P L D 2000 Lahore 508 (PLP)

MIAN ALLAH NAWAZ, C.J.‑‑This order will concern two Constitutional Petitions No.739 of 2000 (Shahida Faisal v. Federation of Pakistan and others) and 6184 of 2000 (Ghulam Murtaza Khar v. Federation of Pakistan and another). Both of these arise out of somewhat similar circumstances and raise identical questions of law. These petitions are, therefore, being dealt with by a single judgment.

2. Briefly stated, the factual background is that Faisal Saleh Hayat and his family members own Shah Jewana Textile Mills Limited (described as 'Jewana Mill'); that the aforesaid MUI availed of finance facilities from United Bank Ltd./respondent No.3/lender; that as the lender did not extend the facilities in line with the agreement, Jewana Mill filed C.O.S. No. 119 of 1998 against the United Bank Ltd./before the Special Judge Banking. The Bank also filed C.O.S. No.84 of 1998 for the recovery of its outstanding debt. Both the suits came up together before the learned Special Judge Banking: Both the sides started negotiations in order to arrive at a settlement. Prior to promulgation of National Accountability Bureau Ordinance No.XVIII of 1999, both the sides reached an agreement on September 24, 1998 whereunder Jewana Mill accepted offer made by the Bank, paid an amount of Rs.53.00 million (five crores thirty lacs). Under this agreement, all necessary cheques amounting to Rs.53.00 million were given/paid to the creditor. However, there were fresh negotiations between the two parties and a settlement deed was executed on November 16, 1999 under which Jewana Mill paid an amount of 80.00 million rupees to creditor and agreed to repay the whole amount in instalments within a period of 10 years. Notwithstanding the above settlement, Mr. Faisal Saleh Hayat was arrested on November 20, 1999 on the order of Chairman, N.A.B. confronted with this situation Mst. Shahida Faisal the wife of the detenu moved an application to the Chief Executive which was turned down in following terms:‑‑ "The matter was taken up with National Accountability Bureau. The term of agreement drawn up by U.B.L on 16th November, 1999 is not agreed. You are requested to clear the outstanding dues against Makhdoom Syed Faisal Saleh Hayat Sahib in the national interest." Faced with this situation, petitioner has invoked the Constitutional jurisdiction of this Court. 3.???????? The case, as set out in the reply by N.A.B., may be briefly summarized as follows:‑‑ "Firstly: That the Ordinance XVIII had been issued under the Provisional Constitution Order No. l of 1999. The action had been taken against the detenu in pursuance of the aforesaid Order and so this Court lacks jurisdiction to exercise its authority under Article 199 of the Constitution. Secondly: That Jewana Mill secured the facility of loan from the United Bank Limited, Bank Square, Faisalabad Branch on 26‑6‑1989 through opening of Supplier/Letter of Credit, in its favour. According to the Bureau, the Jewana Mill purchased Machinery from Supplier from Japan and was to pay back its price in instalments and the bank had opened the letter of credit as a guarantee for its payment to foreign supplier. They were to pay back first instalment on 15‑3‑1992 on half‑yearly basis; that they wilfully defaulted the said payment to foreign seiler and only paid 11th instalment on 15‑3‑1997. The Bank was, under agreement to pay the amount of price of machinery to foreign supplier in Japanese Yen. Since the Jewana Mill defaulted to make any payment within a period of 10 years, the Bank had no option but to file a suit to recover its amount. The Jewana Mill also filed a counterblast suit. The above two suits were decided in consequence of a compromise decree in favour of the Bank. The Jewana Mill did not conclude any agreement with Bank on 24‑9‑1998‑and did not receive any payment against Cheques Nos.22889388, 22889389, 22889390,.22889391, 22889392; that within the declaration. of the Chief Executive, such defaulters were required to pay the loan money on or before 16‑11‑1998; that the Jewana Mill failed to clear its liability before the target date; that they were wilful defaulters. As regards agreement dated 19‑11‑1999, it was stated that the aforesaid agreement was not accepted by the‑ Chairman, N.A.B. and was found to be collusive, against public interest under section 25‑A of the Ordinance; that the settlement/agreement was signed on 19‑11‑1999 i.e. three days after the target date; that the amount paid was a partial amount of outstanding liability amounting to Rs.57,60,00,000; that resultantly the matter was investigated and reference was filed before the accountability Court. On the strength of the above circumstances, it was canvassed that habeas corpus petition be dismissed.

4. At this juncture it seems necessary to give an account of Bank/lender. On 26‑6‑1989, the borrower/Company moved an application for opening a "supplier/letter of credit" for JY 1275.700 million Yen (equivalent to Rs.19,60,72,539). This letter of credit was to serve as a guarantee for import of textile 'machinery consisting of 14400 (fourteen thousand and four hundred) spindles with back‑process; that the Bank opened, so requested, Letter‑ of Credit No.0686/ELCEE/03011/89. According to it, the lender was to pay 10% and advance payment to ,the seller in Yen; that the balance 90% was payable in 12 equal half‑yearly instalments together with the interest at the rate of 6% per annum; these instalments fell due in 18 months from the receipt of last major shipment. that all the payments were to be made by the Jewana Mill from its own sources 'without availing any funded facility from it; that the borrower executed finance agreement, memorandum to deposit title‑deed, letter of hypothecation and demand promissory note and the guarantors also furnished the personal guarantees; that in August, 1990, the import documents, under the letter of credits, were received by the Bank and were handed over to the Jewana Mill. The Jewana Mill, contrary to the agreement, did not pay the first five instalments from its own resources with the result that the Bank in terms of Letter of Credit, was obliged to pay the same to foreign buyer by creating forced liabilities in following terms:‑‑ Instalments?????? Due Date????????? Amount ??????????? 1.???????? 15‑3‑1992?????? Rs.54.852 M ??????????? 2.???????? 15‑9‑1992?????? Rs.28.792 M ??????????? 3.???????? 15‑3‑1993?????? Rs.28.806 M ??????????? 4:???????? 15‑9‑1993?????? Rs.44.930 M ??????????? 5.???????? 12‑3‑1994?????? Rs.26.300 M 5.???????? On the request of .the Jewana Mill dated 27‑7‑1994, the bank allowed on 11‑10‑1994 to .the. Mill, the demand finance‑I of Rs.234.328 million (23,43,28,000 rupees for adjustment of forced liabilities. This demand finance had a mark‑up @ 18 % per annum and was payable in 14 equal half‑yearly instalments. In recognition of the above, the Mill executed, finance agreement, demand promissory note for Rs.458.946 million, additional memorandum of deposit of title‑deed and the guarantors furnished their personal guarantees. This pattern was followed by the Shah Jewana Mill except the 11th instalment, which was paid by its own resources. As the Mill did not repay the amount due, the Bank had to file C.O.S. No.84 of 1998 against the Jewana Mill and the Mill had also filed a suit C.O.S. No.119 of 1998 on 23‑5‑1998.

6. As liabilities were accepted, so interim decree was passed for the payment of Rs.307.000 million on 30‑9‑1998 and review petition filed by the Mill failed on 25‑10‑1998; that the Bank had no option but to file execution petition. It was on 16‑11‑1999 when National Accountability Ordinance, 1999 was promulgated with effect from 1‑1‑1985. The Bank communicated to the Mill' through a letter dated 16‑11‑1999 the terms and conditions for resheduling of loan. The settlement, however, was not finalized till 16‑11‑1999. During the pendency of these suits; the detenu approached the Bank for settlement and entered into an agreement dated 19‑11‑1999 whereby the detenu acknowledged and admitted his liabilities to the tune of Rs.629.389 million, which they agreed to pay according to schedule. Under the agreement, the agreed amount was divided into two parts i.e. down payment of Rs.80.000 million, arid demand finance‑I Rs.237.692 million and demand finance‑II Rs.239.635 million. The demand finance‑I was to have a mark‑up at the rate of 14 % and demand finance‑1I without mark‑up was payable in 120 consecutive instalments, last falling due in December, 2009. The Jewana Mill moved a C.M. No.21/B/2000 in C.O.S.No.84/98 and prayed that the suit be decided in terms of the compromise. The Bank filed reply on 26‑1‑2000 and submitted that all the defendants had not signed the compromise and they had not given any additional security, therefore, compromise was not accepted. However, the Court disposed of the suit in terms of compromise on 8‑2‑2000. FACTUAL BACKGROUND OF W.P. 6184/2000

7. That the petitioner and others formed public limited Company known as "Yahya Textile Mills Ltd."; obtained loan facility from a Branch of Habib Bank Ltd. "Multan Cantt., Multan" and so set up a textile Mill; that the textile sector faced unprecedented international recession and so the company could not repay its loan according to the agreed schedule. Due to the aforesaid circumstances, the repayment of loan was resheduled from time to time and finally it was resheduled in October, 1998. The total amount due against the petitioners on 30‑9‑1998 was Rs.433.155 million with the mark up of Rs.12.725 million with the total coming to Rs.623.68 million. A sum of Rs.12.725 million was paid in the year 1998. Balance came to Rs.610.926 million. Resultantly, an agreement was made to pay down‑payment of Rs.30.61 million in two instalments and existing demand finance was restructured at Rs.266.262 million payable in 72 quarterly instalments with effect from January, 1999 and to be paid over a period of 18 years. A sum of Rs.123.577 million for demand finance‑II was frozen provisionally and it was up to the Bank to take a decision at a later stage. On 14‑10‑1999, the Chief Executive made an announcement that those who are defaulters, must settle with the financial institutions. Subsequently, the National Accountability Bureau Ordinance was promulgated on 16‑11‑1999. Pursuant to the offer of the Chief Executive, the petitioner made agreed payments under the resheduled agreement. Consequently, the petitioner was arrested and reference was filed under National Accountability Bureau Court No.II on the allegation of the wilful default. Feeling aggrieved petitioner moved an application under section 265‑K of Cr.P.C. which was rejected by the learned National Accountability Bureau Court in following terms:‑‑ "Before I conclude this order I feel compelled to take into account the conduct of the bankers who have been enjoying high positions with fat salaries and other benefits. In the case in hand the bankers appear to have been liberal right from the inception of the loan. The sponsor was initially required to deposit equity of Rs.86.712 M i.e. 30% of the total cost of the project. But they claimed relaxation to the extent of 15 % which was allowed and the remaining 15 % was financed through personal loans in the name of Ghulam Muhammad Murtaza Khar, accused and his wife Farah Naz. In this way no equity was actually contributed by the sponsors: The deposit of equity is always considered necessary in order to secure the loans. The bank allowed every facility to the accused to earn money even in foreign exchange but the accused never thought of making repayment t0 the bank. The bankers also do not appear to have made any efforts to recover the debts. They appear be hand in gloves with the accused. Despite this the bank rescheduled the loan in the year 1998. I have no hesitation to observe that this rescheduling was made with dishonest intentions. Almost half of the debts were waived Rs.123.577 M was treated as frozen principal while the mark‑up amounting to Rs.190.526 M was also declared as frozen which was to be waived upon timely repayment of restructured debt amounting to Rs.266.262 M which was payable in 18 years in 72 quarterly instalments. The terms on which this restructuring was made cannot be termed as prudent banking. The logical conclusion would be that the restructuring agreement arrived at between the parties on 12‑11‑1998 was collusive and detrimental to the Bank. I am sure that the bank cannot recover the loan under the terms of the agreement. The bankers have entered into this agreement with dishonest intentions for extraneous considerations. They appear to have wilfully allowed pecuniary advantage to the accused which constitute an offence under section 9(vi) of the N.A.B. Ordinance, 1999. Mr. Shaukat Tareen the then President of H.B.L. who has approved the agreement on behalf of the Bank It is proposed that the N.A.B. should also proceed against the bankers who dished out these unsecured loans. Majority of bad loans were sanctioned or restructured by sheer misuse of authority for personal gains. The N.A.B. may refer the matter to the State Bank of Pakistan for an action against Mr, Shaukat Tareen."

