' JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment dated 14-6- 2000 passed by learned Full Bench of Lahore High Court, Lahore whereby the writ petition preferred on behalf of appellant has been dismissed and the decision rendered by learned Accountability Court No,1, has been kept intact.
2. Leave to appeal was granted by this Court by means of order dated 10-7-2000 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "By this common order, was proposed to decide Civil Petitions Nos. 1630-L and 1662-L of 2000 as questions of law and facts are identical in both of them.
2. Faisal Saleh Hayat husband of petitioner in C.P. 1630-L/2000 and Malik Ghulam Muhammad Murtaza Khar, petitioner in C.P. No,1662-L/2000 are alleged to have wilfully committed default in the payment of loan obtained by them from the banks as defined in section 5 sub-clause (r) of the National Accountability Ordinance, 1999 as amended and are being proceeded against under the said Ordinance for the said offence. Both of them have admittedly obtained loans from the Nationalized Banks. The Chief Executive of Pakistan in his address to the Nation on electronic media on 17-10-1999 called upon the loanees from the banks to settle their matters with the Banks as regards repayment of loans within one month therefrom after which they would be proceeded against in accordance with law both Faisal Saleh Hayat husband of petitioner in C.P. 1630-L/2000 and the petitioner in other civil petition approached the banks i,e, the creditors to settle the matter as to repayment of the said loans, on 16-11-1999 which was the last date for such settlement as announced by the Chief Executive, Faisal Saleh Hayat husband of petitioner in C.P. 1630-L/2000 made a settlement for repayment of the loans which were rescheduled on payment of a specified amount as down payment which was to the tune of eight crore rupees. The Bank agreed for fresh schedule of payment according to which the remaining amount was payable in monthly instalments of forty lac each. There is no dispute that the payment is being made according to this schedule. In the case of petitioner in C.P.No,1662-L/2000, the rescheduling was made on 12-10-1998 according to which apart from down payment of a specified amount, the remaining amount was settled to be paid in equal quarterly instalments which is admittedly being adhered to by the said petitioner also.
3. The 'wilful default' has been defined in section 5 sub-clause (r) of the said Ordinance which is reproduced below:-- "(r) 'wilful default' a person is said to commit an offence of wilful 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 of 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, cooperative society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter: ' Provided that it is not 'wilful default' under this Ordinance if the accused was unable to pay return or repay the amount as aforesaid on an account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government department or a statutory body or an authority established or controlled by Government)."
' It may be mentioned that this clause was added through National Accountability Bureau (Amendment) Ordinance No,IV of 2000, which promulgated on 30-2-2000. It was further amended on 5-7-2000 through which after the word 'pay' acquiring for the first time the following words have been added; 'or continues not to pay' and after the word 'due', the following words have been added 'as per agreement continuing the obligation to pay, return or repay or' and for the words and commas 'a bank, including the State Bank of Pakistan', the words and commas 'the State Bank of Pakistan, or the Bank,' have been added. The final definition of 'wilful default' after the aforementioned further amendment reads as under:-- `wilful default' a person is said to commit an offence of wilful default under this Ordinance if he does not pay or continues not to 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 as per the agreement continuing the obligation to pay, return or repay or according to the laws, rules, regulations, instructions issued or notified by a bank, including the State Bank of Pakistan or the bank, financial institutions, cooperative society, Government department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter: ' Provided that it is not wilful default under this Ordinance if the accused was unable to pay return or repay the amount as aforesaid on an account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government department or a statutory body or an authority established or controlled by Government."
4. The husband of petitioner in C.P. No,1630-L/2000 and the petitioner in the other petition were taken into custody under the said Ordinance. A Constitutional petition was filed by the petitioner in C.P. No,1630-L/2000 for the release of her husband Faisal Saleh Hayat and the petitioner in the other petition before the Lahore High Court. Both the petitions were heard by a Bench of five learned Judges of the said Court and through the impugned judgment dated 14-6-2000 by a majority of four to one the same have been dismissed, against which leave to appeal has been sought.
5. Learned counsel for the petitioners in both the petitions in support of these petitions, inter alia maintained:
(a) That the term 'wilful default' was declared to be an offence through Ordinance IV of 2000 which was promulgated with effect from 3-2-2000, as such, firstly any default in the payment of the loan, if committed before coming into force of the said Ordinance could not legally be treated to constitute an offence, for under the Constitution, no person can be punished for an act which was not an offence declared by law, when the same was committed.
