h1

P L D 2010 SC 1

DR. MOBASHIR HASSAN AND OTHERS

Vs

FEDERATION OF PAKISTAN AND OTHERS

Per Iftikhar Muhammad Chaudhry, J–

Constitution of Pakistan (1973) Arts. 4,8,25, 62(f),63(i)(p),89,100(3), 175, 227 & 184(3)

r/w National Reconciliation Ordinance (LX of 2007)–

The NRO gave benefits to a class of people, whose identification is not difficult to ascertain, namely accused persons, involved in criminal and corruption cases, during the period commencing from 1st January, 1986 to 12th October, 1999 and this classification has created a divide amongst ordinary citizens of Pakistan and a class of alleged criminals who statedly have committed crimes of murder, dacoity, rape, looting/plundering of money/resources of this nation.

In depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis as this nation has seen reconciliation in 1973, when a Constituent Assembly gave the Constitution of 1973 to the nation, guaranteeing their fundamental rights.

(i)            that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Articles Nos. 4,8,25,62(f), 63(i)(p), 89, 175 and 227 of the Constitution ;

(ii)   that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and  resultantly of no legal effect ;

(iii)  that all cases in which the accused persons were either discharged of acquitted under Section 2 of the  NRO of where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position ;

(iv)   that all the concerned courts including the trial, the appellate and the provisional courts are ordered  to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions

of the NRO;

(v)            that the Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General NAB, the Special Prosecutors in various accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent courts in the said connection;

(vi)   that similarly all cases which were under investigation of pending enquiries and which had either been  withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law;

(vii)  that it may be clarified that any judgment, conviction or sentence recorded under section 31-A of the  NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect ;

(viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for  Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent for a in  Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said  Malik Muhammad Qayyum;

(ix)   that since the NRO stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered  moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been

withdrawn.  Therefore, the Federal Government and other withdrawn.  Therefore, the Federal Government and  other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status;

(x)            that in view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of  claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are

directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection ;

(xi)   that we place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of Chairman of the NAB, the Prosecutor General of the NAB and of the Additional  Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case.  Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation.  It is therefore, suggested that the Federal Government may make fresh appointments  against the said posts of persons possessing high degree of competence and impeccable integrity in terms of  Section 6 of the NAB Ordinance as also in terms of the observations of this Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).  However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment;

(xii)  that a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the NAB Ordinance.  Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective

Province or Judges of the concerned High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO;

(xiii) that the Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps t increase the number of Accountability Courts to ensure expeditious disposal of cases. [pp. 14, 15] C, D & E

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