr

STICE