2011 P Cr (PLP)

MUZAFFAR ALI, J.

This Writ Petition assails the investigation/inquiry and arrest of the petitioner by the National Accountability Bureau (herein after called as NAB). The Summary of the facts gave rise to the writ petition is as under that. The NAB moved against the petitioners on the basis of a written complaint made by the "Head Office Industrial Development Bank of Pak Karachi" (herein after called as respondent Bank) vide letter No.IDBP/RACD/GF-167/3014 dated 4th January, 2003, addressed to the "Director Federal Investigation Agency Economic Crime Wing Islamabad". The gist of the letter is as such that, Mr. Kalb-e-Ali, petitioner No.1 obtained up to Rs. 5.702 Million of loan from the Gilgit Branch of the respondent Bank without providing proper securities. The Branch Manager petitioner No.2 allowed the said financial facility without proper sanction from the competent authority as such the petitioner No. 1 has committed fraud, causing loss and damages to the Bank in connivance with respondent No.2, as such are liable to be taken criminal action by the FIA and prayed for registration of the case against the petitioners. The record of the case is silent on the point that how the NAB probed into the case, either the case was referred to the NAB by the FIA or the NAB took cognizance of the case under Sections 18(iii) of the National Accountability Ordinance, 1999 (herein after referred as the Ordinance) however, the NAB moved to inquire the case against the petitioners initially and after founding the petitioners prima facie involved in commission of scheduled offence of misuse of authority and corrupt practice punishable under the Ordinance. Mr. Pervaiz Asghar HI(M) Rear Admiral Director General NAB (Rawalpindi) authorized one Mr. Tariq Hamid Butt, Deputy Director/SIO NAB, Rawalpindi and Mr. Irfan Aziz Burni Sub-Inspector/I.O. NAB Rawalpindi to commence an inquiry against the Petitioners on 24 August 2007 for the Ist time vide authorization letter No. 06/2003/FIA/T.B/A.H/W-1 NAB/Rawp/2007 and again, Mr. Aqil Khan as L.O. on 7th December, 2007 vide authorization Ietter'No. 811/NAB/Sub Office-Gilgit/2007 by the said Mr. Pervaiz Asghar Director General NAB R.Pindi, afterward Mr. Shafqat Mehmood Deputy Director, FCIW NAB Rawalpindi and Fayaz Hussain Abbasi 10/AD, FCIW NAB Rawalpindi were authorized to continue formal inquiry and to submit final report by 23rd July, 2009 vide letter No. 06/2003/FIA/T-8/A-II/IW-1/NAB/Rwp/2007. Finally Mr. Fayaz Hussain Abbasi is authorized to investigate the case and to submit the final report by 16th March. 2010, vide letter No. 9(20)/FCIW/NAB 0/2007 3056 dated 17th November, 2009 issued by the Director General NAB R.Pindi. The petitioners were arrested by the NAB with the assistance of local Police on 21-7-2010 and got transit remand from the Accountability Court Gilgit to take the petitioners to Rawalpindi. The transit remand was challenged before this Court by the petitioners and on 22nd July, 2010 my learned brother Mr. Justice Sahib Khan as vacation Judge suspended the transit remand and as such the petitioners are in Gilgit Jail under interim judicial remand issued by the Accountability Court, hence this writ petition along with petitions No. Cr. Rev. No.11/2010, before this Court. We heard the learned Counsel for the petitioners and the learned Special Prosecutor NAB assisted by Mr. Fayaz Hussain Abbisi I.O. NAB. The learned Counsel for the petitioners assailed the investigation/inquiry and the arrest of the petitioners on the points that: (a) the investigation and the arrest of the petitioners are in violation of sections 18 and 24 of the Ordinance as such all the proceedings and arrest of the petitioners are without lawful authority (b) that, the case against the petitioners is purely of default in payment of loan obtained and the Bank has filed the Suit No. 1 of 2003 under Order XXXVII, Rule 2, C.P.C, which is sub judice before this Court as such the matter is purely of civil nature and Criminal charge against the petitioners is in violation of the legal philosophy of this Ordinance (c) that, the petitioner No. 2 had challenged his dismissal order before Federal Service Tribunal Islamabad and has succeeded in the case and he has been reinstated in his services and at present he is serving as Branch Manager of the Bank as such he cannot be subjected to double jeopardy for the same offence (d) that, the loan which is subject matter of the case was obtained by the District Council Gilgit as an institution and the petitioner No.1 had applied for the loan as Chairman of the District Council Gilgit after the house had passed a resolution in this regard as such the petitioners Nos.l and 3 cannot be charged personally in this case. In response, the learned prosecutor NAB rebutted the above points and forcefully assailed the maintainability of the writ petition on the point of jurisdiction of this Court with the plea that, the Ordinance being special in nature has ousted the jurisdiction of this Court to entertain the petition. Since this point relates to the ouster of writ jurisdiction of this Court, which has been provided by the Gilgit-Baltistan (Empowerment and self Governance) Order, 2009, having constitutional status for Gilgit-Baltistan as has been held by the august Supreme Appellate Court Gilgit-Baltistan in its celebrated judgment in case No. S.M.C. No.16/2009 titled (Up-gradation of Judicial Officers) dated 16-11-2009. The Order also recognizes the fundamental rights of people of Gilgit-Baltistan in its chapter/Part-II, as such the Counsel for the petitioners are asked by this Court to meet this point Ist. The Counsel for the petitioners urged that this Court has writ jurisdiction even in NAB cases and relied upon the following case laws:-- (1) PLD 2001 Page 624:- wherein, while discussing the powers of superior Courts, the august Supreme Court has hold as reproduced below: .Ss.9(c) & 24(d)... Constitution of Pakistan (1973), Arts. 175202,203 & 184(3).... The superior Courts under Article 199 of the Constitution "remain available to their full extent.... Notwithstanding anything contained in any legislative instrument enacted by the Chief Executive". Whereas, section 9(b) of the National Accountability Bureau Ordinance, 1999 purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 291, 497, 498 and 561-A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the National Accountability Bureau Ordinance. The superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code. Section 9(b) of the Ordinance to that extent is ultra vire the Constitution. Accordingly, the same be amended suitably. (2) SCMR 2005 Page 1291: In the case, the august Supreme Court has hold as under:-- ....Art, 199.... National Accountability Ordinance (XVIII of 1999), S.9(b)...Constitutional jurisdiction of High Court under Art. 199 of the Constitution... Scope... Bail, grant of... High Court can always grant bail in appropriate cases in exercise of its jurisdiction under Art. 199 of the Constitution to any person accused of an offence under the National Accountability Ordinance, 1999, notwithstanding the bar contained in S. 9(b) of the said Ordinance. (3) PLD 2002 SCMR Page-410: The august Supreme Court is reproduced as under:-- ...Ss. 12, 13, 18 & 32.... Criminal procedure, Code (V of 1898), S. 439

