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| Supreme Court of Pakistan |
ISLAMABAD – The Supreme Court in its detailed judgment on NRO verdict review pleas has announced that all corruption cases stand revived to their pre-NRO poison and ordered cancellation of all benefits accrued under the ‘Black Law’. The 31-page detailed verdict, which was drafted by Justice Tassadaq Hussain Jilani and announced on Thursday, directed federal and provincial governments to provide all assistance to the courts in prosecution of the culprits. The detailed verdict bears signatures of all the 17 judges comprising the full court that heard the case. Earlier, on November 25, a 17-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry had announced the short order.
The court said in its judgement that the federal counsel was heard but he failed to give arguments to build the case for a review of certain aspects of SC’s December 16, 2009 decision on the NRO (National Reconciliation Ordinance). The parliament also did not validate the NRO, it further said. The judgement said that as a consequence, 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. All the cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or 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-October 5, 2007 position.
All the concerned courts including the trial, the appellate and the review 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. The federal government, all the provincial governments and all relevant and competent authorities including the NAB prosecutor general, the special prosecutors in various accountability courts, the prosecutors generals 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. Similarly, all cases which were under investigation or 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.
Now 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. The federation had initially challenged the short order dated 16-12-2009 but when the detailed reasons were released, it filed CMA No. 1844 of 2010 and added additional grounds in support of the petition for review. Babar Awan federation counsel in review petition prayed to the court that although the Federation of Pakistan had not defended the NRO before this court the observations made in Paras 44 and 45 of the detailed judgment (under review) with reference to Mohtarma Benazir Bhutto’s book ‘Reconciliation: Islam, Democracy and the West’ that any benefit was drawn by the author and that NRO 2007 was not promulgated for the object of national reconciliation but for the benefit of certain individuals is incorrect; that the only benefit which she derived was restoration of democracy and that this finding is an error apparent in the face of record; that initially a statement was filed to the effect that the federation did not contest the Petition No 76 of 2007 and rather filed a conceding statement.
It was however submitted by the federation’s counsel then, that if this court intended to travel outside the parameters of the prayers made in the petitions (which were review), it would have been proper and just to grant reasonable time to the federation to reply and contest. In written reply the said counsel had specifically made a prayer “if however this honourable court wishes to rule upon wider issues other than those raised in the petition in that case, the federation requests that petitions be filed precisely stipulating these issues whereupon the federation will seeks instructions on such new petitions.” The court noted that though the parliament did not approve the NRO as an Act nor defended the law, rather it did not oppose revival of criminal cases; yet this petition for review was filed on behalf of the federation; that despite repeated queries of the court, learned did not elaborate as to how the federation was an ‘aggrieved person’ or disclose any other ‘sufficient cause’ to fall within the parameters of the law regulating the review jurisdiction.
The court observed that despite the fact that earlier on Mr. Masood Chishti filed application to seek permission to argue the case who was superseded by Mr. Kamal Azfar and even he withdrew as he was appointed Adviser to the Prime Minister and thereafter Mr Babar Awan, ASC filed CMA No. 5144 of 2011 seeking permission to argue the case. “We permitted him to argue so that if we find that a case for review is made, we will allow the application seeking permission to argue, which could only have been argued under the Supreme Court Rules by the counsel who appeared for the Federation in the main case.” “Having considered all the grounds urged before this court, we are of the view that no case for review is made out. The application seeking permission to argue by the counsel who admittedly did not appear for federation in the main case is violative of Rule Order XXVI Rule 6 of the Supreme Court Rules and therefore not tenable and the application was disposed off accordingly.”
The court said in its judgement that the federal counsel was heard but he failed to give arguments to build the case for a review of certain aspects of SC’s December 16, 2009 decision on the NRO (National Reconciliation Ordinance). The parliament also did not validate the NRO, it further said. The judgement said that as a consequence, 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. All the cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or 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-October 5, 2007 position.
All the concerned courts including the trial, the appellate and the review 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. The federal government, all the provincial governments and all relevant and competent authorities including the NAB prosecutor general, the special prosecutors in various accountability courts, the prosecutors generals 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. Similarly, all cases which were under investigation or 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.
Now 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. The federation had initially challenged the short order dated 16-12-2009 but when the detailed reasons were released, it filed CMA No. 1844 of 2010 and added additional grounds in support of the petition for review. Babar Awan federation counsel in review petition prayed to the court that although the Federation of Pakistan had not defended the NRO before this court the observations made in Paras 44 and 45 of the detailed judgment (under review) with reference to Mohtarma Benazir Bhutto’s book ‘Reconciliation: Islam, Democracy and the West’ that any benefit was drawn by the author and that NRO 2007 was not promulgated for the object of national reconciliation but for the benefit of certain individuals is incorrect; that the only benefit which she derived was restoration of democracy and that this finding is an error apparent in the face of record; that initially a statement was filed to the effect that the federation did not contest the Petition No 76 of 2007 and rather filed a conceding statement.
It was however submitted by the federation’s counsel then, that if this court intended to travel outside the parameters of the prayers made in the petitions (which were review), it would have been proper and just to grant reasonable time to the federation to reply and contest. In written reply the said counsel had specifically made a prayer “if however this honourable court wishes to rule upon wider issues other than those raised in the petition in that case, the federation requests that petitions be filed precisely stipulating these issues whereupon the federation will seeks instructions on such new petitions.” The court noted that though the parliament did not approve the NRO as an Act nor defended the law, rather it did not oppose revival of criminal cases; yet this petition for review was filed on behalf of the federation; that despite repeated queries of the court, learned did not elaborate as to how the federation was an ‘aggrieved person’ or disclose any other ‘sufficient cause’ to fall within the parameters of the law regulating the review jurisdiction.
The court observed that despite the fact that earlier on Mr. Masood Chishti filed application to seek permission to argue the case who was superseded by Mr. Kamal Azfar and even he withdrew as he was appointed Adviser to the Prime Minister and thereafter Mr Babar Awan, ASC filed CMA No. 5144 of 2011 seeking permission to argue the case. “We permitted him to argue so that if we find that a case for review is made, we will allow the application seeking permission to argue, which could only have been argued under the Supreme Court Rules by the counsel who appeared for the Federation in the main case.” “Having considered all the grounds urged before this court, we are of the view that no case for review is made out. The application seeking permission to argue by the counsel who admittedly did not appear for federation in the main case is violative of Rule Order XXVI Rule 6 of the Supreme Court Rules and therefore not tenable and the application was disposed off accordingly.”
( The Nation )
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