2025 P Cr (PLP)

Mohsin Akhtar Kayani, J.

Through the instant writ petition, the petitioner has assailed the order dated 14.07.2020, passed by learned Judge Accountability Court-I, Islamabad in Reference No.17 of 2016, whereby his application under Section 265-K Cr.P.C. has been dismissed.

2. Brief facts narrated in the reference before the Accountability Court-I, Islamabad are that during the course of inquiry/ investigation, it revealed that the accused at serial Nos. 1 to 8 being members of the Drugs Pricing Committee (DPC), including the present petitioner, extended undue benefit to the accused mentioned at serial Nos. 9 to 15 by increasing the prices of their drugs in violation of rules regarding fixation of prices of drugs. These companies/firms got illegal and unjustified price increase of their drugs by aiding, abetting and in conspiracy with accused members of 5th and 6th DPC meeting which was held on 09-10-2012 and 22-01-2013 while the sub-committee meeting was held on 19-11-2012. The accused at serial Nos. 1 to 8, in order to extend undue benefit to the accused companies/firms, dishonestly and malafidely did not verify and check the data submitted for increase of prices, hence, extended the benefit of unjustified increase of prices in violation of prescribed rules and procedure. During the course of inquiry/investigation, after scrutiny of available record, it was also revealed that five accused pharmaceutical companies / firms, in connivance with accused members of the Committees, got illegal price increase of their drugs by submitting incorrect costing data / inflated import invoices of raw material/finished drugs despite the fact that these companies / firms were importing raw material / finished drugs at very less rate at the relevant time period and even before and after the date of price increase. Two accused pharmaceutical companies, in connivance with members of Drugs Pricing Committees, malafidely did not submit relevant import invoices of raw material and finished drugs and got unjustified price increase, despite the fact that these companies were importing raw material and finished drugs at a very low rate at that time and even after that. One accused pharmaceutical firm namely M/s Zam Zam Corporation, in connivance with other accused, dishonestly got unjustified price increase of its twelve drugs on the basis of an illegal and unauthentic report filed in Hon'ble Sindh High Court, Karachi without approval of the Competent Authority. Moreover, the role and involvement of other directors of the above accused companies is being probed and the same will be finalized accordingly, hence this interim Reference is being filed.

3. The accused persons have been found involved in the commission of offences of corruption and corrupt practices as defined under section 9(a) of NAO, 1999 and Schedule thereto. The brief role of accused persons is mentioned in the succeeding paragraphs, however the detailed role and modus operandi of the accused persons is explained in the investigation report which is an integral part of this Interim Reference. It is also pertinent to mention here that accused company M/s R.G. Pharmaceutica (Pvt) Ltd submitted Plea Bargain application under section 25 (b) of NAO, 1999 and voluntarily came forward to return the illegal gain amounting to Rs. 385.12 million. The Plea Bargain application of accused company has been accepted by Chairman NAB and subsequently approved by Honourable Administrative Judge Accountability Court, Islamabad vide Order dated 14.06.2016.

4. Accused at serial No. 1 i.e. Arshad Farooq Faheem (present petitioner) as CEO, DRAP knowingly and dishonestly became chairman of 5th and 6th DPC despite the fact that he was also Chairman of Registration Board at the relevant time period, which is a violation of section 11-A of Drug Act, 1976. He, being the member of 5th and 6th DPC, in connivance with other members of DPC and beneficiaries, knowingly and dishonestly extended undue benefit to some of the pharmaceutical companies/firms by increasing the price of certain medicines in violation of Drug Act and rules / regulations. The accused, with ulterior motives by misusing his authority, fixed / approved the increase of price of certain drugs on incorrect / incomplete data / inflated invoices. Furthermore, in order to extend undue favour, the accused with mala fide intention also gave illegal and unjustified price increase to certain drugs even on note sheet in violation of Drugs Act and Rules / regulations framed there under.

