Abdul Wahab (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Appeal No.L5 of 2001 Criminal Accountability Appeal No.L6 of 2001.

Present:

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Mr. lustice Ahmed Ali M. Sheikh, il M!. Lustice Mohammqd Kartm Khan Agha Mn lustice Omar Sipl.

Appellants: Abdul Wahab son of Abdul Samad through M/s. Huq Nawaz Talpur and Mohammad Asad Ashfaque, Advocates for the Appellant in Cr. Acctt. Appeal No.15/2001

Adil Flayat Akhter son of Mohammad Akhter

Appellant in person in Cr. Acctt. Appeal No.16/ 2001.

Respondent: National Accountability Bureau through M/s. K.A.Vaswani and R.D. Kalhoro Special Prosecutors, NAB

Date of hearing: 03.12.2018

Date of Order: 06.02.2019

ORDER

MOHAMMAD KHAN AGHA, I.- Abdul Wahab and Adil Hayat Akhter appellants, were lried by learned ]udge, Accountability Court No.III, Karachi for offences under Sections 409 PPC r / w.Section 109 PPC S.9(a)(iii) and Sr.No.Z of schedule of offences of the NAB Ordinance, 1999 (NAO). After full-dressed trial, vide judgment dated 26.01,.1997, appellants were convicted and sentenced to suffer R.I. for 07 years and to pay a fine of Rs.1.,50,00,000/ (One Crore Fifty Lacs) each and in case of default in payment of fine each appellant was to undergo R.I. for 03 years more (the impugned judgment). The appellants were extended the benefit of Section 382-8, Cr.PC.

2.The appellants filed these appeals against the impugned judgment. The appellants' sentences were suspended and they were released on bail b by this court vide orders dated 19-3-2003 and 21-08-2003 respectively fr

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pending decision on their appeals. After promulgation of the National Reconciliation Ordinance 2007 (NRO) the appeals stood withdrawn however after the later striking down of the NRO by the Hon'ble Supreme court in the case of Dr. Mubashir Hassan vs. Federation of Pakistan (SBLR 2010 SC 13) these appeals were revived and the appellants' bail was restored vide orders dated 12-01-2010 and 17-08-2010 respectively pending final determination of their appeals.

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3.This larger bench has been formed pursuant to order dated 29.01,.2015 since there appears to be a conflicting judgment and Order of this Court on the same point of law which needs to be resolved in order to ascertain as a preliminary matter whether the impugned judgment is maintainable or not in terms of jurisdiction of the accountabitity court to try cases, Iike the instant case, which have been transferred to it from another court under 5.16 (A) NAO without being directly referred to the accountability court by the Chairman NAB under S.18 (g) NAO in terms of cognizance under S.18 (a) NAO. In essence one Divisional Bench of this court in the case of Abdul Sattar Dero V State Q002YLR 1870) found that transferred cases under 5.16 (A) NAO needed to be filed as references by the Chairman NAB before the accountability court before the accountability court could take cognizance of the case whilst another Divisional Bench of this court through a later order mentioned below took the opposite view and hence the formation of this larger bench. For ease of reference order dated 29.01.20L6 is set out hereunder:- "Mr.Rasheed A Rizvi, learned counsel for the Appellant referred to the order dated 26.11,.2002 passed by this Court. Relevant paras of the order are reproduced as under:- "In aiyw of the aboae discussions, we are unable to flgree with the oiew expressed by learned Members of the Binch in Abdul Sattar Dero a, State in Cr. Accountability Appeal No.L4 of 2Affi on first point as the same is against the aiew ilcprelsed by tlu apex Court in C.p. No,gS7-K of 2001 (Sardar Ahmed Siyal u. National Accountabitity B,ureau), TDe nre bound to follow the aiew expressed by tlu Supreme Court.

we are also unable to agree with the reasoning and the conclusion arriaed by the learned Bench on second point that the Accountability Court on receipt of the

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cflses under section l.G-A, his no jurisdiction to try the sflme unless a reference is fired by chairman

q6 National Accountability Bureau or by &n officer authorized in this regard under section L8, therefore, we refer the matter to the chief fustice for formation ,f larger Bench on the prtncipte laid down in

MULTILINE ASSOCIATES Y. ARDESI{IR

COWASIEE (PLD 1995 SC 423) for decision on second point".(bold added) Thereafter, a larger Bench was constituted by Honorable Chief Justice and larger Bench vide order t dated 26.01,.2009 passed the following order:

"Learned counsel submits that applicant Abdul wahab has been released under NRq therefore this appeal has become infrucfuous.

This position is not disputed W Mn Mahammad Aslam Butt, learned DPGA, NAB.

Disposed of accordingly " .

ln the case of Dr. Mubashir Hassan vs. Federation of Pakistan (sBLR 2010 sc 13) NRo 200T was declared to be an instrument void ab-initio being ultra vires and violative of the various Constitutional provisions and all the cases which were disposed of under NRO were revived including the present appeal.

Mr. Rasheed A. Rizvi learned counsel for the appellant submits that again matter may be referred to the Honourable Chief ]ustice for formation of a larger Bench. This position is not disputed by learned Special Prosecutor, NAB.

In view of above, office is directed to place the matter { before the Hon'ble Chief ]ustice for formation of a larger Bench or pass any order, which his Lordship deems fit and proper,"

4.These appeals initially in terms of maintainability and jurisdiction (as opposed to merit) which issue we intend to decide through this order revolve around a single point of law which concerns whether on transfer of a case under Section 16(,{) of the National Accountability Ordinance, 1999 (NAO) from a Special Court to an accountability court under the NAO the transferred case would thereafter require the Chairmary NAB to refile the transferred case by way of a reference under S.18 (g) before the accountability court before the accountability court could take cognizance of the same by way of a Reference under Section 18(a) of the NAO bearing in mind that the subject matter of these appeals were transferred befo.re the amendment dated 23-1'1"-2002 was made to Section 16(4) NAO,

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4t whereby such transferred cases were to be deemed to be a reference under the NAO.

5.If our answer to/determination of the question mentioned in the above Paragraph is in the affirmative then the impugned judgment will have been passed without jurisdiction by the concerned accountability court and will be null and void and there will be no need to decide the I appeals on merits. If, however, our answer to/determination of this question is in the negative then the impugned judgment will have been passed by the concerned accountability court with jurisdiction and these appeals will then need to be decided on merits.