8. Messrs Jewana Mill was represented by Mr. Aitzaz Ahsan, Advocate assisted by Mr. Faisal Hussain Naqvi, Advocate while M/s. Yahya Textile Mills Ltd. was represented by Sh. Muhammad Akram, Advocate. Mr. Aitzaz Ahsan led his arguments first. His contentions can be summarized as follows:‑‑ Firstly: that the Jewana Mill had reached settlement with its creditor on November 16, 1999; that a consent decree was passed on 30‑9‑1999; that the Chief Executive had specifically indicated that those defaulters, who will settle the matter before November 16, 1999 will not fall within the purview of the Ordinance No.XVIII dated 16‑11‑1999. On the basis of above contention, it was stressed that action taken against the detenu was plainly without jurisdiction and so of no lawful authority. Reliance was placed on PLD 1968 SC 313, 1994 SCMR 1283, PLD 1974 SC 151 and PLD 1972 SC

139. Secondly: that the Legislature did not make default as an offence; that the wilful default was made an offence under section 2(v) of Ordinance IV of 2000 which was made effective from 3rd February, 2000 and whereby clause (r) embodying 'wilful default' was added to section 5 of Ordinance XVIII of 1999. On the strength of the above, it was submitted that the case of the petitioner was not covered by clause (r) of section 5 of the Amended Ordinance. On these facts, it was canvassed that the proceedings. commencing from the arrest of the petitioner to sending of reference and his trial were clearly without jurisdiction and without lawful authority. Thirdly: that the Ordinance XVIII of 1999 was subordinate legislation issued by the President of Pakistan and so this Court has jurisdiction to examine the vires of its various provisions on the touch stone of Articles 2A, 4, 9, 10 and 12 of the Constitution. Reliance was placed on PLD 1973 SC 49, 1992 SCMR 250, PLD 1999 SC 57, 1999 CLC 625 and PLD 1989 SC

26. Fourthly: that the default was made an offence under this Ordinance with retrospective effect and so this was contrary to Article 12 of the constitution. Reference was made to 1998 CLC 65, PLD 1997 Lah. 285, 1999 CLC 1597 and 1986 SCMR 1917. Fifthly: that the rescheduling was a civil matter which was settled by creditor and borrower; that the settlement was decreed by .the Court; that the Chairman was Executive Authority and had no jurisdiction to nullify the solemn agreement between the lender and borrower. Sixthly: that. the action against the detenu was steeped into mala fide and so it was without lawful authority. . Seventhly: that no conciliation proceedings were resorted to under amended section 25‑A of the Ordinance and, therefore, reference sent to the Court was wholly without jurisdiction. Eighthly: that section 25‑A was arbitrary, harsh, unreasonable provision'. Furthermore, Jewana Mill had been accorded by N.A.B. Authorities treatment different from others who were/are placed in similar situation. Illustrations of a number of Textiles Mills were quoted which are also defaulters but no action had been taken against them within the terms of section 25‑A of the Ordinance. According to learned counsel, this treatment is contrary to Article 25 of the Constitution. Reference was made to 1992 CLC 219.

9. Sh. Muhammad Akram, Advocate relied upon ‑ the arguments advanced by Mr. Aitzaz Ahsan, Advocate and also referred to Ko. Po. Kun v. C.A.M.A.L. FfYin AIR 1932 Rangoon 197, West Pakistan Industrial Development Corporation v. Rashid Ahmad 1988 SCMR 526, Al‑Jehad Trust v. Federation of Pakistan 1999 SCMR 1379. He further stated that he is not prepared to pay any amount in excess of what was agreed in rescheduling agreement. 10.?????? The learned Deputy Attorney General, in reply, contended:‑‑ Firstly: that the Ordinance was a valid piece of legislation and so this Court had no jurisdiction to issue writ of habeas corpus till this piece of legislation was declared ultra vires. Strength was sought from rule enunciated in 1992 SCMR

250. Secondly: that the default was a continuing offence and so the theory of retrospectivity was inapplicable to it. Furthermore, the references have been filed before the Court of law and the petitioner was likely to be tried very soon. This was simple answer to a petition for habeas corpus. Strength was sought from PLJ 1973 SC

49. Thirdly: that the offence of default was a continuing offence; that the petitioner had not repaid the instalments at the first instance and then succeeded in rescheduling under the spell of misrepresentation; that the agreement entered into by the Bank and Mill was not accepted by‑the Chairman, N.A.B. under section 25‑A of the Ordinance. The Deputy Attorney‑General relied upon rule enunciated in AIR 1984 SC 1688, AIR 1986 SC 293 and PLD 1997 Lah.

285. Fourthly: the petitioner No.1 was entitled to move the N.A.B. Court under the provisions of section 265‑K, Cr.P.C. and so in presence of that provision, too, habeas corpus petitions are not permissible. From the foregoing narration, the following questions emerge for consideration:‑‑ (1)??????? Whether this Court lacks jurisdiction in view of preliminary objections raised by the learned Deputy Attorney‑General? (2)??????? Whether the reference has been filed before the National Accountability Court; whether the arrest of the detenu was being regulated by the Court under the law, hence this petition of habeas corpus was incompetent? (3)??????? Whether the wilful default was not a penal offence before the incoming of National Accountability Bureau (Amendment) Ordinance, 2000; whether the Ordinance was/is violative of rule of retrospectivity as embodied in Article 12 of the Constitution and so the action taken against the detenu was plainly without lawful authority? (4)??????? Whether the action taken by the N.A. B. against the detenu is uneven and violative of equality protection clause as contained in Article 25 of the Constitution? (5)??????? Whether the petitioner had entered into a settlement with the creditors before the target date, as set down in the Ordinance, and so the case of the petitioner did/does not fall within the purview of National Accountability Bureau Ordinance, 1999, the action against the detenu, therefore, was wholly without jurisdiction? (6)??????? Whether the creditors and the borrowers had concluded an agreement dated 19‑11‑1999; that the said agreement was sanctioned by the Court through decree dated 8‑2‑2000 and whether the Chairman, N.A.B. had no authority to nullify that agreement between the parties and the decree passed on basis thereof? (7)??????? Whether the action taken by the N.A.B. is steeped into, mala fide and so is a colourable action?

11. Before proceeding further, we feel, it is expedient to make a reference to some event of importance. On 12th October, 1999, the Government of Muslim League and allies was sacked in pursuance of decision of Chief of Staff of Armed Forces and Corps Commanders of Pak Army. The Chief of Army Staff, so, assumed the office of Chief Executive. Pursuant to that decision, a notification was published in Extraordinary Gazette of Pakistan on 14th October, 1999. Under this, some parts of the Constitution of 1973 were kept in abeyance: that President continued in office; National Assembly, Provincial Assemblies and Senate were suspended; Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of National Assembly and Provincial Assemblies were suspended the Prime Minister. Federal Ministers, Ministers of State. Advisors to the Prime Minister, Parliamentary Secretaries, Provincial Chief Ministers, Provincial Ministers and Advisors to the Chief Ministers were made to cease to hold their offices. The whole of Pakistan came under the control of Armed Forces. The Proclamation .of Emergency issued on 28‑5‑1998 was to continue subject to Proclamation of 14th day of October, 1999. Furthermore, the Judges of Supreme Court, Judges of Federal Shariat Court, Judges of High Courts, Auditor‑General, Ombudsman and Chief Ehtesab Commissioner were to continue in their services on the same terms and conditions as before. Thereafter, Provisional Constitution Orders Nos. l, 2, 4, 5, 6, 7, 8 and 9/all of 1999 and 1 of 2000 followed. In pursuance of the aforesaid and in exercise of all enabling powers, the President was pleased to make and promulgate National Accountability Bureau Ordinance (No‑18 of 1999). This Ordinance was amended by Ordinance No. 19 of 1999 and Ordinance No.4 of 2000. Under the aforesaid Ordinances, an Accountability Bureau was provided with an object to eradicate corruption and corrupt practices and hold the accountability of all those persons who were accused of such practices and matters ancillary thereto. Under this dispensation, wilful default of loan was made a punishable offence. Resultantly, actions were commenced against both the detenu (in W.P.No.739 of 2000) and petitioner (in W.P. No.6184 of 2000) who were arrested and put to face trial before the Accountability Court.

12. The arguments on behalf of the Bureau is based on Article No.4 as well as Order No.1/saying that no Court, Tribunal or any other authority shall call or permit to call in question the Proclamation of Emergency on 14th October. 1999 or any order made thereunder and no judgment, decree, writ, order or proceedings whatsoever shall be made or issued by any Court or any authority designated by the Chief Executive. Briefly, the submission is that this Court, under Article 199, is not competent to .issue any writ against the N.A.B. The case of the other side is that notwithstanding the presence of an ouster clause, this Court has jurisdiction to examine and scrutinize the action, orders and proceedings of Accountability Court and is empowered to grant of the requisite relief, if such action, order or proceedings are found to be wholly without lawful authority or in excess of authority or mala fide. This question, which is No.l, is no longer a vexed one. It had engaged the attention of the superior Courts in a variety of circumstances. The first leading case is Zafar‑ul‑Ahsan v. The Republic of Pakistan PLD 1960 Supreme Court

113. Dealing with the ouster clause as embodied in Public Conduct (Scrutiny) Ordinance No.3 of 1959. His Lordship Mr. Justice Muhammad Munir, the then Chief Justice, speaking for the Bench said: "But here our jurisdiction to call in question the proceedings of the Screening Committee is barred by section 10 of the Public Conduct (Scrutiny) Ordinance, and an order made by the President under sub‑clause (b) of clause 5 of Article 6 of the Laws (Continuance in Force) Order cannot be called in question in any Court. So far as section 10 is concerned, there can be little doubt that even if Mr. Brohi's contentions be correct, namely, that the Committee never informed the appellant that it had reason to believe that he was corrupt or guilty of misconduct, the omission would be no more than a mere irregularity in procedure of which we cannot take cognizance. As regards the contention that the order of retirement is not an order under sub‑clause (b) because of the non‑observance of Rule 2 or the omission or refusal of the President to hear the appellant in support of his appeal, the position is precisely the same, viz., that the order must be held to be under sub‑clause (b) of clause 5 of Article 6 of the Laws (Continuance in Force) Order, even if in following the statutory procedure some irregularity was committed. If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority if an appellate authority is provided by the statute the omissions or irregularity alleged will be matter for that authority, and not, as rightly observed by High 'Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with long line of decisions in England and in this sub?continent, be treated as an order under the statute."

13. The view enunciated above was reiterated by the apex Court in the celebrated case i.e. The State v. Zia‑ur‑Rehman PLD 1973 Supreme Court 49). In this case, the Court dealt with the same objection by reference to Article 281 of the Interim Constitution while repelling the objection, his Lordship Mr. Justice Hamood‑ur‑Rehman said: "In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause 2 of Article 281 of Interim Constitution to acts done or purported to be done in exercise of powers given by Martial Law Regulations and Orders since repealed are even in the validating act done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of Interim Constitution but also administers the will of the law‑maker as far as it can be gathered from a harmonious reading of the provision of clause (2) of Article 281 along with the some of the other provisions of the same Constitution without departing from the well‑recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice."

14. The rule enunciated in Zia‑ur‑Rehman case was elaborated in detail in Federation of Pakistan v. Saeed Ahmad PLD 1974. Supreme Court 151) in following words:‑‑ (i)???????? The Constitution is a fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country. (ii)??????? The Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere. (iii)?????? The Courts are creatures of the Constitution; they derive their power and jurisdiction from the Constitution and must confine themselves within the limit set by the Constitution. (iv)?????? Under a Constitution prescribing a system where there is a trichotomy of sovereign powers, the judicial powers must from the very nature of things be vested in the judiciary. (v)??????? Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction. (vi)?????? In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts even by a Constitutional provision, or to be construed strictly with pronounce leaning against ouster. (vii). It is not, however, the function of the judiciary to legislate or to question the wisdom of law giver if the law has been competently made without transgressing the limitations of the Constitution. If a law has been competently made the judiciary cannot refuse to enforce it even if the result be to nullify its own decisions. (viii)The law‑giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different from that which was sought to be conveyed by the law‑giver. (ix) .The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution. (x)??????? As far as possible each provision of the Constitution should be construed so as to harmonize with all the others."

15. The next case on this issue is Begum Nusrat Bhutto v. Chief of Army Staff, etc. PLD 1977 Supreme Court

657. In this case on 5th of July, 1977, Mr. Zulfiqar Ali Bhutto, the then Prime Minister and his colleagues were arrested. The Martial Law Order No. 12 of 1977 was made feeling aggrieved a Constitutional Petition No. l of 1977 was filed. The power of judicial review of superior judiciary was expounded as below: "As a result, the true legal position, which, therefore, emerges is:‑‑ (i)???????? That the 1973 Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; (ii)??????? That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the proclamation of Martial Law, does not in any manner derogate from this position as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the proclamation of Martial Law; (iii)?????? That the Chief Martial Law Administrator having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by the judicial authorities as falling with the scope of the law of necessity, namely:‑‑ (a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution. (iv) That these acts or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders as the occasion may require; and (v) That the superior Courts continued to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged, in the light of the principle underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance."

16. Reference may also be made to Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 Supreme Court 473, Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 Supreme Court 166, Mohtarama Benazir Bhutto v. President of Pakistan PLD 1998 Supreme Court 388 and Shaukat Ali Mian v. The Federation of Pakistan 1999 CLC 607.

17. The survey of the case‑law will not be complete without referring to the decision of the Supreme Court of Pakistan in Constitution Petitions Nos.53/99, 57/99, 62/99, 63/99, 64/99, 66/99 and 3/2000 pronounced on 12‑5‑2000 (PLD 2000 SC 869). Dealing with the question of jurisdiction of superior judiciary vis‑a‑vis to Provisional Constitution Order and proclamation of emergency dated 12‑8‑1999 the apex Court by short order (2000 SCMR 1137) unanimously said:‑‑ "That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity. (5) That the superior Courts continue to function‑under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath under the Oath of Office (Judges) Order No. l of 2000, does not in any manner derogate from this position, as the Courts .had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Emergency and PCO No. l of 1999 and other legislative instruments issued by the Chief Executive from time to time; 6.(i) That General .Pervaiz Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through Proclamation of Emergency dated the 14th October, 1999, followed by PCO 1 of 1999, whereby he has been described as Chief Executive, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:‑‑(a) All acts of legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) All acts which tend to advance of promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or need to the establishment of the declared objectives of the Chief Executive. (ii) That Constitutional amendments by the Chief Executive can be resorted to only if the Constitution fails to provide a solution for attainment of his declared objectives and further that the power to amend the Constitution by virtue of clause (6)(1) (a) (ibid) is controlled by sub‑clauses (b), (c) and (d) in the same clause. (iii) That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, .federalism, parliamentary form of Government blended with Islamic provisions. (iv) That Fundamental Rights provided in Part 11, Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 as contemplated by Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and 25 thereof. (v) That these acts, or any of them, may be performed or carried out by means of orders issued by the Chief Executive or through Ordinances on his advice; (vi) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Armed Forces, if challenged; in .the light of the principles underlying the law of State necessity as stated above. Their powers under Article 199 of the Constitution, thus, remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any legislative instrument enacted by, the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf. (vii) That the Courts are not merely to determine whether there exists any nexus between the orders made, proceedings taken and acts done by the Chief Executive or by any authority or person acting on his behalf, and his declared objectives as spelt out from his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but such orders made, proceedings taken and acts done including the legislative measures shall also be subject to judicial review by the superior Courts.

