TEXT OF SHORT ORDER SUPREME COURT OF PAKISTAN :NRO DECLARED VOID AB INITIO VOID UNCONSTITUTIONAL.
CONCLUSIONS AND DIRECTIONS:
Therefore, promulgation of the NRO seems to be against the national
interest and its preamble is contrary to the substance embodied therein.
Thus, it violates various provisions of the Constitution. Therefore, by
means of instant short order, reasons of which shall be recorded later, we
hold as follows:-
(i) that the NRO is declared to be an instrument void ab initio being ultra
vires and violative of various constitutional provisions including
Article 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;
Const. P.76/2007, etc. 15
(iii) that all 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-5th of October, 2007 position;
(iv) that all the concerned courts including the trial, the appellate and the
revisional 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 of
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 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enquiries and which had either been withdrawn or where the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;
(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;
Const. P.76/2007, etc. 16
(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 fora 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 concerned authorities are ordered to take
immediate steps to seek revival of the said requests, claims and status;
Const. P.76/2007, etc. 17
(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 the
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
Const. P.76/2007, etc. 18
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 to increase the number of
Accountability Courts to ensure expeditious disposal of cases;
15. We place on record our deep sense of appreciation for the learned counsel
for the parties as also for the learned amicii curiae who have rendered invaluable
assistance to us in these matters.
The petitions stand allowed and disposed of by this short order in terms
noted above.
Islamabad
16.12.2009
Irshad /*
APPROVED FOR REPORTING.
interest and its preamble is contrary to the substance embodied therein.
Thus, it violates various provisions of the Constitution. Therefore, by
means of instant short order, reasons of which shall be recorded later, we
hold as follows:-
(i) that the NRO is declared to be an instrument void ab initio being ultra
vires and violative of various constitutional provisions including
Article 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;
Const. P.76/2007, etc. 15
(iii) that all 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-5th of October, 2007 position;
(iv) that all the concerned courts including the trial, the appellate and the
revisional 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 of
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 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;
(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;
Const. P.76/2007, etc. 16
(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 fora 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 concerned authorities are ordered to take
immediate steps to seek revival of the said requests, claims and status;
Const. P.76/2007, etc. 17
(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 the
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
Const. P.76/2007, etc. 18
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 to increase the number of
Accountability Courts to ensure expeditious disposal of cases;
15. We place on record our deep sense of appreciation for the learned counsel
for the parties as also for the learned amicii curiae who have rendered invaluable
assistance to us in these matters.
The petitions stand allowed and disposed of by this short order in terms
noted above.
Islamabad
16.12.2009
Irshad /*
APPROVED FOR REPORTING.
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