Syed Zahir Shah Vs The State through Chairman NAB etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No. 8150-P/2025.

Date of hearing: 05.11.2025

Mr. Shumail Ahmad Butt, advocate, for the petitioner.

JUDGMENT

SAHIBZADA ASADULLAH, J.- Syed Zahir Shah, the petitioner herein, has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, thereby assailing the legality and constitutionality of the judgment dated 12.03.2014 passed in Eh. Cr. A No. 07 of 2010.

Through the present petition, he seeks the setting aside/recalling of the said judgment on the grounds urged in the petition with the following prayers: - In view of the foregoing facts and grounds, it is most humbly prayed that this Hon’ble Court may graciously be pleased to;

a. Expunge and declare paragraph 47 of the judgment dated 12.03.2024, being unconstitutional, per incuriam, coram non judice, violative of Articles 4, 12, and 25 of the Constitution, and rendered in disregard of the express

legislative command of section 2 of the NAB Ordinance, 1999;

b. Hold and declare that any interpretation or application of the National Accountability Ordinance, 1999, extending its operation beyond the express commencement date to acquisitions made prior to 01.01.1985, is unconstitutional, without lawful authority, and of no legal effect;

c. Hold and declare that the proceedings and findings embodied in the judgment dated 12.03.2014 stand vitiated for want of lawful investigation and for failure of the prosecution to discharge its initial burden under Section 9 (a) (v) of the National Accountability Ordinance, 1999, to the extent of their being in contravention of the express provision of law, precedents of the Supreme Court and the Constitution of the Islamic Republic of Pakistan, and are therefore, constitutionally defective and without lawful authority;

d. Issue such writs, directions, or orders under Article 199 read with section 561- A Cr. PC as may be necessary to rectify and correct the unconstitutional and jurisdictionally defective findings, to prevent abuse of process, and to secure the ends of justice;

e. Grant such other relief as this Hon’ble Court may deem just and proper in the facts and circumstances of the case, including any clarification or declaration necessary to safeguard the petitioner’s fundamental rights and uphold the supremacy of the Constitution.

2.Briefly stated facts, as per the contents of the writ petition, are that Syed Zahir Shah, former Director General of the Peshawar Development Authority, was charged under Section

10 of the National Accountability Ordinance, 1999 (hereinafter referred to as the NAB Ordinance). The allegation against him is that, during the course of his service as a Government Servant, he accumulated assets and wealth far beyond his known sources of lawful income, allegedly through corrupt, dishonest, and illegal means. According to the prosecution, the accused utilized the alleged ill- gotten funds to acquire a series of immovable and movable properties in his own name and in the names of his close family members. It was alleged that he purchased land situated at Abdara Road, Peshawar, as well as Plot No. 56, Defence Colony, Peshawar, and further secured an allotment of 200 square yards of additional land from the Cantonment Board for a premium of Rs. 390,000/- in the name of his wife, Mst. Tasneem Begum.

Over the said plot and the additional area, he was stated to have constructed a bungalow valued at Rs.

30,34,000/-, and also raised two residential flats on the Abdara Road property, collectively valued at Rs. 15,00,000/-.

The prosecution further alleges that the accused purchased a residential quarter worth Rs.

15,00,000/- at Gharibabad, Peshawar, and acquired

Plot No. 1-C/N-3, measuring one kanal in Phase- IV, Hayatabad, along with additional land measuring 1,110 square feet adjacent thereto. He was also alleged to have purchased Building No.

91-C, CB 15/91/27, including a balakhana known as the UBL Building, for Rs. 11,80,000/-, as well as several commercial shops (Nos. 24/1, CA- 25/1/3/ACA-25/2/3/B, CA-25/3/3-C, and CA- 24/2/3/K-2) situated at Saddar Road, Peshawar, in the names of his wife and his brother-in-law, Syed Mansoor Ahmed. These shops were subsequently demolished, and on the same site, he allegedly constructed a commercial establishment known as Sindbad Hotel, valued at Rs. 49,50,000/-.

