h1

P L D 2001 SC 7

ANWAR SAIFULLAH KHAN
V/S
THE STATE AND 3 OTHERS

Per Irshad Hassan Khan, C.J.

(a) Constitution of Pakistan (1973), Articles 185(3) & 12
r/w National Accountability Bureau Ordinance (XVIII of 1999)—S. 9(a)(vi) [as amended by National Accountability Bureau (Second Amendment) Ordinance (XXIV of 2000)]

The main grievance of the petitioner is that section 9(a)(vi) of the Ordinance creates a new offence which cannot be given retrospective effect, in that, such a course would be violative of Article 12 of the Constitution. In the alternative, it was argued that even if section 9(a)(vi) of the Ordinance is treated to be pari materia with the charge of misconduct as defined in Article 2A of the President’s (Post-Proclamation) Order (No. XVII of 1977) the maximum disability that can be imposed on the petitioner is seven years disqualification for contesting elections.

As to the above plea, suffice it to say that an eleven-member Bench of this Court in the case of Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), authored by one of us (Irshad Hasan Khan, CJ), observed vide paragraph 12 of the Short Order, as follows:-

“That this order will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order.” (Underlining is by way of emphasis). [p. 11] A

(b) Constitution of Pakistan (1973), Articles 185(3) & 12
r/w National Accountability Bureau Ordinance (XVIII of 1999)—S. 9(a)(vi) [as amended by National Accountability Bureau (Second Amendment) Ordinance (XXIV of 2000)]

Be that as it may, Mr. Shahid Hamid has made a statement at the Bar that the case is fixed for final arguments before the Accountability Court on 22-11-2000. If that is so, without expressing any opinion as to the merits of the case lest it may prejudice the case of either side, we would exercise judicial restraint by not dilating upon the submissions made by Mr. Shahid Hamid about merits of the case. It is wrong, in principle, to interfere with the impugned order passed by the High Court for the simple reason that law abhors fragmentary/piecemeal resolution of causes. The same view was taken by a five-member Bench of this Court in the case of Mohtarma Benazir Bhutto v. The State (PLD 1999 SC 937), wherein the judgment was authored by one of us (Irshad Hasan Khan, J.) as he then was. Clearly, interference by this Court at this stage i.e., when the case is fixed for final arguments before the Accountability Court, would defeat the ends of justice requiring final determination, after completion of the preliminaries. Needless to observe that if finally an adverse order is passed against the petitioner he shall be within his right to approach the appropriate forum under the Ordinance, for available relief on available grounds. Any interference by this Court by rendering judgment on the merits on the merits of the controversy involved herein arising out of the references pending in the Accountability Court, would have the effect of curtailing the remedy of appeal to an aggrieved party before the appellate forum. [p. 11, 12] B

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