(b) Even if the case of the petitioners is examined in the light of the 'wilful default' as defined in section 5 as amended, the same does not fall within its mischief, for long before 3-2-2000 the banks concerned have rescheduled the loans of the petitioners and there is no allegation that there was any default as regards schedule of payments settled by the banks with the petitioners.
Since in the matter of rescheduling of loans, the banks are governed and regulated by the rules and regulations issued by the State Bank of Pakistan and there being no allegation that rescheduling made by the bank in the case of the petitioner were violative of any such rule and regulation, therefore, the payments made by them accordingly shall be deemed to be the payments to be made in accordance with the laws, rules, regulations and instructions issued or notified by a bank including the State Bank of Pakistan as provided in the unamended definition of 'wilful default', as such, on this account too, both the cases do not attract the said definition.
(c) That according to further amendments made on 5-7-2000 cases or payment of loans as per terms of agreement between the bank and the debtor have also been excluded from the provision of the said definition of 'wilful' for there is no allegation that the petitioners have committed any default in respect of schedule of payments agreed between the bank and the debtors settled through the rescheduling of the loans.
(d) That it has been officially declared as a policy that committee shall be constituted by the State Bank of Pakistan including a nominee Chartered Accountant of the debtor, independent chartered accounts etc. Which would on the application of the debtor examine the case as to whether a case of 'wilful default' was made out which also establishes that each case has to be re-examined in order to determine whether it was a case of 'wilful default' or not.
(e) That 'wilful default' was made a continuing offence through the addition of words 'continue not pay' through amendment made on 5-7-2000, therefore, the said clause is not attracted to the cases of the two debtors/petitioners, for the said offence to become continuing offence in their cases would be only if they committed default in the payment of loans according to the fresh schedule settled between the bank and then after 5-7-2000 on the same principle that no act when it was committed could be dealt with as an offence subsequently if the same was not an offence when it was committed.
6. Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General submitted that this law was made with the object of recovering the loans. The expression as per agreement containing the obligation to pay, return or repay added through amendment on 5-7-2000 has reference to the original agreement of loan and not the agreement of rescheduling, therefore, no benefit can accrue to both the debtors/petitioners in these cases, for according to the original agreement of loan and the schedule of payments settled,therein, they had committed a default. He also referred to section 25-A clause (g) ibid which authorizes the NAB to treat an arrangement between the bank and the customer/debtor as to schedule of payment not in the public interest or otherwise which in the case of both the debtors has been considered to be not in the public interest for a very long period through rescheduling has been given to them for repayment of the loans as the schedule of payment settled permits them about ten years to clear the loan.
7. Learned counsel for the petitioner on the other hand in answer to these contentions submitted that the petitioners have been discriminated for in the case of other loanees, rescheduling permitting them to pay the loan with a period up to 14 years has not been objected to on the ground of being against public interest.
8. We have examined the law with the assistance of learned counsel for both the parties and find that no doubt this law has been promulgated with the object of recovering the loans of the banks.
It is the first time in the country that a serious effort has been made to bring the economy of the country on the track by making effective provisions for the recovery of loans. The question, however, remains whether the case of individual falls within the mischief of the term 'wilful default' as provided in this Ordinance which requires examination.
9. The contentions raised on behalf of the learned counsel for the petitiohers in the facts and circumstances of the cases of these debtors/loanees as to interpretation of the relevant provisions of the Ordinance as amended are questions of law of public importance, therefore, leave is granted in both the cases to consider the same.
10. In both the petitions a prayer has been made for interim relief as to the release of Faisal Saleh Hayat husband of petitioner in C.P. No,1630-L/2000 and the petitioner in the other petition. Learned Deputy Attorney General has opposed the request and pointed, out that jurisdiction of the Courts to grant bail in such matters are expressly barred by virtue of section 9(b) of NAB Ordinance.
Section 9(b) on which reliance has been placed is as follows:- `9(b). All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections (426, 491), 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court (including the High Court) shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.'
' From the bare reading of this section, it is manifest that the Courts other than the Supreme Court are covered under the said section, for it has been expressly mentioned in this section that the Courts including the High Court shall have no jurisdiction to grant bail. The omission of the words "Supreme Court" is significant, therefore, the jurisdiction of this Court under this section is not barred to grant bail to such persons.