In addition to the above immovable assets, the accused was stated to have invested in various financial instruments, including deposit certificates worth Rs. 25,00,000/- purchased from the Islamic Investment Bank, Peshawar Branch; Special Savings Certificates amounting to Rs. 16,00,000/- from the National Savings Centre, Dabgari, Peshawar; National Savings Certificates worth Rs.

3,00,000/- in the name of his wife; and vehicles including a Honda Civic car registered in the name of his son, Syed Yasir Shah, and a Toyota Corolla

car registered in the name of Fayaz Ali Shah, son- in-law of his brother. It was further alleged that the accused’s wife opened Foreign Currency Account No. 113141535225 with a balance of US $52,882, and Pakistani Currency Account No.

1131524461035 containing Rs. 24,32,000/-, both maintained under a fictitious name, Mst. Roohi Zahir, at Grindlays Bank, Peshawar Cantt.

According to the prosecution’s assessment, the aggregate value of the movable and immovable assets linked to the accused amounts to Rs.

2,15,00,000/-, which, in their estimation, is grossly disproportionate to his declared and known sources of income, thereby constituting the offence of corruption and corrupt practices under the NAB Ordinance.

3.On conclusion of the trial, the learned trial Court concluded that the prosecution had proved its case against the petitioner, and consequently, he was convicted under section 10 of the Ordinance, and sentenced to suffer five years’ rigorous imprisonment with a fine of Rs.

2,15,00,000/- The fine was directed to be paid within a period of one month, failing which the amount shall be recovered by sale of his movable

and immovable property including that of in the name of his wife and sons. Feeling aggrieved, the petitioner filed Eh. Cr. A No. 05/2000 before this Court, and this Court, while partially allowing the appeal, reduced the sentence of imprisonment to three years, and the fine to Rs. 1,15,00,000/-. The fine was ordered to be paid within a period of two months, failing which the petitioner shall undergo one year further rigorous imprisonment. The property mentioned was ordered to be forfeited to the Government. Not content with the judgment of this Court, the petitioner filed Cr. Appeal No. 31 of 2001 before the august Supreme Court. It is pertinent to mention that the alleged Benamidars, Masroor Shah, Yasir Shah, sons, Tasneem Begum, wife of the petitioner, and one Syed Fayaz Ali Shah, husband of the niece of the petitioner, filed civil petition No. 1736 of 2005, while Mansoor Ahmad son of Ahmad Ali Shah, brother-in-law of the petitioner filed a civil petition No. 751-P of 2003, in the august supreme Court, assailing the conviction of the petitioner to the extent that in case of default of payment of fine by the accused(petitioner), the properties owned by them can be utilized for the recovery of fine.

The Hon’ble Supreme Court of Pakistan converted both the Civil Petition No. 1736 of 2005 and Civil Petition No. 751-P of 2003 into appeals and allowed them in the terms that the petitioner should be given an opportunity of hearing and producing evidence before the learned trial Court in the light of the alleged claims about the properties in question. The apex Court rendered the forfeiture of the properties as unlawful and unsustainable unless the questions relating to the Benami transaction, in which certain rights and interests claimed by Benamidars were determined by the trial Court. Criminal Appeal No. 31 of 2001 of the petitioner was partly allowed, and the case was remanded to the trial Court with the directions to afford an opportunity of hearing to the alleged Benamidars to produce evidence. After the remand, the Benamidars attended the Court, produced their respective evidence, and, after hearing the parties, the petitioner was convicted under Section 10 of the National Accountability Ordinance, 1999, and sentenced to three years’ rigorous imprisonment, and also to pay a fine of Rs. 1,15,00,000/-. The accused (petitioner) was directed to pay the amount of fine within a period of one month. In case of

default, the same shall be recovered as arrears of land revenue. It is pertinent to mention that the properties of the Benamidars were ordered to be forfeited to the Government.

Aggrieved whereof, the petitioner filed Eh. Cr.

