2009 PLP 1679 (YLR)

Cr.M. No. 334-M of 2008 Padri Shareef Alam son of Chaudhry Sardar Masih, petitioner along with nine others was tried by the learned Judge Accountability Court, No.1 Rawalpindi/Islamabad, in Reference No.58 of 2002 under section 18(g) read with section 24 of the National Accountability Ordinance, 1999. The petitioner along with his other co-accused was found guilty of the offence of corruption and corrupt practices as defined and envisaged by section 9(a)(IV)(VI) (XII) read with sections 10 and 15 of the National Accountability Ordinance, 1999, and vide order, dated 30-9-2004 sentenced to rigorous imprisonment for seven years with a fine of Rs.20 lac each. In case of default in payment of the fine, he was to further undergo rigorous imprisonment for one year. It was further ordered that the petitioner and his co-accused shall forthwith cease to hold public office, if any, held by him and further shall stand disqualified for a period often years to be reckoned from the date of their release after serving the sentence, 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 the service of Pakistan or of any province and will not be allowed any finan cial facilities in the form of any loan or advances or other financial accommodation by any bank or Financial Institution owned or controlled by the Government, for a period of ten years from the date of con viction. The petitioner-appellant was also given benefit of section 382-B, Cr.P.C.

2. The petitioner challenged the above conviction and sentences by filing Criminal Appeal No. 27-E/2004, which is pending adjudication in this Court. During the pendency of the main appeal, present Criminal Miscellaneous No.334-M/2008 under section 7 of the National Reconcilia tion Ordinance, 2007, seeking withdrawal/termination of the proceedings against the petitioner was moved. Allegation/charged against the petitioner was regarding illegal sale of Banglow No.152, the Mall, Rawalpindi. .

3. Mr. Sittar Sahil, Advocate, learned counsel for the petitioner contends that the prosecution itself produced documents P.W.1/B, P.W-1/G, P.W.10/C and Exh.P.W.10/D, which make it crystal clear that the proceedings regarding in the subject-matter of Reference were initiated against the accused in the year, 1998 under the order of the then Chief Ehtesab Commissioner. Reference No.3(43) under the Ehtesab Act was filed before the NAB Court and the record was taken into possession before 12th October, 1999. Further contends that all the other co-accused filed appeals against their convictions and sentences before this Court and the Court while exercising jurisdiction under section 7 of the National Reconciliation Ordinance, 2007 terminated the proceedings against them vide order, dated 28-5-2008. He contends that the petitioner is also entitled for the same relief under the rule of consistency. The learned counsel by relying on the judgment of the Honourable Supreme Court in the case of National Accountability Bureau through Chairman v. Amir Lodhi and another (Civil Appeal No.114 of 2008) contends that the petitioner was charged, tried and convicted along with holders of the public office, then if the principle offender was acquitted or proceedings against them have been dropped under the NRO then benefit may be extended to the petitioner because both sail in the same boat.

4. On the other hand, Dr. Asghar Ahmad Rana, ADPG and Mr. Arif Ali Zafar Chohan, Senior Prosecutor contend that section 33-F as amended by NRO, 2007 is applicable only to holder of the public office therefore, effect thereof can-not be extended to the a private individual.

5. We have heard the arguments of the learned counsel for the parties and perused the judgment of the Honourable Supreme Court passed in Civil Appeal No.114 of 2008. The Honourable Supreme Court had observed as under:-- "--it may be pointed out here that the point raised, no doubt is of general public importance and therefore leave has already been granted by this Court in the case of The State through Prosecutor General National Accountability Bureau, Islamabad v. Nasim ur Rehman and others (2004 SCMR 1943) to consider as to "what is the scope of NAB Ordinance in respect of an accused who was not holder of public office but had indulged himself into corruption and corrupt practices, being the beneficiary from the accused who was holder of public office and was facing trial with other accused for the same charge?" and the proposition would be answered appropriately in the said case yet, to the extent of the case in hand, it may be observed here that if an abettor or any other person can be charged, tried or convicted along with holder of a public office then if the principal offender is acquitted or proceed ings against him are dropped under the NRO then .as to why benefit thereof shall not be extended to the ordinary persons because both sail in one the same boat." The admitted position is that the accused who were holders of public office have already been acquitted by extending the benefit of section 33-F, NAB Ordinance as added by N.R.O. 2007.

6. By following the above dictum laid down in the case of Amir Lodhi and another, who were not holder of any public office, in Civil Appeal No.114 of 2008, Reference against them had been quashed by Honourable Supreme Court by extending the benefit of section 33-F as amended by National Reconciliation Ordinance, 2007, this application is accepted and it is ordered that the proceedings in the Reference initiated against the petitioner are withdrawn/terminated. The result would be that the main Criminal Appeal No. 27-E of 2004 is allowed and the petitioner-appellant is acquitted of. H.B.T./S-132/L Appeal allowe