2005 PLP 1827 (MLD)

SARMAD JALAL OSMANY, J.

This Cr. Misc. Application impugns the order dated 30-7-2004 whereby the learned NAB Court-I dismissed an Application under section 265-K Cr.P.C. for quashment of the proceedings pending before it.

2. The facts of the case per the F.I.R. are that upon information received by the Intelligence Wing of the Central Excise Department Karachi (Landhi Circle) that Messrs Pakland Cement was involved in evasion of central excise duty an inspection of their factory (owned by the Applicants) was carried out. It was discovered during such inspection that there should have been 69592 metric tons of clinker (raw material used for the production of cement) available in the factory as per the record of the Excise Department, whereas actually only 2795 metric tons was found. Similarly, 1500 metric tons of cement was found to be in excess but the same was not entered in the central excise duty. In pursuance of such F.I.R. the investigation was conducted and an interim charge-sheet was filed before the Learned Special Judge Custom and Taxation. During the proceedings the Applicant/Accused filed an application under section 265-K of Cr.P.C. which remained pending for some time as a result of which another application under section 561-A Cr.P.C. (Cr. Misc. No.207 of 1999) was moved before this Court for the quashment of the proceedings before the Learned Trial Court, which was allowed. However, upon an appeal being filed by the NAB Authorities before the Honourable Supreme Court being Crl. Petition No. 141-K of 2002 (as the case in the meanwhile was transferred to the learned NAB Court) the orders of this Court were set aside and directions were issued to the Learned NAB Court to decide the pending Application under section 265-K Cr.P.C., which was dismissed vide the impugned order and hence the present Application.

3. In support of the case, Mr. Khalid Anwar, has firstly challenged the jurisdiction of the NAB Authorities to take cognizance of the matter, which pertains to evasion of Central Excise Duty in the particular circumstances thereof. Per learned Counsel such fiscal matters which are in any event disputed cannot either be investigated by NAB or the matter referred to the NAB Court as has been done in this case, unless they come within the purview of the NAB Ordinance i.e. can be equated to corruption and corrupt practices per the preamble to the NAB Ordinance and section 9 thereof which lay down the objectives whereby the Ordinance was enacted and define corruption and corrupt practices respectively. In this regard learned Counsel has submitted the section 9 is primarily directed against the holders of public office and the phrase, "any other person", used therein relates to persons who have either aided or abetted a holder of a public office in relation to offence committed by him under section 9 (a) or have committed offences specified under section 9 (a) (ix), (x) and (xi) viz. `cheating' and criminal breach of trust' which have resulted in causing losses to `members of the public at large'. In other words the offences are of a nature such as illegal banking practices, cooperative society scams, financial institutions scams and other such fraudulent actions which have resulted in a loss to the Government of Pakistan or any statutory body or authority established or controlled by the Government of Pakistan or the public at large. Similarly under subsection (xi) of section 9 (a) of the NAB Ordinance a banker can also be held liable for dishonestly disposing of the property which may have been entrusted to him. Per learned Counsel the only exception to the foregoing is a case of wilful default per section 5(r) of the NAB Ordinance which defines this offence as one whereby a person or a holder of public office does not repay the amount due from him to any bank, financial institution, cooperative society, department, statutory body, or any authority established or controlled by a Department on the date it became due as per the agreement containing the obligation to repay according to the laws, rules, regulations, etc. issued by the State Bank of Pakistan, Financial Institution, cooperative society, Department, statutory body or an authority established or controlled by a Department, as the case may be, and thirty days notice has been given to such person or holder of public office. Per learned Counsel a plain reading of the aforementioned definition of willful default would reveal that it can never cover the present situation viz. the alleged evasion of central excise duty by the applicants. Learned Counsel has also emphasized the fact that no reference has been filed against any official hence there cannot be any question of abatement etc, by a private person in the commission of an act of corruption or corrupt practices in the presence case.