6. That the previous Proclamation of Emergency of 28th May, 1998 was issued under Article 232(1) of the Constitution whereas the present Emergency of 14th October, 1999 was proclaimed by way of an extra?-Constitutional step as a follow up of the Army take‑over which also stands validated notwithstanding the continuance of the previous Emergency which still holds the field.

18. From the foregoing examination, the ratio deducible is:

1. That notwithstanding the proclamation of 14th October, 1999 and A Provisional Constitution Orders Nos. 1, 2, 4.to 9 of 1999 and 1 of 2000, the Constitution of 1973 still remains as the paramount law of the land subject to certain conditions namely that certain parts of it had been held in abeyance.

2. That the power of judicial review vesting in superior Courts under Article 199 and other Articles of the Constitution continue to remain in field. The mere fact that the Judges of the superior Courts have taken new oath under P.C.O. No. l of 1999, does not disable them from their power to interpret laws and scrutinize the actions of N.A.B. and its functionaries. The power under Article 199 had not been taken away by any ouster clause. The Courts have full authority to scrutinize/judge the validity of any act or action of functionaries including the functionaries of N.A.B. The superior Courts have power to declare any action, act or proceedings of N.A.B. which are found to be without any lawful authority or suffer from excess of jurisdiction or mala fide."

19. From the above conclusion, the question No.l is answered accordingly. We have thus no doubt in our mind that this Court has jurisdiction to issue writ against N.A.B. and its functionaries and declare its acts/actions without lawful authority if such acts/actions/arrests are found to be without jurisdiction.

20. As regards question No.2, it is not a vexed one. It is free from difficulty and stand resolved by the rule enunciated by Supreme Court in Government of Sindh v. Raeesa Farooq 1994 SCMR 1283. In this case respondents Nos. l and 2 filed a Constitutional petition in the High Court of Sindh alleging therein that respondent NO. I is the wife of Farooq Ahmad and mother of Dr. Imran Farooq; that since the advent of operation clean‑up to the Province of Sindh, the family members of M.Q.M. office‑bearers were being subjected to tortures; that in order to obtain arrest of Dr. Intran Farooq, respondent No. 1?s husband was taken into custody on 31‑10‑1992 from the house of respondent No.2 alongwith others namely Mushtaq Sehgal, Amir Sehgal and Noman Sehgal without any lawful authority. Subsequent to a notice, the Advocate ‑General, Sindh appeared before a Division Bench and submitted that the detenus were in police lock‑up in Gulshan‑e‑Iqbal Police Station in three F.I.Rs in which detenus were involved After hearing both sides the learned Judges were pleased to grant the bail to the detenus subject to furnishing personal bond of Rs.50.000 in each case to the satisfaction of Deputy Nazir of High Court. A petition was filed for cancellation of bail However, the same was dismissed on 24‑12‑1992. Feeling aggrieved, the Government of Sindh through its Chief Secretary filed leave to appeal which was converted into Criminal Appeal No.85 of 1993 and was dismissed. Dealing with the powers of the Court in such cases, it was. held:‑‑ "It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, ,the High Court will not straightway refuse to exercise jurisdiction the moment an information is laid that the detenu is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, not a cooked to, or manipulated affair, the detenu has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenu is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jurisdiction without examining it, the very provision of the Constitution (Article 199(1)(b)(1) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenue is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining, the High Court will not act as an Appellate Court nor will it make sifting investigation. In such Constitution petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights. Reference can be made to Abdul, Baqi Baloch v. Government of Pakistan PLD 1968 SC 313 in which the appellant had challenged his detention under the Defence of Pakistan Rules, 1965 by filing Constitution petition in the High Court under Article 98(2)(b) of the Constitution of 1962 (Article 199(1)(b) of Constitution of 19731 which was dismissed."

21. Applying this principle to the facts and circumstances of the case we are very‑ clear that this Court has jurisdiction under Article 199 of the Constitution to see as to whether the custody of the petitioner is with or B without lawful authority or whether the petitioner is being treated in a lawful manner irrespective of the fact that references have been filed before Accountability Court. ' 22. ‑ Coming to question No.3, we feel it is useful to have a bird's eye . view of the concerned provisions of Ordinance No.XVIII of, 1999 as amended by Ordinance No.XIX of 1999 and Ordinance IV of 2000. This Ordinance came into being on 16th November, 1999 with effect from Ist July. 1985. Its underlying intent was/is, according to its preamble, too eradicate corruption.

23. This Ordinance has, in all, 37 sections followed by Schedule of offences. First pertinent provision is section

5. It says that accused person includes a person in respect of whom there are reasonable grounds to believe that he is or has been involved in any omission/commission of any act/acts amounting to an offence under this Ordinance. Section 5(n) contains meaning of "offence", according to which, offence means the offence/offences of corruption and corrupt practices as defined in this Ordinance and mentioned as offences in the schedule to this Ordinance. Next phrase is 'wilful default'. This was added by Ordinance IV of 2000 which came into being on 3rd February, 2000. Plainly the expression 'wilful default' was put in Schedule of Ordinance No.XVIII of 1999 but spellings of the word 'wilful' were not correct which were corrected in amending Ordinance IV of 2000 as clause (r) of the Ordinance, it reads as under:‑? "(r) 'wilful default': a person is said to commit an offence of willful default under this Ordinance if he does not pay or return or repay ?????? the amount to any bank, financial institution, cooperative society, or a Government department or a statutory body or an authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions, issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperatives society, Government Department, statutory body or an authority established or controlled by a Government, as he case may be, and a period of thirty days has expired thereafter."

24. From its reading, it is quite clear that a person who does not pay/return/repay the amount due to any bank, financial institution or statutory institutions within thirty days, that person becomes wilful defaulter and is liable m be proceeded under the Ordinance. This is, however, only subject to an exception that wilful default must not have been occasioned or caused by the landing institution due to its wilful breach of agreement/contractual obligations. Seen from the above angle, it clearly follows that the circumstances of default became an offence punishable under the first Ordinance. Thereafter, the expression of 'wilful' was added to it at Serial No.l in amending Ordinance No.IV of 2000. From the above, two questions arise i.e. as to what is the nature of this offence and secondly whether it was/is hit by the principle of retrospectivity. With regard to first, it is also to be seen in the context of the afore‑described circumstances where‑under this was made an offence. The case of the petitioner is that it is a non‑continuing offence while the case of the N.A.B. is that it was/is a continuing one. Such question was considered by the apex Court of neighbouring India in State of Bihar v. Deokaran Nenshi AIR 1973 SC 908 in following terms:‑‑ "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirements and which involved a penalty, liability for which continues until the rules or its requirement is obeyed or complied with. On every occasion that such disobedience or non‑compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes and offence E once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or, omission is committed once and for all." The rule, so enunciated, was reaffirmed in AIR 1984 SC 1688.

25. The question 'whether a particular offence is continuing or not' depends upon the language of the Statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting a particular act as an offence. Turning to the matter F in hand in this petition, it is quite clear that the detenus did not pay the debt within the period committed by them. They did not make any promise to pay before the Court even. Seen from the above context, we have no option but to hold that the offence committed by the detenus is a continuing offence.

26. Seen from the above angle, it is thus clear that borrower had obtained a loan from U.B.L. as back as in 1989, the loan was obtained as a forced liability when borrower failed to pay the price of the Mill to foreign supplier in Yen and Bank had no option but to pay it in pursuance of the facility of opening 'supplier of letter of credit' in favour of Jewana Mill. Since 1989, the payment of the debt was rescheduled at the request of Jewana Mill; it is common ground that loan availed by different influential persons had not been paid since 1985 despite the availability of various concessionary formulas. This had led to weakening of lending institutions and ruination of Banking structure. It was in this contextual scenario wherein Ordinance XVIII of 1999 was issued. The expression 'wilful default' was put in the Schedule to Ordinance No.XVIII but spellings of the word 'wilful' were not correct which were corrected in amending Ordinance IV of 2000. Seen from the above chronological perspective, we have no difficulty in saying that act/omission of non‑payment/non‑repayment of loans was made a continuing offence. The nature of continuing offence cannot be examined from the date of first happening of that offence. This applies to the phenomena of default. The defaulter is under duty to pay his liability and commits continuing offence on each occasion and on each moment he does not pay his liability. The declaration of Chief Executive, can safely be said, hag no nexus with the nature of offence. The declaration was intended to provide opportunity to defaulter to clear their liabilities and save themselves from criminal proceedings. On this view of the matter we are of the considered opinion that offence of wilful default as defined in the Ordinance is al G continuing offence. '

27. As regards the second limb of the question, suffice it to say that this objection flows from Article 12 of the Constitution. This Article ordains that every legislation which makes an act done before passing of law and which H was innocent at that time, such act/omission cannot be made penal and doer cannot be punished and prosecution for such offence will be wholly void. Stage is now set to examine this doctrine of retroactive legislation. The same concept care up before the apex Court of India in Sajjan Singh v. State of Punjab AIR 1964 SC

464. This case arose from conviction under Prevention of Corruption Act, 1947. One Sajjan Singh joined the service of Punjab Government in January, 1922 as Overseer in the Irrigation Department. He continued as Overseer till July, 1944 when he was promoted as Sub?-Divisional Officer in the said Department. From that date till May, 1947, he worked as Sub‑Divisional Officer. From November 30, 1947 to September 26, 1952, he was employed as Sub‑Divisional Officer of Drauli Sub‑Division of the Nangal Circle. The work of excavation in Nangal Project was carried out by number of Directors, including the complainant. On December 7, 1952, the General Manager, Bhakra Dam, made a complaint in writing to Superintendent of Police/alleging that Sajjan Singh and some other officials subordinate to him, had obtained illegal gratification from the contractors, namely, Ramdas Chhankanda Ram and others by withholding their payments and so the. case be registered under section 5(2) of the Prevention of Corruption Act, 1947. Resultantly, the case was registered. The learned Special Judge sentenced him to suffer rigorous imprisonment for one year and a fine of Rs.5,

000. This decision was upheld by the High Court and Supreme Court. The argument was raised that an offence under which the appellant had been punished was not offence at the time when felonious act was committed and so the decision of the Court below was vitiated by the principle of retrospectivity this contention was repelled in following terms: (13) A statute cannot be said to be retrospective 'because a part of the requisites for its actions is drawn from a time antecedent to its passing: (Maxwell on Interpretation of Statutes, 11th Edition, p.211; see also State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307). Notice must be taken in this connection of a suggestion made by the learned counsel that in effect subsection (3) of section 5 creates a new offence in the discharge of official duty, different from what is. defined in the four clauses of section 5(1). It is said that the act of being in possession of pecuniary resources or property disproportionate to known sources of income, if it cannot be satisfactorily accounted for is said by this subsection to constitute the offence of criminal misconduct in addition to those other acts mentioned in clauses (a), (b), (c) and (d) of section 5(1) which constitute the offence of criminal misconduct. On the basis of this contention the further argument is built that if the pecuniary resources or property acquired before the date of the Act is taken into consideration under subsection (3) what is in fact being done is that a person is being convicted for the acquisition of pecuniary resources or property, though it was not in violation of a law in force at the time of the commission of such act of acquisition. If this argument were correct a conviction of a person under the presumption raised under section 5(3) in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under Art.20(1) of the Constitution and so it would be proper for the Court to construe section 5(3) in a way so as not to include possession of pecuniary resources or property acquired before the Act for the purpose of that subsection. The basis of the argument that section 5(3) creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however, unsound. The subsection does nothing of the kind. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(1) for which an accused person is already under trial. It was so held by this Court in C.D. S.Swamy v. The State (1960) 1 SCR 461: (AIR 1960 SC 7) and again in Surajpa Singh v. State of U.P., AIR 1961 SC

583. It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in clauses (a), (b), (c) and (d) of section 5(1) that subsection (3) can come into operation. When there is such a trial, which necessarily must 'lie in respect of acts committed after the Prevention of Corruption Act came into force, subsection (3) places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged. The learned Judge went on to say : (14) Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf. To accept the contention that. such pecuniary resources or property should not be taken into consideration one has to read into the section the additional words 'if acquired after the date .of this‑ Act' after the word 'property'. For this there is no justification. While summing his conclusions on rule of retrospectivity, the learned Judge said: "(15) It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying subsection (3) of section 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the Act. On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself. For the income received during the years previous to the commencement of the act may have helped in the acquisition of property after the commencement of the Act. From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of subsection (3) of section 5, whether these were acquired before or after the Act came into force."