11. Both the debtors are admittedly behind the bars for the last more than six months. It has yet to be determined whether their cases fall within the mischief of the term "wilful default" as defined according to the amended Clause of section 5 of the Ordinance. According to the declaration made by the Government, a body constituted under the supervision of the State Bank of Pakistan is to re-examine the cases of default of loans, therefore, we are satisfied that in this case both the debtors are entitled to grant of bail, for there is no allegation that they had not adhered to the schedule of payment settled between them and the banks as discussed above as per arrangements of rescheduling. On the question of amount of bail bond, learned Deputy Attorney- General submitted that it should iot be less than Rupees one crore in each case. Petitioner in C.P.
1662-L/2000 and Faisal Saleh Hayat husband of petitioner in C.P. 1630-L/2000 are hereby allowed bail in the sum of Rupees one crore each with one surety each in the like amount to the satisfaction of Assistant Registrar of this Court. It is however, made clear that if any default is committed in the payment of the instalments as settled between the Bank and the petitioners through rescheduling, the State shall be at liberty to move an application for cancellation of bail which shall be considered on its own merits.
' The interim order dated 5-7-2000 shall continue till the disposal of the appeals. The appeals shall be fixed immediately after the reopening of the Court after summer vacations on a date to be fixed by the Chief Justice."
3. Mr.Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court appeared on behalf of appellant and urged strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended that no "wilful default" whatsoever has been made and the loan in question has been rescheduled by the United Bank Limited and pursuant to such agreement between the parties ks.40,00,000 per month is being paid regularly and no default whatsoever has been alleged by the United Bank Limited justifying any action by the National Accountability Bureau and more so, the consent decree dated 8-2-2000 passed by learned Single Judge of the Lahore High Court, Lahore, whereby an agreement was executed qua the loan in question between Mr. Faisal Saleh Hayat and the United Bank Limited was never challenged by any one which had attained finality by now and no executive order passed by any authority whosoever would have any substantial bearing on the consent decree. It is argued that the National Accountability Ordinance, 1999, hereinafter referred to as the "NAB Ordinance", cannot violate the prohibition on retrospective punishment contained in Article 12 of the Constitution of Islamic Republic of Pakistan. It is next contended that even if a particular offence is a "continuing offence" does not mean that such an offence can be created and applied retrospectively and no person. Can be prosecuted for having committed such an offence if that person had stopped committing that offence prior to the promulgation of the enactment creating the offence. According to Mr.Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court on behalf of appellant, since the loan was got rescheduled hence the question of any offence whether it was a "continuing offence" or otherwise does not arise. The said contention was further elaborated by arguing that the offence of "wilful default" was created as an independent criminal offence by means of the National Accountability Bureau Ordinance, 2000 (IV of 2000) dated 3-2-2000 and resultantly any person who committed such offence prior to 3-2- 2000 and who has ceased committing the offence of "wilful default" on 3-2-2000 by rescheduling or liquidating his liability the question of any prosecution for such offence does not arise as it amounts to violation of the provisions as contained in Article 12 of the Constitution of Islamic Republic of Pakistan. It is contended emphatically that Mr.Faisal Saleh Hayat never made any application to the Chairman NAB for the reconciliation of his liability and the same stood reconciled and rescheduled by virtue of the agreement executed between Mr. Faisal Saleh Hayat and United Bank Limited which aspect of the matter could not have been ignored by the Chairman NAB and no action whatsoever could be initiated qua reconciliation of liability of Chairman NAB at his own. It is pointed out that a valid agreement cannot be declared void by the Chairman NAB to whom no such authority could have been conferred as such powers could only be exercised by judicial forums having jurisdiction under the Contract Act, 1872. Learned Senior Advocate Supreme Court pointed out that there is no precedent in the legal history of a common law based system for any executive body being able to make such a determination. Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court also argued that the prospective operation of section 25-A of the NAB Ordinance is indicative from the fact that the Chief 'Executive had specifically declared that those defaulters who settled with their banks on or before 16-11-1999 would not be prosecuted which declaration cannot be violated or reviewed by the chairman NAB to whom no role was assigned in the said declaration and therefore, NAB has no power whatsoever to reverse or interfere with any pre-existing agreement. It is next contended that it is a case of sheer discrimination because NAB has only decided to prosecute Mr. Faisal Saleh Hayat by ignoring the fact that it has decided in numerous other exactly comparable cases that the agreements of ten years' duration or even more were legal. It is mentioned that the provisions as contained in section 25 of the NAB Ordinance (Original)are not applicable which have already been declared null and void by this Court in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 'read with Article 8 of the Constitution of Islamic Republic of Pakistan. Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court also portraited the latest position anti according to him all the necessary formalities as enumerated in section 25-A clauses (d) (e) (f) and (g) have been completed and Mr. Faisal Saleh Hayat may be allowed to approach the Accountability Court for approval of the decision made by the Governor State Bank of Pakistan pursuant to clause (g) of section 24-A in view of the stay order granted by this Court by vacating or modifying the same.
