National Accountability Bureau (Amendment) Ordinance 2001

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NATIONAL ACCOUNTABILITY BUREAU

(AMENDMENT) ORDINANCE, 2001

ORDINANCE XXXV OF 2001

An Ordinance further to amend the National Accountability Bureau Ordinance, 7999

(Gazette of Pakistan, Extraordinary, Part I, 10th August, 2001

F.No.2(1)/2001‑Pub., dated 10‑8‑2001.‑‑‑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);

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

Now, therefore, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, read with the Provisional Constitution (Amendment) 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, 2001.

(2) It shall come into force at once.

2. Amendment of Preamble, Ordinance XVIII of 1999.‑‑‑In the National Accountability Bureau Ordinance, 1999 (XVIII of 1999), hereinafter referred to as the said Ordinance, in the preamble, after the third paragraph, the following new paragraph shall be inserted, namely:‑‑

"And whereas there is an increased international awareness that nations should cooperate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto,".

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

(i) for clause (g) the following shall be substituted, namely:‑

(g) "Court" means an Accountability Court which shall consist of a Judge who shall be appointed by the President of Pakistan, in consultation with the Chief Justice of tire High Court concerned, and shall hold office for a period of three years on such terms and conditions as may be determined by the President;

(ii) for clause (h) the following shall be substituted, namely:

(h) 'Judge' means a Judge of a Court who shall be a serving District and Sessions Judge qualified to be appointed as Judge of the High Court and include, a judge, whether serving or retired District and Sessions Judge, who was appointed Judge of a Court before the commencement of the National Accountability Bureau (Amendment) Ordinance, 2001;";

(iii) in clause (m), in sub‑clause (iv),‑‑

(a) after the word and comma 'institutions," occurring for the first time, the words and commas 'cooperative societies,' shall be inserted; and

(b) the words and comma 'or for the time being is subject to any law relating to any of the said forces,' shall be omitted;

(iv) in clause (n), for the words 'those offences as' the words 'the offences' shall be substituted, and

(v) in clause (r),‑‑

(i) for the words 'period of thirty days has expired thereafter' the words 'thirty days notice has been given to the defaulter' shall be substituted, and

(ii) in the proviso, for the full‑stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely:‑‑

"Provided further that in the case of default concerning a bank or a financial institution a seven days notice has also been given to the defaulter by the Governor, State Bank of Pakistan:

Provided further that aforesaid thirty days or seven days notice shall not apply to cases pending trial at the time of promulgation of the National Accountability Bureau (Amendment) Ordinance, 2001.".

4. Insertion of new sections, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 5, amended as aforesaid, the following new sections shall be inserted, namely:‑‑

"5A. Tenure etc. of a Judge.‑‑(1) A judge of a Court who is a serving District and Sessions Judge shall hold office for a period of three years from the date of his initial appointment as such Judge.

(2) An incumbent Judge who on the 24th April, 2001, is not a serving District and Sessions Judge and has exercised option to serve as a Judge shall continue for a period 'of three years from the date of his initial appointment as such Judge.

(3) An incumbent Judge who is a serving District and Sessions Judge and retires while serving as such Judge shall, subject to his option, continue for a period of three years from the date of his initial appointment as such Judge.

(4) A Judge shall not be removed or transferred from his office before the completion of the term of his office without consultation of the. Chief Justice of the High Court concerned.

5B. Pensionary benefits to serving District and Sessions Judge retiring while serving as Judge kit a Court.‑‑Where a serving, District and Sessions Judge retires while serving as a Judge of a Court, he shall be entitled to such pension as would have been admissible to him in his service as District and Sessions Judge, had he not been appointed as Judge of a Court, his service as a Judge of a Court being' treated as service for the purpose of calculating that pension.".

5. Amendment of section 6, Ordinance XVIII of 1999.‑‑--In the said Ordinance, in section 6, for subsection (b) the following shall be substituted, namely:‑‑

"(b) Chairman, National Accountability Bureau:

(i) There shall be a Chairman NAB to be appointed by the President in consultation with the Chief Justice of Pakistan for a period of three years on such terms and conditions as may be determined by the President and shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan.

