1. ' Petitioner Noor Qadir Tawakkal was cited as an accused in the charge sheet earlier submitted by Sub-Inspector F.I.A., CBC-1, Karachi in the Court of learned Special Judge Offences in respect of Banks, Karachi pertaining to F.I.R. No, 10 of 1996 dated 24-10-1996, for allegedly committing offences punishable under sections 409 and 420/109 P.P.C.; Chairman National Accountability Bureau, Islamabad moved an application under section 16(A)(a) of the National Accountability Ordinance 1999, transfer of the case to the learned Accountability Court of Karachi; vide order dated 2-8-2003, the learned Presiding Judge of the Special Court (Offences in Banks) Sindh Karachi allowed the said application and the case stands transferred to the learned Accountability Court, Karachi; petitioner was earlier shown as an absconder in the above said charge sheet, and was arrested under such warrant issued by the chairman NAB; he has filed this petition with a prayer to admit him to bail.
2. ' Heard Mr. Shahab Sarki, Advocate for the petitioner and Mr. Shafaat Nabi K. Sherwani, DPG NAB.
3. ' The facts giving rise to the filing of this petition are to the effect that in the year 1972 a private company namely M/s Kandawala Industries Limited was nationalized; name of the said company was converted to be known as Messrs Naya Daur Motors (Pvt.) Ltd. On 22-3-1973; it was subsequently privatized through the Privatization Commission of Pakistan; its management was then handed over to Farid A. Qadir of Tawakkal Group.
4. ' Complainant Tariq Akhtar Khan had stated in the above stated F.I.R. That the said company, at all material times, had a cash finance account bearing No,CF-6 with National Bank of Pakistan, M.A.
5. Jinnah Road Branch and was allowed a cash finance facility of Rs,98,603 million and L.C. Limit of Rs,20 million in the year 1987, on markup basis, which facilities were renewed by the said Bank from year to year till 1992; cash finance facility was got secured against hypothecation of stock in trade, raw-material, the stock in process, charge of book debts and assets of the company and also the equitable mortgage of fixed assets of the company. The import L.C. Limit was secured against documents of the title of the goods; on the expiry, of the aforesaid facilities/limits of cash finance (and of L.C., on 30-6-1991) the same continued in favour of the company on an ad hoc basis on such oral request having been made by the management; company also made a formal request for renewal of the said facility vide letter dated 18-12-1991 and was replied the cash finance limit of Rs,98,603 million and L.C. Limit of Rs,20 million thereby stood renewed; rate of markup was fixed at 49 paisas per thousand daily product or part thereof on the cash finance facility, the date of expiry of the finance was 30-6-1992 and due date of adjustment was fixed as 30-7-1992.
6. ' The company in consideration of the above said renewal of the cash finance facility submitted the documents for all such purposes.
7. ' It is alleged that the company through its new management acknowledged the liability of Rs,124,916 million. It is further alleged that the company did not repay the outstanding dues to the Bank in spite of issuance of reminders to them and is indebted to the bank to the tune of Rs, 14,86,24,995.15 as on 30-9-1994; it is further alleged that it removed/sold out the hypothecated stock without clearing the financial liabilities and without the knowledge/consent of the bank, thereby its directors (including the petitioner) committed the Offences in Respect of the Banks (Special Courts) Ordinance, 1984 and also failed to provide the stock report periodically despite repeated reminders/ requests made to them in this behalf.
8. ' Learned counsel for the petitioner argued that no evidence is available on the record against the petitioner to connect him with the alleged offences; that his name does not appear in the F.I.R., nor was implicated in 161, Cr.P.C. Statements of the witnesses, that the challan initially having been submitted before the learned (Special Courts) Ordinance, Offences in Respect of Banks, 1984, the reference made by the Chairman Accountability Bureau to get it transferred to the Accountability Court is not proper; that petitioner is falsely implicated merely because he happens to be the son of Abdul Qadir Tawakkal who remained as one of the directors of the said company; that the petitioner was aged about 20 years during those days, and had no knowledge of any criminal misappropriation of the funds of the bank; that the offences alleged against the petitioner at the most would constitute breach of contract, that the bank never filed any civil suit against the company or its directors for recovery of the said amount steps taken through criminal prosecution by them are illegal; that the petitioner was student and mostly remained outside the country when alleged fraud took place and had no concern with the same, nor even did he ever participate in the meetings of the Board; that the petitioner has remained behind the bars since December, 2003 and the case has not yet proceeded against him before the learned Accountability Court.
