2003 PLP (C (PLC(CS))

3. Learned counsel for the petitioner argues that section 5-A(3) was added vide Amendment Ordinance No.XXXV of 2001 w.e.f. 10-8-2001 and that the said amendment was made in compliance with 'the directions of the Hon'ble Supreme Court in the case of Khan Asfand Yar Wali v.. Federation of Pakistan (PLD 2001 SC 607). According to the learned counsel the judgment was pronounced on 24-4-2001 and amendment was made on 10-8-2001. The precise contention is that the, said judgment had taken the field when notification dated 14-5-2001 appointing the petitioner as Judge of Accountability Court Northern Areas was issued with immediate effect and till further order and as such tenure of his client stood protected under the said section 5-A(3) of NAB Ordinance, 1999. The learned Deputy Attorney. General of Pakistan has taken position in line with comments filed by the official respondents. Learned counsel for the respondent No.6 also adopts the same line of argument and states that the petitioner was never appointed as Judge of Accountability Court within the meaning of said section 5-A(3) of NAB Ordinance, 1999.

4. I have considered the respective contentions of the learned counsel for the parties ,and learned Law Officer in the light of factual position stated above. There is no cavil that the petitioner was working as District and Sessions Judge Northern Areas when he was appointed as Judge of Accountability Court, Northern Areas vide Notification dated 14-5-2001. I may reproduce here the said section 5-A of the said NAB Ordinance, 1999. "(5A) Tenure etc. of a Judge:- (1) A Judge. of a Court who is a serving District and Sessions Judge shall hold office for a period of three years from the date of his appointment as such Judge. (2) An incumbent Judge who on the 24th April, 2001 is not a serving District and Sessions Judge and has exercised option to serve as, a Judge shall continue for a period of three years from the date of his initial appointment as such Judge. (3) An incumbent Judge who is a serving District and Sessions Judge and retires while serving as, such Judge shall, subject to his option, continue for a period of three years. from the date of his initial appointment as such Judge. (4) A Judge shall not be removed or transferred from his office before the completion of the term of his office without consultation of the Chief Justice of the High Court concerned." Now section 2(g) defines Court to mean an Accountability Court which shall consist of a Judge who shall be appointed by the President of Pakistan, in consultation with the Chief Justice of the High Court concerned, and shall hold office for a period of three years on such terms and conditions as may be determined by the President.

5. Section 2(h) of the said Ordinance defines a Judge to mean a Judge of the Court who shall be a serving District and Sessions Judge, who was appointed Judge of the Court before the commencement of the National Accountability Bureau (Amendment) Ordinance, 2001.

6. Going by the said definitions of a Court and Judge in the said Ordinance, the petitioner does fall in. the later part of the definition of the term "Judge" in the said Ordinance. He was serving District and Sessions Judge who was appointed Judge of the said Court before 10-8-2001, which is date of commencement of the said Amendment Ordinance XXXV 2001. Now reading section 2(h) in conjunction with section 5-A(3) of the Ordinance, subsection (1) of section 5-A provides that Judge of a Court who is serving District and Sessions Judge shall hold office for a period of three years from the date of initial appointment as Judge. Subsection (2) would not be relevant. Subsection (3) provides that incumbent Judge who is serving District and Sessions Judge and retires while serving as such Judge shall, subject to his option, continue for a period of three years from the date of his initial appointment as such Judge:s

7. Now the petitioner was an incumbent Judge when section 5-A was introduced and it is matter of record that . he did exercise his option on 3-12-2001. .This being so, he was to continue for a period of three years from the date of his initial appointment as such Judge i.e. 14-5-2001.

8. Coming to the said contention of the learned Deputy Attorney General and learned counsel for respondent No.6. I do not find any condition spelt out either in section 2(h) or section 5-A of the said Ordinance that a serving District and Sessions Judge who is duly appointed as a Judge of the said Court will not be deemed to be Judge of the said Court only because he was performing his duties as District and Sessions Judge and additionally performing his duties as a Jadge of the said Court. Fact remains that the petitioner was appointed as Judge of the said Court vide notification dated 14-5-2001.

9. Now what happened thereafter was that probably all concerned including the petitioner retrained under impression that his continuance as a Judge of the said Court is dependant upon his continuation in the office of the District and Sessions Judge. However, section 5-A(3) does not leave. any manner of doubt that subject to the option to be exercised by the incumbent Judge, notwithstanding his retirement as District and Sessions Judge, he is to continue as said Judge for a period of three years. from the date of his initial appointment. I also deem it proper to reproduce here paras 193 and 194 from the judgment of Chief Justice Irshad Hassan Khan (as his lordship then was) appearing at .page 884 of the aforesaid report:-- "(193) We are of the view that for smooth and effective functioning of the Accountability Courts all the Judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief Justice of Pakistan as contemplated in section 5(g) of the NAB Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct, or pnysrcat or mental infirmity by the competent authority i.e. the High Court concerned, after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their. counterparts who are performing functions in respect of Courts and Tribunals established by the Federal Government. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as .lodges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such Judge from being elevated as Judge of a High Court if so appointed in terms of Article 193 of the Constitution. (194) The present incumbents/Judges of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges for tire remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months salary." Thus examining said provisions in the light of said observations of the Hon'ble Supreme Court of Pakistan, I conclude that the petitioner having been appointed as Judge of the said Court on 14-5-2001 while serving I District and Sessions Judge, having exercised his option on 3-12-2001 was entitled to continue as Judge of the said Court for a period of three years from the date of his initial appointment arch Judge. The act of the official respondents in not allowing the petitioner to complete his said tenure secured under the said judgment of the Hon'ble Supreme Court as incorporated in section 5-A(3) of the NAB Ordinance 1999 is without lawful authority and is accordingly declared as such. This writ petition is .allowed. The respondents are directed to reinstate the petitioner as a Judge of the Accountability Court. Northern Areas, with immediate effect and he shall continue as such Judge in terms of the said judgment of the Hon'ble Supreme Court and section 5-A (3) of the NAB Ordinance, 1999 till such time he completes three years of service to' be counted w.e.f. 14-5-2001 after adjusting the period between 1-7-2002 and the date when he resumes his office. Since the petitioner is to complete his tenure, there is no occasion for allowing back benefits. No order as to costs Q.M.H./S-541/L Petition allowed.