Abdul Hameed Dogar, J.--By this common order, we intend to dispose of Civil Petition No. 2361 of 2005 filed by National Accountability Bureau (hereinafter referred to as 'NAB') and Civil Petition No. 2450 of 2005 filed by Raheel Rashid Petitioner against judgment dated 21.7.2005 whereby Writ Petition No. 11855 of 2005 filed by petitioner Raheel Rashid was partly accepted while holding that NAB or the Accountability Court has no authority or power to proceed against Raheel Rashid petitioner but, relief regarding quashment of proceedings was declined.
2. Briefly, stated facts are that NAB initially filed Reference No. 23 of 2004 against four persons, namely, Abdul Waheed, Abdul Rashid, Abdul Saeed and Abdul Majid under Section 18(g) read with Section 24(b) of National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance'. All the accused except. Abdul Saeed were absconder. The allegation against aforesaid accused who being Managing Directors/ Guarantors of M/s WRSM Trading Company were about Bank loan defaulters, therefore, a Reference under Section 31-D of the Ordinance was filed by Governor State Bank of Pakistan for proceeding against the aforesaid accused. During the investigation, it transpired that main assets of M/s WRSM Trading Company were found siphoned off to Pakistan in favour of M/s Rafeh (Pvt.) Limited and it further transpired that M/s Rafeh (Pvt.)
Limited was initially registered in 1990 and from 10.8.1992 Raheel Rashid petitioner and his brother Sajeel Rashid sons of main accused Abdul Rashid were the Directors of the said Rafeh (Pvt) Limited, therefore, beneficiary of the defaulted loan was in fact M/S Rafeh (Pvt) Limited which was owned by petitioner Raheel Rashid and his brother Sajeel Rashid. As such supplementary Reference No.23 of 2004 was filed by NAB against the petitioner and his co-accused.
3. After filing of Reference, the Accountability Court took cognizance on the said reference and framed charge against petitioner Raheel Rashid and his co-accused Sajeel Rashid on 17.2.2005.
Thereafter on 28.4.2005 an application under section 265-K Cr.P.C. was filed on behalf of petitioner for his acquittal from Reference No.23 of 2004 before the said Court on the grounds that he neither obtained any loan from UBL nor any amount is due from him, the allegation of abetment against him is false and that there is no material evidence on record to connect him with the commission of offence. It was further mentioned that M/s Rafeh Private Limited Company only exported rice to M/S WRSM and received no payments other than those for rice-shipment. The Accountability Court dismissed the application on the ground that prosecution has gathered documentary as well as oral evidence against petitioner, which is yet to be brought on record. Feeling aggrieved, petitioner challenged the said order before the learned Lahore High Court, Lahore. After hearing learned counsel for the parties, the learned High Court disposed of the petition in the following manner:-- "It has been argued before us that as in case of permission under Section 196 Cr.P.C. proceedings having commenced ought to be quashed, is also not a convincing argument. Because under the present circumstances, we are to be governed by the special law itself which is Section 31-D of the National Accountability Ordinances, 1999 and are not inclined to quash proceedings on these basis and wish to only declare that the proceedings as against the petitioner being destitute of authorization of the Governor of State Bank of Pakistan, therefore, the reference does not vest jurisdiction in the National Accountability Bureau or the Accountability Courts and, therefore, until that permission is available, the National Accountability Bureau or the Accountability Courts have no authority or power to proceed against the petitioner in law."
4. We have heard Raja Muhammad Ibrahim Satti learned ASC for NAB and Mr. Aitzaz Ahsan, learned Sr. ASC for petitioner Raheel Rashid and have gone through the record and the proceedings of the case in minute particulars.
5. Mr. Aitzaz Ahsan, learned ASC for the petitioner Rahel Rashid submitted that order of Chairman, NAB dated 29.4.2005 as well as the order of the Accountability Court dated 16.5.2005 suffer from patent legal infirmities and clearly show that they were passed without application of mind by the respective authorities. He added that in cases where an authority does not apply its mind and/or its orders are in gross violation of the specific provision of law the same are not sustainable in law.
