Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed ALI RAZA VS Respondent: FEDERATION OF PAKISTAN through Secretary and another
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Karim Khan Agha Title: Syed ALI RAZA vs FEDERATION OF PAKISTAN through Secretary and another Case No.:Constitutional Petitions Nos,D-2025. D-3274, D-2095, D-3318, D-2832, D-
2158, D-2366, D-2759 and D-3461 of 2017 Date of Judgment:2017-09-27 Reported As: PLD 2018 Sindh 174 Result: Order accordingly. Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Through these petitions, petitioners 1,3,5 to 9 (Syed Ali Raza, Zubair Ahmed, Kausar lqbal Malik, Qamar Hussain, Tahir Yaqub, Muhammad Imran Butt and Muhammad Waseem Khan) seek bail before arrest which was earlier granted to them through various orders of this court wheredas petitioners 2 and 4 (Dr. Mirza Abrar Baig and Imran Ghani) seek bail after arrest in National Accountability Bureau (NAB) Reference No,13 of 2017 which was filed against them all by NAB for acts of corruption under the. National Accountability Ordinance 1999 (NAO). 2. The charge against the above named petitioners as enumerated in Reference No,13 of 2017 is that the investigation revealed that accused No,1, Ali Raza Ex-President of National Bank of Pakistan (NBP/the bank), misused his authority in connivance with other accused persons, so as to gain benefits and/or favour for him or to other persons and also willfully failed to exercise his authority to prevent the grant of undue favour to the other accused persons. He, being Bank President, misused his authority and issued certain orders whereby granted undue concessions and/or benefits and also failed to exercise his authority to prevent the grant or rendition of undue benefits and/or favours, in connivance with other accused persons consequent thereto a loss of approx US$185 million had been caused to NBP during years 2001-2012. 3. As regards the allegations against the petitioner/accused revealed that Mirza Abrar Baig, the then SEVP, Group Chief, HR Group (abetted with accused No,1, Ali Raza and knowingly failed to exercise his authority to prevent the commission of offences of misappropriation of funds), sheer violation of rules/laws of NBP and failed to repatriate the accused No,2, Zubair Ahmed from Bahrain
---
## Page 2
who was posted there for almost 18 years and in that way abetted the commission of offence with accused Nos,1, 2, 10 and 11 persons causing loss to the National Exchequer. 4. The investigation revealed that petitioner/accused Zubair Ahmed the then SEVP/Regional Chief Executive (now Retired), misused his authority and sanctioned loans through the branches of Bangladesh (Central Bank) and NBP's own policies with mala fide intention to cause misappropriation of the funds of the National Exchequer. 5. According to the investigation the allegation against the petitioner/accused Imran Ghani, are that he being Incharge Overseas Desk of NBP was responsible for overall affairs of the Overseas HR related matters. He misused his authority and initiated the proposal for awarding accused No,11. Q.S. M. Jehanzeb special assignment without mentioning the fact of violation of overseas policy in the case of overstay of Q.S.M. Jehanzeb in Bangladesh Operation. He also deliberately failed to mention the fact about accused No,11, Q.S.M Jehanzeb which he had done in Bangladesh Operation which led the bank to book loss of billions of rupees over the period of time. Actually in umbrella of Special Assignment he accommodated accused No,11 Q.S.M. Jehanzeb to stay in Bangladesh and retire from there after attaining his superannuation retirement i,e, 11.11.2010 without repatriating back to Pakistan to avoid any departmental action. 6. As per contents of reference the charge against petitioner/ accused Kausar Iqbal Malik, by not exercising his lawful authority, abetted to give undue benefits/concessions to accused No,2, Zubair Ahmed by not exercising/misusing of his authority in the matter at relevant time. 7. The petitioner/accused Qamar Hussain, the then EVP, Head HRD, recommended proposals to give post-retirement benefits/ concession to accused No,2, Zubair Ahmed by not exercising/misusing of his authority in the matter at relevant time. 8. It is alleged in the reference that the petitioner/accused Tahir Yaqub, Ex-EVP/then group chief (OC CMG/OBG) during period of May, 2004 to December 2008 and January 2009 was looking after the Overseas portfolio of the Bank including operation of Bangladesh as per rules and laws, but he willfully failed to exercise his authority in this regard. He also knowingly and deliberately exercised the powers not vested in him and exceeded from his mandate with mala fide for restructuring of classified loans and waiver of loans in Bangladesh. He, with common intention and abetment, caused a loss to the National Exchequer. 9. Allegation against petitioner/accused Muhammad Imran Butt, being Regional Chief (RCE) (Acting) and having full information of Bangladesh debacle. He misused his authority and failed to take any notice that an amount of approximately BDL 2.4 Billion was sanctioned to various parties including Cotton Corporation Group in the branches of Bangladesh Operations without observing the rules and regulation of the Bank of Bangladesh (Central Bank) and Bank's own policies. Many serious lapses were reported to him as Acting RCE but he failed to take any concrete action to safe guard the bank's interest. He failed to stop accused Muhammad Wasim Khan from sanctioning loans beyond his powers but in some instances he jointly with accused No,8, Waseem Khan approved loans beyond his discretionary powers and without obtaining appropriate security to safe guard the bank's interest. This act on his part caused further loss of BDT 3.200 Billion to the bank as bad loan. Hence he committed offence of misuse of authority as Acting REC, NBP, Bahrain. 10. During the course of investigation, it was revealed that the petitioner/accused Muhammad Wasim Khan, being Manager, Guishan Branch, Bangladesh failed to carryout his responsibility to keep comprehensive check and balance in the branch rather he became instrumental and acted to benefit the defaulted parties. As General Manager (Acting) and in connivance with accused No,9, Muhammad Imran Butt, he sanctioned large number of L/Cs to Cotton Corporation Group beyond his discretionary power and without observing rules and regulations of bank's policy and procedure. This caused further loss to the bank for about BDT, 3.200 Billion. Hence he committed offence of misuse of authority as Acting GM, NBP Bangladesh.