6.Learned counsel for the appellants submitted that the earlier decision of this court in Abdul Sattar Dero V State (2002 YLR 1870) had through its reasoning rightly decided the issue of whether a transfer case u/s 16 (A) NAO had to be converted into a reference before it could proceed before an accountability court. Namely, that it did have to be converted into a reference as under the NAO the accountability court u/ s 18(a) NAO could only take cognizance of a reference if it was sent to it by the Chairman NAB and by no other way. As such the reasoning by another later order dated 26-11,-2002 by another Division bench of this court in Cr.Acc.Appeal No.15/16/17 /20/39/58 (the order) had misinterpreted the law by holding that transfer cases u/ s 1,6 (A) NAO did not need to be filed by the Chairman by way of a reference and the accountability court did not need to take fresh cognizance of the transfer case u/s 18 (a) and as such the case of Abdul Sattar Dero (Supra) should prevail. In particular he contended that the wording in 5.16 (A) at the time when the references were filed in respect of the current petitions did not include the words, "shall be deemed to be a reference under S.18 (a) of the Ordinance" and as such since the Statute had to be read as a whole the legislative intent was that such transfer cases under 5.16 (A) had to be re filed by way of a reference before the concerned accountability court as an accountability court could only take cognizance of a case under the NAO if it was filed by the Chairman under S.18 (a) NAO. In support of his contentions he emphasized that once Abdul Sattar Dero's case (Supra) was decided the legislature immediately moved to fill this loop hole by

{e amending s.16 (A) by adding the words, "shall be deemed to be a reference under S.18 (a) of the Ordinance" by an amendment to 5.16 (A) dated 23-11"-2002 whereby transfer cases were deemed to be references which was a recognition of the fact that this was not originally the legislative intent in respect of cases u/ s '16 (A) NAO which should have been prior to the amendment routed through the Chairman in order for the accountability court to take cognizance under S.18 (a) NAO. This being

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the case since the above Process had not been followed the accountability court had no jurisdiction to try the case and as such the impugned judgrnent was null and void and should be set aside.

7.He also submitted that in any event the Order was per incuriam. This was because the amendment in the law had already been made before the Order was announced and as such the Order was void and of no legal effect and thus Abdul Sattar Dero's case (Supra) would prevail along with the new wording added by legislative amendment shortly after to 5.16 (A) where a transfer case was in effect deemed to be a reference for the purposes of S.18 (a) NAO

8.On the other hand learned Special Prosecutor, NAB submitted that the reasoning in the Order was correct regarding the lack of requirement for the Chairman NAB to refer a case transferred u/s 16(A) NAO from another court to an accountability court under the NAO by way of a new reference u/s S.18 (g) NAO before the accountability court could take cognizance of the sarne u/s 18(a) NAO. That this was not a legal requirement under the NAO since in effect the NAO provided two separate and distinct mechanisrls for filing a reference. The first mechanism was under S.18 (g) NAO whereby the Chairman filed the reference following an inquiry and investigation initiated and conducted by the NAB in which case the Chairman was positively required to file a reference before the court could take cognizance of a reference u/s 18 (a) NAO and the second mechanism was on the transfer of a case by the Chairman NAB from another court to an accountability court in which case there was no requirement for the Chairman to file that case again before the accountability court as a reference before the accountability

qq court before the accountability court could take cognizance of the same. In this respect he referred to 5.16 (A) of the NAO which specifically provided in the unamended wording of 5.16 (A) that in such cases it shall not be necessary for the court to recall any witness or again to record any evidence that may have been recorded. According to him by using such Ianguage the legislative intent of S.L6 (A) was clear. Namely that since the court from which the case was transferred to the accountability court had Ir already taken cognizance of the offense there would be no need to recall witnesses or re record any evidence as the legislature had intended that in transfer cases u/ s 1,6 (A) there would be no need for the Chairman NAB to then re-file the transferred case as a reference. He submitted that another Division Bench of this court in the case of Abdul Sattar Dero (Supra) had misinterpreted the unamended 5.16 (A) and as such the Order referred to above should prevail in terms of its reasoning. That the legislature only amended 5.16 (A) NAO after the case of Abdul Sattar Dero (Supra) by adding the words "shall be deemed to be a reference under S.L8 (a) of the Ordinance" not because this was originally an omission by the legislature but because this was required to make its original legislative intent clear following the misinterpretation of such intent in the case of Abdul Sattar Dero (Supra). Thus, for all the above reasons he submitted that the newly -{' added words in 5.16 (A) were superfluous as the legislature had always intended that such transferred cases under 5.16 (A) should be regarded as references and there was no need for the Chairman NAB to re-file such cases as new references as the court where they had been transferred from had already taken cognizance of the same. He further submitted that a change of forum from another court to an accountability court would have no bearing on the need to file a new reference in respect of the transferred case as this was purely a procedural issue and did not effect any substantive rights. Thus, the transferred case did not need to be re -filed by the Chairman NAB before the accountability court could take cognizance of the same and as such the accountability court had jurisdiction to try the transferred case and the impugned judgment could not be set aside on this score. In support of his contentions he placed reliance on Adnan Afzal v. Capt. Sher I.Jzal (PLD 1969 SC 184, Khizar +- Hayat & others v. The Commissioner, Sargodha (PLD 1965 (\ P) Lahore 349), Lt. CoI. Nawabzada Muhammad Amir Khan v. The Controller of q

So Estate & Others (PLD 1961, SC 119), State v. Saeed Ahmed (pLD lg1ZSC 27n,Sirai Din and Others v. Sardar Khan & Others (1993 SCMR T4S) and Begum B'H. Syed v. Afzal ]ehan Begum & Another (PLD 1920 SC 2e).

9.We have heard the learned counsel for the parties, considered the record and the relevant law.

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10.The first issue which we consider that we need to address is whether the Order is per incuriam.

So what do we mean by per incurium?

11.. In the case of Sindh High Court Bar Association V Federation of Pakistan (PLD SC 2009 579) while dilating upon the definition of per incuriam in his separate note Justice Ch.Ijaz Ahmed (as he then was) opined as under at P.1238

'(ii) MAxrM PER TNCUBTUM"

37.Incuria literally means "cArelessness," ln practice per incurium is taken to mean per ignoratium and ignored if it is rendered in ignoaratium of a statute or otlwr binding authoig.