Learned Senior Advocate Supreme Court has relied upon the following authorities in support of his esteemed views:-- . "Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, Shahida Faisal v. Federation of Pakistan PLD 2000 Lah. 508, Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426, Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869, Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC (Pak.) 237, Asma Jilani v. Government of the Punjab PLD 1972 SC 139, Begum Nusrat Bhutto v. Chief of Army Staff and others PLD 1977 SC 657, Shahida Faisal v. Federation of Pakistan 2001 SCMR 294."
4. Mr. Irfan Qadir, learned Prosecutor General, NAB at the outset contended that the formalities as enumerated in section 25-A have been completed and the decision of Governor State Bank of Pakistan communicated to the Chairman NAB has been accepted and therefore, the matter be referred to learned Accountability Court for according approval. Learned Prosecutor General NAB however, strenuously controverted the view point of Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court canvassed on behalf of appellant and contended that "wilful default" has been committed by Mr. Faisal Saleh Hayat and the agreement to get the loan rescheduled was executed after the target date i,e, 19-11-1999 and the agreement in this regard was executed on 16- 11-1999. The learned Prosecutor General NAB also argued that the question as to whether "wilful default" has been committed or not can only be determined on the basis of evidence which has already been recorded by the learned Accountability Court and the appeal has become infructuous as Mr. Faisal Saleh Hayat has opted to settle his liabilities through conciliatory process as enumerated under section 25-A of the NAB Ordinance. The learned Prosecutor General NAB has referred the prayer made in Writ Petition bearing No,739 of 2000 preferred by Mrs. Shahida Faisal; wife of Mr. Faisal Saleh Hayat which is reproduced herein below for ready reference:-- "(i) Direct the production in Court of the detenu, Faisal Saleh Hayat;
(ii) Direct the respondents to justify his detention in the eye of law and on the facts and circumstances of the case;
(iii) Examine the validity and legality of his detention;
(iv) Declare that the detention of Faisal Saleh Hayat is illegal and without jurisdiction;
(v) Direct that he be set at liberty forthwith.
' It is humbly prayed that any other relief or reliefs deemed just and appropriate by this Honourable Court may also be granted."
5. Learned Prosecutor General NAB contended that no writ of habeas corpus could be issued after the release of detenu namely Mr. Faisal Saleh Hayat and the appeal has become infructuous.
6. It is also pointed out that the "wilful default" was incorporated in the schedule since promulgation of the Accountability Laws and it could have been tried by the Accountability Court and therefore, it would not be material as to when "wilful default" was made a specific offence. Learned Prosecutor General NAB pointed out that for cogent and concrete reasoning the agreement executed between Mr. Faisal Saleh Hayat and United Bank Limited was not approved as it was not in the public interest. The learned Prosecutor-General NAB has referred paragraphs Nos.33 and 34 of the judgment impugned to substantiate his contentions.
7. We have examined the above mentioned contentions in the light of relevant provisions of law and record of the case. We have perused the judgment impugned carefully. After having gone through the entire record and perusing the 'leave granting order', we are of the considered opinion that pivotal question which needs determination as to whether "wilful default" has been committed or not, squarely falls within the jurisdictional domain of learned Accountability Court. The question as to whether "wilful default" has been committed or not being question of fact can only be determined on the basis of evidence which, according to learned Prosecutor General NAB has already been recorded by the learned Accountability Court. The impact, import and significance of the provisions as contained in section 25-A of the NAB Ordinance shall, at first instance, be examined by the learned Accountability Court. It is worth mentioning that section 25-A of the NAB Ordinance was inserted by Ordinance No,IV of 2000 dated 3-2-2000 and subsections (a) and (aa) substituted by ordinance No,XXIV of 2000 dated 5-7-2000. At the time of substitution the subsection (a) was as under:- "(a) Where a person has been arrested or is in the custody of NAB on the charge that he is guilty of committing the offence of `wilful default' on account of non-payment of dues to a bank or financial institution or cooperative society, he may apply to the Chairman NAB for the reconciliation of his liability through Conciliation Committee and the Chairman NAB may refer the matter to a Conciliation Committee."
