National Accountability Bureau (Amendment) Ordinance 2000

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ORDINANCE IV OF 2000

NATIONAL ACCOUNTABILITY BUREAU (AMENDMENT) ORDINANCE, 2000

An Ordinance further to amend the National Accountability Bureau Ordinance, 1999

[Gazette of Pakistan, Extraordinary, Part I, 3rd February, 2000.]

No.F.2(1)/2000‑Pub:, dated 3‑2‑2000.‑‑The following Ordinance made by the President is hereby published for general information:‑‑---

Whereas it is expedient further to amend the National Accountability Bureau Ordinance, 1999 (XVIII of 1999), for the purposes hereinafter appearing;

And whereas the National Assembly and the Senate stand suspended in pursuance of the Proclamation of the fourteenth day of October, 1999, and the Provisional Constitution Order No. l of 1999, as amended;

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in pursuance of the aforesaid Proclamation and Provisional Constitution Order as well‑as Order No.9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:‑‑

1. Short title and commencement.‑‑(1) This Ordinance may be called the National Accountability Bureau (Amendment) Ordinance, 2000.

(2) It shall come‑ into force at once.

2. Amendment of section 5, Ordinance XVIII of 1999.‑‑In the National Accountability Bureau Ordinance, 1999 (XVIII of 1999), hereinafter referred to as the said Ordinance, in section 5‑‑‑

(i) in clause (a) after the word "offence" the word "triable" shall be inserted;

(ii) after clause (f) the following new clause shall be inserted, namely:‑‑

"(fa) "Conciliation Committee" means the Conciliation Committee constituted under section 25A;";

(iii) in clause (1)‑‑‑

(a) the word "Accountability" occurring for the first time shall be omitted; and

(b) the words "or an Accountability Court" shall be omitted; and

(iv) in clause (m); in sub‑clause (vi) the words "Any person who" shall be omitted; and

(v) after clause (q), the following new clause shall be added, namely:‑‑

"(r) "wilful default": a person is said to commit an offence of wilful default under this Ordinance if he does not pay or return or repay the amount to any bank, financial institution, cooperative society, or a Government department or a statutory body or an. authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions, issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperatives society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter:

Provided that it is not wilful default under this Ordinance if the accused was unable to pay, return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society ox a Government department or a statutory body or an authority established or controlled by Government."

3. Amendment of section 6, Ordinance XVIII of 1999.‑‑In the said Ordinance, in subsection (b)‑‑

(i) in clause (i) the words "for such period as the Chief Executive of Pakistan may determine and consider proper and necessary" shall be omitted;

(ii) in clause (ii) for the words "Chief Executive" the word "President" shall be substituted; and

(iii) in clause (iii) for the words "Chief Executive" the word "President" shall be substituted.

4. Amendment of section 7, Ordinance XVIII of 1999.--‑‑In the said Ordinance, in section 7, in subsection (a) for the words "Chief Executive" the word "President" shall be substituted.

5. Amendment of section 8, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 8,‑‑

(i) in subsection (b) for the words "Accountability Courts and all Courts and Tribunals" the words "Courts established under this Ordinance and all other Courts and Tribunals" shall be substituted; and

(ii) in subsection (c) after the word "Bureau" the words "in consultation with the Attorney‑General for Pakistan" shall be inserted.

6. Amendment of section 9, Ordinance XVIH of 1999.‑‑In the said Ordinance, in section 9‑‑‑

(i) in subsection (a), in clause (vii) for the full‑stop at the end the semi‑colon and word "; or" shall be substituted and thereafter the following new clause shall be added, namely:‑‑ .

"(viii) if he commits an offence of wilful default."; and

(ii) in subsection (b),‑‑

(a) after the word "sections" the figures and commas "426, 491, " shall be inserted;

(b) after the word "Court" the words "including the High Court" shall be inserted;

(iii) after subsection (c), the following new subsection shall be added, namely:‑‑

"(d) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, etc., within one month from the date of such deposit.".

7. Amendment of section 12, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 12, in the marginal note the words "of the Court" shall be omitted.