5. Learned counsel for petitioner contends that after filing of the reference no charge has been framed till date and petitioner filed application, under Section 265-K, Cr.P.C. primarily on the ground that such application for acquittal of accused can be submitted at any stage of the trial, even before framing of charge when there is no probability of conviction in the case; that the overall allegations against the petitioner by the NAB are with regard to misuse of authority, rather abetting and aiding the other accused pharmaceutical companies having obtained higher prices without proper appraisal of the record, but there is no mens rea or guilt established by the prosecution, rather some procedural irregularities have been pointed out in the process by the NAB; that the fixation /realization of the price of drugs under Section 12 of the Drugs Act, 1976 and under Section 7 of the DRAP Act, 2012 is the regulatory function and authority of the Federal Government; that the DRAP as well as the Federal Government can fix / revise or rationalize prices of drugs, which has been processed through majority decisions of the DRAP and subsequently notified by the Federal Government on regular basis as a routine practice; that the Drugs Pricing Committee (DPC) has been constituted by the Federal Government having representatives of the manufacturers of medicines sectors, Provincial Government and Federal Government, which approves fixation and rationalization of the prices of registered drugs under the law: that no appeal or complaint has ever been filed against the decision of 5th and 6th meeting of DPC in which alleged act of misconduct was taken place, even though Section 9 of the Drugs Act, 1976 read with Section 30 of the DRAP Act, 2012 provides the appellate forum, as such, the NAB authorities are not in position to decide the technical aspect of pricing concept, which could only be done by the DRAP; that there is no adverse order from any subsequent meeting of DRAP against the petitioner in which it has been observed that the previous orders are illegal or contrary to law, that the apex Court, vide order dated 03.08.2018, passed in HRC No.2858/2006, has already held that anybody aggrieved by the decision of DRAP may challenge the same before appellate forum, hence the pricing concept could not be criminalized by the NAB in any manner, that the DRAP Act, 2012 has an overriding effect, as such, the process provided in the law for settlement of the prices regime cannot be superseded by the NAO, 1999, like in the case in hand. At last, the National Accountability (Second Amendment) Ordinance, 2019 also creates an exception in favour of the petitioner, who has not been charged with any allegation of accumulation of any monetary benefit or asset disproportionate to his known source(s) of income or which cannot be reasonably accounted for, therefore, he is entitled for acquittal as no probability of conviction is remotely visible in this case.

6. Conversely, learned Special Prosecutor NAB contends that in 5th and 6th Drugs Pricing Committee (DPC) Meeting all the members are involved in illegal increase in prices of drugs and after inquiry and investigation, the pharmaceutical companies, who have managed to get benefit of billions of rupees through wrongful gains, admitted their guilt and entered into plea bargain, as a result whereof, seven companies have returned the amount of Rs.959.73 million, which clearly establishes the conduct of members of the DRAP and DPC, who are involved in illegal increase in prices of drugs; that the petitioner being the then Chairman of 5th and 6th DPC in connivance of other members of DPC / beneficiaries knowingly and dishonestly with mala fide intention allowed illegal price increase of drugs of different firms/companies in violation of Drugs Act, 1976 and rules / regulations made there-under, as such, the petitioner with ulterior motive did not ask current reported invoice of raw material, finished drugs and costing data on prescribed proforma while granting price increase, as a result whereof, he permitted illegal and unjustified price increase to drugs in order to benefit the companies i.e. M/s R.G. Pharmaceutica (Pvt.) Ltd., M/s Saffron Pharmaceutical (Pvt.) Ltd.., Maple Pharmaceutical (Pvt.) Ltd. M/s Akhai Pharmaceuticals (Pvt.). Ltd., Galaxy Pharmaceutical (Pvt.) Ltd. Excel Health Care (Pvt.) Ltd. and Martin Dow (Pvt.) Ltd., as such, the total loss caused to public is Rs.1322 95 million approximately, whereas a sum of Rs.959.73 million has been recovered. It is further contended that National Accountability (Second Amendment) Ordinance, 2019 does not favour the accused on any count, rather it is lapsed at present, per se, the original law revives, therefore, no benefit could be claimed under the said amended Ordinance; that unless the evidence is recorded no case of acquittal at this stage is made out; that the learned Trial Court has rightly dismissed the petition by declaring it as premature.

