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Petitioner: MUHAMMAD NADEEM ANWAR VS Respondent: SECURITIES AND EXCHANGE COMMISSION OF JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Sarmad Jalal Osmany, Ijaz Ahmad Chaudhry Title:MUHAMMAD NADEEM ANWAR vs SECURITIES AND EXCHANGE COMMISSION OF
JUDGMENT
Reported As: 2014 SCMR 1376 Result: Petition dismissed Judgment JUDGMENT ' IJAZ AHMED CHAUDHRY, J.---Muhammad Nadeem Anwar, petitioner, through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 10(2) of the Companies Ordinance, 1984, seeks leave to appeal against the judgment/order dated 30-11- 2011 passed by the learned Division Bench of Peshawar High Court in Intra Court Appeal No,1 of 2010 whereby the said learned Division Bench, while dismissing the Intra Court Appeal filed by the petitioner, upheld the order dated 7-12-2009 of the learned Company Judge of Peshawar High Court dismissing C.M. No,22 of 2009 filed by the petitioner for recalling of order dated 28-9-2009 issuing his non-bailable warrants of arrest. 2. Tersely, the facts relevant for the disposal of this petition are that Security and Exchange Commission of Pakistan filed Criminal Complaint No,1 of 2005 before the learned Peshawar High Court in its company jurisdiction on 11-7-2005 under section 282-K read with sections 230(7) and 234(6) of the Companies Ordinance, 1984 and sections 409/109 of the Pakistan Penal Code praying therein to proceed against the petitioner and eleven other officials and Directors of defunct Islamic Investment Bank and to punish them according to law for the offences committed or aided or abetted to deliver up and refund the property acquired by them during the course of commission/abetment of said offence, wherein notices were issued to all the accused persons including the petitioner. The learned Single Judge of Peshawar High Court after allowing the winding up petition moved by the respondent also ordered formal trial in Criminal Complaint No,1 of 2005 and all the accused were ordered to furnish securities for attendance before the Court. The petitioner filed an application (C.M. No,1 of 2009 in Criminal Original No,1 of 2005 in Criminal
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Complaint No,5 of 2005 under section 403, Cr.P.C., read with Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and section 26 of the General Clauses Act, 1897 for deletion of his name from the array of the accused mentioned in the criminal complaint alleging therein that the petitioner stands convicted by the Accountability Bureau, Rawalpindi on the same, similar and identical facts forming part of the complaint which is being adjudicated by the Court and as per said law one cannot be put in jeopardy of life twice and the principle stands settled that same offence means when they are identical or not different. The said application was dismissed by the Peshawar High Court vide order dated 7-12-2009 against which the petitioner preferred Intra Court appeal No,1 of 2009 which too was dismissed by the learned Division Bench of the Peshawar High Court vide order dated 30-11-2011, hence the instant petition. 3. Learned counsel for the petitioner contends that the learned High Court has erred in law and misapplied pertinent provision of the Constitution of Islamic Republic of Pakistan, 1973, section 26 of the General Clauses Act, 1897 and section 403 of Cr.P.C., 1898 to the issue in question and did not at all advert to the issue; that the criminal complaint filed by the respondent (Security and Exchange Commission of Pakistan) pertaining to the issue of residences which matter has already been tried by the National Accountability Court wherein the petitioner stands convicted on the charge amongst others; that as per para 10(d) of the Ehtsab Reference, a specific charge was framed qua Sawoy Residences, the same was dismissed by the learned Judge of Accountability Court in detail at Paras 89 to 104 of the said judgment but the learned High Court while dealing with the matter in issue has totally failed. To take into account the said fact although the entire record of the Accountability Court like depositions of the witnesses were placed on record of the proceedings before the learned Peshawar High Court; that at the time of filing of the complaint in question, the petitioner was behind the bars, he was not even aware of it and was neither issued any show cause notice nor he was given an opportunity of being heard personally or through a counsel; that case-law cited by the petitioner was totally ignored by the learned Peshawar High Court; that provisions of section 403, Cr.P.C. Have been misinterpreted while overlooking the fact that the elements in the criminal complaint and NAB reference are identical as far as the issue of Sawoy Residences is concerned wherein the petitioner has already been convicted by the learned Accountability Court qua Sawoy Residences; that section 26 of the General Clauses Act, 1897 provides that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished for the same offence; that the learned High Court has not at all taken into account the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, as according to first proviso of Article 13(a) no person shall be prosecuted or punished for the same offence more than once; that the learned Peshawar High Court has not only misread the documents available on record but also did not appreciate the pleadings of the case; that in any case the impugned order is against law and facts of the case which has been passed in arbitrary manner and without application of judicial mind by basing its conclusions on unfounded assumptions not supported by any law. Reliance is placed by the learned Counsel for the petitioner on Hoot Khan and 6 others v. National Industrial Relations Commission, Islamabad and 2 others (PLD 1977 Karachi 145), The State v. Anwar Khattak and others (PLD 1990 Federal Shariat Court 62), Manzoor Hussain v. The State (PLD 1998 Lahore 239), Mukhtar Ahmad v. Ansa Naheed and 2 others (PLD 2002 SC 273), Abdul Razzak and another v. The State and others (2003 YLR 1271). 