---
## Page 3
11. We shall firstly deal with the petitions seeking pre-arrest bail as the considerations for the grant of pre-arrest bail are different from those in cases concerning post-arrest bail. Pre-arrest bail petitions. 12. Learned counsel for petitioner No,1 (Syed Ali Raza) contended that the petitioner No 1. was a very seasoned and prominent banker who had received many awards and medals on account of his service to the banking industry and therefore, could not even think of misusing his authority. 13. At the outset he submitted that the reference filed against petitioner No,1 lacked jurisdiction under the NAO since this was in effect a case which fell under section 31(D) NAO and since no permission had been obtained from the Governor of the State Bank of Pakistan (SBP) which was a mandatory requirement under section 31(D) NAO which involves imprudent loans which this reference in effect revolves around NAB had no jurisdiction to file the reference. Even otherwise he contended that petitioner No,1 had absolutely no knowledge of the two main allegations in the reference. Namely (a) that he had misused his authority/failed to exercise his authority which led to a colossal loss to the bank and (b) he had no knowledge of the illegal extensions given to any employee of the bank in either Bangladesh or Bahrain or that any such person had ever caused any loss to the bank through illegal activities. According to him petitioner No,1 had not breached the policy regarding overseas postings since he was not aware for how long any employee was posted abroad and he had never received such reports from the Human Resources Department. Even otherwise being the President of the Bank he had the power and the authority to act at any time to relax the policy of non-extension in time of persons posted abroad which as per bank policy was a maximum of five years. He could relax such policy because as President he had complete discretion to do so. He further contended that petitioner No,1 had no idea that any losses were being caused in the banks Bangladesh operations as such reports had never been brought to his attention. So far as he was concerned the bank was making huge profits as per its accounts which he received and considered and it was not his role to micro manage all operations of the bank which could be left to other senior members of the bank under whose supervision such matters fell and as such his pre-arrest bail should be confirmed. In support of his contentions he placed reliance on the following authorities Sarfraz Ahmed v. Chairman, NAB (2016 PCr.LJ 79), Mohae-ud-Din v. State (2015 PCr.LJ 621), Kalb-e-Ali v. Chairman, NAB (2011 PCr.LJ 565), Khalilullah Jan Sarhandi v. Chairman, NAB (2008 PCr.LJ 967), Hassan Jameel Ansari v. National Accountability Bureau (NAB) (2012 YLR 2809) Inamul Haque v. The State (2000 YLR 289), Naseem Abdul Sattar v. Federation of Pakistan (PLD 2013 Sindh 357), Mansur-ul-Haque v. Government of Pakistan (PLD 2008 Supreme Court 166), Muzammil Niazi v. State (PLD 2003 Karachi 526), Tariq Javed Afridi v. State (PLD 2002 Lahore 233), M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 458), Kaloodi International (Pvt.) Ltd. v. Federation of Pakistan (PLD 2001 Karachi 311), Imtiaz Ahmed v. State (PLD 1997 Supreme Court 545), Wahid Bakhsh Baloch v. State (2014 SCMR 985), The State v. Idrees Ghauri (2008 SCMR 1118) and Chaudhry Shujat Hussain v. State (1995 SCMR 1249). 14. Turning to the case of petitioner No,3 Zubair Ahmed. Learned counsel for the petitioner contended like petitioner No,1 that this case fell under section 31(D) and NAB had no jurisdiction as it was a case of loan default and no permission of the Governor of the SBP had been taken to initiate any inquiry under section 31 (D); that there was absolutely no evidence against him; that he had no control over NBP operations however when he heard of irregularities /illegalities in the Bangladesh operations he opened an inquiry into the matter and thus was trying to, solve the problem by exercising his authority; that he only had administrative powers up to his grade which was SEVP; that he reported directly to the President and not Head Office; that he caused no loss; that the main accused was accused No,11 QSM Jehanzeb who was an absconder and thus he had no liability and thus his pre-arrest bail should be confirmed; he did not raise the plea of mala fides. 15. Turning to the case of petitioner No,8 Mohammed Imran who succeeded Zubair Ahmed as
---
## Page 4
Regional Acting Chief. Learned counsel for the petitioner contended that he was completely innocent of any wrong doing. He made no loans; sanctioned no loans; that he did not sign any documents; that he received no benefit and when he heard of the irregularities/illegalities in the Bangladesh operations through the whistle blowing process he took action vide letter 01-07-2012 which was all he was required to do. His role was confined to monitoring irregularities and nothing else. He claimed that the mala fides of NAB was evident from the fact that he had been exonerated by an internal inquiry report and yet Munawar Gopal who had not been exonerated and who should have been an accused was a PW and as such based on the above considerations he was entitled to the confirmation of his pre-arrest bail. In support of his contention he placed reliance on Fayyaz Ahmed v. State ((sic) SCMR 1628) and Maqbool Ahmed Shaikh v. The State (2014 YLR 2644). 