38, lMat is meant by gtaing a decision per incuium { is giaing a decision when a cnse or fi statute has not been brought to the attention of the court and they haae given the decision in ignorance or forgetfuIness of the existence of tlwt case or that stafute or forgetfulness ,f some inconsistent statutory proaision or of some authority binding on the court, so that in such cases some part of tlu decision or some step in the reasoning on which it was based on that account is demonstrably Torong, See Nirmal leet Kaur's case [ 2004 SCC SSB AT 565 para 21J, 11311, Cassell and Co Ltd. 's cilse ( LR 1972 AC 1027 at 11.07, LL13, t t St., Watson's case {AELR 1 947 (2) 1,93 at tg6}, Morelle Ltd.'s case (LR 1,955 QB 379 at 380), Elmer Ltd.'s case { Weekly Law Reports 1988 (3) 567 at 878 and 878] Bristol Aeroplane Co,'s case IAELR lg44 (Z) 293 at page 294] and Morelle Ltd.'s cnse TAELR

39.The ratio of the aforesaid judgmenfs is that once the Court has come to the conclusion that the judgment was deliuered per-inanruium tlun the Court is not bound to follow such decision on the well knoutn principle'thnt tlrc judgment itself is without juisdiction and per-incunntm,, therefore, h/

s it dtsenses to be oaer-ruled at the earliest opporfunity. ln such situation, it is tlrc futy and obligation of the apex Court to rectifu it. The law hns to be deaeloped gradually by the interpretation of the Constitution tlun it will effert the whole nation, therefore, this hurt, As mentioned aboae, is bound to reaiew such judgments to put the nation on tlv right path as it is tlv du$ and obligation of tlte Court in aiew of Article 4, 5 (2) read utith Article 189 and 190 ,f tht ), Constitution".

12.In the case of C.P, No.D-1.144 of 2A07 Syed Iqbal Kazmi V Federation of Pakistan dated 11-09-2018 (unreported) a division bench of this court also undertook a review of the relevant supreme court law in what was meant by the maxim per curium at Para 42 as under;

42, ThE next issue is what do we mefrn by per incuiam? "Per incuriam" is defined in Blacks law dictionary as under:

"Per incuiam, adj, (Of n judicial decision) wrongly decided, usu. because the iudge or judges were ill- informed about the applicable law.

As a general rule the only cfrses in which decisions should be hEld to hnae been gtaen per incuriam fire those ,f decisions giaen in ignorance or forgetfulness of some * inconsistent statutory proaision oruf some authori$ binding on the court concerrled, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably utrong. This definition is not necessarily exhaustiae, but cases not strictly within it which cffit properly be held to haae been decided per incuriam, must in our judgment, consistently with the stare deices rule which is an essential part of our law, be of the rarest occuffence. Rupert Cross €i I.W,Harris, Precedent in EnglishLaw 1,49 (4tn ed, 1991,),'

43.In HRC No,40927-S of 201,2 Application by Abdul Rehman Farooq Pirzada (PLD 2013 SC 829) which u)fis examining tlu entitlement of superior court judges wha had sented more than two years but less than 5 yenrs to be entitled to a pension and whilst holding a judgment af the Supreme C-ourt which hnd held such entitlement afrer two years at Para 77 of the ludgment it was potentially suggested/hinted that certain judgments which had been passed duing peiods of deliberate judicial chaos eaen if later protected by the constitution could be )q' held to be per incuiam in tfu following terms

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se "77. As a corollaryf aboae discussion, it is also imperatiae and significant to mention here thnt the judgment under challenge tilas pfrssed by a learned three member Bench of this Court consisting of IvUs Muhammad Nawaz Abbasi, Muhammad Qaim lan Khan and Muharnmad Farrukh Mahmood, Jl on 6-3-2008, at a time when the whole supertor judiciary of the Country u)as in chaos, crises and disarray due to unconstitutional measures taken by the then President/ dictator General (Retired) Pentez I Musharraf of Pakistan, who hy hook or crook wanted to remain in power and in that perspectiae attempted to destroy the institutions in the CounW, particularly targeteil the superior judiciary, to bring them under his thumh and control. ThE discussion regarding this aspect of the case in the present proceedings is enough to this extent, Howeaer, in this context if any further detailed discussion is felt orderly, reference can be made to the judgment of a full Bench of this Court in tlte case of Sindh High Court Bar Association (supra), wherein this aspect has been extensiaely discussed and aptly attended to."

M. We hsd considered this aspect keeping in aiew tlte factual background to the case as set out aboae especially the alluded to "sea change" after the L1.03.2007 emergency was imposed and the 7 member bench was replaced with a new bench consisting of 5 new judges who hnd taken oath under thl PCO (and later superannuated before or resigned after tht Sindh High Court Bar Association cfrse (\upra) wlrcn the judges who had not tal<en PCO were hald J' neaer to haae Ieft judicial office) who did not eaen haae tlw benefit of any amicus curiae assistance or those of tlte lawyers of the uaious bar counsel's which were parties howeaer we considered that holding the 5 member bench ludgment per incuriam, euen if a 2 member bench hnd th* poTuer to do so, rnay not be the appropiate course and may set a bad precedent and might not gae ,ff rt to tln true meaning ,f per incuriam which rilas also discussed thoroughly in Farooq Pirzada's case (Supra) at Para-94 which generally approaed lustice Ch.Ijaz's separate note in the Dr Mobashir Hussan cflse (Supra) ns mentioned earlier in thc following terms

Majority aiew "94. Nozu taking up the issue ,f applicability and ,ffict ,f this judgment oftr, the implementation of judgment under challenge, so fls to see wlrctlrcr it should haae prospectiae or retrospectiae applicability, the first thing to be noted is that in our short order dated 11-4-201.3 ute haae declared that the law enunciated in the iudgment under challenge is "pt incurtam". The fallout of such declaration is that it is a judgment without juisdiction, thus, for all intent and )r purposes not to be quoted as precedent, ratlwr liable to be ignored. A useful discussion on the concept and import of

"p* inanriam" finds place in the case of Sindh High Court - Bar Association (supra), which reads as under:-- "(ii) MAXIM UPER INCURIAM".

37.'lncuia' literally meflns "carelessnessu. ln practice per inaniam is taken to mean per ignoratium and ignored if it is rendered in ignoratium of a statute or other binding authority.