Constitution of Pakistan (1973), Art. 199... Treating appeal or Criminal revision as Constitutional petition ...Jurisdiction of High Court...Properties standing in appellants names were included in the charge framed against accused and were freezed...Appellants claiming to be real owners thereof filed appeals against such judgment, which were entertained by High Court as criminal revisions... Validity... Where such appeals or revisions were not maintainable, High Court, in exercise of its jurisdiction, was competent to treat such appeals as Constitutional petitions under Art.199 of the Constitution. (4) PLD 2000 Lah. Page-508: The view point of learned High Court is reproduced as under: -- .... Preamble...Constitution of Pakistan (1973), Art.199

Constitutional petition.... Maintainability.... High Court has jurisdiction to issue writ against National Accountability Bureau and its functionaries and declare its acts/actions without lawful authority if such acts/actions/arrest are found to be without jurisdiction... Principles. The learned Special Prosecutor neither fortified his version by referring any case law nor any specific provision in the Ordinance is available which purports ouster of writ jurisdiction of High Court, however he tried his best to substantiate his contention by quoting sections 9(b) and 32(r & d) and urged to draw a legal inference from the above sections that, since the Ordinance has ousted jurisdiction of the Courts to grant bail and revisional jurisdiction of the Courts has also been ousted to exercise against the interim Orders in NAB cases as such writ jurisdiction can also not be exercised. The version of the learned Special Prosecutor NAB has devoid of substance for the reasons that, indeed, by introducing the above Sections in the Ordinance, futile efforts were made to curtail the powers of Courts including High Courts to exercise their powers vested with them under Criminal Law i.e. Pak Criminal Procedure Code, but the, august Supreme Court of Pakistan has discarded even the above impediments imposed upon the Higher Judiciary vide the supra cited cases on the principle that, no law either special or general, if passed, can stand on the way to curtail or oust the powers of the Higher Judiciary conferred upon, either by Constitution or by other laws. This Court also having powers of High Court and vests with the powers of writ jurisdiction conferred upon it by (Empowerment and self-Governance) Order 2009, (having status of Constitution for Gilgit-Baltistan) hence the writ petition is maintainable. We, after being satisfied on the point of jurisdiction, stepped into the merits of the case, on the bases of points raised by the Counsel for the petitioners, but during course of discussion, we become conscious of the mandatory procedural precondition which has been introduced in the Ordinance, that is, reference by the Governor State Bank of Pak under section 31(d) of the Ordinance and is self explanatory. The same is reproduced as under:- 3[31-D. Inquiry, investigation or proceedings in respect of imprudent bank loans, etc. "Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from the Governor, State Bank Pakistan." The Ordinance being special law has introduced special procedure to initiate investigation, inquiry, arrest and taking cognizance of the Offences under the Ordinance by the Accountability Court. Section 18 of the Ordinance empowers Chairman NAB or his duly authorized Officer for the above purposes in all Offences under the Ordinance and this section has exhaustively been discussed by this Court in the case Title: Doulat All and another v. State and another (2010 PCr.LJ Page 1311) The above reproduced section and section 31(c) have been incorporated in the Ordinance to differentiate the Offences under the Ordinance, relating to financial institution within the domain of State Bank of Pakistan and section 31(d) gives mandate to the Governor State Bank of Pakistan to file reference in respect of "imprudent loans", "defaulted loans" or "rescheduled loans" obtained from any financial institution and the NAB has been ousted from initiating or conducting inquiry, investigation or proceedings in the cases coming within the ambit of the section, notwithstanding the procedure provided by section 18 has beef' fallowed properly, unless the Governor State Bank makes