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Petitioner: IQBAL Z. AHMED and others VS Respondent: NATIONAL ACCOUNTABILITY BUREAU through Chairman and others
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Muhammad Karim Khan Agha Title:IQBAL Z. AHMED and others vs NATIONAL ACCOUNTABILITY BUREAU through
Chairman and others Case No.:Constitutional Petitions Nos, D-1982, D-1824 of 2016, Petitions Nos,D-6126 and D-95 of 2017 Date of Judgment:2017-11-22 Reported As: 2018 P Cr. L J 1694 Result: Petitions dismissed Judgment ORDER MOHAMMED KARIM KHAN AGHA, J.---Petitioner No, 1 (Iqbal Z. Ahmed) has been arrayed as an accused in National Accountability Bureau (NAB) Reference 19/2016 in connection with his alleged acts of corruption under S.9 of the National Accountability Ordinance 1999 (NAO) concerning officials of the Government, officers of the Oil and Gas Development Corporation Limited (OGDCL), Sui Southern Gas Company (SSGC) and Jamshoro Joint Venture Limited (JJVL) of which he is the CEO which is preceding before the Accountability Courts at Karachi. He is currently on pre arrest bail. 2. Petitioner No,2 Sharjel Inam Memon is facing corruption charges in NAB reference 50/2016 filed under the NAO and he is currently in custody as his pre arrest bail was recalled by this court vide order dated 25-10-2017. Likewise the cases of petitioner No,5 Muhammed Hanif and petitioner No,6 Asim Aamir Khan. 3. Petitioner No,3 Inam Akbar is also facing corruption charges in NAB reference 50/2016 filed under the NAO however when his pre arrest bail was recalled by order dated 25-10-2017 he absconded. Petitioner No,4 Riaz Munir who is also facing corruption charges in the aforesaid reference had his pre arrest bail confirmed by this court vide order dated 25-10-2017. Whilst petitioner No,7 Basharat A. Mirza is an accused in the same reference as petitioner No,1 Iqbal Z. Ahmed, as mentioned earlier, and is on pre arrest bail. 4. Since all the petitions involve common questions of law we propose to dispose of all of the petitions by this one common order.
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5. In essence the case of the petitioners is that they attended the inquiries and investigations conducted against them by the NAB when required by NAB and no warrants of arrest were issued against them by the Chairman NAB until he filed the references against them. As such they were entitled to execute a bond for appearance under section 91, Cr.P.C. before the accountability court especially as the accountability court had no power to arrest them which lay within the exclusive domain of the Chairman NAB (even after the filing of the references) and as such the non-bailable warrants (NBW's) issued by the accountability courts were of no, legal effect and should be set aside and the accountability courts should accept a bond under section 91, Cr.P.C. for their appearance. 6. Learned counsel for petitioner No,1 contended that under the NAO the powers of arrest lay solely and exclusively with the Chairman NAB and not the accountability court. In this respect he referred to section 24 and section 18 of the NAO. According to him if the Chairman had not issued warrants of arrest by the time the reference was filed then at the time of summoning the accused for trial the accountability court could not issue NBW's against the accused since it had no power of arrest. The accountability court had to resort to section 91 and section 92, Cr.P.C. to ensure the attendance of the accused especially as section 3, N.A.O. made the NAO a special law with overriding effect and under section 17, N.A.O. when the provisions of the N.A.O. were not inconsistent with the Cr.P.C. the provisions of the Cr.P.C. would prevail. Thus since the N.A.O. had not provided a particular mechanism for summoning the accused under sections 91 and 92, Cr.P.C. would be applicable. In addition he submitted that a complaint under section 18, N.A.O. was akin to a complaint filed under section 200, Cr.P.C. and as such the procedure in summoning an accused by way of section 204, Cr.P.C. had to be followed which did not provide for arrest but rather a simple summons whereafter the accused could take bond for appearance under section 91, Cr.P.C. In the case of petitioner No,1 he only applied for protective and later pre arrest bail after the accountability court had taken cognizance of the offense on 05-03-2016 and issued NBW's against him since he had been under the impression that under the law he could provide a bond for his appearance under S.91 as the accountability court had no power to issue NBW's. Thus, due to this illegal act of the accountability court he had been compelled to seek pre-arrest bail otherwise he might have been arrested. He further submitted that if the accountability court had no power to grant bail then it had no power to issue arrest warrants. 7. In support of his contentions he placed reliance on Reham Dad v. Syed Mazhar Hussain Shah (2015 SCMR 56), Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77), Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. (PLD' 2001 Karachi 344), Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others (PLD 2006 SC 249), Muhammad Ijaz v. Nadeem and 3 others (PLD 2006 Lahore 227), Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359), Sarwar and others v. The State (2014 SCMR 1762) and two unreported judgments of Peshawar High Court passed in Writ Petition No,3506-P of 2015 on 05.11.2015 in the case of Prof. Dr. Abdur Rahim Khan and another v. Chairman, NAB and others and Writ Petition No,255-P of 2016 in the case of Masoom Ahmed Awan v. Chairman, NAB and others on 16.02.2016. 8. Learned counsel for petitioners 2, 3, 4, 5, 6 and 7 adopted the arguments of petitioner No, 1 . In addition they emphasized that the accountability court could only issue summons for appearance under section 91 and could not issue NBW's. The exclusive power of arrest lay with the Chairman NAB throughout the reference proceedings and not the accountability court which had no power to issue NBW's. 9. In support of their contentions they placed reliance on the following case law Zahoor Ahmed Sheikh and others v. Chairman NAB, Islamabad and others (PLD 2007 Karachi 243), Maqbool Ahmed Sheikh and others v. The State (2014 YLR 2644), Khan Asfandyar Wali and others v.