8. Amendment of section 13, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 13, in subsection (c) the ‑words "or against any interlocutory order except that an :appeal shall lie against a final order which may be passed by the Accountability Court as hereafter provided" shall be omitted.

9. Amendment of section 14, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 14, after subsection (c) the following new subsection shall be added, namely:‑‑

"(d) Where a person is accused of an offence under section 9(a)(vi) and (vii), the burden of proof that he used his authority, or issued any directive, or authorised the issuance of any policy or statutory rule or order (SRO), or made any grant or allowed any concession, in the public interest, fairly, justly, and for the advancement of the purpose 'of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on him, and in the absence of such proof the accused shall be guilty of the offence, and 'his conviction shall not be invalid by the reason that it is based solely on such presumption. "

**10. Amendment of section 15, Ordinance XVIII of 1999.‑‑**In the said Ordinance, in section 15,‑‑

(i) in the marginal note after the word "elections" the words "or to hold public office" shall be added; and

(ii) in subsection (a), in the proviso for the word and figures "sections 26 and 27" the word and figure "section 25" shall be substituted.

**11. Amendment of section 16, Ordinance XVIII of 1999.‑‑**In the said Ordinance, in section 16,‑‑

(i) in subsection (a) the words "an Accountability" shall be omitted; and

(ii) for subsection (b) the following shall be substituted, namely:‑‑

"(b) The Court shall sit at such place or places as the Government may, by order, specify in this behalf.

(c) Where more Courts than one have been established for an area, the Chief Justice of the High Court of the Province concerned shall, keeping in view the seniority and status of the Judges of various Courts, designate a Judge of any such Court to be an Administrative Judge.

(d) Notwithstanding anything contained in this section, if in respect of any case relating to an offence triable under this Ordinance, the Chairman NAB, having regard to the facts and circumstances of the case may file a reference before any Accountability Court established anywhere in Pakistan, and such Court. shall have the jurisdiction to try the same.".

12. Addition of new section 16A, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 16 the following new section shall be added, namely:‑‑

'' 16A. Transfer of cases.‑‑(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any Court of law or tribunal that any case involving a scheduled .offence under this Ordinance pending before such Court or tribunal shall be transferred to a Court established under this Ordinance, then such other Court or tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.

(b) In respect of any case pending before a Court established under this Ordinance, the Chairman NAB having regard to the facts, and circumstances of the case and in the interest of justice and for the protection and safety of witnesses it is necessary that such case is transferred for trial may direct the Prosecutor General Accountability to apply for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court to a Court in another Province or from one Court in a Province to another Court in the same Province provided that‑‑‑

(i) in case the transfer is intended from a Court in a Province to a Court in another Province to the Chief Justice of Pakistan; and

(ii) in case the transfer is intended from one Court in a Province to another Court in the same Province to the Chief Justice of the High Court;

and if the Chief Justice of Pakistan or, as the case may be, the Chief Justice of High Court considers it expedient in the interest of justice so to do, he may transfer the case from one Court to another Court and case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded.".

13. Amendment of section 18, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 18,‑‑

(i) in subsection (b), in clause (i) the words "Chief Executive of an" shall be omitted; and

(ii) in subsection (g) the word "Deputy" shall be omitted.

**14. Amendment of section 19, Ordinance XVIII of 1999.‑‑**In the said Ordinance, in section 19, after the word "inquiry" wherever occurring the words "or investigation" shall be inserted.

15. Amendment of section 22, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 22, in subsection (a) after the word "may" the words "inquire into and" shall be inserted.

16. Amendment of section 24, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 24,‑‑

(i) in subsection (b) the word "Accountability" occurring twice shall be omitted;

(ii) for subsection (d) the following shall be substituted, namely:‑‑

"(d) Notwithstanding anything contained in the Code, where the holder of a public office or any other persons accused of an offence is arrested by NAB under this Ordinance; NAB shall, as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produce him before the Court established under this Ordinance within a period of twenty‑four hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall, having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days provided that no accused arrested under this Ordinance shall be released without the written order of the Chairman NAB or the order of the Court. ";

(iii) after subsection (d), substituted as aforesaid, the following new subsection shall be added, namely:‑‑

"(e) All persons presently in custody shall immediately upon coming into force of this subsection, unless previously produced before an Accountability Court, be produced before such' Court as provided in subsection (d) and the Order authorising retention of custody by NAB shall be deemed to relate to the date of arrest. "; and

(iv) existing subsection (e) shall be renumbered as subsection (f) and in subsection (f), renumbered as aforesaid, after the word "as" the words "a police station or" shall be inserted.