28. The same question was also considered by Indian Supreme Court in Shiv Dutt Rai Fateh Chand etc. v. Union of India and another AIR 1984 SC 1194. In this case, the Constitutional validity of subsection (2)(a) of section 9 of Central Sales Tax Act (74 of 1956) as amended by Central Tax (Amendment) Act, 1976, was challenged on the touchstone of restrospectivity. The challenge thrown to above levies was repelled by the Supreme Court *n paras. 30 and 33 of the judgment. They are as follows: "

30. After giving an anxious consideration to the points urged before us, we feel that the word 'penalty' used in Article 20(1) cannot be construed as including a 'penalty' levied under the Sales Tax Laws by the departmental authorities for violation of statutory provisions. A penalty imposed by the Sales Tax Authorities is only a civil liability, though penal in character. It may be relevant to notice that subsection (2‑A) of section 9 of the Act specifically refers to certain acts and omissions which are offences for which a criminal prosecution would lie and the provisions relating to offences have not been given retrospective effect by section 9 of the Amending Act. The argument based on Article 20(1) of the Constitution is, therefore, rejected." The learned Judges went on to say: "

33. In the instant case, the facts are one shade better. There is no dispute in this case about the validity of the tax payable under the Act during the period between January 1, 1957 and the date of commencement of the Amending Act. It has to be presumed that all the tax has been collected by the dealers from their customers. There is also no dispute that the law required the dealers to pay the tax within the specified time. The dealers had also the knowledge of the provisions relating to penalties in the General Sales Tax laws of their respective States. It was only owing to the deficiency in the Act pointed out by this Court in Khemka's case AIR 1975 SC 1549 (supra) the penalties became not payable. In this situation, where the dealers have utilised the money which should have been paid to the Government and have committed default in performing their duty, and Parliament calls upon them to pay penalties in accordance with the law as amended with retrospective effect it cannot be said that there has been any unreasonable restriction imposed on the rights guaranteed under Article 19(1)(f) and (g) of the Constitution, even though the period of retrospectivity is nearly nineteen years. It is also pertinent to refer here to subsection (3) of section 9 of the amending Act which provides that the provisions contained in subsection (2) thereof would not prevent a person from questioning the imposition or collection of any penalty or any preceding act or thing in connection therewith or for claiming any refund in accordance with the Act as amended by the Amending act read with subsection (1) of section 9 of the Amending Act. Explanation to subsection (3) to section of the Amending Act also provides for exclusion of the period between February 27. 1975 i. e. the date on which the judgment in Khemka?s case (supra) was delivered up to the date of the commencement of the Amending Act in computing the period of limitation for questioning any order levying penalty in those proceedings the authorities concerned are sure to consider all aspects of the case before passing order levying penalties. The contention that the impugned provision is violative of Article 19 (1) (f) and (g) of the Constitution has, therefore, to be rejected. Another pertinent case from Indian jurisdiction is Sint. Maya Rani Punj v. Commissioner of Income‑tax, Delhi AIR 1986 SC

293. In this case controversy arose out of Income Tax Act (43 of 1961). The assessees were to file return by September 28, 1961 with regard to financial year 1961‑62 but the same was neither filed within the time nor there was any prayer for extension. Assessees filed return on May 3, 1962. Proceedings were taken under section 271(1)(a) of Income Tax Act, 1961 and there was imposed a penalty of 4.060 rupees for failure to furnish the return within time. The assessees challenged this order unsusccessfully before first appellate authority. On further appeal, penalty was reduced from the imposed amount to Rs.400. At the instance of Revenue, a question was referred to High Court a figure lower than the sum equal to 2 % of the tax for every month during, which default continued but not exceeding aggregate 50% of the tax. High Court answered the reference in favour of the Revenue. Feeling aggrieved, the assessee filed an appeal, which was dismissed by the apex Court. On' the scope of rule of retrospectivity, the Supreme Court of India said: "

17. In 'Words and Phrases', Permanent Edition, under the head 'Continuing Offence', instances have been given which indicate that as long as the default continues the offence is deemed to repeat and, therefore, it is taken as a continuing offence. As has been appropriately indicated in Corpus Juris Secundum, Vol. 85, p.1027, accrual of penalty depends upon the terms of the statute imposing it and in view of the language used in section 271(1)(a) of 1961 Act, the position is beyond dispute that the Legislature intended to deem the non‑filing of the return to be a continuing default‑‑the wrong for which penalty is to be visited, commences from the date of default and continues month after month until compliance is made and the default comes to an end. The rule of de die in diem is applicable not on‑daily but on monthly basis." The learned Judge went on to say further: "

19. The. imposition of penalty not confined to the first default but with reference to the continued default is obviously on the footing that non‑compliance with the obligation of making a return is an infraction as long as the default continued. Without sanction of law no penalty is imposable with reference to the defaulting conduct. The position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable .terms that as long as the assessee does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by taw. "

29. In view of the facts and circumstances of the case in hand, we are very clear in our mind that the offence of wilful default incorporated in Schedule to Ordinance No.XVIII of 1999 as amended by 19 of 1999 and 4 of 1 2000 is a continuing offence and petitioners who had neither paid the principal amount nor its mark‑up cannot seek benefit under section 12 of Constitution; that the rule of retrospectivity is not applicable to 'offence which is continuing in nature.

30. This brings us to question No.4. The case of petitioner seeks strength from alleged infraction of equality protection‑clause as embodied in Article 25 of Constitution. It was stated that in a number of such cases the defaulters had not been arrested and no reference had been sent against them to the NAB Courts. On the basis of above circumstances, it was suggested that the action against the petitioners were violative of equality protection clause and were arbitrary in nature and vitiated by unfairness. The reply on behalf of NAB was/is this principle was/is not applicable in the criminal proceedings. It is true that Article 25 of the Constitution ensures equality before law and equal protection of law/meaning thereby that State must treat similarly situated persons equally and be meted out even‑handed treatment. If the functionaries of State violate this rule, such persons are entitled to challenge such uneven and partisan treatment and seek its quashment under Article 199 of the Constitution: Similarly, if the Government treats a person illegally, and less favourably, then such other person can come to this Court. This is well‑known concept of equality, fairness. However, this principle is subject to a well‑defined principle that equality before law is to be applied within the domain of lawful activity/meaning thereby that it does not apply to illegal activity. For example it shows illegal favours to some persons then other person cannot claim such. illegal/actions/activity through agency of Court. Reference is made to Chief Commissioner v. Kitty Puri (AIR 1973 Delhi 148): "The argument about discrimination put forth by the petitioner respondent No.l is misconceived, Article‑ 14 of the Constitution guarantees equality before law and equal protection of the laws. It means that the State must treat similarly situated persons equally according to law. If the State departs from the law and treats a person more favourably than others, then such other persons can challenge the act of favouritism and get it quashed by way of writ petition under Article 223 of the Constitution. Similarly, if the Government, treats a person illegally less favourable than others then such aggrieved person can challenge the less favourable act. In either case the act has to be contrary to law or to the principle of equality before it can be challenged as being contrary to Article 14 of the Constitution. The complaint of the petitioner respondent No.3 is that on 9‑10‑1959 the Society passed a resolution by which members who were barred from getting a plot from the Society due. to their previous possession of a house or a plot would be able to transfer their membership and their assets to their nominees and that pursuant to this solution number of transfers were recognized by the Society. As stated above, the Government informed the Society in 1959 that it must not allow holders of lands and houses in Delhi. to become members. The bye‑laws of the Society were not amended immediately in 1959 but a little later to achieve this object. The persons possessing land and houses in Delhi who had already become ‑members of the Society were till then legally entitled to. remain members. They could, therefore, be allowed to transfer their share and interest to other persons under. section 19(2) of the Act. Similarly the share and interest of deceased members could be transferred by the Society under section 27(1) of the Act. The Society was to follow the law and treat every person equally in accepting such members. The petitioner respondent No. l does not fit in any of these categories. If the petitioner respondent No. 3's case is that any person is allowed to become a member of the Society contrary to sections 19 and 27 of the Act by an act of favouritism, then she being an aggrieved person could have challenged that act and got it quashed. But the respondent No.l cannot contend that because the Society and the Government have illegally shown favour to the person, then this Court must compel them to commit another illegality to show favour to respondent No. l in the same way. This is not the meaning of equality guaranteed by Article 14 of the Constitution. It has not been shown by the petitioner respondent No. l that any of the cases mentioned by her in paragraphs 24 and 25 of the writ petition were similar to her case. For instance, it is not shown that the transfers were not in accordance with sections 19 and

27. It is also not shown that the petitioner was entitled to the benefit of sections 19 and

27. The petitioner was clearly out of time to come under section

27. We do not find, therefore, that the. petitioner was discriminated against. in any way by the Society and the Government."

31. The equality protection clause was considered by Rajasthan High Court in Ram Prasad Joshi v. Union of India (AIR 1978 Rajasthan 131). In. this case it was complained that the State Government has chosen to prosecute some persons while have not prosecuted some other persons in the similar circumstances. Dealing with this contention it was held that this clause is not applicable in Illegal treatment. It will be highly useful to quote para. No.6 of this judgment: "As regards discrimination, suffice it to say that simply because the State Government has not chosen to prosecute other persons, who are alleged to have committed serious offences punishable under sections 120‑B, 420, 468, 477‑A, I.P. and S.5(1)(d) of the Prevention of Corruption Act, 1947. It does not give licence to the petitioner to first commit the offences and swindle public property and come to this Court and say that as other persons have not been prosecuted for the misdeeds or crimes so he should also be treated equally and not have been prosecuted. The fact that the State has not been vigilant in prosecuting some persons would not justify a claim by the petitioner that in his case also the same wrong should be repeated. The guarantee under Article 14 cannot be understood as requiring the Authorities to act illegally in one case because they have acted illegally in other cases, T. Venkatasubbiah Setty v. Commissioner, Corporation of the City of Banglore (AIR 1968 Mys. 251). The cases relied upon by the learned counsel for the petitioner, Bidi Supply Co. v. Union of India, AIR 1956 SC 479 and Ram Khilaril v. Union of India (1976) 2 Serv. LR 827; (AIR 1976 Raj. 219), have no bearing on the point at dispute. The weighty observation made by his Lorship Lord Porter in Emperor v. Nazir Ahmad {AIR 1954 PC 18)."

32. From whatever has been stated above, it is thus clearly emerges that the equality protection clause guarantees equal treatment before law and equal protection of law. It is not designed to cover the instance of illegal action/activity. No doubt, we do not view with favour the treatment of NAB as far as other similarly situated people are concerned. However on ‑the f strength of this contention petitioners are not entitled to any relief as suggested. We hope and direct that the NAB will deal with the defaulters (similarly situated) equally and apply the law even by the point, as urged by learned counsel for petitioner, has no force.

33. The stage has now reached to undertake the examination of I remaining questions namely questions Nos.5 and

7. In so far as question No.5 is concerned, the case of the petitioners is that the creditors and the borrowers had concluded an agreement on 16‑11‑1999; that the said agreement was sanctioned by the Court through decree dated 8‑2‑2000; that the Chairman, NAB had no jurisdiction to override that agreement and initiate action against petitioners Nos. l and

2. On the strength of the above, it is suggested that the reference by NAB is, thus, without lawful authority. The case of the NAB, as already stated in detail, is that the bank made an offer to the petitioners on 16‑11‑1999; that the settlement however, was not finalized till 1.9‑I1‑1999; that Shah Jewana Mill approached the bank for settlement and final agreement was reduced in black and white on L 19‑11‑1999 after the. target date; that the Mill acknowledged and admitted its liability to the tune of Rs.620.389 million and that under the said agreement, outstanding amount was divided into two parts/down payment of Rs.80.00 million and demand finance‑I Rs.237.692 million and demand finance‑II Rs.239.635; that 14 % mark‑up was leviable on demand finance‑I while second demand did not have any mark‑up. The answer to the above competing claims is to be examined by reference to section 25A brought by amending Ordinance IV of 2000. This section has eight sub‑clauses. Sub?clause (a) prescribes that the person, who has been arrested or is in the custody of NAB, may apply to Chairman, NAB for reconciliation of his liability. The Chairman, NAB has been vested with authority to arrest such person or to take him into custody. Sub‑clause (b) deals with composition of Conciliation Committee. It enacts that such Committee shall consist of a nominee of NAB, a nominee of the Prosecutor‑General of NAB, an officer of the Banking Cell of NAB, a nominee by Chairman, NAB, a nominee of the Governor of State Bank of Pakistan, a Chartered Accountant, appointed by the State Bank of Pakistan, a Chartered Accountant appointed by the accused and a Chartered. Accountant appointed by the lender institution. Sub?-clause (c) empowers the Conciliation Committee to examine the record, accounts of the lending institution; written evidence of the accused produced through his nominee; The Chairman, NAB is given power to determine the amount due against the accused. This sub‑clause gives right to the accused to put his defence before the Committee al the commencement and before the conclusion of the proceedings. This provision, so incorporates the principle of audi alteram partem that nobody should be condemned unheard. The Committee is required to conclude the reference within thirty days and send its recommendations to Chairman, NAB. Sub‑clause (e) is very significant. It empowers the Chairman, NAB to consider the recommendations so received. The Chairman may accept the recommendations or may, for the reasons to be recorded, pass appropriate orders rejecting or modifying the same as he may deem fit. It so shows that such order shall be justiciable. Sub‑clause (t) says that if a man undertakes to repay the amount, as determined by the Committee or the Chairman, NAB, the Chairman may release the accused for the purpose of the Ordinance. Sub‑clause (g) is one of the most important provisions. It gives a very stringent power to Chairman, NAB. It states that if the Chairman is satisfied that the agreement entered into by the bank/creditor and the borrower is vitiated by section 23 or any other provision of the Contract Act or finds that the same is collusive and is' against the public interest, he may refuse to take into consideration such agreement for the purpose of' Conciliation Committee. Sub‑clause (h) is penal in nature. It says that in the event of failure either of Conciliation Committee to conclude the reference within thirty days of commencement of conciliation proceedings or failure of the accused to accept recommendation the reference shall be filed in the Accountability Court.