4. Learned counsel for the respondent, while vehemently contesting this petition, contends that prohibition to try a person for the second time for the same offence under the principle of double jeopardy, as contemplated by section 403, Cr.P.C., 1898, section 26 of the General Clauses Act, 1897 and Article 13 of the Constitution of Islamic Republic of Pakistan is applicable only in case where
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action of the person falls under the same enactment but if his such action falls under two distinct and separate enactments, then bar to try for the second time for another offence as contemplated by the aforesaid yrovisions of law shall not be applicable; that in the instant case the petitioner was tried, convicted and sentenced under the National Accountability Bureau Ordinance and while committing the said offence of the National Accountability Ordinance, 1999, the petitioner along with others had also violated the provisions of section 282-K, section 239(7) and section 234(6) of the Companies Ordinance and the commission of the offences by the petitioner and others is under two different enactments of law, as such, the same cannot be termed as same offences and the learned High Court has rightly dismissed the cause of the petitioner; that although the petitioner has committed offences in one go, yet, the said offences falling under different enactments were triable by two different courts of law, thus, the same do not fall within the ambit of same offence; that the petitioner was convicted and sentenced under the NAB Ordinance for the commission of offence of corruption and corrupt practices of having dishonestly and fraudulently misappropriated the funds of the company but in the instant case he has been going to be prosecuted for violating the provisions of the Companies Ordinance, as such, both the offences under two different statutes cannot be named the same offences, thus, the same would not hit under the provision of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and section 403 of the Cr.P.C. He has relied upon Chhanu Prosad Singh v. Emperor (AIR 1928 Patna 577), Maqbool Hussain v. State of Bombay (AIR 1953 SC 325), Om Parkas Gupta v. State of U.P. (AIR 1957 SC 458), State of Madhya Pradesh v. Veereshwar Rao Agnihotri (AIR 1957 Supreme Court 592), Le Roy Frey v. Superintendent District Jail Amritsar and another (AIR 1958 SC 119), The State of Bombay v. S.I. Apte and another (AIR 1961 SC 578), Manipur Administration Manipur v. Thokchom Birasingh (AIR 1965 SC 87), The State v. Anwar Khattak and others (PLD 1990 FSC 62), Muhammad Ashraf and others v. The State (1995 SCMR 626), The State through Collector of Customs v. Nasim Amin Butt and others (2001 SCMR 1083), Monica Bedi v. State of Andhra Pradesh (2011) 1 SC Cases 284), and Sher Muhammad Unar and others v. The State (PLD 2012 SC 179). 5. We have heard the learned counsel for the parties and have also perused the available record. Petitioner was tried by the National Accountability Court and vide judgment dated 29-6-2009 finding him guilty convicted him under section 10 of the National Accountability Ordinance, 1999 and sentenced to 10 years' R.I. With a fine of Rs,100 Million under section 11 of the National Accountability Ordinance, 1999, in default whereof to further undergo 2 years' S.I. And properties held in the name of the petitioner and his family members declared in the Performa of assets were forfeited in favour of the State on the allegations that he being President and Chief Executive Officer of Islamic Investment Bank Limited (IIBL) in connivance with Muhammad Amin Farooqi, Javed Iqbal Qureshi and Zubair Ullah Khan co-accused fraudulently obtained out of books running finance limit in the name of IIBL of Rs,152.95-Million from Habib Bank Limited Tower Branch Islamabad in December, 1998. He subsequently availed another loan facility in the name of Munwar Ali Facto from HBL and utilized these funds to purchase millions of shares of HBL for his personal benefit and adjusted his earlier personal liabilities/fake loans in IIBL. The funds upto Rs,351.00-Million were availed on the loan accounts of IIBL/Munwar Ali Facto by him. Ultimately, the loan of Munwar Ali Facto was adjusted by withdrawing amounts from regular IIBL accounts amounting to Rs,273.743- Million till December, 2003. He in connivance with his financial team also falsified the bank record by getting fake entries incorporated to settle his liabilities. He also misappropriated the bank resources to meet his travel abroad and other unauthorized personal expenses of Rs,1,33,92,393. He malafidely handed over US $ bearer bonds worth Rs, US $ 1.775-Million to Shaukat Ullah without receiving any consideration as per Bank record. He paid Rs,5,92,60,080 to Haji Saif Ullah for purchase of US $ 1.0-Million bonds without receiving/taking custody of bonds from Haji Saif Ullah. He purchased properties bearing plot No, 19, F-11/1 Islamabad and Rawal Hotel (Pvt.) Ltd.,
