P L D 2004 Lahore 182 (PLP)

TASSADUQ HUSSAIN JILANI, J.‑‑‑--This judgment shall dispose of Writ Petition No. 14103 of 2003 (Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab, Lahore and others), Writ Petition No. 15685 of 2003, (Muhammad Iqbal Farrukh v. Judge Special Court (Offences in Banks),, Punjab, Lahore and others) and Writ Petition No. 16077 of 2003 (Syed Muhammad Muntasam Rahat Ali v. The Chairman, National Accountability Bureau and others) as common questions of law and facts have been raised.

2. Facts giving rise to the afore‑referred writ petitions are that the accused/petitioners were proceeded against in a case registered vide F. I. R. No.27 of 1999 dated 6‑4‑1999 under sections 409/420/467/468/466/ 471/477‑A/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, Police Station F.I.A. (C.B.C.), Lahore, in which it was alleged that the accused/petitioners, who are officials of the National Bank of Pakistan, Civil Lines Branch, Gujranwala manipulated the record of the Foreign Exchange Section of the said Branch and embezzled an amount of over eighteen million. The fraud and forgery were detected when an official of the Bank reported the matter to the Head Office of the Bank after a dispute had arisen between the accused on sharing of the embezzled amount. It was alleged that the accused/petitioners withdrew. U.S. Dollars from the relevant accounts against deposit of Pakistani rupees; U.S. Dollars were sold in the open market and the differential amount collected owing to the variation in the official rate and kerb rate was pocketed by them which amounted to more than eighteen million rupees. In yet another criminal transaction, a sum of U.S. Dollars 29,90,000 was misappropriated. It was alleged that during inquiry they confessed the guilt, undertook to return the afore‑referred embezzled amount, partially deposited a sum of U.S. Dollars 31,56,253 but resiled and did not deposit the semaining amount. After initial inquiry, the F.I.A. registered the afore‑referred case and a final report was submitted before the Judge Special Court (Offences in Banks), Punjab, Lahore against the accused/petitioners. The Chairman, NAB made a Reference under section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 for transfer of the case to the Accountability Court. The learned Judge Special Court (Offences in Banks), Punjab, Lahore sent the case to the Accountability Court forthwith. The legality of the Reference and vires of section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 have been challenged through the afore‑referred petitions.

3. Syed Zahid Hussain Bokhari, Advocate for petitioner in Writ Petition No. 14103 of 2003 (Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab, Lahore etc.) submitted as under:‑‑ (i) That section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 is arbitrary and has given unbridled power to the Chairman, National, Accountability Bureau which is violative of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 and offends against the independence of judiciary; (ii) that notwithstanding the judgment of the august Supreme Court of Pakistan in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division; Islamabad and others (PLD 2001 Supreme Court 607), section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 has not been suitably amended. The provision, as it exists today, is not in accord with the law laid down in the afore‑referred judgment; (iii) that no parameters or guidelines have been spelt out in section 16‑A(a) of National Accountability Bureau Ordinance, 1999 and the Chairman, National Accountability Bureau has been given power to transfer any case whether it attracts the mischief clause of National Accountability Bureau Ordinance, 1999 or not; (iv) that the reasons given by the Chairman, National Accountability Bureau in the impugned reference sent to the Judge Special Court (Offences in Banks), Punjab, Lahore do not warrant transfer of the case to the Accountability Court; (v) that a bare reading of the final report submitted under section 173, Cr.P.C. would indicate that no offence whatsoever had been committed and that the petitioner, being a Bank Official, cannot be held guilty for forgery of the Bank record.