Appeal No. 7 of 2010, against his conviction and sentence. Writ petition Nos. 555/2010 & 736/2010 were filed by the petitioners therein to set aside the judgment, to the extent of the properties. This Court, after hearing both parties, dismissed the appeal, along with the connected writ petitions, in the manner as under: -

“The upshot of the reasons given hereinbefore, we are confirmed in our finding that the trial Court, while following the mandatory provisions of NAB Ordinance, 1999 law and the principle laid down by the Apex Court, had rightly been held that appellants had accumulated, amassed assets disproportionate to their known source and had rightly been convicted and sentenced, and the properties mentioned therein the impugned judgment forfeited to State would stand infact too; however, the sentence of three years inflicted upon the appellant has already been served out so he shall not be recommitted to the prison, accordingly this appeal No. 7/2010 and the connected writ petitions No. 555/2010 and 736/2010 stand dismissed. The learned Accountability Court is directed to proceed against the appellant for the realization of the fine and properties forfeited to the State, further in accordance with law and rules on the subject.”

4.Aggrieved by the judgment of this Court, the petitioner, as well as the alleged Benamidars, went to the Hon’ble apex Court, and filed Civil Appeals No. 249 & 250 of 2015, and criminal appeal No. 130 of 2015. The matter came up for hearing on 09.07.2019, where the learned counsel representing the petitioner, during arguments, requested the withdrawal of the appeal, and the same was dismissed accordingly. The civil appeal No. 249 of 2015 was dismissed, while the civil appeal No. 250 of 2015 was allowed. Now, after a lapse of more than six years, the petitioner has filed the instant petition, challenging the constitutionality of the judgment, passed in the year 2014, in an Ehtesab Criminal Appeal, where this Court, after the conclusion of a full-fledged trial, reevaluated and reassessed the entire prosecution evidence.

5.This Court has carefully examined the elaborate submissions advanced by the learned counsel for the Petitioner, which primarily rest upon Articles 4, 12, 25 and 199 of the Constitution, the scope of Section 561-A Cr.P.C., and an extensive array of case law, including PLD 1989

SC 166, PLD 1975 SC 506, PLD 2009 SC 879,

PLD 1988 SC 416, 2010 PCr.LJ 658, 2000 PCr.LJ

1516, 2018 SCMR 1397, 2014 SCMR 1504, 2015

SCMR 588, 2023 PCr.LJ 1536, and others. The thrust of the argument is that paragraph-47 of the judgment dated 12-03-2014 is unconstitutional, void ab initio, violative of Articles 4, 12, and 25, and therefore liable to be set aside/expunged by invoking the inherent jurisdiction of this Court. The preliminary question that arises is whether this Court, while exercising jurisdiction under Article 199 of the Constitution, read with section 561-A Cr.

PC may reopen, revisit, or recall its own concluded judgment delivered in the exercise of criminal appellate jurisdiction, particularly when such judgment has attained finality and no statutory mechanism of review exists under the Cr.P.C. The Petitioner urges that the bar contained in Article 199(5) is not absolute, and that Section 561-A Cr.P.C. operates as a constitutional safety valve enabling the Court to correct unconstitutional pronouncements. This contention, though attractive at first blush, cannot be accepted. The institutional architecture of the Constitution draws a clear distinction between judicial review of executive/administrative actions and the finality of

judicial pronouncements rendered by superior courts. Article 199 empowers the High Court to supervise subordinate judicial and administrative authorities, but does not authorize a High Court to issue a writ against itself, directly or indirectly. The argument that the Petitioner seeks expungement of only a “portion” of the judgment and not a writ “against the Court” is, with respect, a distinction without a difference. Expungement of part of a judgment necessarily amounts to a recall or review of that judgment. The judgments relied upon by the Petitioner, including Brig. (Retd.) F & Ali (PLD 1975 SC 506), do not support the proposition that a High Court may reopen its final judgment rendered on the merits. Those cases concerned orders passed without jurisdiction, collateral challenges, or proceedings tainted by mala fides, and not a situation where a party seeks substantive correction of a judicial determination after exhausting the available appellate forum. The Petitioner admittedly invoked Criminal Appeal No. 130/2015 before the Hon’ble Supreme Court, which was subsequently withdrawn. Finality, therefore, is attached. Reliance is placed on Abbai Maligai Partnership Firm v. K.