According to him the petitioner has no concern with the loan/facility amount in respect of which alleged 'wilful default' was committed by the Directors of M/S WRSM and mens rea on the part of petitioner to abet the same is absolutely missing in the case. He argued that petitioner is neither director, partner, shareholder nor guarantor of M/S WRSM nor did he sign any. document for or on behalf of M/S WRSM in favour of UBL. He further argued that the State Bank of Pakistan never served any notice to the petitioner or M/S Rafeh Pvt. Ltd., therefore, no proceedings could be initiated against him under the Ordinance. According to him, there is nothing on record to show that the petitioner conspired with four principal accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from M/S WRSM or any of its directors.
In fact petitioner and his company were transacting a lawful business with various foreign companies including M/S WRSM and no illegality could be found in any of the said transaction.
Neither the petitioner nor his company was a, party to any of loan agreements executed by and between M/S WRSM/its directors and UBL Deira Branch Dubai. He lastly contended that order of Accountability Court dated 16.5.2005 whereby relief of quashment of proceedings was declined to respondent Raheel Rashid be set aside and matter against him may be quashed.
6. On the other hand learned counsel for the NAB vehemently contended that the learned High Court was not justified in partly accepting the writ petition and declaring that the proceedings under reference as against Respondent No. 1, required authorization of the Governor of State Bank of Pakistan and, therefore, the Reference does not vest jurisdiction in the National Accountability Bureau or the Accountability Court, until that permission is available, National Accountability Bureau or the Accountability Court have no authority or power to proceed against Respondent No. 1 under the law. He further contended that the view taken by the learned High Court was in vilation of Section 31-D of the Ordinance as although Respondent No. 1 is not a defaulter of the Bank rather he is a beneficiary of the loan so obtained and the main Reference against other accused, who were loanees of the Bank was duly filed under authorization of the State Bank of Pakistan under the aforesaid section. According to him Reference against Respondent No. 1 who was included in Supplementary Reference alongwith another accused, who were beneficiary of the loan so obtained by the main four accused against whom Reference was competently filed by the State Bank of Pakistan, can be tried alongwith main accused as provided under Section 17 of the Ordinance.
7. For better appreciation it would be appropriate to reproduce Section 31-D of the NAB Ordinance, 1999: "31-D. Inquiry, investigation or proceedings in respect of imprudent bank loans, etc.-- Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re- scheduled loans' shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan: Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conducted without reference from the Governor, State Bank of Pakistan."
8. On bare perusal of Section 31-D of the Ordinance, it is implicitly clear that it only relates to imprudent loans, defaulted loans or rescheduled loans but in the instant case there is nothing on record from which it can be inferred that petitioner conspired with his co-accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from M/s WRSM or any of its directors. We are of the view that learned High Court has erred in law while holding that NAB or Accountability Court has no authority or power to proceed against petitioner Raheel Rashid without reference from Governor State Bank of Pakistan. According to this provision of law the sanction is necessary only against the loanee but in this case the petitioner is not a direct loanee, therefore, sanction of the Governor of State Bank is not required in this case and the learned High Court has erred in holding that the Accountability Court cannot proceed against the petitioner unless a reference is made by the Governor State Bank of Pakistan.
9. In view of what has been discussed above, the impugned Judgment of the learned High Court to the extent of jurisdiction is not sustainable in the eyes of law and is not in consonance with the law laid down by this Court, therefore, Civil Petition No.2361 of 2005 filed by National Accountability Bureau is converted into appeal and is allowed. The impugned judgment of the High Court to the extent of jurisdiction is set aside and Accountability Court is directed to proceed with the matter against petitioner Raheel Rashid in accordance with law. However Civil Petition No. 2450 of 2005 filed by petitioner Raheel Rashid for quashment of FIR is dismissed as he has not been able to show any ground for quashing the proceedings. Thus leave to appeal declined. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.