4. Secondly, learned Counsel has submitted that the fiscal laws presently on the statue book viz., Customs Act, Income Tax Act, Sales Tax Act and Excise Act, provide for specific offences and concurrent punishments thereto all relating to the evasion of taxes/duties and so also special Courts /Tribunals have been established under these laws to take cognizance of such offences. Consequently, where the NAB Ordinance does not make any reference to any of the foregoing laws, it is inconceivable that the NAB Authorities would have jurisdiction to take cognizance of the same. Furthermore, per learned Counsel, the punishments provided in the fiscal laws for evasion of taxes/duties is much less than that provided in the NAB Ordinance for the offences of corruption/corrupt practices. Hence, the legislature could not have intended to provide for two different punishments for the same offence. In this regard per learned Counsel, penal statutes are to be construed strictly and any ambiguity in the same is to be decided in favour of the citizen. Hence, per well-settled law, it has been laid down that the statue creating an offence must be precise, definite and objective so as to guard against an arbitrary and capricious action on the part of the State functionaries who are called upon to enforce the same. In support of these submissions Learned Counsel has relied upon Jamat-e-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111), Dyke v. Elit (1872) LR4 Privy Council, 184, M. Narayanan v. State of Kerala (AIR 1963 SC 1116), S. Sethi v. A.K. Churiwal (AIR 2000 SC 828), Tolaram v. State of Bombay (AIR 1954) SC 496); State of W.P. v. Swapan Kumar (AIR 1982 SC 949), D.K. Sharma v. State of Madhva Pradesh (AIR 1976 SC 133), Department for Environment, Food and Rural Affairs v. Asda Stores Ltd. (2004 1 WLR 105 House of Lords), Rosenbaum v. Burgovne (1964-2 ALL ER 988, Spicer v. Holt (1976-3 ALL ER 71), r. v. h.r. Magistrates Court (1986-2 All ER 666 QBD), R v. Charles (1976-1 ALL ER 659), Smaje v. Balmer (1965-2 ALL ER 248), Shaw v. DPP (1961-2 ALL ER 446), L.N.E.R. v. Berriman (1946-1 ALL ER 255, House of Lords).

5. Learned Counsel has also submitted that the present matter is under adjudication before the Collectorate of Central Excise Karachi viz. the demand has been raised against the Company through two show-cause notices and ultimately two orders in original were passed by the Addl. Collector Central Excise, Karachi, verifying the same. Thereupon the Company filed an appeal before the Collector of Central Excise Duty (Appeals) who remanded the matter back to the Collectorate for de novo proceedings for the purpose of verifying the stocks etc. Against this order, the Department went into appeal before the Customs Excise and Sales Tax Tribunal, which was dismissed as being time-barred and the same fate befell the Department before this Court in further Appeal. Per learned Counsel, no appeal has been preferred against the order of this Court by the Department and hence the remand order of the Collector of Customs has attained finality. As a result of such order a survey of the Company's stocks has been carried out and here the matter rests as so far no fresh show-cause notice has been issued by the Department. Consequently, per Learned Counsel, unless and until the adjudication proceedings establish that an offence has been committed criminal proceeding against the Accused cannot be filed. Hence, it is in the interest of justice that the proceedings before the learned NAB Court be quashed. In support of these contentions Learned Counsel has relied upon Muhammad Bashir v. ITO (1979 PCr.LJ 574), Shaikh Fazal Ellahi v. Assistant ITO (1977 PCr.LJ 538) Zafar Ahmad Khan v. The State (1975 PCr.LJ 1300), Muhammad Hussain v. State 1975 PCr.LJ 638, Bhola Nath Keshari v. State of Bihar (PTD 1999 2374 at 2375), Dr. R.P. Gupta v. Inspecting Assistant Commissioner of Income Tax (Assessment) (1987-168 ITR 83), Swastika Metal Works v. Vimal Vashist, Inspecting Assistant Commissioner of Income Tax (1989 176 ITR 526) and W.I. Kohli v. Commissioner of Income-Tax (1985-152 ITR 154 at p. 153).

6. Learned counsel has finally submitted that per Abdul Sattar Dero v. The State (2002 YLR 1870) there is no concept of a transfer of case from any criminal Court to the NAB Court and hence to that extant also the proceedings before the Learned NAB Court are fit to be quashed.