17. Substitution of section 25, Ordinance XVIII of 1999.‑‑In the said Ordinance, for section 25, the following shall be substituted, namely:‑‑

"25. Voluntary return (plea bargaining).‑‑Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this. Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices,‑‑ '

(i) if the trial has not commenced, the Chairman NAB may release the accused; and

(ii) if the trial has commenced, the Court may, with the consent of the Chairman NAB, release the accused.

(2) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution etc., within one month from the date of such deposit.".

18. Insertion of new section 25A, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 25 substituted as aforesaid, the following new section shall be inserted, namely:‑‑

"25A. Payment of loans, etc.‑‑‑(a) Where a person has been arrested or is in the custody of NAB on the charge that he is guilty of committing the offence of wilful default on account of non‑payment of dues to a bank or financial institution or cooperative society, he may apply to the Chairman NAB for the reconciliation of his liability through Conciliation Committee and the Chairman NAB may refer the matter to a Conciliation Committee.

(b) The Conciliation Committee shall consist of a nominee of NAB, who shall be the Chairman of the Commission, a nominee of the Prosecutor General NAB, an officer of the Banking Cell of NAB nominated by the Chairman NAB, a nominee of the Governor of the State Bank of Pakistan being a senior officer of the State Bank well qualified in the profession of banking, a Chartered Accountant appointed by the State Bank of Pakistan, a Chartered Accountant appointed by the accused who will represent him and a Chartered Accountant appointed by the lender.

Explanation.‑‑Where the lender is a consortium or group of banks or financial institutions, the lender means the lead bank or financial institution.

(c) The Conciliation Committee after examining the record and accounts of the bank and the written evidence produced by the accused through his Chartered Accountant, if any, shall determine the amount outstanding against the accused calculated in accordance with law, circulars, rules and regulations of the State Bank of Pakistan and the manner and schedule of repayment. The accused, if he so desires, shall be heard at the commencement and before the conclusion of proceedings provided that the Chartered Accountant representing the accused shall have access to him for obtaining instructions during the proceedings of the. Conciliation Committee.

(d) The Conciliation Committee shall conclude the reference within thirty days and its recommendations shall be recorded by its Chairman and shall contain the views of all members of the Committee. The recommendations of the Conciliation Committee shall be submitted to the Chairman NAB.

(e) The Chairman NAB shall consider the recommendations submitted to him under subsection (d). The Chairman NAB may accept the recommendations or may, for reasons to be recorded, pass such appropriate order including rejecting or modifying the same as he may deem fit.

(f) Where the accused undertakes to repay the amount as determined by the Conciliation Committee or the Chairman NAB, as the case may be, the Chairman NAB may release the accused for the purpose of this Ordinance.

(g) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, if the Chairman NAB is satisfied that any agreement entered into between a bank or a financial institution, a cooperative society and a lender is vitiated by the provisions of section 23 or any other provision of the Contract Act, 1872 (IX of 1872), or any other law or the same is collusive or is against public interest, he may refuse to take such agreement into consideration for the purposes of Conciliation Committee or the conclusion drawn by them.

(h) In the event of failure either of the Conciliation Committee to conclude the reference within thirty days of the commencement of the conciliation proceedings or the failure of the accused to accept and implement the decision of the Chairman NAB regarding the payment and matters relating thereto, the case shall be proceeded with and referred to the Accountability Court. "

19. Substitution of section 28, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, for section 28 the following shall be substituted namely:‑‑

"28. Appointment of officers and staff in the National Accountability Bureau.‑‑(a) The NAB may appoint such officers and staff as it may consider necessary for the efficient performance of its functions and exercise of its powers under this Ordinance.

