2003 P Cr (PLP)

Director‑General RAB, Sindh, (Tariq Bashir). The Director, Federal Investigation Agency, Karachi Zone, Karachi. No. 20001/174/AD‑11/IQM/1302 Karachi, dated 7th November, 2001. Ordering for freezing of assets under section 12 of the National Accountability Bureau Ordinance, 1999 in fifteen different accounts operated in different names but in all of which petitioner was a Joint Account Holder having a total deposit of Rs.57,899,936.45 it was followed by an application before the Administrative Judge of the Accountability Courts Sindh seeking further orders in pursuance to the earlier action and Court ordered for freezing of the aforesaid assets. The learned counsel advanced their detailed arguments. Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner, challenged the legality of the order. His contentions are that the petitioner is a member of the Armed Forces within the meaning of section 5(m) of NAB Ordinance and the provisions of NAB Ordinance, 1999 are not attracted to the petitioner as such the entire proceedings under the NAB Ordinance are without jurisdiction. He further contended that the petitioner has been allocated army number, is holder of the Army Card, draws his salary from the Main Head‑8 Army for MES Classification of Budget of the Ministry of Defence, which makes him an Officer of the Army within the meaning of sections 2, 4 and 59 of the Pakistan Army Act, 1952 as such he is a Member of Armed Forces and discharging functions as an Officer of the Pakistan Army. That the petitioner is on active service and covered by rules 13, 54 and 58 of the Pakistan Army Act Rules, 1954 providing for the conduct of proceedings against such Officer. Thus the petitioner is a commissioned Gazetted Officer subject to the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 and the Accountability Court has no jurisdiction to entertain or proceed in the case under the provisions of the NAB Ordinance against the petitioner. In support of his contentions he has placed reliance on the cases of O.K.A. Nair v. Union of India AIR 1976 SC 1179,. Gopal Upadhyaya v. Union of India AIR 1987 SC 413, Khan Asfandyar Wali v. .Federation of Pakistan PLD 2001 SC 607, Federation of Pakistan and 2 others v. Khursheed Ahmed and another 1999 SCMR 664 and Mrs. Naheed Maqsood v. Federation of Pakistan 1999 SCMR 2078. Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor‑General NAB, in support of his objections has contended that the bar to the jurisdiction of the Accountability Court is attracted only to the cases of the Officers who are "Members of the Armed Forces". Admittedly the petitioner is a Gazetted Officer of the Army but not a Member, of the Armed Forces. He has placed reliance on a recent unreported judgment of the Lahore High Court, Rawalpindi Bench in Zakim Khan Mehsoob v. Accountability Court No.3 and others (Writ Petition No.909 of 2001). The distinction has been further elaborated by the learned Assistant Judge advocate General who provided valuable assistance in this regard while addressing us pursuant to our notice to J.A.G. The question of applicability of the Army Act to the employees of Defence Establishment and the application of the restrictions has been examined in cases of O.K.A. Nair, Gopal Upadhyaya and Federation of Pakistan and two others (supra). The proposition of law which came under examination as to the effect of the relevant provisions to such persons as were subject to the Army Act has been examined and the question of applicability of the Army Act to the various classes of civilian employees has been set at rest. The question of applicability of the NAB Ordinance, 1999 to persons subject to any of the law, relating to the Armed Forces of Pakistan earlier came under examination before the Hon'ble supreme Court in Asfandyar Wali's case (supra). In the light of law as it existed at that time and the operation of the NAB Ordinance was considered with reference to unamended subsection (5)(m) of NAB Ordinance. The present petition filed after the amendment of 10th August, 2001 calls for examination of the case in the light of the law after subsequent amendment and to determine the effect thereof. This proposition is also not disputed by learned Deputy Prosecutor‑General and the matter has narrowed down to the proposition Whether all employees subject to the provisions of the Pakistan Army Act, 1952 and Pakistan Army Act Rules, 1954 are "Members of the Armed Forces". To determine the question that the petitioner who, in spite of being a Gazetted Officer holding a responsible post, Army Number and also drawing his salary from the Ministry of Defence but is not a "Member of the Armed Forces", the provisions of Article 243 of the Constitution and the procedure involved to confer the status of a Member of the Armed Forces require examination: Under the provision of Article 243 of the Constitution commissions are granted by the President. The procedure to be followed for grant of such commissions is provided for under Chapter 2 of the Pakistan Army Act comprising of sections 8 to 15 and the Army Rules. It is only after completion of the prescribed period of probation that an Officer is attested on administration of an oath or affirmation in front of his corps or union, or such portion thereof as may be present or by an other prescribed persons in the prescribed form in pursuance of the provision of section

15. A Commission is granted by the President in pursuance of Article 243 of the Constitution after attestation of an officer in pursuance of section 15 of the Army Act which confers upon an Officer, the status of a Member of the Armed Forces. Admittedly the petitioner in spite of being a Gazetted Officer is neither attested nor commissioned in pursuance of the Provision of section 15 and Article 243 of the Constitution of Islamic republic of Pakistan. Merely being a Gazetted Officer under the above circumstances and subject to the Field General Court Martial, does not make the petitioner a Member of the Armed Forces so as to attract the bar to the operation of the NAB Ordinance and make the case of the petitioner beyond the jurisdiction of the Accountability Courts. To examine the scope of the NAB Ordinance in view of the above discussion, the provisions of section 5(m) of NAB Ordinance call for consider: in the light of subsequent amendment. Section 5(m) reads as follows:‑‑ "(m) Holder of Public Office means a person who‑‑‑ (i) .. (ii) .................................................. (iii).................................................................................. (iv) is holding, or has held, an office or post in the service of Pakistan, or any service. in connection with the affairs of the Federation, or of a Province, or of a local council constituted under any Federal or Provincial law relating to the constitution of local councils, or in the management of Corporations, banks, financial institutions, cooperative societies firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the Federal Government or a Provincial Government, other than a person who is a member of any of the Armed Forces of Pakistan, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government; (v) is, or has been, the Chairman or Vice‑Chairman of a Zila Council, a municipal committee, a municipal corporation constituted under any Federal or Provincial law relating to local councils. Explanations .................................... (vi) 1[***] has served in and retired or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan. " The upshot of the above discussions is that by the amendment, dated 10th August, 2001 in NAB Ordinance after omission of the words, "or for the time being is subject to any law relating to any of the said forces" the scope of NAB Ordinance is now extended to a person, who, for the time being, is subject to any law, relating to the Armed Forces of Pakistan. The bar to jurisdiction is restricted only to such officers who are the members of Armed Forces. The petitioner has neither been attested nor administered an oath as required for every member of the Armed Forces, hence we are of the view that he is not a member of the Armed Forces. We are, therefore, of the view that as the petitioner is not a member of the Armed Forces, this petition has no merit and is accordingly dismissed alongwith the listed applications but with no orders as to costs. Q.M.H./M.A.K./A‑368/K Petition dismissed.