9. ' It was further argued that petitioner is charged for the offence under the Accountability Ordinance which was not yet enacted when the same were allegedly committed by him; that nobody can be convicted for an act which was not enacted/defined to be an offence at the time of its commission; that co-accused has been released on bail in this case.
10. ' The prosecution alleges to have collected the necessary evidence to prove that the petitioner was a working director in the above said company and that the loan amount/financial assistance advanced to the company is not repaid; section 5 (r) of the Accountability Ordinance 1999 reads as under:- "5(r) "wilful default"; a person (or a holder of public offence) 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 (due from him) to any bank, financial institution, cooperative society, government department, statutory body or an authority established or controlled by a Government on the date that it became due (as per agreement containing the obligation to pay, return or repay or) according to the laws, rules - regulations, instructions, issued or notified by (the State Bank of Pakistan or the bank), financial institution, cooperative society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be, an (thirty days notice has been given to (such person or holder of public office): ' Provided that it is not wilful default under this Ordinance if (such person or holder of public office) was unable to pay return or repay the amount as aforesaid on 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, Government Department, statutory body or an authority established or controlled by Government: ' Provided further that in the case of default concerning a bank or a financial institution a seven days notice has also been given to (such person or holder of public office) by the Government, State Bank of Pakistan: ' Provided further that (the) aforesaid thirty days or seven days notice shall not apply to cases pending trial at the time of Promulgation of the National Accountability Bureau (Amendment)
11. Ordinance, 2001."
12. ' Loan amounts released by the bank/financial institution, if not repaid, constitutes as offence; provisions of National Accountability Ordinance, 1999 have been given effect since 1st January, 1985. Hon'ble Supreme Court of Pakistan in Ajmal Siyal v. National Accountability Bureau (2004 SCM R 265) has ruled that provisions of the said Ordinance have effect notwithstanding anything contained in any other law for the time being in force and the same will have over-riding effect to the extent of any inconsistency and will also prevail over the procedure provided in the Criminal Procedure Code; so also it stands determined that if the challan of the case in question was basically submitted in some other Court of competent jurisdiction, the Chairman, NAB, if offence thereof falls within the schedule amiexed to the Accountability Ordinance, 1999, is competent to make a reference to the Court concerned to get such a case transferred to the Accountability Court for trial (and decision thereof); in the above cited case of Ajmal Siyal (2004 SCM R 265)
13. Hon'ble Supreme Court held that law does not provide that order of transfer of the case from the Accountability Court can be passed only after notice to the accused; such a transfer can be made even without notice and is competently directed for, under the provisions of Accountability Ordinance.
14. It is a settled principle of law that while hearing a plea for bail only tentative assessment of the evidence collected by the prosecution against the accused is to be had, and detailed scrutiny thereof is not allowed.
15. ' Suffice it to say that prima facie the allegations made against the petitioner are in his capacity of being a director of the company which allegedly failed to repay the outstanding dues advanced to it as loan facility and actually released to it; petitioner has yet to prove that the company cleared all such dues and nothing is outstanding against it. The other aspect of the case is that he was shown as an absconder in the challan submitted by the FIA Police and was arrested on issuance of non-bailable warrants of arrest against him by the Chairman Accountability Bureau; no satisfactory explanation of such abscondence has yet come forward.
16. ' Validity of the provisions of above said Ordinance already stands heard and decided by Hon'ble Supreme Court in the case of Khan Asfandyar Wali (PLD 2001 SC 607). Under the present circumstances, the petitioner does not appear to have made out any case for admitting him to bail and therefore, this petition is hereby dismissed.