) 38. What rs meant by giving n decision per incuriam is giaing a decision when a cflse or a statute has not been brought to the attention of the court and they haae giuen the decision in ignorance or lorgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory proaision or of some authortg binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it wfrs based u)fls on that account demonstrably wrong. See Nirmal leet Kaur's case {2004 SCC 558 at 565 para 21), Cassell and Co, Ltd.'s cAse (LR 1972 AC 1027 at 1107, L113, 1,1,37), Watson's cnse IAELR L947 (2) 193 at L96, Morelle Ltd.'s cnse (LR 1955 QB 379 at 380), Elmer Ltd.'s case {VVeekly Law Reports 1.988 (3) 867 at 875 and 878), Bristol Aeroplane Co.'s cnse IAELR 1,944 (2) 293 at page 294] and Morelle Ltd.'s case IAEIR 1955 (1) 708), 39, Tlw ratio of the aforesaid judgments is that once the Court has come to tlw conclusion that judgment wns deliaered per incttriam then tlte Court is not bound to I follow such decision on the well known principle that the judgment itself is without juisdiction and per incuium, tlterefore, it deserues to be oaer-ruled at the earliest opportunity. ln such situation, it is tlrc duty and obligation of tlu aperc Court to rectify it. The law has to be deaeloped gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, this C-ourt, ns mentioned aboae, is bound to reaiew such judgments to put tlu nation on tlu right path as it is the du! and, obligation of the Court in uiew of Articles 4, 5(2) read with Articles 189 and 190 of the Constitution,"

13.After considering the above definition of per incurium it appears to mean in essence that in the context of judgments/orders of the court that such judgments/orders are patently wrong as they were passed in ignorance of the law which most often was not brought to the attention of the court before it passed the order/judgment in question. For instance contrary to a binding order/judgment of a superior court on the same k point which was decided hefore the courts judgment/ order and which l0

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had not been brought to its attention and likewise a statute which already answered the legal point which was the subject matter of the judgment/ order but which was not brought to the attention of the court before it made its judgment/ order which lead to the judgment/ order being wrong as a matter of Iaw.

'l'4. Now if we look to the factual background of this case the judgment l in the case of Abdul Sattar Dero (Supra) was announced on 13-08-2002 whilst the Order was passed on 26-11,-2002 approx 3 months and two weeks after Abdul Sattar Dero's case (Supra) and the Order was in full knowledge of Abdul Sattar Dero's case (Supra) as it refers to it in Para 28 and then at Para 36 where it states that it is unable to agree with the same and since Abdul Sattar Dero's case (Supra) was not binding on it this lead to this full bench being established. Thus, it cannot be said that the Order was passed in ignorance of any binding decision of a superior court on the sarne point of law.

15.Interestingly, the hearings of the case which lead to the Order were completed on 08-11-2002 but the Order was not announced until 26-1'J-,- 2AAZ in which time 5.16(4.) had been amended on 23-11,-2002 (3 days earlier) to include the words, "shall be deemed to be a reference under section L8 of the Ordinance and it shall".

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1,6. The issue is therefore whether the amendment to the NAO 3 days before the announcement of the Order rendered it per incuriam.

17.In our view on balance it does not. This is because, if the legislature had made an error in not intending 5.16 (A) to require a transfer case to be filed a fresh as a reference by the Chairman before the accountability court could take cognizance of the same why did an amending Ordinance not come immediately? Why did the legislature take over 3 months to pass an amending Ordinance? It would have been expected that following such a judgment the amending Ordinance would have come within days or at least within a few weeks. Alternatively, it is likely that the tegislature knew that it would take some time for the Supreme Court to make a final decision on the matter if the appellant process was adopted so therefore took the step of amending the Iegislation to give effect and to make clear what it had originally intended but had been misinterpreted in Abdul b Sattar Dero's case (Supra) in order to save precious time.

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18.The question also it appears to us is that if we hold the Order per incurium the issue will still remain as to what should be the fate of the cases transferred under 5.16 (A) prior to the n-fi,-2002 amendment. If it is accepted that as a matter of judicial interpretation that there was no requirement to add a deeming clause to 5.16 (A), which in any event is a legal fiction, it would also mean that the transfer of a case made under 5.16 (A) NAO prior 23-11.-2002 did not need any sanction of the Chairman NAB under S.18 (g) NAO before an accountability court could take cognizance of it under S.18 (a) NAO and this issue needs to be answered.

19.Thus, we do not find the Order to be per incuriam based on the particular facts and circumstances of the case since in our view the issue stills needs to be decided what was the original legislative intent of 5.16 (A) (prior to its amendment on 23-17-2002 which in effect made such transfer cases as deemed references for the purposes of S.18 (a) NAO) when read with the NAO as a whole.

Judicial Interpretation of 5.16 (A) NAO.

20.Since this issue mainly revolves around two sections of the NAO being S.18 and 5.16 (A) we set out the same below, as worded prior to the amendment dated2S-11.-2002 whereby the deeming clause was added, for

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ease of reference.

78.Cognizance of Offences.--(a) The Court shall not tale cognizance ,f nny ffince under this Ordinance except on a reference made by the Chairman NAB or nn offiu, of the NAB duly authorised by him,

(b)A reference undtr this Order shall be initiated by the N ational Accountability Bureau on:

0 a reference receiued from an frppropiate goaernment; (it receipt of a complaint;

(iit its own accord.

(c)lNlwre the Chainnnn NAB or ffit fficer of tlw NAB duly authorised by him is of the opinion thnt it is or may be necessnry and appropiate to initiate proceedings against nny person, lte shall refer tlw matter for inquiry or inaestigation,

(d)The responsibility for inquiry into an inaestigation of )r an offence alleged to haae been committed under this Ordinance shall rest on the NAB to tlu exclusion of any t2

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other flgency or authori$, unless frny such agenry or authority is required to do so by the Chnitmiln NAB or by an officer of the NAB duly authorisedw him, (e) TIE Chairman NAB and such members, officers or seruants of the NAB shnll haae and exercise, fw tht pur?oses of an inquiry or inaestigation the power to arrest nny person, and all the powers of an officer-in-charge of a Police Station under tht Code, and for that purpose may cause tlte attendance of any persoru and when and if tht assistance of any agency, police of;cer or any otlrer fficial or agencyt as the cnse may be, is sought by the NAB, such fficial or frgency shall render such assistance proaided that no person shall be arrested without tltt permission of the Chairman or any officer of NAB duly authoized by tlu Chairman NAB.

(fl Any inquiry or inaestigation under this Ordinance shall be completed expeditiously ns mny be practical and feasible, G) fhe Clmirman NAB, or nny fficer of the NAB duly autlnrised shall appraise the mateial and the eaidence placed before him duing the inquiry and the inaestigation, and if he decides that it would be proper and just to proceed and tlwre is suficient material to justify filing of a reference, he shall refer the matter to a Court.