4. Learned counsel for the petitioner in Writ Petition No. 15685 of 2003 (Muhammad Iqbal Farrukh v. Judge Special Court (Offences in Banks) Punjab Lahore etc.) Mr.Talib H. Rizvi, Advocate assisted by Mr. Taffazzul H. Rizvi, Advocate, contended as under:‑‑ That the National Accountability Bureau Ordinance, 1999 is confined to certain offences and the Chairman, National Accountability Bureau can exercise powers granted under section 16‑A(a) of the said Ordinance only with reference to those offences and not otherwise. The object of Special Law is to try cases of corruption, corrupt practices, misuse and abuse of power, misappropriation of property, kicks backs received by holders of public offices, recovery of outstanding of amounts of Banks and recovery of State money. The offences alleged as per the final reports submitted under section 173, Cr.P.C. do not cover any of the afore‑referred offences and, therefore, the case could not have been transferred to the Accountability Court; (i) that the power granted under section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 is not absolute and this Court (ii) that this court has power of Judicial Review to strike down an order passed by the Chairman, National Accountability Bureau or Reference sent by him to an ordinary Court for transfer of case to the Accountability Court if it is of the view that the offences alleged do not bring the case within the ambit of the mischief clause of National Accountability Bureau Ordinance, 1999. In support of the submissions made, learned counsel relied on Read v. Smith (1959 NZLR 996) reference of which has been given in Principles of Judicial Review by DE SMITH, WOOLF and JOWELL'S; (iii) that the case made by the Chairman, National Accountability Bureau and the order of the Judge Special Court (Offences in Banks), Punjab, Lahore transferring the case to the Accountability Court is beyond the object for which the National Accountability Bureau Ordinance, 1999 was legislated and is likely to be struck down by this Court. 4‑A. Mr. Waqar Hussain Mir, Deputy Prosecutor‑General, NAB, submitted as under:‑‑ (i) That the Reference made by the Chairman, National Accountability Bureau, on the basis of which the Judge Special Court (Offences in Banks), Punjab, Lahore transferred the case to the Accountability Court, was validly made and is in consonance with section 16‑A(a) of the National Accountability Bureau Ordinance, 1999; (ii) that the prerequisites for a Reference under section 16‑A(a) of the Ordinance are, firstly, that the offence alleged should be an offence under the Ordinance, secondly, that the case should be pending before a Court; and, thirdly, that if the afore‑referred requirements are met, the Chairman, National Accountability Bureau has exclusive power to transfer the case and no exception can be taken to it; (iii) that the facts, as alleged in the case registered and in the final report submitted under section 173, Cr.P.C. do make out a case under the National Accountability Bureau Ordinance, 1999 if section 9(a)(iii) and Item 3 of the Schedule to the said Ordinance are kept in view; (iv) that section 16‑A(a) of the National Accountability Bureau Ordinance, 1999 is self‑executor provision and the moment the reference from the Chairman, National Accountability Bureau Ordinance is received by the Judge Special Court (Offences in Banks) it‑ had no option but to transfer the case. On a Court query, he submitted that the power to transfer a case from one Court to the other under the NAB Ordinance is an executive power, the same can be exercised by the Chairman; National Accountability Bureau keeping in view the gravity of the offence reflected in terms of its effect on the social fabric and this Court does not have power to Judicial Review against the order so passed by the Chairman, National Accountability Bureau under the impugned provision.