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Rawalpindi at exorbitant prices with the connivance of Zubair Ullah Khan and received kick back of Rs, 115.99-Million which he utilized to fill up the loss already caused to the IIBL. He also sold two subsidiaries, namely, Switch Securities (Pvt.) Ltd. And Gas Power (Pvt.) Ltd. At very low prices. During the pendency of the trial on the aforesaid charges, respondent SECP filed Criminal Complaint No, 1 of 2005 before the Peshawar High Court in its company jurisdiction for proceeding against the petitioner and 11 other officials and/or directors of the now defunct and under liquidation bank, namely, Islamic Investment Bank for commission of alleged offences punishable under sections 282-K, 230(7) and 234(6) of the Companies Ordinance 1984 read with sections 409 and 109 of the Pakistan Penal Code, 1860. The Peshawar High Court issued notices to all the accused persons including the petitioner on 5-6-2006 and after allowing winding up petition moved by the respondent, the learned Company Judge of the Peshawar High Court ordered formal trial in the aforesaid Criminal Complaint No,1 of 2005 wherein all the accused were ordered to furnish securities for attendance before the Court. The stance taken by the petitioner in the proceedings before the learned Company Judge of Peshawar High Court is that when he was convicted and sentenced for the commission of acts and omissions constituting an offence he was not to be convicted twice for the same acts and omissions and in view of the principle of double jeopardy enunciated under section 403, P.P.C., the proceeding undertaken by the Peshawar High Court under companies jurisdiction are liable to be quashed. In order to better appreciate the aforesaid contention of the petitioner it would be advantageous to have a minute scrutiny of relevant provisions of law under which the petitioner has been convicted and sentenced and is facing trial. For the said purpose the same are reproduced hereunder:-- "9. Corruption and Corrupt Practices: A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- If he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or for bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or dis-service to any person; or (ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or (iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or (iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage; or (v) if he or any of his dependents or penamidars owns, possesses, or has [acquired] right or title if any ["assets" or holds irrevocable power of attorney in respect of any assetsl or pecuniary resources disproportionate to his known sources of income, which he cannot [reasonably] account for [or maintains a standard of living beyond that which is commensurate with his sources of income]; or (vi) [if he] misuse his authority so as to gain any benefit or favour for himself or any other person, or [renders or attempts to render] [or wilfully fails to exercise his authority to prevent the grant, or
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rendition of any undue benefit or favour which he could have prevented by exercising his authority]; (vii)if he has issued any directive, policy, or any SRO (Statutory Regulatory Order) of any other order which grants or [attempts to grant] any [under] concession or benefit in, any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar [or any other, person] [or] (viii) if he commits an offence of wilful default; or (ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induced members of the public at large to deliver any property including money or valuable security to any person; or (x) If he commits the offences of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large; (xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has domination; and (xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of art offence as provided in clauses (i) to (xi). All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections [426, 491] 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance. If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody". "10. Punishment for corruption and corrupt practices: [A holder of public office or any other person] who commits the offence of corruption and corrupt practices shall be punishable with [rigorous] imprisonment for a term which may extend to 14 years, [and with fine] and such of the assets and [pecuniary resources of such [holder of public office or person, as are] found to be disproportionate to the known sources of his income or which [are] acquired by money, obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government [or the concerned bank or financial institution as the case may be]. The offences specified in the Schedule to this Ordinance shall be punishable in the manner specified therein. The Federal Government may, by notification in the official Gazette, amend the Schedule so as to add any entry thereto or modify or omit any entry therein. Notwithstanding anything to the contrary contained in any other law for the time being in force an accused, convicted by the Courts of an offence under this Ordinance, shall not be entitled to any remission in his sentence". "11. Imposition of fine: ' Where [an accused] found guilty of an offence is sentenced to pay a fine, the amount of the fine shall in no case be less than the gain derived by the accused or any relative or associate [by the commission of the offence]. ' Cheating with knowledge that wrongful loss may ensure to person whose interest offender is bound to protect. Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which cheating relates, he was bound either
