2009 SCMR 925 (PLP)

ABDUL HAMEED DOGAR, C.J.

These criminal appeals with leave of this Court arc directed against judgment dated 6-11-2002 passed by learned Division Bench of High Court of Sindh, Karachi whereby Criminal Accountability Appeals Nos.58 and 59 filed by appellants were dismissed.

2. Briefly stated facts of the case are that appellant Abdul Aziz Memon was an active member of the United Bank Employees Union and the U.B.L. Employees Federation. However, he resigned from the service of Bank which was accepted on 15-4-1993 with retrospective effect from 16-9-1989. Thereafter, he contested General Election in the year, 1993 and was elected as a Member of the National Assembly from NA-190 from 1993 to 1996. On 20-6-1998 the Bank filed a complaint before Chairman, Ehtesab Commission under section 15 of the Ehtesab Act, 1997 against appellant Abdul Aziz Memon alleging that he acquired properties/wealth disproportionate to his legal sources of income. On which an investigation was initiated on 13-7-1998 and the machinery of law was put in action. Later, on promulgation of the National Accountability Ordinance, 1999 the enquiry was transferred/taken over by the NAB authorities and Reference No.44 of 2001 was filed against appellants before learned Accountability Court No.3 under section 18(a) of the National Accountability Ordinance, 1999 hereinafter referred to as "the Ordinance". It was alleged in the reference that during the service as during the period remained parliamentarian, appellant Abdul Aziz Memon accumulated wealth and acquired properties illegally and through deceitful means, which are disproportionate to his known sources of income. It was alleged against appellant Mrs. Farida Abdul Aziz that she in collusion, abetment and criminal conspiracy acquired moveable/immoveable properties which were disproportionate to her known legal sources of income but actually the same are the pecuniary advantages obtained by appellant Abdul Aziz Memon. On the conclusion of trial, the learned Accountability Court vide judgment dated 28-6-2002, convicted both the appellants under section 9(a)(v) of the Ordinance and sentenced them to suffer R.I. for seven years with fine of Rs.1.0,00,000 (Rupees ten lacs only) each or in default whereof to further undergo two years' R.I. and the following properties were forfeited to the Government of Pakistan:

(1) Two plots at Hawksbay Town, Karachi (2) Plot at K.D.A. Scheme No.1-A Ext. Karachi (3) House No.15/1, Khayaban-e-Shamsher, Phase- V Ext. DHA Karachi. Feeling aggrieved, appellants filed Criminal Accountability Appeals Nos.58 and 59 of 2002 before learned High Court of Sindh, Karachi which were dismissed vide impugned judgment. This judgment was assailed before this Court through Criminal Petitions Nos. 139-K and 140-K of 2002 in which leave to appeal was granted by this Court on 6-6-2005.

3. During the pendency of appeals, appellants have filed Criminal Miscellaneous Applications Nos.171 and 172 of 2008 alleging that the appellant's case squarely falls within the ambit of section 7 of the National Reconciliation Ordinance, 2007 as the investigation had commenced in the year, 1998 prior to the cut off date as provided in the N.R.O. Section 7 of the N.R.O. reads as under:

"Withdrawal and termination of prolonged pending proceedings initiated prior to 12-10-1999 (1). Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Courts including a High Court and the Supreme Court of Pakistan initiated by or on a Reference by the National Accountability Bureau inside and outside Pakistan including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date."

4. It is vehemently contended by learned counsel for the appellants that proceedings in this case were initiated on 20-6-1998 on the basis of a complaint filed by United Bank Limited, prior to the cut off date as given in section 7 of the N.R.O., as such the case of appellant is fully covered under the same. He further contended that the appeals pending before this Court stand withdrawn and terminated, hence the same cannot continue further

5. On the other hand learned Attorney General for Pakistan and learned A.D.P.-G. NAB frankly conceded that section 7 of the N.R.O. is applicable in the instant case as "inquiry/investigation was conducted prior to the cut off date i.e. 12th October, 1999 as such the case against appellants may be withdrawn.

6. We have considered the arguments of both sides and also gone through the relevant provisions of law with their assistance. It is clear that under section 7 of the N.R.O., the proceedings initiated against public office holders before 12th October, 1999 shall be withdrawn. The perusal of record of the case in hand reveals that inquiry against appellant Abdul Aziz Memon was filed on 20-6-1998 on the complaint filed by United Bank Limited to Chairman, Ehtesab Commission under section 15 of the Ehtesab Act, 1997 which culminated in filing of Reference No.44 of 2001. The provisions of section 7 of the N.R.O. stipulates that under section 33 of the Ordinance the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance.

7. In view of above discussion Criminal Miscellaneous Applications Nos.171 and 172 of 2008 are allowed. Consequently, Criminal Appeals Nos.140 and 141 of 2005 are allowed. Impugned order dated 6-11 -2002 passed by learned Division Bench of High Court of Sindh, Karachi is set aside. Accordingly, appellants Abdul Aziz Memon and Mst. Farida Abdul Aziz Merton are acquitted Iron the charges under section 7 of the N.R.O.

8. These are the reasons of our short order of even elate which reads as under:

"For the reasons to be recorded later, Criminal Miscellaneous. Applications Nos.171 and 172 of 2008 filed by the appellants Abdul Aziz Memon and Fardia Aziz Memon, seeking their acquittal under section 7 of the National Reconciliation Ordinance, 2007 are allowed. Consequently, Criminal Appeals Nos. 140 and 141 of 2005 are also allowed." N.H.Q./A-25/SC Appeal accepted.