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Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Sardar Ahmed Siyal and others v. NAB through Chairman and 4. others (2004 SCMR 265), Tariq Masood v. Director General, NAB Lahore and another (PLD 2012 Lahore 287), Luqman Ali v. Hazaro and another (2010 SCMR 611), Sarwar and others v. The State and others (2014 SCMR 1762), Shaukat Rasool v. The State and another (PLD 2009 Lahore 590), Nazeer Ahmed and others v. The State (Cr. Accountability Revision Application No,75 of 2002), State through Chairman NAB v. Zahoor Ahmed Sheikh (Civil Appeal No,1 152 to 115 7 of 2007), Syed Sohail Hassan v. Director General, NAB (Sindh) and others (C.P. No,D-2382/2016) and Maqbool Ahmed Sheikh v. The State (2014 YLR 2644). 10. Learned PGA contended that section 91 was not applicable to NAB cases as under section 9(b), NAB cases were non-bailable and as such it was not possible for an accountability court to grant bail to an accused let alone accept a bond for his appearance. He was of the view that the Chairman NAB had power to issue arrest warrants during inquiry and investigation and after the original reference had been filed if the NAB was collecting further material against further accused and intended to file a supplementary reference other wise once the reference was filed the power of arrest switched to the accountability Court which since the offense was non bailable had to issue NBW's as opposed to taking a bond under S.91. In support of his contentions he placed reliance on Syed Sohail Hassan v. DG NAB dated 16-12-2016 in C.P.D. 2382/16 an Unreported order of a Divisional Bench of this court, Zia-urRehman Sajid v. Muhammad Aslam and another (2005 PCr.LJ 1706), Noor Ahmed v. Ghulam Mustafa and another (2009 YLR 1414), Muhammad Ashraf v. The State and another (2017 PCr.LJ 721) and unreported order passed by Hon'ble Supreme Court of Pakistan in the case of Olas Khan v. Chairman NAB in Civil Petitions No,1885 and 2259 of 201 7 dated 04-08-2017 (PLD 2018 SC 40). 11. Learned Additional Attorney General for Pakistan adopted the arguments of the PGA. Namely, that after the reference was filed the accountability court had to issue NBW's for the accused and that section 91, Cr.P.C. was inapplicable in NAB cases. 12. We have considered the arguments of the parties, pursued the record, considered the relevant law and cases cited at the bar. General. 13. At the outset we make it clear that section 91, Cr.P.C. is not applicable to petitioner's Nos,2, 5 and 6 Sharjeel Inam Memon, Muhammad Hanif and Asim Aamir Khan since they are in custody following the recalling of their pre-arrest bail. Likewise petitioner No,3 Inam Akbar who absconded (and remains an absconder for whom proceedings under sections 87 and 88 have been initiated by the accountability court) through his conduct is not entitled to any benefit or relief which may accrue from this order since we have already found that there is prima facie sufficient material on record to connect him to the commission of the offense for which he has been charged which lead to the recalling of his interim pre arrest bail which order despite being an absconder he has not challenged before the Hon'ble Supreme Court. Likewise petitioner No,4 Riaz Munir whose pre-arrest bail was confirmed by this court which decision NAB has not challenged and as such he has no need to resort to section 91, Cr.P.C. Thus from our perspective the issue at hand may only be applicable to petitioner No,1 Iqbal Z. Ahmed and petitioner No,7 Basharat A. Mirza both of whom are on ad interim pre arrest bail and as such are not in custody and have not absconded. Liberty of the Individual 14. At the outset we are of the view that the liberty of the individual is paramount as recognized by the Constitution and in particular Article 9 which is a fundamental right. In addition in a criminal case the golden principle since time immemorial is that the accused is presumed to be innocent until he is proved guilty and as such his liberty should not be lightly curtained in criminal cases especially because if the accused is acquitted at the, end of the trial he cannot get back the time which he has lost in jail nor be compensated for it. This was emphasized in the recent Supreme
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Court case of Ziagham Ashraf v. State (2016 SCMR 18). 15. Thus, in most cases the concept of bail exists. Generally speaking the rule is bail not jail. The main universal reasons for not granting bail is if there is a genuine concern that the accused will abscond (i,e, run away and not face trial), will interfere with witnesses or tamper with evidence otherwise he should be free to consult his lawyers and prepare his defense without being confined in jail. Other factors also determine whether bail should be granted in this country such as whether or not the case falls within the non prohibitory clause; the heinousness/seriousness of the offense; whether there is prima facie sufficient material to connect the accused to the offense for which he has been charged, etc. In all such cases however the law must be strictly followed and applied by the courts. The trichotomy powers. 