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by law, or by legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both". "230. Books of account to be kept by company, (1) every company shall keep at its registered office proper books of account with respect to-- (a) All sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place; (b) All sales and purchases of goods by the company; (c) All assets of the company; (d) All liabilities of the company; and (e) In the case of company engaged in production, processing, manufacturing or mining activities, such particulars relating to utilization of material or labour or the other inputs or items of cost as may be prescribed, if such class of companies is required by the Commission of by a general or special order to include such particulars in the books of accounts; " "230(7) If a company fails to comply with any of the requirement of this section, every director, including chief executive and chief accountant, of the company who has knowingly by his act or omission been the cause of such default shall, -- (a) in respect of a listed company, be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than (twenty) thousand rupees nor more than (fifty) thousand rupees, and with a further fine which may extend to (five) thousand rupees for every day after the first during which the default continues; and (b) in respect of any other company, be punishable with imprisonment for a term which may extend to six months and with fine which may extend to (ten thousand) rupees" "234. Contents of balance-sheet-- (1) Every balance-sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of its financial year, and every profit and loss account or income and expenditure account of a company shall give a true and fair view of the profit and loss of the company for the financial year so, however, that every item of expenditure fairly chargeable against the year's income shall be brought into account and, in case where any item of expenditure which may in fairness be distributed over several years has been incurred in any one financial year, the whole amount of such item shall be stated, with the addition of the reasons why only a portion of such expenditure is charged against the income of the financial year." "234(6) The provisions of subsection (7) of section 230 shall apply to any person who is a party to the default in complying with any of the provisions of this section". 282-K Penalty for making false statement, etc.-- (1) Notwithstanding anything contained in any other provision of this Ordinance, if any person, being the chairman, director, chief executive, by whatever name called or official liquidator or any officer of a NBFC in any document, prospectus, report, return, accounts, information or explanation required to be furnished in pursuance of this Ordinance or the rules made thereunder, wilfully makes a statement which is false in any material particular knowing it to be false, or wilfully omits to make a material statement, mismanages the affairs of the NBFC or misuses his position for gaining direct or indirect benefit for himself or any of his family members, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which shall be not less than one hundred thousand rupees, and shall be ordered by the Court trying the offence, to deliver up or refund within a time to be fixed by the Court any property acquired or gained by him in his own name or in the name of his family members by so mismanaging the affairs of the NBFC or misusing his position or, in default, to suffer imprisonment for a term which may extend to three years."
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6. Bare reading of afore-quoted provision of law is clearly suggestive of the fact that both are under different enactments of law having different procedure and forum for initiating proceedings thereunder although both the sets of offences have been committed by the accused in one go that is to say that the accused-petitioner acted in such a manner which constituted offences punishable under two separate and distinct laws i,e, one under the NAB Ordinance and the other under the Companies Ordinance. Both are different and distinct pieces of legislation, therefore, acts and omissions of the petitioner committed-by him cannot be said to be same offences. The example for the same can be deduced from the fact that an accused goes to a place for commission of a particular offence that is to say he has made up a mind to take life of a person by using fire arm and if his action of murdering of a person is at a public place involving serious threat to the public at large or creating a sense of fear or insecurity in society, he will be charged with the offences punishable under two different and distinct enactments and if during his action he has also used fire arm weapon which ultimately is recovered at his instance and the accused could not produce any valid permit for keeping the said weapon in his custody then he will also be proceeded against under Arms Ordinance which is a third offence committed by an accused while taking the life of a person. Thus, he will be tried under section 302, P.P.C. (a piece of legislature under the criminal law), under section 7 of the Anti-Terrorism Act, 1997 and under the Arms Ordinance, 1965. Although, offence under section 302, P.P.C. Is triable by a court having ordinary jurisdiction i,e, Sessions Judge or the Additional Sessions Judge, whereas offence under section 7 of the…
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