7. Arguments heard, record perused.

8. Perusal of record reveals that the petitioner being the then Chairman of Drugs Pricing Committee (DPC), had considered the cases of fixing the price of different drugs in 5th and 6th DPC Meeting, held on 09.10.2012 and 22.01.2013, respectively, whereas the NAB has started inquiry and investigating the matter, as a result whereof, the primary charge against the petitioner has been fixed primarily on the ground that he being Chairman of the Registration Board at relevant time period has also become Chairman of DPC in violation of Drugs Act, 1976, in connivance with other members, he knowingly extended undue benefit to some pharmaceutical companies by increasing the price of medicines /drugs, on incorrect / incomplete data, inflated invoices. While scanning the entire record with the help of Special Prosecutor NAB, we have confronted him qua different provisions of DRAP Act, 2012 and Drugs Act, 1976 to satisfy this Court as to whether the pricing of drugs can be verified and checked under the law by the NAB in any manner, unless the 5th and 6th DPC results altered by the DRAP in any subsequent meetings, whereby the previous decisions have been declared illegal or passed contrary to law, but surprisingly no justiciable mechanism has been explained to consider that NAB has any authority to look into the pricing mechanism.

9. However, in order to understand, we have gone through the provisions of Drugs Act 1976, which primarily regulates the import, export, manufacture, storage distribution and sale of drugs. This law also provides the regulations of prohibition of import, manufacture of drugs, sale of drugs, registration of drugs through Registration Boards, Provincial Quality Control Board and Expert Committee, as such, in case any adverse decision is passed against any applicant, the law provides the concept of Appellate Board, where any decision of Central Licensing Board or Registration Board or Licensing Authority could be challenged, per se, the Appellate Board has been constituted by the Federal Government under the law. Similarly, the concepts of independent inspection, Federal Drug Laboratory, Provincial Quality Test Laboratory and Government Analyst have also been provided therein. This basic law also prohibits the import, manufacture and sale of drugs without the concept of licensing on prescribed conditions, testing, analysis, etc., even the offences have separately been provided under Section 27 of the Act, as a result whereof, the concepts of imprisonment, fine and forfeiture have been provided. In order to settle this question on criminal side, the Federal Government constituted a Drugs Court through notification with territorial limits in which the Court has to exercise its jurisdiction qua offences referred in the law. There is no bar to cancel the registration, licensing of manufacturer or importers on persons dealing with the drugs under this law.

10. Similarly, the second important law is the Drugs Act, 1976, whereby the concept of establishment of Drug Regulatory Agency of Pakistan has been provided for effective coordination and enforcement of Drugs Act, 1976 and to bring harmony in inter-provincial trade and commerce of drugs and therapeutic goods as well as to regulate, manufacture, import, export, storage, distribution and sale of therapeutic good and medical devices. Furthermore, the Authority has been constituted under Section 3 of the Act by the Federal Government through a notification, which is autonomous body under the administrative control of the Federal Government, comprising of CEO and different Directors, including Medical Devices and Medical Cosmetics Division, Costing and Pricing Division, Controlled Drugs Division, Licensing Division, Biological Division, Pharmaceutical Evaluation and Registration Division, Budget and Accounts Division, Ripymaceut Management Information Systems (MIS) Division, Quality Assurance and Lab Testing Division, Pharmacy Services Division, Administration, Health and OTC Division and Legal Affairs Division. The complete functions of the Authority have been provided in Section 7 of the Act, in which all administrative powers are with the Federal Government, where the DRAP shall provide advice to the Federal Government or Provincial Government, as the case may be, to monitor the enforcement of laws specified in the Schedule VI and collect relevant data and information, even the DRAP issues guidelines for licensing of therapeutic goods, registration of therapeutic goods, specifications and laboratory practices, prosecution and appeals under this Ordinance relating to Federal subjects, regulation and allocation of quota of narcotics and psychotropic drugs and precursor substances, regulation for pricing and mechanism for fixation of prices, determining standards for biological manufacturing and testing, coordinate at policy level, monitor and regulate the marketing practices as well as to develop standard operating procedures, etc. The law also provides a Policy Board for general direction and monitoring of authority comprising of 15 members. including the Federal Secretary of the concerned division, representatives of Ministry of Law and Justice Division, concerned secretaries of Provincial Governments, representatives of Federally Administered Tribal Area and six (06) experts from public and private sectors. That apart, Section 10 of the Act deals with the concept of meeting of Policy Board, which shall make regulation for conduct of its business, though the functions have separately been provided in Section 11 to frame policy and provide guidelines, based on global and recent trends, monitor all functions of authority and determine all fees and levies. This special law also provides offences and penalties in terms of Section 27 qua the individuals companies and even a special mechanism of complaint has been provided in terms of Section 30 of the Act to aggrieved person to file a written complaint with the Agency against contravention of any provision of this Ordinance or any law specified in the Schedule-VI. Furthermore, the DRAP is under obligation to observe the policy directives of the Federal Government in accordance with law and constitution of board in respect of any powers and functions.

