P L D 2006 Peshawar 79 (PLP)

TARIQ PARVEZ KHAN, C J.

Petitioner herein is a Senior Clerk and hails from Tehsil Kalam District Swat which is part of P.A.T.A. (Provincially Administered Tribal Area).

2. Director-General NAB (National Accountability Bureau) N.-W.F.P. Peshawar has filed a reference against the petitioner under NAB Ordinance, 1999, hereinafter referred to as Ordinance.

3. Petitioner has challenged the filing of Reference against him on two grounds, firstly that Ordinance is inapplicable to the Areas/ Territories forming part of P.A.T.A. and secondly that Ordinance XXIV which has brought about amendment in section 18(g) of the Ordinance, both having been not extended to P.A.T.A. as required under Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be enforced against him because of his residence in P.A.T.A.

4. Contention of learned counsel for the petitioner is that under Article 247 of the Constitution no Act of Parliament shall apply to P.A.T.A. unless so directed by the President through a regulation if it was a Federal Law, and if Provincial Law by the Governor of the Province so directed by the President. His submission is that despite proclamation of emergency in October, 1999 when the country was ruled and governed under the Proclamation Order 1 of 1999 and Proclamation Emergency of 1999 but it was so required under PCO-1 of 1999 that it shall be governed as nearly as may be but in accordance with Constitution. His next submission is that notwithstanding the Constitution being put in abeyance or inoperative but all steps taken during the enforcement of Proclamation Order and Proclamation of Emergency should have been in consonance with the mandate of the Constitution i.e. Laws/Ordinance made during such period are/were required to be extended to the P.A.T.A. as. envisaged under Article 247 of the Constitution. His contention is that despite validation given to laws by insertion of Article 270-AA of the Constitution still certain Ordinances including N.-W.F.P. Local Government Ordinance, 2000 was extended to P. A.T. P.A.T.A. through Regulation. His view is that in view of Constitutional command no Act of Parliament be it Federal or Provincial can be enforced in P.A.T.A. unless extended through Regulation.

5. Learned Deputy Attorney-General, who was on notice, submits that because of declaration of Proclamation of Emergency in October 1999 and because of enforcement of PCO-1 (Provincial Constitution Order) the Constitution was virtually put in abeyance. He submits that under Para. 3 of the PCO-1 of 1999 fundamental rights conferred by Chapter-1 of Para-II of the Constitution if not in conflict with Proclamation of Emergency Order were allowed to continue as such and were made to remain enforced. His submission is that where Constitution was practically put in abeyance so would be Article 247 of the Constitution. Learned Deputy Attorney-General has referred to section 4 of the Ordinance wherein it has been expressly mentioned that it extends to whole of Pakistan including F.A.T.A. (Federal Administered Tribal Area) and P.A.T.A. (Provincially Administered Tribal Areas). His contention is that Ordinance on its own force stood extended, therefore, was not required to be extended through a Regulation. Regarding amendment brought in Ordinance whereby section 18 (g) was amended through Ordinance XXIV on 5th July, 2000 would also stand extended and applicable to P.A.T.A. not only because the parent law was enforced in P.A.T.A. but also because legal scenario remained the same as was in 1999 i.e. country was run under PCO-1 read with powers of the Chief Executive derived under Proclamation of Emergency and the Constitution was not revived. Section 4 of the Ordinance reads as under:-- "Application.

It extends to the whole of Pakistan and shall apply to all persons in Pakistan (all citizens of Pakistan) and persons who are or have been in the service of Pakistan whenever they may be, including areas which are part of Federally and Provincially Administered Tribal Areas". Under unamended section 18 a Reference could be filed by Chairman NAB but after its amendment it can also be filed by any other B officer other than Chairman NAB if duly authorized by the Chairman to assess the material before him and if sufficient material is found could file Reference.

6. NAB Ordinance as was promulgated was clause-wise scrutinized by apex Court in Asfandyar Wali's case reported as PLD 2001 SC

607. Section 4 of the Ordinance was left as it is and so was the authority and delegation of powers of Chairman NAB as given in section 18 of the Ordinance.

7. The Ordinance was promulgated by the President and while so promulgating, it was said that the same is in pursuance of Proclamation and Provisional Constitution Order and in exercise of all powers enabling him in that behalf.

8. There can be no dispute that until the Constitution was revived, the President had unfettered power on strength of PCO-1 and Proclamation of Emergency Order to legislate through Ordinances.

9. As during the period Ordinance was promulgated, followed by amendment through Ordinance XXIV on 5th of July, 2000, Article 247 of the Constitution was non-operative, therefore, it was not required that the Ordinance or the subsequent amendment made during the period when Article 247 of the Constitution was inoperative, the laws/Ordinances made or issued by the President should have been extended through a Regulation.

10. Mere fact that some laws like N.-W.F.P. Local Government Ordinance was extended through Regulation would not mean that all Ordinances during the period when PCO was enforced and Constitution was not revived should have been extended through Regulation. The short reason would be that NAB Ordinance unlike N.-W.F.P. Local Government Ordinance, 2001 had in built provision of its extent of application to the entire country including F.A.T.A. and P.A.T.A.

11. We, are therefore, of the view that any of the contentions raised by learned counsel for the petitioner is devoid of any legal force and the result would be that this petition is dismissed in limine. H.B.T./41/P???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.