(h)lf a complaint is inquired into and inaestigated by the NAB and it is concluded that tlw complaint receiaed was prime facie friaolous or has been filed with intent to malign or defame any person the Chairman NAB or Depu$ Chairmarz NAB or an fficer of the NAB duly authorized by the Chairman NAB, mfry refer the matter to the Court,

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and ,f the complainant is found guilty, lE shall be punishnble with impisonment for a term which may extend to ane yeflr or fine or with both.

1.6-A. Transfer of case. (a) Notwithstanding anything contained in any otlwr law for the time being in force, the Chnirman NAB mny apply to nny Court of Law or Tribunal that any case inaolaing frny offence undtr this Ordinance pending bgfore such Court or Tribunal shall be transferred to a Court establislud under this Ordinancer then such other Court of Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessfrry for the Court to recall any witness or again to record any eaidence that mfry haae been recorded.

(b)ln respect of any case, pending before a Court, tlw Prosecutor General Accountability or any Special Prosecutor authoized by him in this behalf, haaing regard to the facts and circumstances of the cnse and in thl interest of justiu and for tht protection and safety tf witnesses, considers it rs necessary thfrt such cfrse is transferued for trial, lw may apply for the transfer of the , case from any such Court in one Proaince to a Court in another Prouince or from one hurt in a Proaince to another Court in the same Proaince,--

sl O to the Supreme Court of Pakistan in case tlte transfer is intended from a Court in a Proaince to a Court in anotlur Prooince; and (it to the High Court of the Proaince in case the transfer is intended from one Court in a Prouince to another Court in the same Prouince.

and the Supreme Court or the High Court, as the case may be, if it is in the interest of ju.stice, transfer the case from one Court to another Court, and the cnse so transferred shall be tried under this Ordinance without recalling any witness whose + eaidence may haae been recorded,

(c)Tlw accused may also make an application to the Supreme Court for the transfer of a case fro* a Court in one Proaince to a Court in another Proaince and to the High Court for trantfw of a case fro* one Court in a Proaince to another Court in the same Prwince and the Supreme Court or the High C-ourt, as ihe case may be, if it is in tlrc interest of justice, transfer the case [ro* one Court to another Court, and the case so transferred shall be tried under this Ordinance without recalling any witness wlnse eaidence mfry haae been recorded.

The trichotomy powers

2'l'. Our constitution is based on the trichotomy of powers shared between the legislature, the executive and the judiciary each of whom has its distinct and separate role to play in our system of governance and each of which is supposed to act as a check and balance on the other organs of I state operating within its own defined sphere of power as provided in the law and the Constitution.

22.Within the trichotomy of powers it is the role of the legislature to make laws and the role of the judiciary to interpret those laws if such interpretation is necessary. It is well settled law that if a statute has expressly provided for something without any ambiguity then there is no question of the courts interpreting the sarne as the legislative intent is clear and the Act/Ordinance must be given effect to unless it is deemed to be contrary to the constitution. The judiciary's role of interpretation of the statute only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the constitution and in such cases it is for the judiciary to interpret that piece of legislation by trying to ascertain the intent of Parliament in passing that legislation. The Courts } have absolutely no authority or power to substitute their views for those l4

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intended by the legislature simply because they may disapprove of a particular law and the way in which that law is being applied.

23.In this respect reference is made to the case of ]ustice Khurshid Anwar Bhinder V Federation of Pakistan (PLD SC 2010 P.483. Relevant P.492 493) whereby it was held as follows:-

+ " A fundamental principle of C-onstitutional construction has always been to giae eff rt to the intent of tlrc framers of the organic law and of tlte people adopting it. Tlrc pole star in tlte construction of a Constitution is the intention of its makers and adopters. lNlun tlrc language of the statute is not only plain but admits of but one meaning the task of interpretation can hardly be said to aise. lt is not allowable to interpret what has no need of interpretation. Such language beside declares, without marq tlw intention of the law giaers and is dtcisiae on it, The rule of construction is " to intend tlv Legislature to haae meant what tlny haae actually expressed*. It matters not, in such fl case, what tht consequences may be. Therefore ,f tht meaning of the language used in a statute is unambiguous and is in accord with justice and conaenience, thl courts cannot busy themselaes with supposed intentions, howeaer admirable tlte same may be because, in that euent tlwy would be traaeling beyond tlwir proaince and legislating fo, themselaes. But if the context of the prooision itself shows that the meaning intended u)as somewhat less than the words plainly seent to mean then the court must interpret that language in accordnnce with the J indication ,f the intention ,f the Legislature so plainly gioen. The first and primary rule ,f construction is that the intention of the Legislature must be found in the words used by the Legislafitre itself. U the uords used are capable ,I one construction only then it utould not be open to the court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. ftold added)

24.In this case, in our view, it is apparent that some ambiguity arises when S.18 (a) and the unamended 5.16 (A) are read together. This ambiguity in essence concerns the issue of cognizance. Namely, under S.18 (u) NAO an accountability court can only take cognizance of a reference filed by the Chairman NAB under S.18(g) NAO whereas under 5.16 (A) NAO after the Chairman NAB exercises his powers to transfer a case pending before another court there appears to be no indication that l.

any further cognizance needs to be taken under 5.16 (A) by the l5

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accountability court since the court from where it had been transferred from had already taken cognizance and the case will continue from the position it was at the time of transfer without the need to recall any witness or re record any evidence.

25.The question is essentially therefore whether before the case transferred by the Chairman under 5.16 (A) to the accountability court before proceeding further has to be routed to the accountability court via the Chairman NAB by way of a reference under S.18 (g) NAO before the accountability court can take cognizance of the same under S.18 (a) NAO.

