PESHAWAR, Dec 4: A two-member bench of the Peshawar High Court on Wednesday accepted a writ petition of former chief secretary of the NWFP, Khalid Aziz, and ruled that an accused in a reference could not become an approver against a co-accused.

The bench observed that under Section 26 of the National Accountability Bureau Ordinance, 1999, the NAB chairman had no authority to make an accused approver and produce him as a prosecution witness when a reference had been filed against him. The bench comprised Justice Khalida Rachied and Justice Qaim Jan Khan.

Mr Aziz had filed the petition against the presentation of a former director of primary education, Shahjehan Khan, as a prosecution witness after he turned approver.

The petitioner had stated that in a reference pending against him, Shahjehan was a prime accused, but the NAB chairman accepted his application for pardon and made him an approver. The approver’s statement was recorded on June 21.

Mr Aziz, Shahjehan and a former accountant of the department, Khadim Hussain, were facing a trial for giving a contract of Rs15 million to a firm, Hayat and Brothers, belonging to the chief secretary’s family, for the provision of furniture and other items. The NAB alleged that the accused had misused their offices.

Barrister Zahoorul Haq, Advocate Zaffar Abbas Zaidi and Aziz Akhter Chughtai represented the petitioner and argued that once a reference was filed against an accused, he could not be pardoned and turned into an approver. The counsels argued that under Section 26 of the NAB Ordinance, the chairman had the powers to grant pardon to obtain evidence from any person but he could exercise those powers during investigation and not after filing of a reference.

The petitioner contended that evidence of all the prosecution witnesses went against Shahjehan and not against him and at this stage he could not be removed from the list of accused in the reference.

He prayed that the statement recorded by Shahjehan should be taken off the record declared inadmissible as evidence.

Mr Aziz was earlier sentenced to four-year imprisonment in a reference pertaining to possessing assets disproportionate to his known sources of income.

The petitioner has claimed that the case is of double jeopardy as the amount of Rs15 million was also mentioned in the earlier reference. He contended that under the Constitution, a person could not be punished twice for an offence.