Daily Times

The federal cabinet on Thursday through circulation of a Summary has approved proposals for further amending sections 4 and 5 of the National Accountability Ordinance, 1999 whereby it has been tried to streamline the further transfer of cases and references with relation to transfer of jurisdiction of these references from Accountability Courts, where Accountability courts lacks jurisdiction to other Competent Courts in view of amendments earlier made in sections 4 and 5 of National Accountability Ordinance, 1999 through (Second Amendment) Act, 2022.

The National Accountability (Second Amendment) Act, 2022 has earlier amended section 4(3) of National Accountability Ordinance, 1999 in a way that all pending inquiries, investigations, trials or proceedings under this Ordinance, relating to persons or transactions mentioned in clause (a) of sub-section (2), shall stand transferred to the concerned authorities, departments and Courts under the respective laws. However, despite clear provisions of law, the Accountability Courts were returning the References to National Accountability Bureau, whereas, as per the spirit of section 4(3) they were to be transferred to the competent court, thus returning references to Nab was against the provision of law.

The expression transferred of cases used in section 4(3) is in relation to a Competent Court and not the NAB, and if the Accountability Courts lacked the jurisdiction, then the pending proceedings were to be transferred to a Competent Court under the respective laws but should not have been returned to NAB. This was the explicit mandate of law thus the order of returning the Reference by Accountability Courts to NAB was not only against the clear language of law but also in violation and spirit of section 4(3) of the NAB Ordinance, 1999.

The present proposed amendments in sections 4 and 5 of the National Accountability Ordinance, 1999 by the present government have just clarified the earlier amendments made in the year 2022 to the extent of transfer of jurisdiction from Accountability Courts to other Competent Courts , where Accountability Courts lack jurisdiction. Though it was earlier clearly mentioned in section 4 (3) of National Accountability Ordinance, 1999 but the same has not been implemented. Thus the new proposals would provide that NAB officials shall render every possible assistance to Accountability Courts in complying with section 4(3), which envisages transfer of References/ cases in respect of which their jurisdiction has been ousted and to transfer them to such other Courts having the competent jurisdiction to proceed with the matter in accordance with the relevant laws.

As per different reports published in newspapers, 2400 suspects benefitted from the recent amendments in NAB law. These suspects were facing allegations of corruption worth Rs 650 billion and abuse of power. The changes were introduced, either by the previous PTI government or the incumbent PDM regime, over the last three years. The changes were introduced, either by the previous PTI government or the incumbent PDM regime, over the last three years. The data submitted before the court by NAB reveals that cases of 1,650 suspects were closed under the amendments while 750 cases were returned to the bureau by accountability courts. Moreover, 69 percent of government employees also benefited from the amendments, and their cases were either closed or returned to NAB.

The matter relating to the interpretation of newly amended section 4 (3) in National Accountability (Second Amendment) Act, 2022 has also been decided in January 2023 by a Division Bench of Islamabad High Court, and the Court has declared that Sub-section (3) of section 4 mandates transfer of matters pending under the Ordinance of 1999 and does not envisage return of References to the Bureau, and the transfer of pending matters from the concerned Court under section 4(3) does not amount to acquittal or discharge, and that in matters where during investigation new facts have emerged, the Bureau will be at liberty to seek permission of the learned Accountability Court for filing supplementary reference(s) in accordance with the spirit of the Proviso to section 16(e), and in such an eventuality, the Accountability Court concerned will decide, in accordance with law, whether to grant permission for filing of supplementary reference or not, and any order passed by the Accountability Court concerned in a matter pending before it, can only be altered/amended by a competent court which subsequently takes cognizance of the said matter and Since the provisions of Cr.P.C 1898 are mutatis mutandis applicable under section 17 to inquiries and trials under the Ordinance of 1999, therefore, the matters can only be transferred from the learned Accountability Courts to other Competent Courts, and finally the Court noted down in the judgment that NAB shall render every possible assistance to the learned Accountability Courts in complying with section 4(3), which envisages transfer of cases in respect of which its jurisdiction has been ousted to courts competent to proceed with the matter.

As in presence of clear provision of section 4(3) of NAB law 1999, the returning of References by the Accountability Courts to NAB was not legal, thus it may required now legally, that the Accountability Courts would review their earlier orders for returning all such References to NAB and to decide afresh the fate of these References regarding their explicit jurisdiction in accordance with law and then to transfer to the Competent Courts in view of section 4(3) of NAB law for legally proceed further.

Earlier the present government in the year 2022 has made (27) major amendments in National Accountability Ordinance, 1999, and all are under challenge before the Supreme Court of Pakistan, which the decision of Supreme Court would expect soon as both sides have almost given their major submissions, and if Supreme Court will strike down those amendments made in National Accountability through (Second Amendment) Act, 2022, the present new proposals of cabinet would have lost its effect as well, and further before such it is the Constitutional obligation for the government to pass these amendment proposals in sections 4 and 5 through the Act of Parliament.