34. From the aforesaid analysis of section 25A of Ordinance, it is clear to us that it provides a new strategy to effect the recovery of outstanding loans from the defaulters who have been designated wilful defaulters. The principle of reconciliation and hearing the wilful defaulters is incorporated in this new strategy. The Chairman, NAB is given extraordinary power to ignore any agreement entered into between the borrower and the lending institution subject to a condition that he comes to the conclusion that the agreement . is violative of section 23 of the Contract Act or any of its provision or is opposed to public policy. Undoubtedly, this power appears to be highly exceptionable and at the first blush, seems to be draconian in nature. This power was not provided in Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The question which arises for consideration is whether this section is violative of any provision of the Constitution. As already noted, this is not repugnant to Articles, 4, 12 or 25 of the Constitution. This has been issued by the President of Pakistan on the advice of the Chief Executive pursuant to Proclamation of Emergency declared on 14th October, 1999. The action of October 12, 1999 has already been found validated on the doctrine of necessity by the Hon'ble Supreme L Court. It is well settled that normally Courts never impute motive to the Legislature. Furthermore, it is well settled that a new law, to the extent of repugnancy repeals the earlier one by the doctrine of implied repeal and if a special law is enacted, it overrides the general law. Reference may be made td Statutory Construction by Crawford, page 429:‑‑ "It is not uncommon to find one statute treating a subject in general terms and another treating only a statute should be read together and harmonized. This is especially true where the two statutes are in pari materia. In the event of repugnancy, the special statute should prevail, in. the absence of a contrary legislative intent, since the specific statute more clearly evidences the legislative intent than the general statute does. And this rule‑‑that a statute relating to a specific subject controls a general statute which includes the specific subject‑‑‑is not necessarily dependent on the time of the enactment of such statutes, although it may be a vital and important consideration. "

35. Applying this rule to the Ordinances 18 and 19 of 1999 and 4 of 2000, we find that these are new legislative measures enacted by the competent authority and so, occupy the field validly. From that perspective, we do find that section 25A is a valid provision and does not suffer from doctrine of ultra vires.

36. As regards question No.7 regarding mala fide, we are inclined to examine the case of both the sides in juxtaposition. This situation is to be examined in the context of various most problems of unpaid loans. This has affected the micro/macro economic parameters of our cherished State. At the end of December, 1999, Rs.141.135 billion or 15.6% of the total loans of the banking system was in default; at the end of March, 2000 the amount rose to Rs.143.053 billion or 16.0% of total loans. The quarterly report by State Bank of Pakistan states that the bank loan defaulter which stood at 121 billion in December, 1996 swelled to Rs.143.475 billion. The report reveals that nationalized commercial banks/State‑run banks had the highest rates of loan default ratio among all financial institutions; the report says that at the end of December, 1999 Rs.72.580 billion 20.5 % of all loans of nationalized commercial banks was in default; at the end of March, 2000, the amount fell to Rs.71 352 billion but the percentage rose to 20.7%.. The report says the figures of loan defaults relates to non‑performing loans of Rs.1 million 90 days past due; that the authorities have been addressing non‑performing loans issue since the end of calender 1997 during which year it increased by an unprecedented Rs.22.5 billion: Rs Million Dec-96 Dec-97 Dec-98 Dec-99 March-00 Total loans Default Percent Total loans Default Percent Total loans Default Percent Total loans Default Percent Total loans Default Percent NCBI 232,003 68837 27.3 273,148 86,483 31.7 300435 75458 25.1 354400 72580 20.5 345053 71352 20.7 Privatized Domestic Books 91,771 11,382 12.4 100,432 12,234 12.2 109,058 14,484 13.3 130,722 14,321 11.0 129,704 15,380 11.9 Privatized Domestic Books 60,049 3,170 5.3 83,761 4,756 5.7 96,954 6,072 6.3 111,378 11,910 10.7 118,226 12,525 10.6 Specialized banks 81,681 13,771 16.9 90,941 13,474 14.8 104,092 12,868 12.4 114,539 14,015 12.2 115,698 15,792 13.6 Foreign banks 93,648 4,369 4.7 116,513 5,050 4.3 123,994 6,841 5.5 125,468 6,475 5.2 124,047 6,254 5.0 DFLs 72,353 19,477 26.9 112,801 21,478 19.0 76,104 19,093 25.1 65,936 21,834 33.1 62,027 21,750 35.1 Total? 651,535 121,006 18.6 777,496 143,475 18.5 810,637 134,816 16.6 902,433 141,131 15.6 894,755 143,053 16.0 This depicts a very grim and dismal picture. It reveals that non?payment of loans of the nationalized commercial bank has become most odious problem. Both petitioners Nos.l and 2 had availed of the facility of forced loan. They were required to pay the price of machinery to foreign bank as back as in 1989 and got the facility of letter of credit from the concern bank. They failed to pay the price to original seller and so the bank had to pay price in Yen for foreign supplies in 1989. Having failed to pay the debt to the lending institutions more than twice, the loans were re?scheduled under the spectrum of political influence and no action whatsoever was taken against them. We have seen that in number of countries, Legislature took various stringent measures to resolve this problem and mostly, we find, a corporation was formed which took over these loans, the defaulters were declared insolvent, their properties, properties of the guarantors were sold and the country was put on a correct track. In our country, no benefit or lesson was learnt from the history and these defaulters continued to occupy the Legislature and rule the country. In both the cases, the learned Deputy Attorney‑General voluntarily said that the NAB was prepared to release both petitioners Nos. l and 2 provided they cleared the principal amount and sought for payment of mark‑up in instalment. In case of petitioner No. 1, learned Deputy Attorney‑General stated that the NAB had offered that .if petitioner No.1 was prepared‑to pay Rs.200,000,000 (rupees twenty crores) the Chairman, NAB was willing to consider his case for release and settlement. A similar offer was given to petitioner No.2 but none of them showed any willingness to accept the aforesaid offers. This clearly demonstrates that the petitioner had come to the Court with unclean hands and with unbending resolution not to pay the loans which are admittedly due against them on one pretext or the other. This being the position, we have no N difficulty in coming to the conclusion that the petitioners have come to the Court with unclean hands and so, are not entitled to grant of relief under Article 199 of the Constitution of Pakistan (1973) which is discretionary and equitable in nature. If any authority is needed, reference may be made to Md. Tahir v. State AIR 1956 Assam 12, New India Industries Ltd. v. Union of India (AIR 1990 Bombay 239) and Airport Support Services v. Airport Manager 1998 SCMR 22681. It will be useful to reproduce the relevant part of 1998 SCMR 2268 which is as under:‑‑ "In the foregoing circumstances, while T am of the view that the act of termination and take over on the part of the Civil Aviation Authority is. neither lawful nor sustainable, the case remains unfit for extension of any relief here on account of the appellant's own conduct, of which the most revealing is that the petition in the High Court was verified and affirmed by Hafizur Rehman, the Managing Director of the previous C.A.A.. contractor, whereby relegating the relief of the appellant for the benefit of another, since a firm is nothing but a sum total of its partners. The jurisdiction under Article 199 of the Constitution being discretionary, the Court, where equities require, may, even in the best of cases, choose to decline interference. Even since the principle was recognized in Nawab Syed Raunaq Ali's case PLD 1973 SC 236, the same has frequently been resorted to. This is one such case where, even though the respondents are found liable, redress need not follow. For such reasons, I am constrained to hold that this appeal should fail, but the parties be left to bear their own costs. "

37. For the aforesaid conclusions, we find no merit whatsoever in these petitions. The decisions rendered by the Accountability Court No. 1, we find is correct, just. and does no suffer from any jurisdictional or legal flaw, calling for interference in the Constitutional jurisdiction of this .Court. As a result; these petitions fail and are hereby dismissed. The parties are however left to bear their own costs. (Sd.) Mian Allah Nawaz, Chief Justice. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????? (Sd. ) Falak Sher, Judge, (Sd.) Tanvir Ahmad Khan, Judge. (Sd.) Mian Nazir Akhtar, Judge. (Dissenting judgement appended) (Sd.) Malik Muhammad Qayyum, Judge. FALAK SHER, J.‑‑Having concurred with .the draft judgment proposed to. be delivered by the learned Chief Justice, I would like to add that the sheet‑anchor of the arguments canvassed by Mr. Aitzaz Ahsan, learned counsel for. Mrs. Shahida Faisal was the consent judgment/decree pronounced by my learned brother Malik Muhammad Qayyum, J. in Civil Original Suit No.84 of 1998 styled as "United Bank Ltd. v. M/s. Shah Jewana Textile etc." under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 copy whereof was furnished by Mr. Kh. Saeed‑uz‑Zafar learned Deputy‑Attorney General which for the sake. of convenience of reference is reproduced hereinbelow in extenso:‑‑ "8‑2‑2000: Syed Ali Zafai, Advocate for the plaintiff. Mr. Ijaz‑ul?Ahsan, Advocate for defendants Nos. 1, 2, 3, 5, 6, 9, 12, 13 and

15. Nemo for other defendants. . This is a suit for recovery of Rs.691,998,000 along with mark‑up filed by United Bank Limited a Banking Company against Shah Jewana Textile Mills Limited a company incorporated under the Companies Ordinance, 1984 and 14 others who are alleged to be the guarantors and Directors of defendant No. I company. 2????????? According' to the case set up in the plaint, on the request of defendant No. l it was granted various financial facilities which were inter alia secured by personal guarantees of defendants Nos.2 to

15. According to the plaintiff the defendants have failed to discharge their liability and the suit amount is due and outstanding against them. In the aforesaid suit all the defendants jointly filed an application for leave to appear and defend the suit on various grounds. That application came up for hearing before this .Court on 30‑9‑1998 when it was noted that the defendants had accepted their liability to pay a sum of Rs.307 million. Consequently an interim decree for the aforesaid amount was passed in favour of the plaintiff and against the defendants.

4. As regards the remaining amount during the pendency of the suit defendants through Kh. Harts Ahmad, Advocate filed two applications namely C.Ms. Nos.667‑B/99 and 741‑B/99 averring that there has been a compromise between the parties copy of which was appended along with the said applications and praying that the suit be disposed of in terms of the compromise. It is, however, to be noticed that the compromise was signed by some of the defendants and not all of them. Subsequently defendants Nos. l, 2, 3, 5, 6, 9, 12, 13 and 15 through‑Mr. Ijaz‑ul‑Ahsan, Advocate made a similar application (C.M. No.21‑B/2000) praying for disposal of the suit in terms of the compromise. In the reply filed by the defendants it was stated that there has been a compromise between the parties but averred that it was not enforceable as some of the defendants had not signed the agreement. 5.???????? Learned counsel for the parties have been heard. So far as defendants Nos. l, 2, 3, 5, 9, 12 and 15 are concerned they have signed the agreement which has been appended along with this application. Although defendants Nos.6 and 13 are not signatories to the said agreement but their counsel Mr. Ijaz‑ul‑Ahsan has stated that they will be bound by the aforesaid agreement and the suit as against them may also be disposed of on that basis. Accordingly, the suit of the plaintiff is decreed as against defendants Nos. l, 2, 3, 5, 6, 9, 12, 13 and 15 in terms of the compromise Mark ' A' which shall form part of the decree.

6. As regards defendant No.14 there is no averment in the plaint that he has furnished any guarantee. He appears to have been impleaded as a defendant only in view of the fact that he was a director of the company. Obviously defendant No. 14 has no personal liability in the matter. Accordingly no decree is passed against the said ' defendant.

7. So far as the remaining defendants are concerned no one has appeared on their behalf. The application for leave to appear and defend the suit to the extent of these defendants is, therefore, dismissed for non‑prosecution and the suit of the plaintiff as against defendants Nos.4, 7, 8, 10 and 11 is decreed as prayed for in the plaint with costs." 2.???????? Perusal whereof reveals that veracity of the banked upon agreement having not been examined by the learned Single Judge, therefore, the authorities perceived by the National Accountability Bureau Ordinance ibid are not precluded from examining the same specially keeping in view the rubric of public interest. since the bank was dealing with public money as a? trustee.