(11) The Chairman NAB may in writing under his hand, addressed to the President, resign his office.

6. Amendment of section 7, Ordinance XVIII, of 1999.‑‑‑In the said Ordinance, in section 7, for subsection (b) the following shall be substituted, namely:‑‑

"(b) The Deputy Chairman shall hold office for a period of three years and shall not be removed except on the ground of misconduct as defined in sub‑rule.(4) .of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973."

7. Amendment of section 8, Ordinance XV1II of 1999.‑‑‑In the said Ordinance, in section 8,‑‑

(i) for subsection (a) the following shall be substituted, namely:‑‑

"(a) (i) The President of Pakistan, in consultation with the Chief Justice of Pakistan and Chairman NAB, may appoint any person, who is qualified to be appointed as a Judge of the Supreme Court, as Prosecutor General Accountability.

(ii) The Prosecutor General Accountability shall hold independent office on whole time basis and shall not hold any other office concurrently.

(iii) The Prosecutor General Accountability shall hold office for a period of three years.

(iv) The Prosecutor General Accountability shall not be removed from office except on the grounds of removal of a Judge of Supreme Court of Pakistan.

(v) The Prosecutor General Accountability may, by writing under his hand addressed to the President of Pakistan, resign his office."; and

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

"(c) The Prosecutor General Accountability, with the approval of Chairman NAB, and in consultation with the Law and Justice Division, Government of Pakistan, may appoint Special Prosecutors to conduct prosecution of cases and to appoint advocates to institute or defend cases, appeals, petitions, applications and all other matters before any Court including the High Courts and Supreme Court in matters arising out of or relating to proceedings under this Ordinance.".

8. Amendment of section 9, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 9,‑‑

(i) in subsection (a), in clause (viii), for the full‑stop at the end a semi‑colon and the word "or" shall be substituted and after clause (viii) amended as aforesaid the following new clause shall be added, namely:‑‑

"(ix) If he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code and thereby dishonesty induces members of the public at large scale to deliver any property including money or valuable security to any person or he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code with regard to any property including money or valuable security entrusted to him by members of the public at large scale."

(ii) in subsection (b), after the word "Court", the words "including the High Court" shall be omitted, and

(iii) in subsection (d), for the letter "etc." the words and commas "corporate body, cooperative society, statutory body of authority concerned" shall be substituted.

9. Amendment of section 12, Ordinance XV III of 1999.‑‑‑In the said Ordinance, in section 12,‑‑ .

(i) in subsection to in the first proviso, .for the figure "30" the word "fifteen" shall be substituted;

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

"(f) The order of freezing, mentioned in subsection 'a' to 'e' shall remain operative until the final disposal of the case by the Court, and in the event of the acquittal of the accused, shall continue to remain operative for a period of ten days after receipt of certified copy of the order of acquittal by NAB, whereafter it shall be subject to an order by the Court in which an appeal, if any, is filed.".

10. Amendment of section 13, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 13, for subsection (c) the following shall be substituted, namely:‑‑

"(c) The accused or any other aggrieved party, whose claim or objection against freezing of property has been dismissed by the Court, may, within ten days file an appeal against such order before the High Court.

11. Amendment of section 14, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 14, in subsection (d), for the full‑stop at the end a colon shall be substituted arid thereafter the following proviso shall be added, namely:‑‑

"Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9.".

12. Amendment of section 15, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 15, for subsection (a) the following shall be substituted, namely: ‑

"(a) Where an accused person is convicted for the offence of corruption or corrupt practices as specified to the Schedule to this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province:

Provided that any accused person who has availed the benefit of section 25 sha11 also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province."

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

(i) for subsection (c) the following shall be substituted, namely:‑‑

"(c) Where more Courts than one have been established at a place, the Chief Justice of the High Court of the Province concerned shall designate a Judge of any such Court to be an Administrative Judge and a case triable under this Ordinance shall be filed before the Court of the Administrative Judge who may either try the case himself or, assign it for trial by any other Court established at that place at any time prior to the framing of the charge."

