P L D 2008 Lahore 105 (PLP)

The learned counsel has filed this writ petition under Article 199 of the Constitution of Pakistan. In this writ petition, the learned counsel has challenged the jurisdiction of the Accountability Court, Lahore in the case of present petitioner.

2. Briefly, on 23-9-1998, an F.I.R. No.C/59/98-SBC(c)/59/98/ FIA/ECC) was registered at P.S., FIA/SBC, Lahore, under sections 406, 420, 468, 471 and 109, P.P.C. to be read with section 5(2) of Prevention of Corruption Act, 1947, against the petitioner and others. The challan was submitted before the Special Court and the charge was also framed against the petitioner and others on 30th May, 2004. However, on 20th of June, 2005 an application was filed before the Court under section 16A(a) of NAB Ordinance, 1999 by Acting Chairman, National Accountability Bureau for transfer of the said case; whereupon, the case was transferred to the Accountability Court, Lahore by order dated 29-6-2005.

3. The NAB authorities ordered re-investigation of the case. After re-investigation, challan was submitted and the learned Accountability Court resumed the proceedings. An objection was raised before the Accountability Court that the petitioner was not subject to the jurisdiction of the Accountability Court being an employee of a private bank. The Accountability Court (respondent No:4) rejected the objection of the petitioner vide its order dated 23-8-2007, hence present petition has been filed.

4. To support his contention, the learned counsel for the petitioner referred to section 5(m)(iv) of the National Accountability Ordinance, 1999 read with Item No.5 of the Schedule thereto. According to him, the case could not have been transferred from the Special Court to the Accountability Court; under section 16A(a) of the National Accountability Ordinance, 1999, the proceedings in the Accountability Court were to be resumed from the stage at which the case was being heard by the Special Court; the filing of supplementary or additional challan has not been approved by a Full Bench of this Court; and the trial of the petitioner is also hit by Article 25 of the Constitution of Pakistan.

5. We have heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondents. We have carefully considered their arguments as well as relevant provisions of the National Accountability Ordinance, 1999.

6. According to the learned counsel himself, the petitioner is an employee of a private bank, hence is not a holder of public office. Section 5(m)(iv) defines a holder of public office. How can then the Learned counsel for petitioner rely upon section 5 of the Ordinance? It is not relevant to the subject matter of the instant writ petition. We agree that the petitioner is not holder of a public office, therefore, reference to section 5 has no relevance to determine whether petitioner who is not a holder of public office is subject to jurisdiction of the Accountability Court or not? Annex-E shows that on application/reference of Acting Chairman, NAB Maj. Gen. Muhammad Masood Aslam, the case of the petitioner was transferred to the Accountability Court from Judge, Banking Offences Court, Lahore. Under section 16A(a) of the National Accountability Ordinance, 1999, we hold that the said officer could do that. Moreover, the said section leaves it to the court whether it is necessary to recall the witness who was already examined by the Special Court or not. Since proceedings are pending before a competent court, therefore, we do not find any violation of Article 25 of the Constitution.

7. The main contention of the learned counsel for the petitioner is that being an employee of a private bank, the petitioner is not amenable to the jurisdiction to the Accountability Court. It is true that the petitioner is an employee of a private bank, and also not a holder of public office, as noted above, however, we do not agree with the learned counsel for the petitioner that petitioner is not amenable to the jurisdiction of the Accountability Court.

8. Under section 9(a), a holder of public office or any other person, is said to commit or to have committed the offence of corruption and corrupt practices, thus liable to be tried under National Accountability Ordinance, 1999. Under section 10, if a holder of public office or any other person, commits an offence of corruption and corrupt practices shall be punishable. Under section 18 of the Ordinance, 1999, the Accountability Court takes cognizance on a reference made by the Chairman, etc. under section 18(c), where the Chairman, etc. is of the opinion that it is, or may, necessary or appropriate to initiate proceedings against any person, he shall refer the matter for inquiry or investigation. Under section 18(e), the Chairman NAB etc. shall have powers, for the purpose of an inquiry or investigation to arrest any person and shall exercise all powers of a S.H.O. under the Code. Under section 18(g) the matter shall be appraised and the evidence collected during the investigation and if he decides that it would be proper and just to proceed further, he shall refer the matter to a court. The language of above mentioned sections of the National Accountability Ordinance, 1999 shows that both, a holder of public office, or any other person can be inquired, investigated and tried by the NAB authorities, and the Accountability Court, respectively. According to the learned counsel for the petitioner, expression `any other person' cannot be construed separately as an independent entity or person, it should be considered/treated a person subordinate or associate of a holder of public office.

9. We are afraid this interpretation of section 9(a) cannot be accepted. Phrase, a holder of public office is separated from phrase "any other person" by using word "or". According to the Black's Law Dictionary, 6th Edn. Page 1095, the word `or' is "disjunctive particle used to express an alternative or to give a choice of one aiming two or more things. The word `or' is used as function word to indicate an alternative between different or unlike things". Thus, it is clear that a holder of public office is intentionally separated from any other person, therefore, not only a holder of public office is amenable to the jurisdiction to the National Accountability Ordinance, any other person, who may not be a holder of public office, is also amenable to the jurisdiction of an Accountability Court. Further emphasis to the above meaning is provided by using word "any" followed by "or". In the same dictionary, on page 94, word `any' is defined as "one out of many; an indefinite number".

10. Both learned counsel failed to mention section 4 of the Ordinance, which is most relevant to the present controversy, which reads as under:-- "Application.--It extends to the whole of Pakistan and shall apply to all persons in Pakistan, all citizens of Pakistan and persons who are or have been in the service of Pakistan wherever they may be.'' Section 4 has clearly provided three categories of persons to whom the-Ordinance applies i.e., all persons in Pakistan, all citizens, and persons who are holders of public offices or have been holding public office.

11. We asked repeatedly to the learned counsel for the petitioner as well as the learned counsel for National Accountability Bureau to refer to any case law from our Courts on the point, but according to them, there is no reported case on this point, that is not the fact. It has been held by Karachi High Court, reported as Muhammad Nazim ud Din v. Chairman, NAB PLD 2007 Karachi

586. The relevant portion of the report reads as under:-- "Section 4 of the NAB Ordinance clearly defines that the said Ordinance shall extend to whole of Pakistan and apply to all persons in Pakistan that is to say that all citizens of Pakistan and persons who are or have been in the service of Pakistan wherever they may be." According to the above judgment of a learned Division Bench of Karachi High Court, the Ordinance is applicable on the serving and retired persons in the service of Pakistan and also to all other persons and citizens of Pakistan.

12. Therefore, in view of the above discussion and reasons, we find that under sections 4 and 9 of National Accountability Ordinance, 1999, a holder of public office as well as a private person and a citizen is liable to be tried by the Accountability Court under the Ordinance. In view of the above, the impugned order dated 22-8-2007 is upheld. Thus, this writ petition is dismissed. N.H.Q./N-99/L Petition dismissed.