Abdul Hameed Dogar, CJ.--By this single order was intend to dispose of Constitution Petitions No, 4, 5, 6, 7 and 9 of 2008 involving identical question. These petitions have been filed by petitioners under Article 186-A of the Constitution of Islamic Republic of Pakistan, 1973 for transfer of Writ Petitions No, 7104, 5192, 5847, 7852 and 4789 of 2008 pending before learned Lahore High Court to this Court.
2. Briefly, stated facts of the case are that petitioner runs a steel manufacturing plant whereas Respondents No, 11 and 12 are trading entities/concerns. They availed financial facilities from Respondent No, 9 (The Bank of Punjab) from time to time in connection with their business. Due to deteriorating business conditions petitioner sought restructuring and rescheduling of their outstanding liabilities with the bank and ultimately the parties entered into rescheduling agreement on 28.11.2007, however, the agreement was found harsh in view of the prevailing conditions in the steel market and petition requested for reconsideration. Accordingly, three rescheduling agreements dated 24.3.2008 were entered into between the bank, the petitioner and Respondents No 11 and 12. Consequently, a new repayment schedule was agreed upon subject to a. cumulative down payment of Rs, 450 millions which was made on the same day. After the change of Government in the Province of Punjab, the National Accountability Bureau with ulterior motive and without recourse to the relevant legal provisions, started making efforts to frustrate the rescheduling agreements and tried to force petitioner and its associates to enter into plea bargain with NAB. Feeling aggrieved petitioner filed Writ Petition No, 7104 of 2008 which came up for hearing on 18.6.2008 before a learned Division Bench consisting of M.Bilal Khan, J. and M.A.Zafar, J. of the Lahore High Court, wherein following order was passed:-- "Send a copy of this petition along with allied documents to Respondent No, 3 for his report and parawise comments, so as to reach this Court on and before 1.7.2008.
2. To come up on 1.7.2008.
3. Meanwhile no uncalled for harassme nt shall be caused to the petitioners."
On 01.7.2008 the matter again came up for hearing before learned Division Bench consisting of Mr. Justice M.Bilal Khan and Mr. Justice Fazal-e-Miran Chauhan and following order was passed:-- "Report and parawise comments in terms of this Court's order dated 18.6.2008 have not been filed.
Further time has been sought by the learned Senior Prosecutor NAB.
2. The learned counsel for the petitioner complains that the NAB authorities are incessantly harassing the petitioners; they are being subjected to one raid after the other during the course of which their vehicles, office equipments, cash amount and other valuable have been removed. It is further complained that the petitioners are made to suffer extreme humiliation and indignities. This according to the learned counsel is being resorted to notwithstanding the order dated 18.6.2008 passed by this Court whereby the NAB authorities had been directed not to cause undue harassm ent to the petitioners.
3. In this backdrop, we were not inclined to grant further time to the NAB authorities, as prayed for by their learned Special Prosecutor, but in the interest of justice, we direct that the requisite report and parawise comments may be filed within the next 10 clays.
4. However, in the meanwhile, no further coercive measures shall be adopted against the petitioners. This restraint order will enure only till the next date of hearing i,e, 14.7.2008."
In another writ petition i,e, No, 7852 of 2008 filed by petitioner. Hafiz Afzal and others, which came up for hearing before the same learned Division Bench on 1.7.2005 the following order was passed:-- "Inter alia contend that seizure of the vehicles the details whereof find mention in para 3 of this petition and the freezing of the CDC account of the petitioner is absolutely illegal and without lawful authority.
2. A copy of this petition along with its annexures has been handed over to Mr. Abdul Sattar, the learned Senior Prosecutor, NAB who was incidentally present in this Court in connection with some other case. He will seek report and parawise comments from Respondent No, 3, so as to reach this Court within ten days.
3. Re-list on 14.7.2008.
CM No, 2/2008
4. Notice for 14.7.2008."
Another CM i,e, No, 4 of 2008 was filed in Writ Petition No, 7104 of 2008 which came up for hearing on 8.7.2008 and following order was passed:-.
"Copy of this petition is handed over to learned counsel representing the NAB, Authorities who shall file his reply, get instruction from the relevant quarters and assist the Court.
2. To be heard along with the main writ petition which is fixed for 14.07.2008.
In view of the prayer made through this petition bailiff of this Court is also deputed to visit the site and prepare a detailed report which shall be placed on record before the next date of hearing."
In pursuance of above order bailiff submitted his report on 12.7.2008 as under:-- "In this case I visited PS Model Town, Lahore. After making necessary entry in daily diary, I along with police escort raided at the spot on given address and found both of main gates of the company were locked. Two gunmen of the NAB were posted there. Nobody was allowed to enter the office.