(ii) after subsection (c), amended as aforesaid, the following new subsection shall be inserted, namely:‑‑

"(cc) In respect of a case assigned to a Court under subsection (c), all orders made or proceedings taken before the assignment shall be deemed to have been made or taken by the. Court to which the case has been assigned."

14. Amendment of section 16A, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 16A, for subsection (b), the following shall be substituted, namely:‑‑

"(b) In respect of any case pending before a Court, the Prosecutor General Accountability or any Special Prosecutor authorised by him in this behalf, having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of witnesses, considers it necessary that such case is transferred for trial, he may apply, for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court in a Province to another Court in the same Province,

(i) to the Supreme Court of Pakistan in case the transfer is intended from a Court in a Province to a Court in another Province, and

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

and the Supreme Court or the High Court as the case may be, if it is in the interest of justice, transfer the case from one Court to another Court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded.

(c) The accused may also make an application to the Supreme Court for the transfer of a case from a Court in one Province to a Court in another Province and to the High Court for transfer of a case from one Court in a Province to another Court in the same Province and the Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the case from one Court to another Court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded. ".

15. Amendment of section 16B, Ordinance XVIII of 1999.‑‑‑In section 16B, the "explanation" shall be omitted.

16. Amendment of section 18, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 18, in subsection (g), the word "by" shall be omitted and after the word "further" the words "and there is sufficient material to justify filing of a reference" shall be inserted.

17. Amendment of section 19, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 19,‑‑

(i) for clause (d), the following shall be substituted, namely:‑‑

"(d) require any bank or financial institution; notwithstanding anything contained in any other law for the tune being in force, to provide any information relating to any person whosoever, including copies of entries made in a bank's or a financial institution's books such as ledgers, day books, cash books and all other books including record of information and transactions saved in electronic or digital form, arid the keepers of such books or records shall be obliged to certify the copies in accordance with law."; and

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

"(e) where there is reasonable suspicion that any person is involved in or is privy to an offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the High Court concerned, direct that surveillance of that person may be carried out through such means as may be necessary in the facts and circumstances of the case and the Chairman NAB,, may in this regard seek the aid and assistance of any Government agency and the information so collected may be used as evidence in the trial under this Ordinance:‑

Provided that the copies obtained or information received or evidence collected under clauses (d) and (e) shall be confidential and shall not be used for any purpose other than for legal proceedings under this Ordinance."

18. Amendment of section 20, Ordinance XVIII of 1999 .‑‑‑In section 20, in subsection (a),‑‑-

(a) for the words "with context to the" the words "in an" shall be substituted;

(b) for the word "suspicion" the words "or financial institution shall be substituted; and

(c) after the word "such" occurring for the second time, the words "Bank or" shall be inserted.

19. Amendment of section 21, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 21,‑‑

(i) in clause (e), the word "and" occurring at the end shall be omitted;

(ii) in clause (t), for the full‑stop at the end the semi‑colon shall be substituted and thereafter the word "and" shall be added.

(iii) after clause (ii), amended as aforesaid, the following new clause shall be added, namely:‑‑

"(g) Notwithstanding anything contained in the Qanun‑e‑Shahadat Order, 1984 (P.O. 10 of 1984) or any other law for the time being in force all evidence, document or any other material transferred to Pakistan by a Foreign Government shall be receivable as evidence in legal proceedings under this .Ordinance. ".

20. Amendment of section 23, Ordinance XVIII of 1999.‑‑In the said Ordinance, in section 23, in clause (b), for the full‑stop at the end a colon shall he substituted and thereafter the following proviso shall be added, namely:‑‑

"Provided that such transfer of any right, title or interest or creation of a charge on such property shall not be void if made with the approval of the Court, subject to such terms and conditions as the Court may deem fit.".

21 . Amendment of section 24, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 24, in subsection (d), for words "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" the comma and words ", and the Court may remand an accused person to custody not exceeding fifteen days at a time and for every subsequent remand the Court shall record reasons in writing copy of which shall be sent to the High Court" shall be substituted.