11. The most important provision is Section 32 of the DRAP Act, 2012, which says that: "The provisions of this Ordinance shall be in addition to and not in derogation of the provisions made in the Drugs Act, 1976 (XXXI of 1976) and any other law for the time being in force." (2) In case of inconsistency between the provisions of this Ordinance and any other law for the time being in force, the provisions of this Ordinance shall prevail. The above referred comparison provides extraordinary status to this law being special law in this specialized subject, whereas if this law is compared with the NAO, 1999, it provides to setup a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto, who have misused or abused the power, involved in misappropriation of property or taking kickbacks / commission. Section 3 of the NAO, 1999 also provides the overriding provision against any other law for the time being in force.

12. However, now the question arises that when speclized law is already available, whether NAO, 1999 could be applied and NAB authorities could enter into those questions, the answer to this effect is to be considered with the mandate provided in the preamble, which is specialized in character, whereas the DRAP Act, 2012 is to deal with enforcement of Drugs Act, 1976 and to bring harmony in inter-provincial trade and commerce of Drugs and therapeutic goods, which is not the function of NAB in terms of NAO, 1999, but in cases where corruption and corrupt practices has been demonstrated in such affairs, the NAB can enter into that arena, but the primary question arises as to whether the actions of officials in the case in hand while fixing prices of drugs have to be resolved by the NAB, the answer to said proposition is to be settled in terms of the facts available on record, as such, a detailed mechanism with respect to resolution of different issues by the Appellate Board has been provided in terms of Section 9 of the DRAP Act, 2012 along with the concept of complaint under Section 30, per se, if the same are seen in juxtaposition with the NAO, 1999, it appears that if any order or action has been taken by the DRAP in their meeting and subsequently endorsed by the Federal Government, the actions stand protected in terms of Section 34 of the DRAP Act, 2012, which states that: No suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules or regulations made there under.

13. This legislative intent extends a protection to the members of the DRAP, though the charge against the present petitioner is only to the extent misuse of authority as alleged by the NAB in their reference with specific accusations that the petitioner being the then Chairman of Drugs Pricing Committee in violation of Drugs Act, 1976 and in connivance with other members extended undue benefits to pharmaceutical companies by increasing prices of medicines / drugs on incorrect and incomplete data on inflated invoices. If this aspect is treated as a gospel truth, it is not the case of NAB authorities that members who have attended the 5th and 6th meeting are accused in this case, even otherwise, the record spells that in those meetings, especially in 5th DPC, held on 09.10.2012, same was chaired by the petitioner, whose decisions are validated through SRO No 1439, dated 23.10.2012, by the Federal Government, whereby the petitioner has rejected the recommendations of sub-committee as proposed by Dr. Muhammad Ali, and deferred all the items to be decided afresh by the DPC in forthcoming meeting, as also reflected from the noting of sub-committee, dated 05.12.2012 even at the time of said 5th meeting, DRAP Act, 2012 was not in field, rather it is DRAP Ordinance, whose actions have been protected under Section 40 of repeal and saving clause of DRAP Act, 2012, which reads that: "All such actions of the Federal Government as mentioned in sub Section (2) since 20th April, 2010 shall be deemed to have validly made under this Act."

14. Similarly, in 6th meeting, dated 10.12.2012, under the new Act, the SRO No.41 showing DPC composition under the Chair of Joint Secretary, instead of Secretary, Ministry of National Health Services, Regulations and Coordination, dated 18.01.2013, was approved by the competent authority. The agenda had been placed by the Deputy Drugs Controller, Pricing Directorate for new registration, generic brands and hardship cases. The 6th meeting held on 22.01.2013 was also attended by Wasim Hasmi, Dr. Waseem, Muhammad Ghafar Pricing Directorate, Sara Awan Assistant Drugs Pricing Directorate, as such, all other members attended the DPC are responsible for verifying the documents of proposed agenda. In this 6th meeting of DPC, all members of DPC authorized the Chairman i.e. petitioner to decide himself after granting personal hearing to the individuals, as a result whereof, different drugs cases have been deferred, even some of the drugs which have been added in agenda by Dr. Muhammad Ali were rejected by the petitioner being the Chair of the Committee, even prices of different drugs have been reduced. This aspect shows the working with unanimous decision of all the committee members. In such scenario, the technical aspects could only be looked into by the DPC as well as by the DRAP, who are dealing with affairs.