& Others (1998) 7 SCC 386.

“The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self‐same order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.87 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the self‐same order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so.”

6.As regards Section 561-A Cr.P.C., the jurisprudence is clear that the provision preserves inherent powers, but does not confer a substantive jurisdiction of review. The precedents cited by the Petitioner indeed recognize limited exceptions to fraud, lack of jurisdiction, or non-adjudication on the merits. However, none of these exceptions is attracted in the present case. The judgment dated 12-03-2014 was passed by a lawful bench, after hearing the parties, on the merits of the appeal.

Even if an error of law is assumed, such an error cannot be corrected through Section 561-A, which is not a substitute for an appeal or review.

Equally misplaced is the reliance on PLD 2009 SC 879 (Sindh High Court Bar Association) for the proposition that courts may strike down their own judgments. That case involved judgments rendered under an unconstitutional dispensation imposed by a military regime. The present matter does not involve any unconstitutional regime, extra- constitutional measures, or judicial validation of a PCO. The impugned paragraph of the 2014 judgment cannot be equated with decisions rendered under an unconstitutional rule.

7.The Petitioner has further placed

reliance on Articles 4, 12, and 25 of the Constitution, alleging retrospective application of penal laws. This Court must emphasize that constitutional rights, including those guaranteed under Articles 4, 12, and 25, are fully enforceable within the appropriate forums and procedural frameworks established by law. However, the invocation of such rights does not, by itself, enlarge the jurisdiction of this Court or dilute the doctrine of finality. Constitutional rights operate within the bounds of jurisdiction, not the other way around.

Where a judgment has attained finality, and where no allegation of fraud, patent lack of jurisdiction, or

non-adjudication is established, the constitutional writ jurisdiction cannot be deployed to unravel what the law has rendered conclusive. Even otherwise, these are constitutional issues which could have been, and in fact were, open to agitation before the Supreme Court on appeal. Withdrawal of the appeal does not revive the High Court’s jurisdiction to review its own judgment. Once a forum of appeal exists and has been invoked, the constitutional jurisdiction of this Court cannot be used as a substitute for a belated review. The Court is mindful of the principle that what is unconstitutional is void ab initio. However, the determination of unconstitutionality of a judicial pronouncement is exclusively within the sphere of the appellate forum, not the Court that rendered the judgment. Allowing a High Court to sit in appeal upon its own earlier judgment, even partially, would obliterate the principle of finality, destabilize judicial hierarchy, and create a jurisdiction unknown to law. In the case of Neelima Srivastava v. State of U.P., AIR 2021 SC 3884, the Court held that once a judgment attained finality inter se the parties is a past and closed transaction, and it cannot be reopened, re‐agitated, or set aside in

collateral proceedings; and allowing such re‐opening would be an abuse of process and detrimental to the administration of justice. Further, in the case of Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169, setting out the functus officio doctrine, the Court held:

“Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or an arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.”

8.The argument that no alternate remedy now exists because the appeal before the Hon’ble Supreme Court was voluntarily withdrawn is, with respect, wholly misconceived and self-defeating.

The doctrine of alternate remedy is to be assessed at the time when the lis is instituted, not with reference to subsequent strategic choices made by a litigant. A party that consciously elects to abandon

a statutory remedy cannot thereafter invoke the constitutional jurisdiction as a means to circumvent the consequences of that election. To permit such a course would enable litigants to manufacture jurisdiction by their own omission or deliberate withdrawal, thereby unsettling the discipline of appellate hierarchy and undermining the finality attaching to judicial determinations. Jurisdiction is conferred by law, not created by parties. A concluded judgment cannot be reopened merely because a litigant has, by choice, foreclosed the appellate avenue available to him. Such a proposition would strike at the very foundation of judicial certainty and would erode the structural coherence of the justice system. Hence, the contention premised on the withdrawal of the appeal does not advance the Petitioner’s case;

rather, it reinforces the impermissibility of entertaining the present petition.