16. Our constitution is based on the trichotomy of powers shared between the legislature, the executive and the judiciary each of whom has its distinct and separate role to play in our system of governance and each of which is supposed to act as a check and balance on the other organs of state operating within its own defined sphere of power as provided in the law and the Constitution. 17. Within the trichotomy of powers it is the role of the legislature to make laws and the role of the judiciary to interpret those laws if such interpretation is necessary. It is well settled law that if a statute has expressly provided for something without any ambiguity then there is no question of the courts interpreting the same as the legislative intent is clear and the Act/Ordinance must be given effect to unless it is deemed to be contrary to the constitution. The judiciary's role of interpretation of the statute only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the constitution and in such cases it is for the judiciary to interpret that piece of legislation by trying to ascertain the intent of Parliament in passing that legislation. The Courts have absolutely no authority or power to substitute their views for those intended by the legislature simply because they may disapprove of a particular law and the way in which that law is being applied. In this respect whether it appears harsh in not allowing a bond under section 91 to be taken as opposed to applying for pre arrest bail in NAB cases is completely irrelevant unless it can be anchored on a legal basis. 18. In this respect reference is made to the case of Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC P.483). Relevant P.492-493 whereby it was held as follows: "A fundamental principle of Constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language beside declares, without more, the intention of the law givers and is decisive on it. The rule of. construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language used in a statute, is unambiguous and is in accord with justice and convenience, the courts cannot busy themselves with supposed intentions, however admirable the same may be because, in that event they would be traveling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. (bold
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added) Original Legislative Intention behind the NAO. 19. Initially the law, which replaced the Ehtesab Act of 1997 which at that time dealt with corruption and accountability, was known as the National Accountability Bureau Ordinance,- 1999 (NABO) and the legislative intent in that law was made abundantly clear. Namely, that offenses under the NABO were non-bailable by any court. 20. The Constitutionality of the NABO was challenged in the case of Asfandyar Wali Khan v. Federation of Pakistan (PLD 2001 SC 609) which in an exhaustive judgment by a larger bench of the Hon'ble Supreme Court spanning around 350 pages covering nearly every aspect of the NABO was examined in terms of its constitutionality. 21.With regard to bail the Hon'ble Supreme Court held as under at 885; BAIL "197. It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remain available to their full extent... notwithstanding anything contained in any legislative instrument enacted by the Chief Executive. "Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561-A of any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB, Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably." (bold added) 22. Thus, by virtue of Asfandyar's case (Supra) bail could be granted to an accused under the NAO only by the superior Courts exercising their discretionary constitutional jurisdiction under Article 199 of the Constitution. There was no right to bail and even today bail on the statutory ground of delay is not open to an accused in a NAB case as opposed to bail on hardship ground which once again is of a discretionary nature. 23. In the case of Abdul Aziz Memon v. The State (PLD 2013 SC 594) when discussing whether only public officials fell within the purview of the NAO the Supreme Court held as under at P.639 with respect to the heinousness of offenses under the NAO. "This court had also found that such provisions of the National Accountability Ordinance, 1999 were quite justified in view of the gravity of the menace of rampant corruption the said Ordinance was meant to tackle. Dealing with such stringent provisions of the Control of Narcotic Substances Act, 1997 and their interpretation one of us (Asif Saeed. Khan Khoso, J) had observed as a Judge of the Lahore High Court in the case of Nazir Hussain v. The State (2002 PCr.LJ 440) as under- The learned counsel for the petitioner is quite right in pointing out that in the case of Ghani-ur- Rehman v. The State 1996 PCr.LJ 347, Muhammad Afzal v. The State 1998 PCr.LJ 955 and Naveed Ahmed Khan v. The State 1999 PCr.LJ 63 it had been held that if the allegation leveled against an accused person attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997 as well as the provisions of Article 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penal provision is to be applied which carried a lesser punishment or attracts lesser rigours of the law, i,e, Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, we have noticed in this context that in all the above-mentioned cases the provisions of section 76 of the Control of Narcotic Substances Act, 1997 had not been brought to the notice of the Honourable Judges deciding those case. Section 76 of the said Act of 1997 provides for giving an overriding effect to the provisions of the Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force. The provisions of section 74 of the said Act may also be advantageously referred to in this context. The overriding effect of section 76 of the