15. On the other hand, the Special Prosecutor, NAB has drawn attention of this Court towards 5th meeting of DPC and referred the following drugs, prices of which have been increased. S.NO. BrAND NAME/COMPOSITION PREVIOUS PRICE Competitors Brands New price 1 Venofer injection 5ml Each 1ml contains:- Iron (III)-hydroxide Sucrose complex...20mg (RG Pharmaceuticals Import) Rs.366.20/ ampoule Rs. 295.00/1 s (Bosch) (Getz) (Himont) (Hilton) (AGP) Rs.200.00/ 1 s (Bio Labs) Rs. 520.00/1 s being an FDA approved product. 2 Envepe Tablet Each tablet contains:- Doxylamine Succinate.. 10mg Vitamin B6...10mg (Maple) Rs. 114.00/30 s Itself Rs.130.00/30 s 3 Maltofer Syrup Each ml contains: Iron (III) Hydroxide Polymaltose Complex 35.7mg corresponding to Iron (III)...10mg (Pharinatec) Rs.188/120ml Rs.133.01/120ml (Bio Labs) (Getz) Rs. 185.00/120ml (Hilton) Rs. 160.00/120ml (Tabros) Rs. 200.00/120 ml 4 Halothane Liquid M/s Akhas imported from M/s Piramal Healthcare Ltd. India Rs. 1250 No competitor Rs. 1900/250 ml may be approved subject to verification if Halothane is still FDA approved for use in anesthesia.

5. Aldomet Tablets 250mg Each tablet contains:-Methyldopa.. 250mg (OBS) Rs. 390.00/100 s Itself Rs.390.00/100 s (Valor) (Bio Labs) Rs. 429.00/100 s 6 Inderal Tablet 40mg Akzo Nobel Rs:118/50's (40mg) Itself Rs.153.00/50's 7 Cycopin Mycophenolate Mofetil 250mg (Biocare Pharma) Rs.1800/40's Itself Rs.2335.00/40's

16. The above referred seven items along with other drugs prices, which are basis of the entire reference have been examined with the able assistance of learned counsel for petitioner as well as of the Special Prosecutor, NAB and it has been observed that the petitioner as Member of DPC agreed to increase the prices of these drugs with majority decision of other members, but surprisingly till date the DRA has not set aside the said decision, though we have confronted the Special Prosecutor NAB in this regard, who contended that in the year 2016 the DRAP undo the said pricing factor, but that is not the basis of instant reference, rather he.placed heavy eliance upon the details provided in NAB reference of each and every beneficiary pharmaceutical companies, who are accused in this reference and have gained profit by increase in prices of 36 drugs, including the seven referred above, but the basis of findings of the NAB in their inquiry and investigation are common in all these cases that the prices have been increase without fulfilling codal formalities, including the compilation of registration data and costing data and even some drugs have been referred in these meetings without placing agenda prior to said meeting. This aspect clearly establishes that mathematical calculation has been carried out by NAB authorities, though they are not expert in this regard and they calculated the amount without the help of any technical expert, but at this stage the respondent side has read over the statement of one witness namely Syed Hussain Khan, Deputy Drugs Controller / Technical Expert, whose findings are made basis of this reference, which are to the extent of DPC meeting, dated 22.01.2013, which are as under:

1. Most of the cases were considered for price increase without fulfilling codal formalities including completion of registration data and costing data etc by DPC

2. Cases were deferred without assigning any person.

3. Cases at S#47 and 48 of minutes were considered out of turn as these were present at S#63 and 107 of agenda respectively.

4. Cases at S#28 of agenda were considered without submission of new fees for re-consideration as the same were rejected in 5th DPC meeting.

5. Cases at S#23 (e), 24 (GSK) and 28 (Pharmadic) were considered without any request. However, letters were not issued.

6. Cases of Zam Zam Corporation and Halothane Liquid were considered despite not in agenda. However, letters for price increase were not issued to the firms.

17. Similarly, the findings regarding DPC meeting held on 09.10.2012 are as under:

1. Most of the cases were considered for price increase without fulfilling codal formalities including completion of registration data and casting data etc by DPC.

2. The price of Novamed Pharmaceutical (Pot.) Ltd. for its product Ciprojan Suspension 250mg was given on note sheet despite the fact that the same was not approved by DPC.

