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March 18, 2020

LHC nullifies NAB interpretation on NAO 2019 amendments

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March 18, 2020

ISLAMABAD: In most odd circumstances, NAB chairman has suspended his own warrants of arrest of contractors of Multan Metro against whom NAB is pursuing a reference before NAB Court, Multan.

Apparently, the warrants were suspended after the Lahore High Court, Multan Bench had ruled last week that the recent amendments made in the NAB Law are applicable even in the references already filed before the Accountability Courts.

Following the arguments of Bahzad Haider Advocate Supreme Court, who was representing private contractors, the LHC declared that the Accountability Courts are fully competent to decide acquittal applications inaccordance with relevant provisions of National Accountability (Amendment) Ordinance, 2019.

According to Bahzad Haider Advocate, the LHC order completely nullifies the NAB’s interpretation that the Ordinance 2019 has no retrospective application and would not affect the previously authorised inquiries, investigations and under trial cases. As a result of the LHC order, innumerable inquiries, investigations and even NAB references presently pending before trial courts would lose their ground.

Interesting while the Multan NAB on March 10 issued an order conveying NAB Chairman Javed Iqbal’s approval of suspension of warrants of arrest and removal of names of the accused contractors from blacklisting, two days later on March 12 the Bureau’s Lahore office arrested a private person Mir Shakil-ur-Rahman in a matter pertaining to business dealing between two private parties.

The National Accountability (Amendment) Ordinance, 2019 barred the NAB from proceeding against businessmen besides restricting the Bureau that it can now proceed against public office holders including politicians and bureaucrats only in cases where the allegation is not only that a state functionary violated certain rules in taking a decision but also that the Bureau has the corroborative evidence of the said officials having received some financial gain for taking that decision.

In the case of Mir Shakil-ur-Rahman, the NAB has yet to explain, firstly, how did it arrest him despite being a private matter between two private parties, and secondly if in the view of NAB the Jang Group’s Editor-in-Chief was favoured by the then government in any manner does the NAB has “corroborative evidence” of financial gain by the public office holder who had alleged favoured Mir Shakil.

In the Multan Metro case, the private contractors' counsel argued bail petition by saying that since the pending reference does allege procedural lapses, it does not even contain any allegation of bribe, hence the ingredients of the offence are not there. Upon this, the bench hearing the bail petition commented that it is no longer a matter for bail but for acquittal.

It was thus that in Nazir Ahmad Chughtai vs NAB case, the LHC Multan Bench on February 19 issued the following order:

“1. It is contended that after promulgation of National Accountability (Amendment) Ordinance, 2019 on 28.12.2019, case of the petitioners, in the instant writ petition as well as connected writ petitions, is not triable by Accountability Court, rather stand excluded from its jurisdiction. In this regard some of the petitioners have already moved petition under section 265-K CrPC for their acquittal on this ground. Learned counsel argued that other petitioners who have been granted ad-interim pre-arrest bail by this court also want to move such like petition before the Accountability Court but learned trial judge is reluctant to receive their applications on this ground.

2. It is clarified that when Reference has already been filed and cognizance has been taken by the Accountability Court the petitioners can move petitions under section 265-K CrPC for their acquittal agitating any available ground to them and "the trial court is fully competent to decide those applications in accordance with relevant provisions of National Accountability (Amendment) Ordinance. 2019."

3. Till the outcome of aforesaid petitions, matter is adjourned to 17.3.2020. The ad-interim pre-arrest bail already granted to the petitioners in this petition as well as in connected writ petitions is extended.”

Within a fortnight of the above order from the LHC, the NAB issued a direction on March 10 to convey to the concerned, “a. Worthy Chairman NAB vide concurrence dated 06.03.2020 has approved suspension of warrants of arrest and removal of names of accused contractors from blacklisting. b. Worthy Chairman NAB vide concurrence dated 05.03.2020 has approved that principally the matter with MDA (Multan Development Authority) is to be resolved directly by the incumbent applicants (Construction Association of Pakistan) and the amounts are then adjusted with the liabilities. The Bureau ought not to approach MDA on its own.”

After the promulgation of National Accountability (Amendment) Ordinance, 2019, the NAB had issued a direction on January 10 to all its regional officer to convey, “The under process cases which were authorised before the promulgation of Ordinance 2019 will remain intact till their logical conclusion as the subject Ordinance has no retrospective effect. However, the parameters laid down in Section 2 & 3 of the Ordinance, 2019 will be observed. While new authorisation of cases will be in accordance with the provisions of amended ordinance wherever applicable.”

The NAB spokesman had explained that the direction issued in NAB’s internal communication meant that all the pre-ordinance inquiries, investigations and under trial cases would continue as before. The LHC Multan Bench order has nullified the NAB’s interpretation of the NAO (Amendment) 2019.