3. Likewise the plea as to discrimination has been advanced in oblivion of the fact that if pressed into service it would tantamount to encouraging perpetuation of an illegality against the public interest being the paramount consideration.

4. However, I must hasten to add that it wouldn't absolve the NAB Authorities from looking into the same in keeping with the avowed objective of the public interest,. (Sd.) FALAK SHER, J. MIAN NAZIR AKHTAR, J.‑‑I have had the advantage of going through the elaborate judgment proposed to be delivered by my learned brother Mian Allah Nawaz, C.J. He has painstakingly written the judgment and dealt with various legal issues involved in the case. I fully subscribe to his views expressed qua the first question relating to the jurisdiction of this Court to examine the vires of the NAB Ordinance as well as the legality and validity of action taken by the Authorities thereunder. I also agree with his views regarding question No.2 that this Court has jurisdiction under Article 199 of the Constitution of Pakistan to examine whether the custody of the detenu is with or without lawful authority or whether he is being treated in a lawful manner irrespective of the fact that a reference has been filed before the Accountability Court. However, with utmost respect, I find myself unable to agree with him on his views qua questions Nos.3 to

7. I may also observe here that 7th and 8th arguments noted at pages 10 and 11 of the proposed judgment pages 519 and 520 of the report do not accurately reflect the arguments raised by the petitioner's learned counsel (in W.P.No.739/2000). He had urged that the provisions of section 25A of the Ordinance had no application in respect of the petitioner's case because he never made an application for conciliation proceedings as in his case the re?scheduling of loan had already been done. He had further urged that the Chairman, NAB could have examined the legality, validity or bona fides of a transaction or agreement only during the course of conciliation proceedings and did not enjoy plenary powers like a Civil Court to set at naught any agreement reached between a banking institution and a borrower. He had also cited instances of about 8 other Mills to urge that the Chairman. NAB had allowed them the concession of re‑payment of loan through instalments for different periods ranging from 9 to 14 years. In this context he invoked fundamental right of equal treatment enshrined under Article 25 of the Constitution of Pakistan.

2. Before expressing my views on the issues involved in the case, I may observe generally that NAB Ordinance is inherently meant to provide an opportunity to the defaulters to liquidate their loan liabilities in the larger national interest. It is not meant to be a dagger to be plunged into the abdomen of a defaulter in the hope of getting bags‑full of currency out of him. It is also not meant to try all the offenders and push them behind the iron bars of jails. It is a kind law in the sense that before formal trial it provides them with an option to resort to conciliation proceedings and settle the matter amicably. It contains a provision in the shape of section 25A (t) whereby on a mere undertaking on the part of a person arrested or apprehended by the NAB, the Chairman, NAB can release him. It is also a kind law in the sense that it contains no provision to catch hold of the proven defaulters who managed to get their loans‑running into millions or billions of rupees, written off with impunity. This aspect of the matter, though not directly in issue in these cases, was hinted at during the course of hearing of these petitions to draw the attention of the concerned authorities to the shortcomings in the law.

3. In the two cases before us, Faisal Saleh Hayat, the detenu in W.P. No.739/2000 and Ghulam Murtaza Khar, the petitioner in W.P. No.6184/99 (both, hereinafter referred to as "the borrowers") had not obtained cash amounts as loans from the banks. They had, in fact, opened Letters of Credit separately in the banks and imported machinery from abroad. The banks entered into an agreement with the borrowers and paid the amounts to the foreign suppliers. On their part, the borrowers were supposed to commence their business and re‑pay the amount to the concerned banks through instalments but they failed to do the needful.

4. At the time when the "borrowers" availed of the financial facility and later committed defaults in re‑payment, "wilful default" ' was not an offence. Even on 16‑11‑1999 when NAB Ordinance was enforced "wilful default" was not made an independent offence. It was originally included in the schedule of offences under the NAB Ordinance as an offence of corruption and/or corrupt practices. Subsequently, through Ordinance IV of 2000 the Schedule was amended in the following manner:‑‑ (a) F9r the word "willfull" the word "wilful" shall be substituted (b) After the word " institution" the words and comma "a cooperative society, a Government department or an authority established or controlled by the Government" shall be inserted. Resultantly, "wilful default" was made an independent offence through the Amending Ordinance IV of 2000 promulgated on 3‑2‑2000. Since‑ this law affects the substantive rights of the citizens and puts their person and property to serious perils, it could not be given retrospective effect, moreso when the Amending Ordinance itself does not specifically provide that it will date back in its operation. Section I of Ordinance IV of 2000 provides that it shall come into force at once i.e. 3‑2‑2000, the date of publication of the Ordinance. Prior to the said date, persons liable for corruption and corrupt practices as defined in the Ordinance could be apprehended and tried in accordance with the law. The Ordinance was enforced originally to uproot corruption and corrupt practices. It is evident from the very definition of the word "offence" given under section 5(n), which reads as under:‑‑ " 'Offence' means the offences of corruption and corrupt practices as defined in this Ordinance and includes those offences as specified in the Schedule to this Ordinance". ' The definition of "corruption and corrupt practices" given in section 9 is wide enough to cover the case of a person if he, by corrupt, dishonest or illegal means obtained or seeks to obtain for himself, or for his spouse and/or dependants or any other person, any property, valuable thing, or pecuniary S advantage or misuses his authority so as to gain any benefit or favour for himself/or any other person or to refer or attempt to do so. This is also implied in the disqualification of an offender provided under section 15(b) of the Ordinance whereby a person on being convicted of an offence of corruption and/or corrupt practices is not to be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances S from any bank or financial institution in the public sector, from a period of 10 years from the date of conviction. The object of the Ordinance stated in .the preamble is to provide for effective measures for the detection, investigation, prosecution and speedy disposal of the cases involving corruption, corrupt practices, kickbacks commissions and matters connected T and ancillary or incidental thereto. Perhaps the law‑maker thought that in the process of detection, investigation and prosecution of the offenders, the recovery of loan could be dealt with as an ancillary or incidental matter: 5.???????? The law contemplates two stages for dealing with the offenders, the first before the Chairman, NAB where the matter may end through conciliation and a reference may not be filed at all before the Accountability Court. This is an .alternate method of resolving the dispute. During this stage it is open to a person who has been arrested or is in the custody of NAB on the charge that he is guilty of committing the offence of wilful default to apply to the Chairman, NAB for reconciliation of his liabilities through a Conciliation Committee and the Chairman, NAB may refer the matter to the Committee. It may be mentioned that the Chairman, NAB. is appointed by: the President of 'Pakistan on the advice of the Chief Executive. His I qualifications have, not been mentioned in the Ordinance. Therefore, he may be any person deemed suitable and competent to run the affairs of the National Accountability Bureau. In the discharge of his duties pertaining to conciliation proceedings he is assisted by a Conciliation Committee consisting of a nominee of the NAB (who acts as Chairman of the Committee . U not the Commission as wrongly printed in the text of the Ordinance), a nominee of the Prosecutor‑General, NAB, an officer of the Banking Cell of NAB nominated by the Chairman, a nominee of the Governor of‑ the State Bank of Pakistan being a senior officer of the said Bank well qualified in the field of banking, a Chartered Accountant appointed by the State Bank of Pakistan, a Chartered Accountant appointed by the accused to represent him and a Chartered Accountant appointed by the lending institution. The object is that persons having specialised knowledge in the Banking Law, procedure and practice should assist the Chairman, NAB to arrive at a correct conclusion regarding the liability of the accused and the course of action to be adopted for its re‑payment. In my view, this stage is vitally important and' should .be given greater importance to curtail litigation, recover loans and enliven commercial and industrial activities in the country. This alternate mode of resolving the dispute should be made compulsory in all cases by making suitable amendments in the existing law. The second stage pertains to trial of the accused on, filing of a reference before the Accountability Court.

6. As. mentioned above, the initiation of conciliation proceedings is ~‑optional with the aggrieved person and reference to a Conciliation Committee is discretionary with the Chairman, NAB. If the Chairman, NAB, keeping in view the facts and circumstances of a case, declines to refer the matter to a Conciliation Committee the matter ends so far as the first stage is concerned. However, if he opts to make the reference, then the Conciliation Committee proceeds under section 25‑A(c) of the Ordinance to examine the record and accounts of the Bank and the written evidence produced by the accused through his Chartered Accountant, if any, and determine the amount outstanding against the accused calculated in accordance with the law, circulars, rules and regulations of the lending Bank and the State Bank of Pakistan and the manner and schedule of re-payment. The words "and the manner and schedule of re‑payment" qualify the word "determine" occurring in the earlier part of section 25A(c) of the Ordinance. Thus the Conciliation Committee is competent to lay down the manner and schedule of re‑payment I of the loan/financial facility by the defaulter. The Conciliation Committee has to make its recommendations including its determination regarding the I manner and schedule of re‑payment which may or may not be accepted by the Chairman, NAB as provided under section 25A(e) of the Ordinance. If it is accepted, then no reference will be made to the Accountability Court and U the defaulter will be allowed to make re‑payment in accordance with the I recommendations of the Conciliation Committee as approved by the Chairman, NAB. The law does not clearly provide whether the approval of . the recommendations of the Conciliation Committee by the Chairman, NAB will result in release of the defaulter or not. However, it is provided under section 25A(f) of the Ordinance that where the accused undertakes to re‑pay the amount as determined by the Conciliation Committee or the Chairman, NAB, as the case may be, the Chairman, NAB may release the accused for the purposes of this Ordinance. This generous treatment is meted out to a defaulter to enable him to fulfil his commitment in future. The law does not provide whether the undertaking must be to re‑pay the amount in lump sum within a certain period or whether it can be paid in instalments by re?scheduling the loan. When clauses (c) and (f) are read together then it is possible to construe that an undertaking to re‑pay the amount can be through instalments which may run into a reasonable period. The Conciliation Committee and the Chairman, NAB exercised their powers under the above clauses and allowed the benefit of re‑payment of the amounts to a number of defaulters through instalments payable during the period ranging from 9 to 14 years. The learned counsel for the petitioner (in W.P. No.739/20001 placed on record a chart showing rescheduling to loans by the Chairman in .about eight cases, correctness whereof was not denied by the learned Law Office appearing for the respondents. The chart (placed on the record alongwith C.M. 360/2000 containing the particulars, the names of the borrowers/defaulters and the terms of re‑payment) is reproduced below: List of Companies whose re-scheduling has been done before 16th November, 1999.

????????????????? United Bank Limited, Lahore Zone ________________________________________________________________________________________ Name of Company??????? Total liability? ? Rescheduling period????????????? Remarks?????????????????? Down payment _______________________________________________________________________________________ 1.Sohail Textile???????????????????????????????????????????????????????????????????????? ????? Accumulated ???????? ????????10% Mills.??????????????? ?????????????????????????????????????????????????????????????????????????????????????????? liability of 2.Hajra Textile Mills??? 600,000,000????????????????? ???9 years??????????????????????????? all three ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Mills of

3. Ayesha Textile?????????????????????????????????????????????????????????????????? ??????????????????????Ayesha Group? Mills _______________________________________________________________________________________ ??????????????? Habib Bank Limited, Lahore Zone _______________________________________________________________________________________

1. Hira Textile?????????????? 450,000,000 ?????????????? 10 years?????????????????????????????????????????????????????????? ??????????? 10% ?Mills

2. Kunjah Textile????????? 550,000,000 ?????????????? 10 years?????????????????????????????????????????????????????????? ??????????? 10% ?Mills

3. Shahzad Textile??????????????????????????????????????????? 14 years?????????????????????????????????????????????????????????? ??????????? 10% ?Mills

4. Khalid Shafiq??????????? 370,000,000 ?????????????? 10 years?????????????????????????????????????????????????????????? ??????????? 10% ?Textiles

5. Haseeb Spinning ????? 455,000,000 ?????????????? 10 years?????????????????????????????????????????????????????????? ??????????? 20% ?Mills ________________________________________________________________________________________

7. An undertaking to re‑pay the loan incorporates a solemn commitment and an express intention to liquidate the loan liability in future. Same is the position of an agreement relating to rescheduling of the loan which embodies the express intention of the loanee and his solemn commitment to liquidate his liability through mutually settled instalments within a certain period. Both imbibe the spirit of the Islamic Law whereby a borrower is to be granted time to pay back the debt. The new law is silent as to the period during which a. defaulter who undertakes to re‑pay, may be allowed to pay the amount due from him. Hence the rule of reasonableness has to be applied keeping in view the facts and circumstances of each case. The NAB Authorities have. allowed periods between 9 to 14 years in the above‑referred‑ cases. Since the detailed facts pertaining to the said cases are not before us, we are not in a position to say whether the time granted by the NAB Authorities is reasonable or not. Anyhow, one thing is absolutely clear. that re‑scheduling of loan is being permitted even by the NAB Authorities and rightly so because in the banking business and practice, re‑scheduling of loan is a known phenomena. It puts an end to a deadlock, secures rights and interests of the parties, makes cash flow possible and saves the parties from the ordeal of litigation. This practice is being liberally followed at national and international levels. Pakistan has been getting its loan from international institutions re‑scheduled from time to time. No international institution can declare Pakistan to be a wilful defaulter after allowing re‑scheduling of the loans. The same is the position of a citizen of the country. After re?scheduling of the loan what becomes due from a defaulter is the periodical instalment.. If he does not pay the instalments, then he may be held liable for committing "wilful default", keeping in view the facts and circumstances of the case. I may observe that a distinction must be drawn between the persons who were given loan facilities in cash and those who were allowed to import machinery on opening of a Letter of Credit with the bank. The persons falling in the second category established their industrial or commercial units in order to generate funds and repay the amounts through instalments. In case of default, it was open to the parties to settle the dispute through mutual negotiations or arbitration or other legal proceedings in accordance with the terms of the original agreement. A borrower despite his bad conduct may be allowed to benefit of re‑scheduling of his loan liability as the law does not intend to ruin the borrowers engaged in commercial and industrial activities. Rather it aims at rehabilitating them so that commercial and industrial units may not be thrown in the doldrums.