3. Item at S# 46 of agenda is missing from minutes of the meeting.

4. Items at S# 64-67 of agenda were given price increase of 30% as per DPC but in minutes two out of four items were referred to subcommittee without any reason

5. Thirteen products of Saffron were considered for price increase despite the fact that the same were not in agenda. However, the price increase was given to two products only.

6. Many of the cases were included in the agenda of the meeting and given price increase despite the fact that the fee for price increase was deposited on the day of meeting. These companies were given undue fuvors.

18. Whereas, in the third group the findings are to the extent of list of drugs, prices of which were increased illegally and without any justification by the DPC, whereby increase in the price of drugs has been obtained through fraud as the company submitted fake and incorrect costing data for obtaining price increase of its product. By comparing all these findings, if considered to be true, whether it is a criminal misconduct in terms of Section 9(a)(vi) of NAO, 1999, especially when the National Accountability (Second Amendment) Ordinance, 2019 has been promulgated. However, in order to understand the ground raised by the petitioner, it is necessary to reproduce the provisions of Section 9(a)(iv)(vi)(ix) and (xii) of the NAO, 1999, which are as under: 9 (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- (iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; (vi) if he misuses his authority so as to gain any benefit to favour for himself or any other person, or (renders or attempts to render) (or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority)." "Explanation added by National Accountability (Second Amendment) Ordinance 2019: For the purposes of this clause nothing shall be construed as misuse of authority by a holder of public office unless there is corroborative evidence of accumulation of any monetary benefit or asset which is disproportionate to his known sources of income or which cannot be reasonable accounted for." ix) if he commits the offence of cheating as defined in Section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person. (xii) "if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).

19. While considering the above stance, we have confronted the Special Prosecutor NAB on the basis of entire record of reference as well as of the investigation as to whether any incriminating article has been recovered from the petitioner through which it could be assumed that a misuse of authority has been exercised in this case by the petitioner, as a result whereof, he achieved an accumulation of any monetary or assets disproportionate to his known sources of income or which cannot be reasonably accounted for, whereby he conceded that there is no such evidence against the petitioner. In such scenario, if there is no direct charge of accumulation of wealth or kickbacks against the public servant, who has performed his duty in which certain irregularities or illegalities have been committed in course of discharge of his official duties, he may be liable for departmental action, but whether same could be converted into criminal action in terms of misconduct, the answer to this proposition has been given in explanation added by the National Accountability (Second Amendment) Ordinance, 2019, in which criminalization of such misconduct has been eliminated and specified only that if an official has gained something in lieu of his misconduct, which is not the case in hand, even it is not the case of NAB that all DRAP members have been declared accused in this case, rather some of the members have been excluded.

20. While considering the above detailed discussion, we are of the view that the relevant rules and regulations were applied by DPC and DRAP while allowing increase or decrease of certain drugs prices, however it is the case of NAB that majority of pharmaceutical companies, who entered into plea bargain or VR have tendered forged invoices of the imported raw material, which have been used as costing data for determination of pricing factor, such stance could have been considered against those pharmaceutical companies and not against the DPC members or DRAP as there is no element of corruption and corrupt practices, illegal gain or rendering any illegal benefit to anyone, including the accused persons, is visible from the record.

21. Surprisingly, the NAB authorities have based their entire case on the strength of Syed Hussain Khan, Deputy Drugs Controller/Technical Expert, who himself is not representing the DRAP and in our view, if the NAB authorities intended to seek criminal misconduct, they have to base their findings on the basis of subsequent DRAP decision qua the increase in drugs prices, which is not the case in hand.