5. Mr. Makhdoom Ali Khan, learned Attorney‑General for Pakistan, who was called to assist the Court, defending the impugned Reference and the order passed by the Judge Special Court (Offences in Banks), Punjab, Lahore, submitted as under:‑‑ (i) That the questions raised in this petition are disputed questions of fact entailing factual inquiry which exercise cannot be undertaken in the Constitutional jurisdiction of this Court; (ii) that this Court has power of Judicial Review and can examine the legality of the order passed by the Chairman, .National Accountability Bureau under NAB Ordinance. He therefore, did not agree with the learned Deputy Prosecutor‑General, NAB that this Court has no power of Judicial Review. Elaborating his submission, he added that the ouster of jurisdiction cannot be pleaded in the instant cases because, firstly; there is no ouster clause in the said provision, secondly, even if there 'is an ouster clause in a sub‑Constitutional legislation it would' not oust the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and, thirdly, even if there was an ouster clause, the superior Courts can determine the scope of the said clause. In case where orders are mala fide, coram, non judice or without jurisdiction; this. Court has jurisdiction to interfere in view of law laid down in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and, others (PLD 2000 SC 869, at page 1127). He, however, submitted that while exercising the power of Judicial Review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Courts cannot sit as Courts of appeal and when the reasons for an order have been given, the Court have to see whether those have nexus with the statute under which order has been passed. Even if the reasons are not exhaustive that by itself would not constitute a ground. for interference when it is shown that the reasons given have nexus with the object of the statute. In this particular case he argued that the Reference sent by the Chairman, National Accountability Bureau indicates that it was a serious case of embezzlement, millions of rupees were misappropriated through tampering with Bank record, despite the gravity of the offence the trial of the case had been delayed, the money misappropriated had not been returned and there was possibility of its recovery if the case was sent to the Accountability Court. Thus reasons given in the Reference have nexus with the statute and, therefore, no exception can be taken to it; (iii) that if the challenge is to the constitutionality of a statute, the basic presumption in law is in favour of the constitutionality of .a statute; that the Constitution of Islamic Republic of Pakistan, 1973 is based on the concept of trichotomy of powers and when the law maker, in exercise of the power, has legislated a provision, this Court may not tread in the exclusive domain of Legislature by striking down the said provision unless it is violative of any Constitutional provision. In support of the submissions, learned Attorney‑General relied on Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782, Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another (2000 SCMR 1956) and Pakistan Muslim League(Q) and others v. Chief Executive of Islamic Republic of Pakistan and others (PLD 2002 SC 994). (iv) that subsections (A&B) to section 16 of the National Accountability Bureau Ordinance, 1999 were suitably amended after observation of the august Supreme Court in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607) whereafter section 16C was added and no exception can be taken to it; (v) that question of conferment of power to the Chairman, National Accountability Bureau under section 16‑A of the National Accountability Bureau Ordinance, 1999 and the question of exercise of the said power, in this particular case, are too distinct questions. Both, the conferment of power by the law maker and the exercise of the power by the incumbent of the office of the Chairman, National Accountability Bureau, are unexceptionable and do not call for interference in the Constitutional jurisdiction of this Court.

6. We have heard learned counsel for the parties and have given anxious consideration to the submissions made.

7. Both these petitions arise out of the case registered vide F.I.R. No.27/99, dated 6‑4‑1999 under sections 409/420/467/468/466/471/477‑A/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947; Police Station F.I.A. (C.B.C.), Lahore. The petitioner alongwith officials, of the National Bank of Pakistan, Civil Lines Branch, Gujranwala, were accused of having manipulated the record of the Foreign Exchange Section of the said branch and thereafter embezzled an amount of over rupees eighteen million. It was alleged that the petitioner and other accused withdrew US Dollars from the relevant accounts against deposit of Pakistani rupees; US Dollars were sold in the open market and differential amount collected owing to the variation in the official rate and kerb rate was pocketed by them. The matter was initially investigated by F.I.A. and challan was filed. The case was pending trial before the learned Judge Special Court (Offences in Banks), Punjab, Lahore when on a letter from the Chairman, NAB it was sent to the National Accountability Court established under the National Accountability Ordinance, 1999. The afore‑referred allegations, if found true, did make out a case under section 9(a) of the NAB Ordinance which, inter alia, provides 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 ‑‑‑ (i) ... ... ... ... .. ... ... (ii) ... ... ... ... ... .. ... (iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do, or (iv) if he by corrupt; dishonest or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable things or pecuniary advantage, or"

8. The reference in the face of the afore‑referred allegations could have been validly filed in the Accountability Court directly and no exception could have been taken to it. The order of transfer has been impugned fundamentally on the grounds that, firstly, at a stage when the learned Judge Special Court (Offences in Banks), Punjab, Lahore had commenced the trial, Chairman, National Accountability Bureau could not have transferred the case, to the Accountability Court and, secondly, the powers confer under section 16‑A of the National Accountability Ordinance, 1999 are arbitrary and, thirdly, section 16‑A(a) is inconsistent with section 16‑A(b). These provisions are as under:‑‑ "16‑A(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of law or Tribunal that any case involving [any] offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said Court to any Court established under this Ordinance and it shall be deemed to be a reference under section 18 of the Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded. (b) In respect of any case pending before a Court if Prosecutor‑General Accountability or any Special Prosecutor authorized 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.