8. In the cases before us the loan liability of the borrowers was re?scheduled. They are justified to invoke the provisions embodied in Article 25 of the Constitution of Pakistan regarding equality before ‑law and equal protection of .law. Re‑scheduling of loan liabilities by the NAB Authorities is legal and results in certain benefits for the defaulters. The "borrowers" deserve the same treatment as their loan liabilities have been re‑scheduled by the lending institutions. While dealing with this aspect of the matter, it has been observed in para. 31 of the proposed judgment: ?????.equality protection clause guarantees equal treatment before law and equal protection of law. It is not designed to cover the instance of illegal action/activity. No doubt we do not view with favour the treatment of NAB as far as other similarly situated people are concerned." It obviously means that the Chairman, NAB had illegally re?scheduled the loan liabilities of other defaulters, therefore, the same treatment could not be claimed by the borrowers in the present. case on the strength of equality clause. With utmost respect I find myself unable to subscribe to this view. The Chairman, NAB had lawfully exercised his powers in accordance with the provisions of section 25‑A of the Ordinance. It is not enough, without assigning any reason, to view with disfavour the treatment of NAB qua other similarly placed persons. No parameters have been laid down in the proposed judgment regarding exercise of discretionary powers under the above‑quoted provision of law by the NAB Authorities. To me the Chairman, N.A.B. assisted by the Conciliation Committee appears to V have exercised his discretion in a discreet manner and in consonance with the letter and spirit of the law. The "borrowers" cannot be accorded a different treatment as it would be hit by the protection clause embodied in Article 25 of the Constitution of Pakistan.

9. While dealing with question No.5 relating to the agreement between the bank and the creditors and validity and legality of the proceedings under the NAB Ordinance it has been observed in para.33 of the proposed judgment as under:‑‑ "The Chairman, NAB is given extraordinary power to ignore any agreement entered into between the borrower and the lending institution subject to a condition that he comes to the conclusion that the agreement is violative of section 23 of the Contract Act or any of its provisions or is opposed to public policy." With due deference, I may observe that power to ignore an agreement is not spelt out from the provisions of section 25A of the Ordinance. On the contrary, while considering the recommendation of the Conciliation Committee, the Chairman, NAB is 'bound under clause (g) of section 25A to consider the agreement and if satisfied that it was vitiated by the provisions of section 23 or any other provision of the Contract Act, or any other law or that the same was collusive or against the public policy then he could refuse to take it into consideration for the purposes of Conciliation Committee or the conclusions drawn by the Committee. What to speak of the power to ignore the agreement, the Chairman, NAB is put under the legal duty to apply his conscious mind to its provisions for his objective satisfaction qua the above‑noted three conditions. In my view, section 25A of the Ordinance does not give plenary powers to the Chairman, NAB to examine the legality and validity of every agreement relied upon by a borrower/defaulter. His power is limited to consideration of an agreement brought to his notice during the course of conciliation, proceedings initiated at the option of a person who has been arrested or is otherwise in the custody of the NAB on the charge of committing an offence of wilful default. If it is intended to give such a power to the Chairman, then conciliation proceedings must be made compulsory in all cases and then the legality and validity of an agreement relied upon by a person apprehended by the Bureau can come under scrutiny in the light of the provisions of clause (g) of section 25A of the Ordinance. 10 It is a firmly established rule of construction of statutes that a retrospective operation is not to be given to a statute so as to impair. existing, rights or obligations except in respect of the remedial, procedural or declaratory statutes. If the amendatory Act/Ordinance modifies the provision already contained in the parent statute then it may be given effect from the date of its promulgation or. when the parent statute was made operative. However, if the amendatory Act/Ordinance brings on the statute book a new provision touching upon the substantive rights of the citizens, then generally it has to apply prospectively. In the case of Fateh Khan v. Mst. Khanam Jan and others (PLD 1961 (W.P.) Peshawar 20) the Full Bench had expressed the view that an amendment in the substantive law is also a piece of substantive law and would not take effect retrospectively unless there is a direction in the law to that effect: Ordinance IV of 2000 was published in the official Gazette on 3‑2‑2000. Under subsection (2) of section 1 of the Ordinance; it was provided that the Ordinance would come into force, at once, i.e. with effect from 3‑2‑2000. The words used in the parent Ordinance that it would be deemed to have taken effect from 1‑1‑1985 are conspicuously absent from section 1 of Ordinance IV of 2000. The conscious omission of the said words implies change of the intention of the law‑maker that the Amending Ordinance will come into force prospectively to the extent of its substantive provisions. The amending provision is the later expression of the intention of the law‑maker. True all amendments introduced through Ordinance IV of 2000 have become a part of the parent Ordinance, only the remedial, procedural or declaratory provisions in the Amending Ordinance will date back but the amendment creating a new category of offence of wilful default will take effect from 3‑2‑2000. In the case of Pakistan Herald Publications (Private) Ltd. and 23 others v. Federation of Pakistan and 21 others (1998 CLC 65), it was held as under:‑‑ "As already observed, whatever be the underlying idea as the language of section 9(c) is unambiguous it has to be given effect to Contrary intention, cannot be spelt out on the basis of its so‑called rational or objective. According to the well‑established principle of construction of Statute, if the language is unambiguous, explicit and clear, no question of interpreting it arises and the language as used must be enforced." No penal offence can be given effect to retrospectively in view of the express bar contained in Article 12 of the Constitution of Pakistan. In my view, retrospective effect given to Ordinance XVIII of 1999 from 1‑1‑1985 is also repugnant to the provisions of Article 12 of the Constitution. The said Ordinance will also take effect from the date of its promulgation, i.e 16‑11‑1999. The question of retrospectivity of an offence is further elaborated in paras. 11 to 18, below:

11. Mens rea is an essential element of a penal offence. It cannot be attributed retrospectively to persons committing certain acts which were innocent in character when committed in the past or were not made punishable under the law. The notion of retrospectivity offends against the fundamental rules of criminal law and justice. Under the Islamic Law certain offences committed before the enforcement of the Islamic Law were condoned and not made punishable with retrospective effect. The Holy Qur'an says:‑‑ (And marry not those women whom your fathers married, except what hath already happened (of that nature) in the past.) (And it is forbidden unto you) that ye should have two sisters together, except what hath already happened (of that nature) in the past. Lo! Allah is Ever‑forgiver, Merciful). Both, the act of marrying a woman who was married to one's father or marrying two real‑sisters at a time are strictly forbidden in Islam and may lead to penal consequences but whatever was done in the past was condoned and not made punishable retrospectively. Similarly, while delivering the address at the time of the last Hajj the Holy Prophet Hazrat Muhammad (p.b.u.h) waived even the offence of murder committed before the advent of Islam. He pointedly referred to the first murder of Ibne Rabia Bin Haris Bin Abdul Mutalib (from his own family) and declared that it was forgiven. Thus, the offences committed before enforcement of the Islamic Law were not made punishable retrospectively.

12. The Universal Declaration of Human Rights incorporates a provision against retrospectivity of a penal offence. Its Article I1 reads as under:‑‑ "No one Mall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed."

13. The question of retrospectivity of a penal offence came up for consideration before the Supreme Court of Pakistan in the case of Nabi Ahmad and another v. The Home Secretary, Government of West Pakistan, Lahore and '4 others (PLD 1969 SC 599). It was held that statutes are? presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. In this judgment it was clarified that the expression retrospective statute is relatable to a civil matter whereas the expression ex post facto legislation pertains to criminal matters. The Court referred to the nature and meaning of ex post facto law as follows:‑‑ "An ex post facto law is one which makes criminal and punishes an act which was done before the passage of the law and which was innocent when done, aggravates a crime or makes it greater than it was when committed, changes the punishment and inflicts a greater punishment than was prescribed when the crime was committed, or, alters the legal rules of evidence and receives less or different testimony than was required to convict at the time the offence was committed. Further, an ex post facto law may be one which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done, was lawful, deprives persons accused of crime of some lawful protection or defence previously available to them, such as the protection of a former conviction or acquittal, or of a proclamation of amnesty, or generally, in relation to the offence or its consequences, alters the situation of an accused to his material disadvantage." (Taken from Corpus Juris Secundum, Vol. 16‑A, Article 435). The Court was pleased to hold that :- "Rights of the parties arising from facts which come into existence before the passing of a statute should be presumed to be unaffected by it unless it is expressly or by necessary implication made retrospective. The full significance, and implications, of the protection cannot be fully appreciated, unless we discover its reason. This is not a statutory protection, yet the principle has by virtue of a presumption of fair play effectively checked encroachments on existing rights by the all powerful British Parliament, unless they were found to have been clearly and unambiguously so intended. The origin of this presumption is to be found in the conscientious abhorrence that all just men have for the injustice that is inherent in changing the legal implications of a situation to the disadvantage of those who would otherwise benefit by a right which existed at the time of the change. As a manifestation of more or less, a natural or instinctive sense of justice, or perhaps gut instinctive repugnance to what one feels to be injustice, the Courts have held that laws do not 'impose .new liabilities in respect of events taking place before their commencement'. Since the above way of thinking is the consequence of a sense of aversion for injustice, it is immaterial whether the law is changed before the hearing of the case at first instance or whilst an appeal is pending'. One more consideration which appeals is that law‑abiding members of society regulate their lives according to the law as it exists at the time of their actions, and they expect the law to be steadfast and reliable. They assess and weigh the consequences according to the demands of existing system of law, .including the requirements implicit in the existing system of law, and are entitled to feel cheated if the law later lets them down by taking away or reducing their rights, or increasing their burdens. The time at which a presumption arises against retrospectivity is to be determined by the circumstances which call for protection against injustice. The differences in the manifestations of this deed are mere matters of detail. The need may arise before the commencement of proceedings with reference to the time at which a cause of action arose, or an innocent deed was done. This happens if, for instances, a law is made to eliminate that cause of action or to make that innocent act punishable. It may also arise with reference to the time at which a new law was enforced during the pendency of a proceeding. Such an occasion can arise if, for instance, the right of appeal is abolished after the institution of a proceeding. So also it may arise with reference to the time at which a proceeding, whether civil or criminal was concluded by a decree, conviction or acquittal, and then a law was passed taking away the right' of appeal against the decree, conviction or acquittal, when no proceeding was pending. When we think of such an injustice, we are really thinking of the adverse effect of the new law on vested rights."

14. Justice Blackstone explained ex post facto laws in the case of Philips v. Eyre (1870) 6 QB 1 in the following words:‑‑ "After an action, indifferent in itself, is committed, the Legislature then for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible, that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore, no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust; "

15. The prohibition against ex post facto legislation was contained in the 1956 and 1962 Constitutions of Pakistan. Article 6 of the 1956 Constitution of Pakistan containing prohibition against conviction for an offence which was not an offence when committed is materially the same as Article 20 of the Indian Constitution. However, Article 9 of 1962 Constitution is substantially the same as Article 12 of the Constitution of Pakistan, 1973 which reads as under:‑‑ "Protection against retrospective punishment.‑‑(I) No law shall authorise the punishment of a person‑‑‑ (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than; or of a kind different from; the penalty prescribed by law for that offence at the time the offence was committed." The word "law" used in sub‑clauses (a) and (b) of clause (1) of the above‑quoted Article means law in operation at the time of the commission or omission charged as an offence. A law in force cannot be equated with a law "deemed to be in force" through ex post facto legislation. The term "law" used in the Article postulates actual and not notional existence of the law at the relevant time. In the case of Shafi Ahmad v. The State (1977 PCr.LJ 717) the question about retrospectivity of an amended provision of W law was considered. The provisions of section 156(8) and 89, Customs Act. 1969 were amended by Customs Act (Amendment) Ordinance, 1977 whereby a person could be prosecuted even if value of contraband goods was less than Rs.5,

000. It was held that the amended provision had no application to a person who had committed the offence before the amendment because such action was forbidden by Article 12 of the Constitution. In the case of Golden Industries Ltd. v. Province of Sindh and 2 others (PLD 1983 Karachi 76) it was held that Article 12 prohibited retrospective application of the law which authorized punishment for an offence. In the case of State Bank of Pakistan through The Banking Officer v. Messrs Raza Enterprises (Regd.) and 2 others (1990 PCr.LJ 317) it was held that although Legislature had the power of enacting laws, both prospective as well as retrospective, but whenever retrospective law was enacted it was subject to restrictions contained in Article 12 of the Constitution and subsequently law could not punish an act which was not an offence at the time when it was committed.