the reference in this regard. The case in hand admittedly relates to Bank loan either "imprudent" if looked into as perversion made in the complaint, submitted by respondent Bank or it is a case of "wilful default", if looked into in the light of version taken in the plaint by the respondent Bank in the Suit No. 1 of 2003. So we left the other points on merits raised by the learned Counsel for the petitioners undetermined and asked the learned Special Prosecutor to show from the record of the case, the reference made by the Governor State Bank on the foundation of which, the NAB initiated and conducted the investigation/inquiry against the petitioners, as in our opinion this is the core issue to be determined 1st. The learned Special Prosecutor frankly conceded the fact that, the reference has not been made by the Governor State Bank, but he tried to fabricate the case with the contention that the inquiry/investigation against the petitioners was initiated on written complaint made by the respondent Bank and after a probe into the case, the NAB found the petitioners involved in fraud in getting and granting the loan from the respondent Bank and since the case against the petitioners is purely of committing fraud as such it does not come within the ambit of section 31-D of the Ordinance and reference from the Governor State Bank of Pakistan is not prerequisite in the case. The above contention of the learned Special Prosecutor is not tenable for the reasons that, (a). Section 31(d) of the Ordinance debars the NAB from very initiation of inquiry/investigation of the Offences relating to financial institutions unless the Governor State Bank makes a reference in this regard, hence the very interference of the NAB to initiate the case in hand is without legal authority and in violation of mandatory provision of Ordinance, which is creator of the bureau (b) that we looked the written complaint, wherein, the respondent Bank has stated that: "We wish to report the following act of fraud and embezzlement committed by Mr. Kalb-e-Ali of District Counsel Gilgit, Khomar, Gilgit. He availed financial facility from our Gilgit Branch of the Bank upto Rs. 3.000 million on 20-12-2001 without providing proper security. The Manager allowed the said financial facility without obtaining proper sanction from the competent authority." The above version of the respondent Bank itself reveals that the case in hand is of "imprudent loan". Since the term "imprudent loan" has not been defined in the Ordinance as such we quote the meanings given to the term in Black's Law Dictionary wherein the word "prudent" and term "prudent investor Rule" has been given meanings and the term "imprudent" is opp to the word prudent:-- Prudent, Circumspect or judicious in one's dealings; cautious

prudence Prudent-investor rule. Trusts. The principle that a fiduciary must invest in only those securities or portfolios of securities that a reasonable person would buy. The origin of the prudent-investor rule is Harvard College v. Amory, 26 Mass. 446 (1830). This case stressed two points for a trustee to consider when making investments: probable income and probable safety. The trustee must consider both when making investments. Originally termed the prudent-man rule, the Restatement (Third) of trusts changed the term to prudent-investor rule

Also termed prudent- person rule. [Cases: Trusts-2173(5). C.J.S. trover and Conversion 496] The above cited meanings coincide with the version in the complaint as such the case is of "imprudent loan" and we have no option but to declare the very initiation of inquiry/investigation and all proceedings including the arrest of the petitioners to be in violation and in derogation of mandatory provision 31(d) of the Ordinance and hold the arrest of the petitioners without lawful authority and nullity. We are supported to hold this view by the under cited case law (1) PCr.LJ 2010 1 Page 1311 (G.B.C.C.) (2). PLD 2005 Lah. Page 692 (3). PLD 2001 Kar. Page 419. (4). PLD 2001 SC Page 607. (5). PLD 2001 Kar. Page-311, therefore, we ordered through our short note dated 9-8-2010 to release the petitioners forthwith from the judicial custody leaving aside the points raised by the learned counsel for the petitioners undermined. The other petitions are also disposed of accordingly. File. H.B.T./1/Glt. Order accordingly.