9.Insofar as the case law on retrospective penal legislation is concerned, including 2018

SCMR 1397, 2015 SCMR 588, 2014 SCMR 1504,

these precedents lay down substantive legal principles, but do not confer upon the High Court a jurisdiction to review its own past judgments.

Whether paragraph-47 of the 2014 judgment correctly applied Section 2 of the NAB Ordinance was a matter for the appellate forum, and cannot now be reopened under Article 199. The Court must also reiterate that the constitutional scheme does not envisage a perpetual or open-ended revisiting of final judgments. Section 369 Cr.P.C.

protects finality in criminal matters. Section 561-A does not override Section 369; rather, it operates harmoniously within its limitations. None of the recognized exceptions to Section 369, i.e., jurisdictional defect, lack of adjudication, or fraud, is present. It is pertinent to underscore that the stability, coherence, and predictability of the justice system hinge upon the sanctity and finality of judicial decisions. The constitutional distribution of judicial power does not permit the creation of parallel or residual avenues for re-opening concluded adjudications, merely by re- characterizing the relief as “expungement” or by invoking broad constitutional guarantees. If such an approach were accepted, every final judgment could be subjected to perpetual challenge, thereby eroding the institutional finality expressly protected by Section 369 Cr.P.C. and consistently reaffirmed

by the superior courts. The inherent powers preserved under Section 561-A, Cr. PC, valuable though they are, cannot be stretched into an unbounded jurisdiction to revisit, reinterpret, or cosmetically rewrite a judgment delivered after full adjudication. To do so would not be an exercise in correction; it would amount to an impermissible assumption of appellate review against one’s own judgment. In the case of Malik Muhammad Umar Khan versus Mst. Sadia Bibi & others, reported as 2025 PCr. LJ 661, Islamabad, the Court has held:

Ss.369 & 561-A, Civil Procedure Code (V of 1908), S. 114 Pronouncement of judgment (of conviction) Subsequent remedy availing of Application for correction/rectification. The High Court is not equipped with any power of review under the Criminal Procedure Code, 1898, as compared to S.114 of the Civil Procedure Code, 1908, and for this reason, once a judgment has been announced, the Court becomes functus officio. Language of S.369, Cr.P.C. confirms the same viewpoint, wherein the Legislature has applied a negative notion by using the phrase "no Court when it has signed its judgment shall alter or review the same, except to correct the clerical error".

10.The Court also notes that the Petitioner’s grievance, essentially directed at the correctness of

paragraph 47 of the judgment dated 12-03-2014, pertains to the merits of the legal reasoning adopted therein. Whether the said observation was excessive, incorrect, or constitutionally vulnerable was a matter squarely falling within the appellate domain of the Hon’ble Supreme Court. The petitioner did invoke that very jurisdiction but chose to withdraw the appeal. Judicial discipline does not allow this Court to re-assume the role of an appellate court over issues that were properly placed before, but not pursued before, the apex Court. The withdrawal of the appeal, whether strategic or otherwise, cannot be permitted to generate a fresh cause before this Court under the guise of inherent jurisdiction.

11.Guided by these principles, and having given thoughtful consideration to the earnest submissions of learned counsel, this Court is of the firm view that the relief sought cannot be granted without transgressing well-settled jurisdictional confines. The petition is, in essence, a collateral attempt to revisit a settled matter under the pretext of constitutional and inherent powers, an exercise that this Court is neither empowered nor inclined to undertake. The elaborate constitutional and

statutory arguments, even if meritorious on some

points, cannot confer jurisdiction where none exists.

12.For these reasons, the petition is

dismissed as not maintainable.

JUDGE

JUDGE

Announced

Tariq Jan. DB, Mr. Justice Sahibzada Asadullah, HJ, Mr. Justice Inam Ullah Khan, HJ.