22. Amendment of section 25, Ordinance XVIII of 1999 .‑‑‑In the said Ordinance, in section 25,‑‑

(i) for subsection (a) the following shall be substituted, namely:‑

"(a) 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, the Court or the Chairman NAB with the approval of the Court or the Appellate Court, as the case may be, may release the accused." and

(ii) In subsection (b), for the letters "etc. " the words and commas "corporate body, cooperative society, statutory body or authority concerned" shall be substituted.

23. Amendment of section 25A, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 25A,‑‑

(i) for subsection (f), the following shall be substituted, namely:‑‑

"(f) where the borrower undertakes to repay the amount as determined by the‑ Conciliation Committee, the Chairman NAB, with the approval of the Court, may release the accused."; and

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

"(g) The decision of the Governor State Bank of Pakistan shall be communicated to the Chairman NAB, which shall be binding on him, except for valid reasons to be recorded in writing subject to approval of the Court, to be accorded within a period of seven days.".

24. Amendment of section 30, Ordinance XVIII of 1999.‑‑In subsection (c), for the word "Prosecutor" the word "prosecution" shall be substituted. ".

25. Substitution of section 31B, Ordinance XVIII of 1999.‑In the said Ordinance, for section 31B, the following shall be substituted, namely:‑

"31B. The Prosecutor General Accountability may, with the consent of the Court, withdraw from the prosecution of any person generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal:

(i) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; and

(ii) if it is made after a charge has e7 framed, he shall be acquitted in respect of such offence or offences.".

26. Insertion of new section 31E, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 31‑D amended as aforesaid, the following new section shall be inserted, namely'‑‑

"31E. Protection of witnesses.‑‑The Chairman NAB or the Court may in the facts and circumstances of a case take such measures as may be considered necessary for the safety, security and protection of witnesses and their families.".

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

(i) in subsection (a), for the full‑stop at the end a colon shall be substituted and thereafter the following proviso shall be inserted, namely:‑‑

"Provided that where no appeal shall lie against any interlocutory order of the Court

(ii) for subsection (c), the following shall be substituted, name:‑‑

"(c) No revision shall lie against any interlocutory order of the Court unless the Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally:

Provided that where a person makes an application for revision under this subsection, he shall, in support of such application, furnish copies of the reference, documents and order of the Court and the High Court shall dispose of such application within thirty days without calling for the record of the Court:

Provided further that such application shall be made within ten days of the decision of the Court, which shall provide a copy of such decision within three days thereof"; and

(iii) subsection (d) shall be omitted.

28. Insertion of new section 33A, Ordinance XVIII of 1999.‑‑In the said Ordinance, after section 33, the following new section shall be inserted, namely:‑‑

"33A. ++Payment of bonuses etc++.‑‑There may be paid bonuses or ex gratia payment to the officers and staff of the National Accountability Bureau, other Government servants, public servants and rewards to members of public for rendering commendable services in detection, investigation and prosecution of cases relating to corruption and corrupt practices as may be prescribed by rules."

29. Insertion of new section 34A, Ordinance XVIII of 1999 .‑‑In the said Ordinance, after section 34, the following new section shall be inserted, namely:‑‑

"34A. Delegation of powers.‑‑The Chairman NAB may, by an order in writing, delegate any of his powers to and authorise performance of any of his functions by, an officer of the NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order, for carrying out the purposes of this Ordinance."

30. Amendment of section 35, Ordinance XVIII of 1999.‑‑‑In the said Ordinance, in section 35, in subsection (a) the words, brackets and letters "subsection (b) of" shall be omitted.

31. Amendment of section 37, Ordinance XVIII of 1999.‑‑‑In the said ordinance, for section 37, the following shall be substituted, namely:‑‑

"37. ++Removal of difficulties++, ‑‑‑If any difficulty arises in giving effect to any provision of this Ordinance, the President, in consultation with the Chief Justice of Pakistan, may make such order, not inconsistent with the provisions of this Ordinance, as may appear to him to be necessary for the purpose of removing such difficulty."

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