8. The learned Accountability Court while determining the question of "wilful default", shall also examine the provisions as contained in sections 23, 63 and 64 of the Contract Act, 1872. The learned Accountability' Court shall also examine the question as to whether the offence of "wilful default" which was incorporated in "Schedule of Offences" of the National Accountability Ordinance, 1999 (XVIII of 1999) could have been tried irrespective of the fact when it was specifically made an offence as well as the application of the principle of retrospectivity and continuity. The question as to whether the agreements between Shah Jewana Textile Mills and United Bank Limited rescheduling the liabilities on the basis whereof decree was accorded by learned Single Judge of the Lahore High Court, Lahore were in public interest and impact of the decree which has attained finality also requires examination by the learned Accountability Court. The learned Accountability Court shall also examine as to whether the powers conferred upon the Chairman NAB under section 25-A of the NAB Ordinance prior to its substitution with amended section 25-A can be exercised suo motu when no such application was made by Mr. Faisal Saleh Hayat. The question as to whether United Bank Limited has committed any illegality or the rescheduling was collusive in view of the fact that pursuant to section 8 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the only course available for United Bank Limited was to file a suit for the recovery of amount due and as to whether any amount was written off, released or adjusted for extraneous considerations or on political influence other than bona fide business reasons and if so whether it was so done in the public interest or otherwise? Shall be examined by the learned Accountability Court. Whether the Chairman NAB could have declared the rescheduled agreement as 'null and void' being not in the public interest, also required consideration by the learned Accountability Court.
9. The difference between the original section 25-A and substituted section 25-A of the NAB Ordinance and the question of retrospectivity shall also be examined by the learned Accountability Court in the light of dictum as laid down in Khan Asfandyar Wali's case (supra) by keeping in view its concluding paragraph, which reads as follows:-- "317. We, therefore, allow these petitions with the observations that this order and the directions contained therein shall come into force with immediate effect. However, the Federal Government is directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from today in order to make necessary amendments, modifications, alterations, or substitutions, as the case may be, to give effect to the above directions. No, costs".
10. There is nothing before us in black and white that pursuant to clause (g) of section 25-A of the NAB Ordinance, the decision of Governor, State Bank of Pakistan has been communicated to the Chairman NAB which according to learned Prosecutor-General has been accepted by him. It would suffice to observe that unlimited or unfettered powers have not been conferred upon the Chairman NAB under clause (g) of section 25-A of the Ordinance to approve the decision of the Governor, State Bank of Pakistan and it is for the Accountability Court to accord approval which in our view would not be a mechanical exercise. The "approval" must be accorded after diligent application of mind and keeping in view all the circumstances and chequered history of the case. The previous stance of NAB while exercising discretion under section 25-A(g) of the NAB Ordinance was as under:-- "The Chairman, National Accountability Bureau has directed the undersigned to convey the reasons for exercise of discretion vested in him under section 25-A(g) of the NAB Ordinance, 1999 as under:-- ' Upon perusal of record of the Bank in this transaction, it transpired that the accused Faisal Saleh Hayat obtained loan in June 1989. At that time he was a member of the National Assembly and Commerce Minister. He did not pay back the loan as per various arrangements arrived at between him and the bank. The rescheduling of loan in November 1999 indicates that a further repayment period of 10 years has been allowed which is unusual, against Public interest and collusive, and therefore, not acceptable under section 25-A(g) of National Accountability Ordinance, 1999".
The substantial change in the previous stance, its reasoning, fresh arrangements arrived at, the agreements executed on different occasions are the points which required consideration by the learned Accountability ourt in this regard.
11. We are deliberately holding our comments on the above mentioned questions and merits of the case, lest it may cause prejudice to any of the parties. We may point out here that all the contentions agitated while arguing the appeal by Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court on behalf of appellant and Mr. Irfan Qadir, learned Prosecutor General NAB can very conveniently be raised before the learned Accountability Court which shall be decided on merits and in accordance with law.
12. For the foregoing reasons, the appeal is dismissed and consequently the interim stay granted by this Court on 5-7-2000 which was kept intact by means of order dated 10-7-2000 is vacated and bail granted in favour of Mr. Faisal Saleh Hayat is also cancelled. The observations made herein above are tentative in nature and shall not affect the merits of the case which shall be determined by the learned Accountability Court as may be deemed fit and proper and in accordance with law. These are the reasons of our short-order dated 3-3-2005, which reads as follows:-- "For the reasons to be recorded later on, Civil Appeal No,800 of 2000 (Mrs. Shahida Faisal v.
Federation of Pakistan and others) is dismissed."