7. On the other hand Learned DPG, NAB has fully supported the impugned order on the ground that enough material exists before the learned NAB Court to connect the Accused to the crime in question. Secondly, per learned ADPG per section 32 (c) of the Ordinance, no revision is competent against any interlocutory order of the Learned NAB Court. Hence, the power exercised by this Court under section 361-A, Cr.P.C are not available in the present mater. Consequently, the present Revision Application is not maintainable at all. So also it cannot be treated as a Constitutional Petition since a factual enquiry is called for in the matter which cannot be done in Constitutional jurisdiction by this Court.

8. Finally per learned DPG, cognizance of the offence can be taken by the Learned NAB Court under section 9 (a)(iv) and (vi) of the Ordinance, which defines the offence of corruption and corrupt practices vis-a-vis a private person. For this proposition he has relied upon Bashir Ahmed v. Zafarul Islam (PLD 2004 SC 298). So also per the case of Ahmed Sival v. NAB (2004 SCMR 265) a fresh reference is not required in the matter upon transfer of the case from any other criminal Court to the NAB Court.

9. We have heard the learned Counsel as well as Learned ADPGA, NAB and our conclusions are as follows:--

10. Insofar as the cognizance of the matter by the NAB Authorities and thereafter the learned NAB Courts is concerned vis-a-vis the Applicants who are admittedly not holding any public office etc., it would be, seen that per the preamble to the Ordinance the objective of the same is to set-up a National Accountability Bureau so as eradiate corruption and corrupt practices and held accountable all those persons accused of such practices and matters ancillary thereto. In this regard, A section 9 (a) of the Ordinance provides that a holder of a public-office, or any other person, (underlining added) is said to commit or to have committed the offence of corruption and corrupt practices, which are further defined in subsections (i) to (xii). In the case of Abdul Aziz Memon v. The State (2003 YLR 617), a Learned Division Bench of this Court while interpreting the NAB Ordinance held that "the scope of the NAB. Ordinance is wider in terms and is applicable to all of Pakistan and all persons including the holders of public office. Furthermore, the Learned Bench came to the conclusion that even a private citizen could be prosecuted under the NAB Ordinance, if he could not account for his wealth. However, a contrary conclusion was reached by another Learned Division Bench of the Peshawar High Court in the case Kabir Khan v. the State (2003 YLR 1067) wherein it was observed that "Corruption, corrupt practices and misuse of power must relate to the period during which a person is in a position as a holder of public office to misuse his office for private gains

If wealth is acquired by illegal means at a time when the accused did not hold a pubic office, it may constitute an offence under some other law, but not under the NAB Ordinance". Yet again a Learned Division Bench of the Lahore High Court in the case of Zulfiqar Ali v. Chairman NAB (PLD 2003 Lahore 593) came to the conclusion that a person other than a holder of a public office can be tried under the NAB Ordinance for any act which falls within the mischief of the said Ordinance. The case of Abdul Aziz Memon v. The A State (Supra) was followed and relied upon. The Hon'ble Supreme Court of Pakistan is also seized of this issue in the case of the State v. Naseem ur-Rehman 2004 SCMR 1943, wherein leave was granted to examine the issue whether inter alia "as to whether the view expressed in the cases of Zulfiqar, Ali (ibid), Abdul Aziz Memon (ibid) and Kabir Khan (ibid) i.e. whether a person other than a public office holder but being beneficiary from such person can be tried under the NAB Ordinance is just and proper or an authoritative judgment is required to be passed to reconcile the views taken in above noted judgments.

11. Consequently, as the issue above-mentioned is sub judice before the Hon'ble Supreme Court of Pakistan, it is proper that this matter be adjourned sine die till such time, as an authoritative pronouncement is received from the Hon'ble Apex Court. Order accordingly. In the meanwhile, the proceedings in the reference against the Applicants pending before the learned Accountability Court shall remain suspended. M.B.A./T-27/K Order accordingly.