9. The Chairman of the National Accountability Bureau under the law enjoys a special status and powers. The appointment is made under section 6 by the President. Under section 12 he has the power to seize the property of any person accused of an offence under NAB Ordinance, subject of course, to the confirmation by the Court Under section 16‑A of the Ordinance he has the power to transfer a case from any Tribunal or Court to a Court established under the NAB Ordinance. Under section 18 he has the power to initiate reference against a person. Under section 19 he can call for any information from any office or person or a Banking Institution. Under section 22 he has the power to `inquire into' and investigate any suspected offence which appears to him, on reasonable grounds, to involve serious offence under this Ordinance and has been referred to him or of his own accord. Under section 24 he has the power to direct arrest of any person accused of an offence under the NAB Ordinance. Under section 25 he has been authorised to accept bargain of the accused before the case is sent up to Court. Under section 26 he can tender a full or conditional pardon to a person who discloses the circumstances within his knowledge relating to the offence in question. Under section 27 he has the power to requisition documents and information in connection with any matter pending before the NAB. Under section 28 he has the power to make certain appointments in the NAB hierarchy.

10. Examined in the backdrop of the powers granted to Chairman under the NAB Ordinance the extent of his power under section 16‑A of the NAB Ordinance did not appear to be anomalous. Subsections (a) & (b) of section 16‑A of the National Accountability Bureau Ordinance, 1999 have already been reproduced above.

11. The law has created a special procedure for investigation and conduct for trial of offences under the Ordinance. The power of the Chairman, National Accountability Bureau to have a. case transferred from an ordinary Court to the special Court, provided it is an offence under the National Accountability Ordinance, 1999, is only an enabling provision to give effect to the other substantive provisions of the Ordinance referred to in preceding paragraphs. The Criminal Procedure Code itself creates an exception for offences under the special law. Section 5 reads as under:‑‑ "

5. Trial of offences under Penal Code.‑‑‑(1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) Trial of offences against other laws.‑‑All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences."

12. The accused has no vested right to be tried by a particular Court. If a bare reading of the allegations levelled, prima facie, make out a case to be tried by a Special Court to which it is sought to be transferred, then no exception can be taken to it. Any other interpretation would lead to an anomalous situation and result in parallel proceedings.

13. The learned Attorney‑General for Pakistan has taken a correct and fair stand in saying that the order of the Chairman, NAB, passed under the National Accountability Bureau Ordinance, 1999 is subject to judicial review if it is violative of any provision of NAB Ordinance or the Constitution but an accused cannot be given the right to challenge such an order as of right merely on the ground that he does not want to be tried by the Accountability Court. The apprehension of petitioner's learned counsel that the arbitrary exercise of power by the Chairman, National Accountability Bureau, in transferring a pending case, is violative of independency of Judiciary and that this power may one day be exercised to transfer a case from the High Court to a Court established under the National Accountability Bureau Ordinance, 1999 is over‑simplification and incorrect Firstly, because the Chairman has to pass an order only if an offence, under the Ordinance, is made out; and if it is not, then this Court retains its power to interfere under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Secondly, the expression "the Chairman may apply to any Court of law or Tribunal" appearing in section 16‑A does not include the Constitutional Courts including the High Court. Thirdly, section 16‑A would apply only in cases where both the Courts i.e. the Court where it is pending and the Court to which it is sought to be transferred, are in the same Province. If two Provinces are involved then section 16‑A(b) would come into play.

