P L D 2005 Lahore 692 (PLP)

Reheel Rashid is an accused before NAB as his father was a Director of Private Company called Rafeh Ltd.

2. The allegation against the four others and petitioner is that after obtaining an imprudent loan from United Bank Limited in Deira Branch at Dubai, they defaulted. Proceedings were initiated against them on a reference having been received from the Governor of State Bank of Pakistan under a declared policy of the Federation with respect to imprudent loans.

3. During the investigation, it transpired that the amount of loan taken by the father of Reheel Rashid and other accused before NAB was diverted to Rafeh Limited. This provided NAB with an opportunity of proceedings against them on the ground that they were being used by principal accused for making it difficult for the bank to recover the loan.

4. It may be mentioned that Sajeel Rashid brother of the petitioner has also been involved in this case but he is not present before this Court.

5. The question raised before us pertains to section 31-D of the NAB Ordinance, 1999 and this reads as under:-- "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 re-scheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan: Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conducted without reference from the Governor, Stave Bank of Pakistan."

6. Since the reference against the main four accused who had taken the imprudent loan was received from the Governor, State Bank of Pakistan, therefore, the question is, will the case of Raheel Rashid also entail permission from the Governor, State Bank of Pakistan as per Government Policy and, if a permission has not been taken whether this is a fit case for quashment.

7. We have heard the learned counsel for both sides. The view of the learned counsel for the NAB that as proceedings against the petitioner were fully authorized by the Chairman NAB, these were lawful, offends the very provisions of law as reflected in section 31-D which forbids the NAB to proceed with any reference in respect of imprudent loan, defaulted loan or re-scheduled loan without a reference from the Governor of State Bank of Pakistan. Of course, this relates to cases initiated after coming into being of this law.

8. The petitioner along with his co-accused was involved in the case pertaining to an imprudent loan which cannot be so divided as to take him out of the ambit of the main reference or to attribute to him a different unconnected culpability. As the petitioner has to face the same trial with his co-accused and as the accusations against him are the off shoot of an imprudent loan, we are of the view that section 31-D of the National Accountability Bureau Ordinance, 1999 is fully applicable in his case as well, and as there is no authorization or reference in connection with him and, admittedly so therefore the National Accountability Bureau without such a reference coming from the Governor of State Bank of Pakistan, has no jurisdiction to proceed against the petitioner until it receives such a reference.

9. It has been argued before us that as in case of permission under section 196, Cr.P.C., proceedings having commenced ought to be quashed, is also not a convincing argument. Because under the present circumstances, we are to be governed by the special law itself which is section 31-D of the National Accountability Ordinance, 1999 and are not inclined to quash proceedings on these basis and wish, to only declare that the proceedings as against the petitioner being destitute of authorization of the Governor of State Bank of Pakistan, therefore the reference does not vest jurisdiction in the National Accountability Bureau or the Accountability Courts and, therefore, until that permission is available, the National Accountability Bureau or the Accountability Courts have no authority or power to proceed against the petitioner in law. N.H.Q/R-153/L Order accordingly.