16. Coming to the question whether wilful default is a continuing offence, I may, observe at the very outset that prior to enforcement of NAB Ordinance, 1999 default in payment of loan to banking companies was merely a civil wrong for which the remedy was a suit for recovery of the loan under the Banking Companies (Recovery of Loans) Ordinance, 1979 and after its repeal, under the Banking Companies (Recovery of Loans, X Advances, Credits and Finances) Act, 1997. A suit could be filed even for recovery of written off loans under section 8 of the Act. For the first time wilful default was sought to be made an offence under the garb of corruption and corrupt practices through the NAB Ordinance (XVIII of 1999). However, the law was amended and it was made an independent offence through Ordinance IV of 2000 enforced on 3‑2‑2000. Under the Ehtesab Ordinance 1997 (enforced from 1‑1‑1990) "wilful default" was not made an offence. However, corruption and corrupt practices committed by holder of a public office was made an offence under clause (d) of section 3 of the Ehtesab Act No.IX of 1997 which is reproduced below:‑‑ "if he, by corrupt, dishonest or illegal means in abuse of position as a holder of public office obtains or seeks for himself, or for (any other person) any property, valuable thing, pecuniary advantage." The question whether Ehtesab Act, 1997 could be enforced from 1‑1‑1990 and whether it was violative of Article 12 of the Constitution of Pakistan came up for consideration before a Full Bench of this Court in the case of Riffat Askari v: The State (PLD 1997 Lahore 285). It was held that clause (a) of Article 12(1) of the Constitution furnished a guarantee that an act or omission which was not punishable by law at the relevant time could not be made punishable subsequently, meaning thereby that no offence could be created retrospectively, It was further held that the facts as incorporated in the F.I.R constitute offences under the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947; that the acts or omissions forming part of the. charge were not innocent even in the year 1995 when the same had occurred; that no new offence had been created, X therefore, clause (a) of Article 12(1) of the Constitution was not attracted.

17. Another Ordinance called Offences in Respect of Banks (Special Courts) Ordinance, 1984 was enforced on 23‑2‑1984. It made certain scheduled offences to be triable by the Special Court but again the offence of "wilful default" was not included therein. Thus it is clear that prior to enforcement of Ordinance No.IV of 2000 "wilful default" was never made an independent offence. Hence, it could not be referred to as a continuing offence prior to the said date. At the most, it could be termed as a continuing wrong. After it was made an independent offence, then it could be referred to as a "continuing offence" as long as the default continued. If before 3‑2‑2000 the loan liability had been liquidated or rescheduled, the wrong stood rectified. Past defaults, at the most, could be relevant to lay bare the intention of an accused person. There was no legal justification to file references against the borrowers as their default prior to 3‑2‑2000 was not an offence. Hence; the references made by the Chairman, NAB against the borrowers are illegal and the proceedings before the Accountability Court are an exercise in futility. In case the borrowers do not fulfil their commitment and become wilful defaulters again then fresh references can be filed against them in accordance with the law.

18. The concept of a continuing offence has been highlighted in the proposed judgment with reference to some foreign judgments. I may observe that foreign judgments are not binding on Courts in Pakistan and may, at the most, have some pursuasive value. There is no cavil with the proposition that some offences ate susceptible‑ to continuance and may be termed as continuing offences as distinguished from those which are committed once and for all. However, in either case it must be determined whether the act or omission was declared by law to be a penal offence at the relevant time. The judgments in the cases of State of Bihar v. Deokaran Nenshi and another (AIR 1973 SC 908) and Bhagirath Kanoria and others v. State of M.P. (AIR 1984 ,SC 1688) pertain to a certain state of law existing in India and are not relevant for holding that "wilful default" committed in Pakistan before its becoming a penal offence is a continuing offence. The former case pertains to submission of annual returns under the Mines Act, 1952. Failure to forward the return was made punishable with fine under section 66 of the Mines Act, 1952. On commission of the offence, a complaint could be filed within one year under section 79 of the Act. It was urged that the complaint was barred by limitation, provided under the Act. In this context, it was held that failure to furnish return before the due date was not a continuing offence. While recording this finding the Court had referred to a few illustrative cases. To quote only one of the cases reported as Best v. Butler and Fitzqibbon (1932) 2 KB 108, the English‑Trade Union Act, 1871 made it penal for an officer or a member of the trade union to wilfully withhold any money, books etc. of X the trade union. It was held that the offence of withholding the money, etc , was a continuing offence. The basis of the decision evidently being that every day that the money was wilfully withheld the offence was committed. The key note in the case is that the law had actually made the act of withholding the money, books etc. as an offence. The case of Bhagirath Kanoria and others (AIR 1984 SC 1688) pertains to the offence of failure to pay contribution to the provident fund which was made punishable under section 14(2‑a) of the Employee's Provident Fund and Family Pension Fund l Act (XIX of 1952). The punishment provided under the law is imprisonment for 3 months or with fine up to Rs.1,000 or with both. The limitation provided for filing a complaint under section 468 of the Indian Code of Criminal Procedure, 1973 is one year (for an offence punishable with imprisonment for a term not exceeding one year). Different periods of limitation are provided for certain other offences. In this context it was held that failure to pay the employer's contribution to provident fund is a continuing offence and that each day the employer failed to comply with the obligation to pay his contribution to the fund, he committed a fresh offence. It is thus clear that the rule laid down in the above‑quoted foreign judgments pertained to an act or omission which was already declared by law to be an offence.

19. The judgment in the case of Sajjan Singh (AIR 1964 SC 464) does not support the view that a penal offence can be created with retrospective effect. This judgment pertains to interpretation of section 5(3) of the Prevention of Corruption Act, 1947. It was held that this provision did not create a new offence but merely prescribed a rule of evidence for the purpose of proving the offence of criminal misconduct. It was specifically stated in para. 12 of the judgment: "We agree with the learned counsel that the Act has no retrospective operation. " It was clarified that a statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from time antecedent to its passing. It was further held that to take into consideration the pecuniary resources or property in the possession of an accused or any other person on his behalf acquired before the date of Act is in no way giving the Act a retrospective operation. The case of Shive Dutt Rai Fateh Chand (AIR 1984 SC 1194) pertains to the offences in these General Sales Tax Laws. Repelling the argument that section 9 of the Amending Act was not violative of provisions of Article 19(1)(f) & (g) or.20(1) of the Indian Constitution it was made clear; "the penalty imposed by the Sales Tax Authorities is only civil X liability though penal in character". It was further stated that the word "penalty" used in Article 20(1) of the Indian Constitution cannot be construed as including a "penalty" levied in the Sales Tax Laws by the departmental authorities, The case of Sint. Maya Rani Punj (AIR 1986 SC 293) pertains to a civil liability though called a "penalty". This judgment could not be relied upon to convass that an act which was not an offence in the past could be made so in future or that the Act making it an offence could be given retrospective effect. In the case of Mir Ghous Bakhsh Bizenjo v: The Islamic Republic of Pakistan through Secretary, Ministry of Law, Islamabad and another (PLD 1976 Lahore 1504) it was held that Article 12 of the Constitution merely dealt with the punishment of any act as an offence and not with civil liabilities and as such amended section 8 of the Political Parties Act, 1962 could not be struck down merely on the ground of its retrospectivity. In view of the rule laid down in this judgment the above?quoted foreign judgments relating to civil penalties cannot be pressed into service to justify the creation of a criminal offence retrospectively.

20. Coming to the facts of the case pertaining to W.P.739/2000, Shah Jewana Textile Mills Limited made an application for opening a Letter of Credit on 26‑6‑1989 in the United Bank Limited, Bank Square Branch, Faisalabad. Accordingly, the Bank established Letter of Credit on the same day with the following schedule of payment to the foreign bank:‑‑ (i) 10% as advance payment by the Letter of Credit. (ii) Balance 90% payable in 12 equal half‑yearly instalments together with ‑interest at the rate of 6 % per annum, first instalment falling due on 18 months of the last major shipment. As per the arrangements all the instalments under the Letter of Credit were to be paid to the company from its own resources without availing of any finance facility from the Bank. The company did not pay these first five instalments during the period from 15‑3‑1992 to 12‑3‑1994. The first five instalments were re‑scheduled by the Bank on 11‑10‑1994 which created forced liabilities of a Demand Finance‑I of Rs.234.328 million with mark‑up 18%, repayable in 14 equal half‑yearly instalments. The company neither paid these instalments nor the 6th instalment. The Bank created Demand Finance‑11 for Rs.26.090 million payable in 12 equal half ?yearly instalments. The company did not make any payment and the default continued whereupon the 7th instalment was also re‑scheduled. Despite that the company neither paid instalments nor the subsequent 8th, 9th and 10th instalments. For the first time, the company paid the 11th instalment of Rs.18.933 million which fell due on 15‑3‑1997 from its own resources. The other instalments were paid by the Bank to the foreign bank. In view of the borrower's continuing defaults the Bank was constrained to file a civil suit (C.O.S. No.84/1998) for. the recovery of the amount against the company on 5‑5‑1998. In this suit an interim decree for Rs.307 million was passed in favour of the Bank on 30‑9‑1998. The parties had some dialogue for settling the matter on the basis of compromise. On 16‑11‑1999 the Bank communicated to the company vide letter dated 16‑11‑1999 the terms and conditions for re‑scheduling the liabilities outstanding against the company. This was accepted by the company but the formal compromise agreement was executed on 19‑11‑1999, according to which the company undertook to pay an amount of Rs.629.389 million to the Bank in 120 consecutive monthly instalments the last one falling due in December, 2009. The company also made down payment of Rs.80.00 million. On the basis of the said compromise Banking Court passed a decree on 8‑2‑2000. The decree was not challenged by any party and attained finality in the eye of law. Thus it is clear that before the offence of wilful default was brought on the statute book through the Amending Ordinance IV of 2000 on 3‑2‑2000, the borrower's liability stood re‑scheduled on the basis of a compromise. It was acted upon partly when the company made payment of Rs.80.00 million. Now the borrower is regularly paying the instalments to the Bank. Under these circumstances, the borrower, despite his past bad conduct, could not be held liable for the penal offence in respect of the wilful defaults committed before 3‑2‑2000. There is considerable force in the argument raised by the petitioner's learned counsel that the Chairman, NAB does not enjoy plenary powers like a Civil Court to declare any agreement between the borrowers Y and the lending institution to be collusive or against the law and the public policy. The Chairman, NAB is only a persona designata and enjoys limited powers under section 25A of the Ordinance to refuse to take an agreement into consideration for the purposes of Conciliation Committee or the conclusions drawn by the Committee after recording his objective satisfaction that the agreement is against the law and public policy or is collusive. It is noteworthy that without there being conciliation proceedings in the matter (as no application was made by the borrower for the said purpose) the Chairman, NAB passed the following terse order on 29‑3‑2000 :‑‑ "Having examined and considered the agreement entered into between the Habib Bank Limited and the accused Ghulam Murtaza Khar I am of the opinion that the said agreement is against the public interest and that it is not acceptable in terms of section 25(g) of the National Accountability Bureau Ordinance, 1999." This order contains no reasons and on the face of it appears to be arbitrary. Strongly enough, reasons were subsequently given on 4‑4‑2000. This mode of exercise of powers hardly satisfies the judicial conscience or the requirements of the law. In, my view, order dated 29‑3‑2000 is patently illegal.

21. So far as W.P. No.6184/2000 is concerned, the conduct of the borrower was really bad. However, his liability was re‑scheduled on 12‑11‑1998, long before the enforcement of the NAB Ordinance. Thereafter, he has been paying the instalments due from him regularly. Hence, at this stage he cannot be dubbed as a "wilful defaulter". In spite of the past bad conduct, the "borrowers" are entitled to be dealt with in accordance with the law. If they become wilful defaulters in future then they can be proceeded against in accordance with the law and fresh reference filed against them by the Chairman, NAB before the Accountability Court.

22. I may observe here that while rejecting the borrower's application filed under section 265‑K of the Cr.P.C. (by Malik Ghulam Murtaza Khar) the learned Judge Accountability Court has expressed strong views on merits of the case and recorded a finding to the effect that re‑scheduling was made with dishonest intentions. He observed that the terms on which this re?structuring was made cannot be termed as prudent banking. He also held that the bankers have entered into this agreement with dishonest intentions for extraneous considerations and proposed that the NAB Authorities should also proceed against the bankers who dished out unsecured loans. The Court ought to have avoided to record findings on merits of the case at this stage as the same are likely to prejudice the accused at the trial. If the trial of the accused is held, the Court will come to its own independent conclusions in the light of the evidence brought on the record without being influenced by the findings/observations contained in the order dated 21‑3‑2000.

23. For the foregoing discussion, I hold that the reference filed against the borrower is against the law and deserve to be set aside. Therefore, the petition. is accepted, the impugned action by the NAB Authorities regarding the arrest and detention of the borrower and filing of reference against him before the Accountability Court and the proceedings before the Accountability Court are declared to be without lawful authority and of no legal effect. (Sd.) MIAN NAZIR AKHTAR, J M.B.A./S‑58/L ?????????????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.