22. The important aspect of this case is relating to misuse of authority in terms of Section 9(a)(vi) of the NAO, 1999, which becomes an offence of corruption and corrupt practices if it has been done with criminal intent to gain, render or attempt to gain any favour of himself or any other person, but this is not the case in hand. In order to draw a complete requirement of intent in cases of misuse of authority, the NAB is under obligation to bring such incriminating material, which is connected with mens rea, which is not made out in this case. It is also settled law that the offence of corruption and corrupt practices within meaning of Section 19(a)(vi) of the NAO, 1999 is not an offence of strict liability, therefore, the use of authority without object of illegal gain or pecuniary benefit of undue favour to person with ulterior motive, may not be a deliberate act to constitute an offence. The mens rea of offence under Section 9(a)(vi) of the NAO, 1999 forms two elements i.e. (1) conscious misuse of authority and illegal gain or (2) undue benefit, as such, in absence of any of these basic components of crime, misuse of authority is not culpable as held in 2008 SCMR 1118 (The State v. Muhammad Idrees Ghauri). We are also guided by another judgment of the apex Court, reported as PLD 2008 SC 166 (Mansur-ul-Haq v. Government of Pakistan), wherein it has been held that mere procedural irregularity in transaction would not be sufficient to constitute an offence under Section 9(a)(vi) of the NAO, 1999, This is essential to draw distinction between procedural irregularity and violation of substantial provision of law to determine the question of criminal liability in transaction. The procedural irregularity may bring an act done in official capacity within the ambit of misconduct, which is distinguishable from criminal misconduct or an act which may constitute an offence. Similarly, it has also been settled that where any person of authority acts in disregard of law, with conscious knowledge that his act is without authority of law, where there is conscious misuse of authority for illegal gain or undue benefit is proceedable under the NAO, 1999 as held in PLD 2016 SC 276 (The State v. Anwar Saifullah Khan).

23. While appreciating the legal position after the promulgation of National Accountability (Second Amendment) Ordinance, 2019, the National Accountability (Third Amendment) Ordinance, 2019 has also been promulgated, in which it has been settled that, "an advice, report or opinion rendered or given by public office holder or any other person in course of duty, unless there is sufficient evidence to show that holder of public office or any other person received or gained any monetary or other material benefit, from that advice, report or opinion, whether directly or indirectly, which the said recipient was otherwise not entitled to, receive". However, if such ingredients were missing the accused person could not be charged.

24. Now adverting to the decision of the learned Trial Court impugned in this writ petition, is considered to be relevant for our discussion, the relevant extract is as under: It is note worthy that procedural irregularities and violation of substantial provision of law are distinct in determining criminal liabilities in transactions. Procedural irregularities might being an act done in official capacity within the ambit of misconduct which is distinguished from criminal misconduct. According to explanation added in 9(a),(vi) of NAO, 1999, it is required that there must be corroborative evidence of accumulation of any monetary benefit of assets which is disproportionate to his known sources of income or which cannot be reasonably accounted for. There is no such allegation in this case. However, other sections of law are also cited in the reference. Seven pharmaceutical companies have entered into Plea Bargain and returned illegal gain amounting to Rs.979.66 million which they have obtained through wrong increase of prices of their products medicines by the 5th and 6th DPC Meetings, the accused/petitioner was Chairman Drug Pricing Committee (DPC). Statements of PWs under section 161 Cr.P.C. have been recorded. Obaid Ali, Federal Inspector of Drugs, DRAP, recorded his statement, he has inter-alia categorically stated that the member of Pricing Dr. Muhammad Ali Chairman of Sub-Committee gave him minutes of the meeting and asked him to put the same on note sheet but he/PW refused to do so, as the prices of certain companies were being increased without any justification.

25. While going through the above operative part of the impugned order, it is apparent that the learned Trial Court is convinced that there is no allegation of accumulation of any monetary benefit or asset which is disproportionate to his known sources of income or which cannot be reasonably accounted for, in such scenario, we are of the firm view that the opinion given by accused in DPC meeting qua fixation of any price of drugs on the basis of record, which is a simple case of misreading, non-reading, irregularity or official misconduct on departmental side without any criminal misconduct, though the same has not yet been proved through any subsequent DRAP meeting being the competent authority to declare that previous act of approving the increase in prices of drugs is based upon illegal costing data or based upon fake documents. It is also important to note to that not a single person filed a complaint in this regard, although the Policy Board is available to look into these factors, or for that matter the Appellate Board comprising of experts is also available, but no such fact findings has been managed or taken place in any manner. In such scenario, the increase in prices of drugs might based on incorrect data, which was not detectable by the petitioner at relevant time when the same was considered in the meeting, is not an unlawful act to criminalize the members of DPC or DRAP in any manner.