26.In interpreting statutes we are of the view that the intention of the legislature can be gleamed to a certain extent by reading the Statute as a whole. The key is to try to find the intent of the legislature rather than usurping the legislature's power to legislate as was held in the case of Lt.Col.Nawabzada Muhammed Amir Khan (Supra) at P.143 "We are satisfied that this is fi case where the Court can modify the Language of an enactment. It will be obsented that there cannot be the slightest doubt in the present cnse as to the intention of the Legislature. ln fact, it is admitted on behalf of the appellants that the failure to make a consequential amendment in section 57 could only be due to a slip, After proaiding the Controller could dctermine I aalue subject to an appeal to the Appellate Tribunal the Legislature could not possibly haae intended that duty should be paid only on the account uthich u)as filed by the accounting pnrty itself. All thnt has happened is that tlu draftsmnn failed to refer in section 57 to thc proaisions relating to dztermination in accordance with tht amended Act, That we can modify the language of an Act to giue effect to the manifest and undoubted intention ,f the legislature ,s n proposition which is well supported by authority and weII justifieil in reason. As stated in Crawford on Statutory Construction (section 20L p. 348):

" lf the true meaning of the legislature appears from the entire enactment, ertors, mistakes, omissions and misprtnts may be coruected by the Court, so that the legislatiae will may not be defeated. As n result, spelling, grflmma1 numbers and eaen words, mfry be corrected. This, as already stated, is simply making thE strict letter of a statute yield to tlte obaious intent of the kgislators, But it must clearly, or at least with reasonable l^ certain$, appenr thnt thl error is in fact one before the Court will be justified in making thl proper correction or amendment or tht Court will inaade tlte proaince of the

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6o Iegislafure and exercise legislatiae poTt)er. But wlun satisfied of tlu elror, the Court may malrc tlrc necessary correction. ln accord with this principle, afl erroneous description mny be made to describe thE thing actually intended or n misnomer made to name tlw thing really meflnt.t'

ln Maxwell's lnterpretation of Statutes tlte ruIe is thus stated on p. 229, 1.953 Edition:

+ "Where the language of the statute in its meaning and grflfiimatical constructions, leads to fr manifest contradiction of the apparent purpose the "f enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, n construction mny be put u?on it which modifies the meaning of the words, and euefl the structure of the sentence."

In Salmon u, Duncombe and others (11 A C 634), their Lordships of the Priay Cnuncil said

" It is howeaer, a aery. serious matter to hold that when the main object of a statute is clear, it shsll be reduced to a nulli$ by the draftsman's unskilfulness or ignorance of law. lt mfry be necessary for a Court of lustice to come to such a conclusion, but their Lordships hold thnt nothing can justify it except necessity or the absolute intractability of tlw language used, And ttny haae set tltemselaes to consider, first, whetlwr flny substantial doubt can be suggested as to the main object of the legislafure, and, I secondly, whetlwr the last nine words of section 1. are so cogent and so limit the rest of the statute as to nullifu its tfftct either entirely or in n aery important particular."

There being no doubt in the present case that tlrc du$ which the legislature intended to be realized was that which utas to be determined in accordance with thre proaisions of tlw Acfl We find ute haae jurisdiction to modify section 57 so ns to rectify the draftsmfrn's mistake and to read in it references to the Controller and tlu Appellate Tibunal, etc., and we would hold that the proper duty could be realized in spite of tlu defectiue wording of section 57.(bold added)

27.In our view S.18 NAO and 5.16 (A) NAO are two separate and distinct provisions in the NAO. S.18 NAO in essence takes effect u/s 18 (b) when the NAB (i) receives a reference from an appropriate goverrunent or (ii) receipt of a complaint or (iii) of its own cause. Then u/s 18(c) if the Chairman NAB is of the opinion that it is or may be necessary and }' appropriate to initiate proceedings he shall refer the matter for inquiry or investigation which under S.18 (d) shatl be carried out by the NAB to the t7

6l exclusion of any other agency unless such other agency or authority is required to do so by the Chairman NAB. Section 18 (e) sets out the powers which the Chairman NAB shall have to enable him to carry out an inquiry or investigation which u/s 18($ should be carried out expeditiously and once the investigation is cornplete u/s t8(g) the Chairman NAB shall appraise the material and the evidence which is placed before him and if he decides it proper and just to proceed and there is sufficient material justifying the filing of a reference he shall refer the matter to court which by virtue of S.L8(a) shall take cognizance of the reference.

28.Thus, after receiving the complaint and initiating the inquiry and then investigation the Chairman NAB if after appraisal of the material/evidence collected during the course of the inquiry/investigation and he considers it proper and just to proceed and there is sufficient material to justify the filing of the reference he shall send it to the accountability court which shall take cognizance of the same.

29.Thus, S.18 NAO is a self contained section whereby the inquiry and investigation based on the initial complaint is carried out by the NAB and it is the Chairman who finally decides whether to file a reference based on the material/evidence collected during his own investigation and ) cognizance follows by the accountability court u/s 18(a) NAO.

30.Yes, it is true that u/s 18(a) a court cannot take cognizance of an offense under the NAO unless a reference is filed by the Chairman NAB. However we are of the view that this only applies to investigations carried outby the NAB u/s L8 and not transfer cases u/s 16 (A).

31.In our view 5.L6 (A) is a distinct, separate and independent provision of the NAO which applies to situations where the investigation has already been carried out by an investigative agency other than NAB based on a complaint received by that investigative agency and the concerned court other than an accountability court has already taken cognizance of the matter and is proceeding with the same.

32.In our view on a transfer of a case by the Chairman NAB u/s 16 (A) /* it is not necessary for such case to be routed to the Chairman NAB who needs to file the same as a reference before an accountability court can t8

6z take cognizance of the matter. [n our view this was never the intention of the legislature.

33.This is because:

(u)5.16 (A) is a follow on to 5.16 which deals with the trial of offense and as such pre supposes that the transferred case which is already in trial will simply be continued by the accountability court to where it is transferred $ without the need for the transferred case to be sent by way of a reference u/ s L8 and

(b)the language of 5.16 (A) shows that the Chairman NAB may apply to any court of law or tribunal that any case involving any offense under the NAO pending before such court or tribunal shall be transferred to a court under this ordinance. Such courts are accountability courts. The Ianguage therefore used in 5.16 (A) makes it absolutely clear that transfer cases will go straight to the accountability courts for trial. Thus, in our view the legislature intended that under the separate and distinct transfer provision u/s 16 (A) that there was no requirement that the transferred case be routed through the Chairman NAB to be filed by way of reference before the accountability court could take cognizance of the same. If this had been the intent of the legislature it would have clearly stated so in 5,L6 (A) which it could easily have done but choose not to. This interpretation of the legislative intent is further bolstered by the fact that 5.16 (A) also clearly provides l that on such transfer to the accountability court, " it shall not be necessary for the court to recall any witness or again to record nny widence that may lwue been recorded"

Thus, if witnesses do not need to be recalled to again re record their evidence as their original evidence before the trial court in which the matter was proceeding before the 5.16 (A) transfer will remain apart of the trial court record before the accountability court in our view it is quite apparent that the legislature did not intend in transfer cases u/s 1,6 (A) NAO that the transferred case would be routed through the Chairman NAB and filed as a reference under S.18 (g) and only then would the accountability court be able to take cognizance of the case u/s 18(a) NAO. This is because the fresh taking of cognizance by the accountability court would be contrary to the legislature's specific requirement that there was no need to recall witnesses to or again to re record any evidence that may have already been recorded. If the accountability court u/s 18(a) was again intended to