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Act of 1997 was clearly noticed and expressly referred to in the case of Khalil-ur-Rehman v. The State 1998 PCr.LJ 1625 for brushing aside an argument that the case of the accused person in that case may be considered to be one under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and not to be that under section 9 of the Control of Narcotic Substances Act, 1997, for the purposes of the said accused person's bail. We respectfully subscribe the view expressed in this regard in this precedent case. 11. We are conscious that some of the views expressed by us above and some of the interpretations advanced by us vis--vis different provisions of the Control of Narcotic Substances Act, 1997 may appear to some to be somewhat harsh or stringent but we maintain that the same are in consonance with the spirit of the said law. The said law is not an ordinary law as the menace that it purports to curb is not commonplace and the criminals who indulge in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative. It may be true that an individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its while. The perils of corruption in a society are far greater than the hazards of narcotics and, thus, the observations made above in the context of the Control of Narcotic Substances Act, 1997 are attracted with a greater force in the context of the National Accountability Ordinance, 1999. It may not be forgotten that by virtue of section 3 of the National Accountability Ordinance, 1999 the provisions of the said Ordinance are to have an overriding effect over any other law for the time being in force." (bold added) 24. Crimes of corruption under the NAO are not ordinary crimes. They are crimes against society as a whole. For offenses of corruption charged under the NAO (white collar crimes) the Hon'ble Supreme Court in the recent case of Rai Mohammed Khan v. NAB (2017 SCMR P.1152) has emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx Rs, 12M in the following terms at P.1154 para 7; "Under the principle of law and. justice, each bail petition is to be decided on its own merits and the law applicable thereto, however, this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field, has become a threatening danger to the State economy, striking on its roots. The public money, allocated for social sector and economic well being of the poor people, is consistently embezzled/ misappropriated at a large scale and why the majority of the population is deprived of essential daily utilities, like pure drinking water, health care and education facilities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy, therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly, once on fact the case is made out, at bail stage, against the accused person. Distinction, however, is to be drawn between the ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the time of conviction, once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence." 25. Thus, even for the grant of bail in NAB cases this must be considered on a stringent and rigid plane due to the nature of the crime. The reason for citing these NAB bail cases is to show how stringently the law of bail is applied to NAB cases and thus if the grant of bail is to be construed so strictly and rigidly how can it be expected that it was the intent of the legislature that section
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91 could be applicable? It would in our view in effect render the Asfandyar's case (Supra) on the ability of the High Courts to grant bail in its constitutional jurisdiction almost redundant (along with section 9(b), N.A.O.) which in itself entitled accused under the NABO for the first time to be granted bail which was against the original intention of the legislature which was in essence found to be unconstitutional. Even otherwise turning to the power of arrest. 26. The power of arrest in the NAO is set out in section 18(e) and section 24 which are set out as under: S. 18(e) - The Chairman NAB and such members, officers and/or servants of the NAB shall have and exercise, for the purposes of an inquiry and/or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, police officer or any other official or agency, as the case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman or any officer duly authorized by the Chairman NAB. (bold added) Section 24. Arrest- (a) The Chairman NAB shall have the power, at any stage of the investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.…
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