26. We are also mindful of the fact that special law prevails in overlapping jurisdiction and if both laws, which are applicable, contain a non obstante clause or overriding provision, the issue should have been resolved in favour of statute later in time as held in 2017 SCMR 1218 (Syed Mushahid Shah v. Federal Investigation Agency). No doubt, the DRAP Act, 2012 has overriding effect upon NAO, 1999, though both the special laws have different jurisdictions to settle their technical aspects, but it is undeniable that the DRAP has ultimate authority to fix or re-fix, the price of any drug or it may decrease or increase the same, which is not in the purview of NAO, 1999, therefore, the latter Act having overriding effect has to be applied, which is DRAP Act, 2012 in this case. It is also settled law that in case of conflict between two special laws, the conflict has to be resolved by reference to the purpose and policy underlining the two enactments and clear intendment conveyed by the language of relevant provision therein, as held in (1990) 4 SCC 406 (Ashok Marketing etc, v. Punjab National Bank). Similar view has also been taken in 2004 SCMR 1397 (I.G. HQ Frontier Corps, etc. v. Ghulam Hussain, etc.).

27. Now adverting to the requirement of Section 265-K Cr.P.C. whereby an application was filed by the petitioner as there was no probability of conviction in terms of National Accountability Second Amendment) Ordinance, 2019, the plain reading of said provision and explanation establishes that the very intent in the said Ordinance is clear to accommodate all those public servants having been charged by NAB authorities or any other agency for their official working of business qua their alleged misconduct, if they have not gained or received anything in performance of their official duties, in which they have been charged for prosecution, they have been excluded from the criminal prosecution, though the misconduct might be chargeable on departmental side. In such scenario, the concept of Section 265-K Cr.P.C. has to be considered in the light of principle settled in 1998 SCMR 1840 (Zahoor ud Din v. Khushi Muhammad), PLD 2009 SC 102 (Ajmeel Khan v. Abdur Rahim) and PLD 2004 SC 364 (Rasool Khan v. Haji Banaras Khan), where the Court considered the charge to be groundless, irrespective of the fact that whether the charge has or has not been framed, but the primary ingredient "groundless" means that all the evidence, if produced, will not be concluded in favour of the prosecution, even the said provision can be applied before framing of charge as the phrase, "at any stage" has been used, which is indicative enough of the intention that the stage could be the very initial stage or the stage after taking cognizance or it could be middle stage after recording of proceedings, or even at later stage as well, as held in 1993 SCMR 523 (The State v. Ashiq Ali Bhutto) and PLD 1997 SC 275 (Muhammad Khalid Mukhtar v. The State).

28. The analysis of entire discussion persuaded this Court to believe that DRAP Act, 2012, if read with Drugs Act, 1976, the sole authority for registration, licensing, pricing, import, export of any drugs or its cancellation, increase or decrease, fall within the sole authority of DRAP, which was further endorsed and fixed by the Federal Government, who can change or disagree with such pricing mechanism or other regulatory regimes, but in these cases the pharmaceutical companies allegedly earned some benefits, have entered into plea bargain or VR and returned huge sums of money, which could not be considered a charge against the petitioner, who was the then Chairman of DPC in the 5th and 6th DPC meeting, though he was not all alone to settle the technical questions on the basis of record, data or other documents having fake or maneuvered record or managed by those companies as alleged by the NAB. Both the laws i.e. Drugs Act, 1976 and DRAP Act, 2012 provide the concept of Appellate Board, the redressal of grievance of any party or any individual who is aggrieved with anything fall within the regulatory regime of DRAP, even the offences have specifically been provided in those laws, but the same have not been applied in this case, as such, the entire case seems to be an exercise to receive the amount from the pharmaceutical companies not on the basis of any justiciable reason, even it is specifically provided in Drugs Act, 1976 that any incorrect or misleading information is punishable and cognizance should have been taken by the Drugs Court. Similarly, the indemnity provided in these special laws in terms of Section 38 of Drugs Act, 1976 and Section 34 of the DRAP Act, 2012, has also not been taken care of by the NAB authorities or for that matter the Federal Government and the pricing mechanism has been criminalized without any basis.

29. In view of above reasons, we are convinced that there is not an iota of evidence to prosecute the petitioner in any manner, who had performed his duties, though certain irregularities have been pointed out, but the same are not within the purview of criminal misconduct as required under Section 9(a)(iv)(vi)(ix) and (xii) of the NAO, 1999, especially when explanation comes into play through the National Accountability (Second Amendment) Ordinance, 2019, as such, the instant reference is not proceedable and petitioner earns his acquittal, therefore, the instant writ petition is hereby ALLOWED and the petitioner is ACQUITTED of the charges, per se, any other proceedings in the NAB are considered to be abuse of process of law. MH/71/Isl. Bail allowed. * Received in 2025