6t take cognizance of the transfer case under 5.16 (A) this would completely defeat the intent of the legislature where the legislature had specifically provided that, "it shall not be necessary for the court to recall any witness or again to record any evidence that may have been recorded". This is hecause on taking fresh cognizance under S.18(a) this would mean that aII witnesses would have to be recalled and again their evidence be re recorded which the legislature had specifically provided was not to be the ca$e and

I,

(c)In our view, as a matter of logic, corrunon sense and reason it would not make any sense for a transfer case to go through the route of it being refiled by the Chairman NAB by way of a reference u/s 18(S) before the accountability court could take cognizance of the same as this would result in the whole trial being delayed and slowed down with evidence needed to be re recorded keeping in view 5.16 which contemplated the completion of the trial within 30 days. Such an interpretation would be contrary to one of the main legislative intentions as expressed in both the preamble and 5.16 NAO which aimed at speedy corruption trials proceeding on a day to day basis and being completed within 30 days and would tend to lead to a manifestly absurd or anomalous result which could not have been intended by the legislature and

(d)Before the case is transferred the Chairman has to make an application. It is true that following Sardar Ahmed Siyal V NAB (2004 SCMR 265) that once the .r.

application is made the trial court must transfer the case provided that the offense being tried also falls under the NAO however, even otherwise the Chairman must give reasons for the transfer application. Usually as indicated in the case of Rauf Bakhsh Kadri V The State (MLD 2003 77n the Chairman does not file references and by implication transfer cases due to the lirnited capacity and resources of NAB unless those cases properly fall within the purview of the NAO being either mega corruption cases or cases where a plea bargain are possible since the recovery of ill gotten money is one of the prime objectives of the NAO as set out in its preamble and S.25 concerning the ability of an accused to enter into a plea bargain (which legal provision is not available in any other law dealing with accountability or white collar crime). Thus, the Chairman's NAB's application under 5.16 (A) could even be seen/deemed or implied to be a reference transferring the fransferred case to the accountability court since before he made his application the Chairman NAB would have (u) r satisfied himself that the offense charged in the transfer case fell within the purview of the NAO and (b)

Aq satisfied himself that there was sufficient evidence in the transferred case warranting its transfer to the accountability court as a reference and (c) that it was proper and just to proceed with the case based on it being a mega corruption case and/or there being the possibility of the recovery of ill-gotten money through plea bargain which would not be available under any other law. Thus, since the transfer case according to the legislative intent should be regarded as a reference based on the Chairman's application u/s 16 (A) there t would be no need for the accountability court to take fresh cognizance of the matter especially as cognizance had already been taken by the court from which the case was transferred and the requirement that no witness be recalled and that no evidence be re recorded. In Kadri's case (Supra) it was held as under at P.79L Para's 28 to 32;

"28.1n tlte instant case since we flre satisfied that a literal construction of clauses (t) to (a) cannot stand tlu test of constitutionality and thus thry haae to be read down to the extent that a Constitutionally permissible classification is established. Mn Rhalid Anwar pointed out that clause (ix) of section 9(a) which defines tlte ffinces of cheating and criminal breach of trust with respect to the properties of the public at large scale to be tiable under the Ordinance ueated a perfectly reasonable classification and its constitutionality could not be questioned. Learned Prosecutor General himself conceded that each and eoery instance ,f corntption n small functionary of the state or "f acceptance of a small amount of illegal gratification L mtght not be triable under the Ordinance. Eaen otheranise the obsentations of the Honourable Supreme Court in Asfandyar Wali's case indicate that the Legislation was intended to deal with large scale corruption of public officers and others that they had indulged in durtng the recent past. We can also take notice of the fact that in most cases references haue been filed in respect of white-collar uime of a large magnitude, MoreoT)er it must be kept in aiew that one of the objects of the Ordinance which ilistinguishes it from preaious laws is return of assets acquired through corntpt tnefrn+ corntption or corntpt practices through the process stipulated in sections 25, 25-A and 26. Oboiously cotntnencement of proceedings under the Ordinance could be iustified upon rationale hypothesis if it is found that it would be in the national interest to allow the accused to secure a pardon if the amount likely to be recouered is faiily substantial,

29.At the snme time frn important feature of this Ordinance which distinguishes it from all preaious ts laws is that it proaides for recoaery of assets acquired through corntption or misuse of power fls well outstanding dues ,I financial institution and 2t

a

bs Goaernment agencies through the mechanism ol plea- bargaining. The creation ,f the offence ,f "willful default" has been upheld by the Honourable Supretne Court. Howeaer, Accountability Court cnn take cognizance of an offence only upon a reference being made by the Chairman, NAB or nny fficer duly authorized by him. These proaisions tend to show that only when the amount inaolaed is substantial and it is considered worthuthile to employ the coerciae methods of recoaery that a reference under the Ordinance would t' be justifiable.

30, For tlu foregoing reasons Tne are inclined to hold thfrt the qualifications laid doutn in clause (ix) will also Ltaae to be read in the other clauses of section 9(a), ln other words the discretion of the Chairman, NAB or nn fficer authoized by him to file a reference before the Accountability Court is not absolute or arbitrary. Such reference could be filed only when the Chairman or the Authortzed Officer fs satisfied that the amount inaolaed is "f large magnitude and resort tu the facility of plea-bargaining to the accused would he in the national interest. ln the absence of such satisfaction fl cflse could only be triable under the ordinflry laul

31,. As regards the new offences created by the Ordinance we nre constrained to obserue that strictly speaking, it is not possible for us to declare thern ultra aires the Constitution. Nutertheless, it is expected that th* Chairman, NAB will lnrp in aiew the spirit of the law in accordance with the guidelines referred to in pnra 29 and file references only ,t when the amounts inaolaed are large enough and it is worthwhile in the public interest and sotne fftefls rea on the part of the ilefaulter is inuolued.