16. Turning to the case of petitioner No,7 Tahir Yaqub. Learned counsel contended that the petitioner was completely innocent of any wrong doing; that he had nothing to do with credit or HR matters as his role was confined to marketing and as such it was not his job to have any involvement in credit matters and as such his pre-arrest bail should be confirmed. According to him the mala fides of NAB was in illegally filing this reference under section 31(D). 17. Turning to the case of petitioner No,9 Mohammed Wasim Khan his learned counsel pointed to the NAB inquiry report which found that his liability was NIL and as such he had caused no loss; that more importantly he was the whistle blower who originally brought the illegal activities of the accused bankers to light along with the later whistle blower Munawar Gopal and as such he was not involved in any offense rather he had brought the offense to the attention of the competent authority. It was the function of Imran Butt (accused No,9) to take the further steps. With regard to the specific allegation against him of opening the LC's he contended that this was not his decision but the decision of the credit committee which he followed in good faith. He had actually moved the memorandum to the credit committee with a view to resolving some of the credit issues which were effecting the bank. He further contended that he had been malafidely roped into this case by Munawar Gopal who was a PW who had not mentioned his name at all in his original section 161 statement but had 2 years later in an additional section 161 statement mentioned his role which was a complete after thought and as such he was entitled to pre arrest bail. 18. Turning to the case of Petitioner No, 6 Qamar Hussain. Learned counsel for Aamar Hussain contended that he is completely innocent; that he is a relatively junior officer in the NBP's chain of command in the HR department and the only allegation against the petitioner is that he was one of the bankers who sanctioned the end of service benefits of Zubair Ahmed and he did so after the President of the Bank had issued a non involvement certificate (NIC). According to him the fact that the then President Mr. Iqbal Ashraf who had given the NIC had not been arrayed as an accused in this reference showed mala fide on the part of NAB and as there was insufficient material to connect him to the commission of the offense his pre-arrest bail should be confirmed. 19. Learned counsel for petitioner No, 5 Mr. Kauser Iqbal Malik argued on the same grounds as petitioner Qamar Hussain in that this was his only involvement in this reference and the main difference between his case and that of Qamar Hussain was that he was a more senior officer and in particular he had only returned to the NBP on 14th February 2014 after 7 years on deputation and since the sanction was given only one month after his return based on the NIC of the then President he could not have been aware of or been a part of the illegalities in the Bangladesh operations and as such their was insufficient material to connect him to the offense for which he had been charged and as mentioned by learned counsel for Qamar Hussain there was mala fide on the part of NAB by not including the then President. 20. Learned Special Prosecutor NAB vehemently opposed the confirmation of pre-arrest bail to each of the petitioners who had applied for the same. He contended that the petitioners were all bank officials who held senior positions in the NBP who had breached rules, regulations and laws in
---
## Page 5
connivance with each other in order to benefit others by fraudulently sanctioning loans, extending credit with insufficient security, writing off interest and principle through their misuse of authority/failure to exercise authority which caused a huge loss to the national exchequer. They had also deliberately and mala fide through their misuse of authority/failure to exercise their authority allowed completely illegal extensions in overseas service to some of the petitioners in connivance with each other who were actually instrumental in causing such a colossal lose in the NBP's Bangladesh operations in order to cover up all their illegalities and NAB had more than sufficient evidence through section 161 statements and documents to prove beyond a reasonable doubt that all the petitioners were responsible for the offenses for which they had been charged and as such the pre-arrest bail granted to all the petitioners should be recalled. 21. We have heard the parties and have carefully gone through the record and considered the case law cited by them. At the outset we are of the view that the authorities cited by the learned counsel for the petitioners are of little, if any, assistance to them based on the particular facts and circumstances of this case. 22. We would also like to make it clear that the findings in this order are only based on a tentative assessm ent of the material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the trial court. 23. At the outset, as we have done before in other similar NAB cases, we observe that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation. This is because in most cases the offence could not be committed without the active involvement of all the accused in the chain of events which lead to the commission of the offense. However, notwithstanding this observation it is settled law that in cases of bail each of the accused needs in some way to be connected with the alleged offense and in the case of non-bailable offenses such as this there are reasonable grounds for believing that the accused is connected with the commission of the offense for which he is charged. 