14. The prayer for declaring section 16‑A of the National Accountability Bureau Ordinance, 1999 as ultra vires of the Constitution is not tenable because nothing has been shown to indicate that this is hit by any fundamental rights provision of the Constitution. The Constitution of Islamic Republic of Pakistan, 1973 is based on the principle of trichotomy of powers i.e. Legislature legislates, the executive administers and the judiciary interprets the law. While interpreting particular provision of law or Constitution, a Constitutional Court has to be watchful not to interpret it in a manner, which would make the provision redundant or meaningless. It cannot question legislative wisdom either as long as the said provision is neither discriminatory nor, offends against any other Article, of the Constitution.

15. The vires of the various provisions of the National Accountability Bureau Ordinance, 1999 came up for consideration before the august Supreme Court in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607). Section 16‑A also came under challenge. The Hon'ble Court, at page 923, while declaring it ultra vires, held as under:‑‑ "

238. Section 16‑A(b) (i) and (ii) of the NAB Ordinance purports to achieve the above objective by empowering Chairman, NAB to direct the Prosecutor‑General Accountability to apply for transfer of a case from any such Court in one Province to a Court in another Province or from one Court to a Court in another Province or from one Court in a Province to another Court in the same Province. The above section, however, does not meet the ends of justice, in that, the Chairman, NAB has been given the choice to make a move before the appropriate. Chief Justice through the Prosecutor- General, but such right is not available to the accused.

239. The above provision, insofar as it denies access to an accused person for the redress of his grievance in the matter of transfer of a case from one Court to another, is ultra vires Article 4 of the Constitution, which envisages the right of access to justice to all, which is equally founded in the doctrine of due process of law'." The august Supreme Court, in para. 242 of the above judgment, at page 925, directed as under:.‑‑ "

242. Resultantly, in the matter of transfer of cases from one Court to another, either within a Province or from one Province to another, as contemplated under section 16‑A, the prosecutor and the accused must be placed on equal footing. To this extent, section 16‑A is declared ultra vires the Constitution and needs to be suitably amended". We note that vide the afore‑referred judgment various provisions of the National Accountability Bureau Ordinance, 1999 were amended. In terms of the observations made, sub‑clause (c) was added to section 16- A, which reads as under: ‑ "(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." Thus the accused, after the afore‑referred amendment, has been brought on equal footing and can move for transfer of case. He also has a right to challenge the order of transfer to the Accountability Court on the ground that the offence in question is not an offence under the National Accountability Bureau Ordinance, 1999.

14. The impugned provision and the power exercised by the Chairman, National Accountability Bureau under it came up for consideration before the august Supreme Court in Civil Petitions for Leave to Appeals Nos. 957‑K/2001 and 44‑K/2002 (reported as 2004 SCMR 265) in similar circumstances i.e. the case was transferred from an ordinary Court to an Accountability Court and the august Supreme Court of Pakistan, while declining leave to appeal, held as under:‑‑ "We have examined the provision of clause (a) of section 16‑A of the Ordinance reproduced hereinabove, which clearly tend to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of law or Tribunal for transfer of the case involving scheduled offence pending before such Court or Tribunal and on receipt of such application such Court or Tribunal shall transfer the said case to any Court established under the Ordinance. It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse of powers, misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provision is self‑contained and self‑executory leaving no option for the Court before whom cases involving scheduler offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a Court turn down a request for transfer or a pending case to Accountability Court on an application trade by the Chairman, NAB under the Ordinance. This being the position in law, and the object of the Legislature, we are not impressed by the submissions that the transferee Court in all fairness and reasonableness ought to have given notice or transfer to the petitioners. It may, however, be observed that it is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non-obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law. "

15. For what has been discussed above, we do not find any merit in Writ Petition No.14103/2003 (Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab, Lahore etc.). Writ Petition No.15685/2003 (Muhammad Iqbal Farrukh v. Judge Special Court (Offences in Banks), Punjab, Lahore etc.) and Writ Petition No.16077/2003 (Syed Muhammad Muntasam Rahat Ali v. The Chairman, National Accountability Bureau etc.) which are hereby dismissed. M.B.A./A-1/L Petitions dismissed.