3l.Since filing of a reference is essentially the function of the Chairman, NAB (though it may be amenahle to judicial reaiew in proper cases) and since he in aiew of the experience of the lnstitution is in a better position to determine whether the amount inaolaed in these cflses could be classified fls large or othenttise, We would remand these matters to the Chairman, NAB to re- examine these cases Iro* the aboae stand-point. ln case he is satisfied thnt the amounts inaolaed nre large enough to justifu proceedings under the Ordinance, tltey may continue before the Accountability Courts. In case he is not so satisfied tlu cases mfly be transferred to the appropriate courts and such courts may proceed with them fro* the stage they had reached without recalling witnesses. A definite decision is expected to be talun within one month from today and till such time tlu interim order passed earlier will continue. The petitions stand disposed of in the aboue term."(bold added) (") and the need to harmoniously interpret and read statutes in a holistic manner in order to uncover the

a

intention of the tegislature. In this case we find that when the Statute is read as a whole with its requirement of expeditious disposal of corruption cases in our view it was the intention of the legislature to create two distinct provisions for dealing with two different ways in which a case could be placed before the accountability court. In the first case u/s 18 where the whole complaint and its inquiry/investigation remained with the NAB until the Chairman's final decision as to whether or not to file a reference u/s t8(S) only the accountability court could take cognizance based on this mode of receipt of the reference. The second case would be where the NAB had not been involved in the complaint, investigatiory the filin g of the case and the cognizance of the case had already been taken by another court in which case the separate provision of 5.16 (A) was added where the legislative intent was for the case to continue from where it had left off before the other court from which it had been transferred ty's 16 (A) with no need to recall witnesses or record evidence and thus the accountability court would continue to hear the transferred case from the stage from which it had been transferred with no requirement of taking fresh cognizance which would only slow down the proceedings in the case which would not be in conformity with the intent of the legislature at either the preamble or 5.L5 NAO for the speedy trial of corruption cases. In this respect reliance is also placed on State V Saeed Ahmed (PLD 19625C277)

,t 34. Even in the case of Sardar Ahmed Siyal (Supra), which amongst other things, held that on a 5.16 (A) transfer application by the Chairman NAB no notice needed to be given to the accused it was held as under at

P.269

"We haae examined thl proaisions of clause (a) of section 16-A of the Ordinance reproduced hereinaboue, which clearly tends to show thnt notwithstanding anything contained in any other law for the time being in force, tlu Chairman, Natianal Accountability Bureau may apply to any Court of law of Tribunal for transfer of tlu cnse inaolaing a schefuiled ffince pending before such Court or Tibunal and, on receipt of such application, such C-ourt or Tibunal shall transfer tlw said case to any Court established under tlw Ordinance. It would appear that the object ,f the special law is to expedite the disposal of cflses inaolaing corntption, corntpt practices, misuse ,f pozoer, misappropriation of property and matters connected thereto under the Ordinance and to aaoid procedural delays and F technicalities." (bold added) t

a

35.In addition as mentioned in para 33 (c) above this may be one of the rare and exceptional sifuations where the court might be permitted to read in to the legislation at 5.16 (A) that on transfer the case would be "deemed to be a reference" to tie in with other language used in 5.16 (A) that there would no need to recall witnesses or re record their evidence to gtve effect to the true intent of the legislature and avoid a manifestly absurd or anomalous result which could not have been intended by the )h

legislature. Namely, that after the transfer application was complied with the case in trial would have to be routed to the Chairman NAB to file the same as a reference under S.18(g) before the accountability court before it could take cognizance of the same under S.18 (a) NAO which would lead to the accountability court again having to recall witnesses and record evidence afresh which as per 5.16 (A) and the need to ensure speedy frials the legislature deliberately intended to avoid. In this respect reliance is placed on the case of The collector of Sales Tax Gujranwala V Messrs Super Asia Mohammed Din and sons (2017 SCMR 1,422n which at P.1438 Para 8 held as under with regard to reading in words to statutes:

"It is settled law thnt the pinciple of reading in or casus omissus is not to be inaoked lightly, rather it is to be used sparingly and only when tlu situation demands it. ln fact the Courts should refrain fro* supplying nn omission in tlu J" statute because to do so steers the Courts from the realms of interpretation or construction into those of legislation. This pinciple hns been aptly dealt with by this Court in the judgment reported as Abdul Hoq Khan and others a. Haii Ammerzada and others (PLD 2017 SC 1-05) in which it was obsensed that:-

"-[hE reading in of utords or meaning into a statue when its meaning is otlunnise clear is not permissible. As a matter of statutory interpretation, Courts generally abstain fro* prouiding cflsus omissus or omissions in a statute, through construction or interpretation. An exception to this rule is, when there fs a self-eaident omission in a proaision and the purpose of the law as intenileil by the legislature cannot othenoise be achieaed, or if the literal construction of a particular proaision leads to manifestly absurd or anomalous results, which could not haae been intended by the legislature. Howeoer, this power is to be exercised cautiously, rarely and only in exceptional circumstfrnces," (bold added)

F 36. Thus, we find based on the reasons as set out in paragraph 33 (a) to (u) above that it was always the intention of the legislature that the

Ls transferred case would be considered as a reference and. that there was no r

need for the accountabilify court to take fresh cognizance of the same. Thus, we find that the words added to 5.16 (A) by the amendment dated 23'11,-2002 being "shall be deemed to be a reference under S.1B (a) of the Ordinance" was always the intention of the legislature and that these words were only added by the legislature through later amendment in order to clarify its original intent. Therefore, we disagree with the findings in the case of Abdul Sattar Dero (Supra) as in our humble view it did not ascertain the true intention of the legislature in considering the unamended 5.16 (A) NAO when read together with the rest of the NAO in a holistic manner.

37.Thus, the upshot of the above finding is that all 5.1.6 (A) transfer cases prior to the date of the aforesaid amendment being 23-11,-2002 shall proceed under the NAO without the need for the accountability court to take fresh cognizance of the same as it was always the intention of the legislature that such cases ltrere to be treated as references for which the accountability court ry's lS(a) did not need to take fresh cognizance as cognizance had already been taken prior to their transfer and hence the use of the wording in 5.16 (A) that "it shall not be necessary for the court to recall any witness or again to record any evidence that may have been recorded" and by finding such legislative intention no further delay i would be caused in the completion of the trial which is in consonance with the rest of the statute that trials conducted under the NAO should be speedy as per the preamble and 5.16 (a) NAO.

38.We therefore find that the accountability court had iurisdiction to try the transfer cases in these instant appeals and as such the impugned judgment is upheld on this score and as a result thereof the office shall fix the appeals to be heard and decided on merit on 19-0$2019 as per roster with notice to the appellants who shall be present on that date before this court.

IUSTICE

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JUDGE

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