24. The current case, as with many NAB cases, is more a case of a joint criminal enterprise whereby every accused plays their role in order to achieve a criminal object all of which they were aware of and could not have been achieved without the active participation of all involved. 25. It is now well settled law that pre-arrest bail is an extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the police. In this regard reference may be made to the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427) which held at P. 431 that the following conditions need to be satisfied before pre-arrest bail can be granted as set out below: "9. Even since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re-examined, the same was only re-affirmed. The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all as under:-- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified subsection (2) of section 497 of Code of Criminal Procedure i,e, unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for
---
## Page 6
ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonor him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a 'discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that; (0 in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i,e, the Court of Session, before petitioning the High Court for the purpose."(bold added) 26. The requirement of mala fide in order to qualify for pre-arrest bail has recently been emphasized by the Hon'ble Supreme Court in the case of Mukhtar Ahmad v. The State and others (2016 SCMR 2064, relevant page 2066) as under:- " This Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person unless the court feels satisfied about seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local Police" 27. Certain if the petitioners have claimed mala fides on account of NAB and the complainant because this case falls under section 31(D.) and no permission of the Governor of the SBP was received, that Munawar Gopang should have been an accused rather than a PW and that the whole reference was based on a pick and choose basis and that in the case of petitioners Qamar Hussain and Kauser Iqbal Malik since the then President had not been included in the reference who had given the NIC to allow the post retirement benefits to Zubair Ahmed this amounted to mala fide on the part of NAB. 28. With regard to NAB failing to get the permission of the Governor of the SBP to authorize the inquiry under section 31(D) NAO we are of the view that this does not amount to mala fide on the part of NAB as this reference has not been charged under section 31(D) of the NAO and hence the question of permission or not is irrelevant. This reference has been charged under section 9 NAO which deals with misuse of authority and failure to exercise authority in order to benefit others and fraud and criminal breach of trust all of which elements appear to be present in this case as it was in the 2010 case of the Bank of Punjab as will be discussed later which in our view is on similar footing to this case namely illegal loans being sanctioned through the misuse of authority/failure to exercise authority through fraud by bank officials. With regard to this being a pick and choose exercise by NAB as to whoa. should be an accused and favoring Munawar Gopang by allowing him to be a PW as opposed to an accused we find no substance to the argument. It appears that to some extent over 60 bank officials were attributed some element of blame in the Bank's internal inquiry. The reality is that for a prosecution to succeed it is not possible for 60 accused to be put in one reference. This is because it may entail 60 different cross-examinations by 60 separate lawyers of each PW. What with absence of senior counsel, accused not turning up, lawyers strikes etc the result would be that such a trial would virtually be never ending and would probably end in the death of most of the accused before judgment. was announced. The trial in effect would be an exercise in futility. One of the objects and purposes of the NAO as set out in its preamble and, made specifically clear in section 16 (a) is that trials under the NAO must be expeditious. By putting 60 persons in a reference this object of the legislation would be defeated. Thus, NAB using its expertise, experience and prosecutorial discretion must be left to determine who and who does not go into a reference based on who the best evidence is against, who are the major/most senior players in the scam, who it can make as a PW instead of an accused in order to strengthen or expedite its case or who may be an approver. Such a process in essence amounts to good case/trial management provided that it is made on bona fide considerations which it appears to be in this case. In our view only when obvious and blatant and potentially mala fide omissions from the reference especially
---
## Page 7
in respect of very senior persons whom there is strong evidence against is present may be one of the reasons for a case of mala fide being made out especially if it appears that prima facie there is strong tangible material against him. In our view the fact that Munawar Gopang has been made a PW will only shorten NAB' s prosecution and enable it to bring on record compelling evidence in order to strengthen the prosecution's case which may not have been available otherwise. Thus, in this case we are of the view that only 16 of the approximately 60 identified in the NBP inquiry report being placed in the reference is not mala fide on the part of the NAB based on the facts and circumstances of this case where it appears that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.