(b) The officers and members of staff shall be appointed by the Chairman NAB or by a person authorised by the Chairman NAB.

(c) The officers and members of staff shall be entitled to such salary, allowances and other terms and conditions of services as the Chairman NAB may, with the approval of the Chief Executive, determine.

(d) Subject to subsection (e) the provisions of the Civil Servants Act, 1973 (LXXI of 1973), shall not apply to the persons appointed in NAB.

(e) Nothing contained in subsection (d) shall apply to a person who is a civil servant within the meaning of the law relating to appointments as civil servant of the Federation or a Province and is deputed to or posted in NAB. ".

**20. Amendment of section 30, Ordinance XVIII of 1999.‑‑**In the said Ordinance, in section 30, in subsection (c) the word "Special", occurring twice, shall be omitted.

21. Amendment of section 31, Ordinance XVIII of 1999.‑‑In the said Ordinance, section 31 shall bear the marginal note "Prohibition to hamper investigation", and in subsection (a) the word "Accountability" shall be omitted.

22. Insertion of sections 31A, 31B and 31C, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 31, the following new sections shall be inserted, namely:‑‑

"31 A. Absconding to avoid service of warrants ‑‑Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of sections 87 and 88 of Code of Criminal Procedure, 1898, or any other law for the time being in force.

31B. Withdrawal from prosecution.‑‑Where at any stage of the proceedings, the Chairman NAB is of the opinion that ends of justice so require he may direct the Prosecutor General Accountability to withdraw from prosecution of any person under this Ordinance and upon such withdrawal the accused shall be released if not required in any other case under this Ordinance.

31C. No Court established under this Ordinance shall take cognizance of an offence against an officer or an employee of a bank or financial institution for writing off, waiving, restructuring or refinancing any financial facility; interest or mark‑up without prior approval of the State Bank of Pakistan. ".

23. Amendment of section 32, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 32,‑‑

(i) in subsection (a) for the words "party to the proceedings" the words and commas "person convicted or the Prosecutor General Accountability, if so directed by NAB," shall be substituted;

(ii) in subsection (b) the words "and order" shall be omitted;

(iii) in subsection (c) the word "Accountability" shall he omitted and

(iv) in subsection (d) the word "Accountability" shall be omitted.

24. Amendment of section 34, Ordinance XVIII of 1999‑‑‑In the said Ordinance, in section 34 for the words "the High Court of the concerned Province" and word "Pakistan" shall be substituted.

25. Amendment of section 35, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 35 the following amendments shall be made and shall be deemed always to have been so made, namely:‑‑

(i) in subsection (a) for the words, figure and letter "subject to the provision of section 33 continue as if the said Act and Ordinances have not been repealed" the words, brackets, letter and figure "continue under this Ordinance as transferred under subsection (b) of section 33 to an Accountability Court" shall be substituted; and

"(b) Any case or proceedings pending under the aforesaid Ordinances and the Act of 1997 immediately before the commencement of this Ordinance and transferred to any Court established under this Ordinance shall be proceeded with and all subsequent proceedings shall be completed in accordance with, and under the provisions of, this Ordinance.".

26. Amendment of the Schedule.‑‑(1) In the Schedule,‑‑

(i) against S. No. l‑‑

(1) the entry in the column under the heading "Remarks" shall be omitted; and

(2) in the column under the heading "Offences", in. paragraph (a),‑‑

(a) for the. word "wilful" the word "wilful" shall be substituted;

(b) after the word "Institution" the words and comma "a cooperative society, a Government department or an authority established or controlled by the Government" shall be inserted;

(ii) against S.No.6 in column under the heading "Offences" for the word "Embezzlement" the words, figures and letters "offence under section 409 P.P.C." shall be substituted;

(iii) against S.No.7, in the column under the heading "Offences", after word "office" the words "including any offence under sections 161 to 165A of the Pakistan Penal Code" shall be added; and

(iv) after S.No.9 and the entries relating thereto, the following new serial number and entries relating thereto shall be added, namely:‑‑

" 10. Section 31 A of this Ordnance 3 years. ".

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