Some employees were also gathered outside the gate who were not paid their salaries. Nobody from the respondent side was available except two gunmen. The GM of the company Sheikh Muhammad Yaqoob was present at outside gate along with some employees. He asked me who I was. I told him that I am Bailiff. He told me that 170 employees were being demanding entry in the office since 27.6.2008. The employees told me that they were not being given their salaries and could not enter the office. The main entrance into the office was sealed by the I.O. On my enquiry the gunmen namely Amer/6046 and Muhammad Javed/9723 stated before me that the office was locked by 1.0. for about two weeks ago. One single room besides the office was opened and all the A.0 units were running since two weeks ago. The motorcycle bearing No, LRW-2996 (CD 70) and LOX-9205 (Yamaha) belonging to company were also parked in the Courtyard of the company were being used by police. The gunmen informed that these motorcycles belong to the office. After longtime the I.O. of the case namely Aftab arrived at the spot along with the record. Conversely I.O. stated before me that the office was seized by the orders of the NAB. He stated that everyone was allowed to enter the office freely. When I confronted him how can any employee enter when gates are closed and your guards are saying that no one is allowed to enter; he could not answer. I asked him to open the office immediately and show me the factual position inside the office in order to prepare detailed report in this regard Firstly the 1.0. totally rejected to open the same. Later on he opened the office which was seized and taken into possession by I.O. The office was well furnished but looking in very deplorable position. All the safes were broken. I asked him under what authority he had broke the safes. He said D.G. order. The I.O. admitted that he visited office three days ago and he did not turn back. He also admitted that nobody was allowed to visit or enter the site as the record of the evidence would be disturbed/dispersed. He I.O. also furnished a copy of the NAB order/F.A. It was ordered office was seized. This order was to remain in force for a period of fifteen days. The fifteen days had expired today, i,e, 8.7.2008. When confronted, I.0. changed his story and stated that application was filed in the Court of the learned Administrative Judge, Accountability Court, Lahore for its confirmation today. However, the Court refused to confirm the seizing because of restraining orders passed by the High Court. When I asked I.O. why he is not following the orders of the High Court, I.O. said NAB has suo motu powers. When asked freezing order by Accountability Court not confirmed why he was not vacating office and still applying coercive measures despite High Court orders to which he had no answer. I then entered the office which was opened by the I.O. finally. All the safes of the office were broken. The GM stated before me that one safe of my room was broken in his presence and Rs, 500000/- were recovered from the safe. I also enquired the matter from 1.0. who told me that other safes/almirahs were broken by the I.O. and recovered Rs, 1,40,17,230/- were recovered from the safe in the presence of Deputy Director NAB Punjab and nobody from the victim side was available at the spot. He also showed me a list of office vehicles eleven in numbers as well as particulars of the documents regarding guns, pistols and pump action new. I asked I.O. whether he had any authority to break the safes or take over the vehicles.
The I.O. said he had a search warrant issued by the Accountability Court but could not produce. The I.O. agreed to keep the office open to the employees from 9 am to 4 pm for the employees from next day in his presence. Meanwhile, Brig. Irfan arrived at the spot where he told me that we are not in this position to vacate the office as the NAB Court authorized them to freeze. He also stressed not to vacate the office to the I.O. I questioned the Brig. of the order dated 1.7.2008 and earlier orders for compliance. However, they said closing the office did not mean coercive measure."
Thereafter the matter came up for hearing before learned Division Bench consisting of Tariq Shamim, J. and Muhammad Ashraf Bhatti, J. on 14.7.2008 and following order was passed:-- "Arguments have been partly heard.
Adjourned for tomorrow (15.7.2008). The interim relief granted to the petitioners shall continue till then.
The office is directed to put up WP No, 4789 of 2008 along with this petition."
When the matter came up for hearing on 15.7.2008, the following order was passed:-- "One of us (Tariq Shamim, J.) would not like to hear this petition. Office is directed to place this matter, along with the connected matters today before some other learned Division. Bench of this Court, after obtaining necessary order from the Hon'ble Chief Justice."
Hence, these constitutional petitions have been filed under Article 186-A of the Constitution for transfer of writ petitions pending before the learned Lahore High Court with the prayer to withdraw the same from the said Court and be heard and decided by this Court.
3. Learned counsel for the petitioners have stated that the matter was placed before different Benches of the learned Lahore High Court, Lahore but hearing could not complete rather one of the learned Judges declined to hear the same for unknown reasons. It is their contention that though the learned High Court passed orders restraining the respondents/Investigating Agency not to apply coercive methods yet, the same has not been complied with rather repeatedly efforts have been made to harass the petitioners, in as much as, despite specific direction made by this Court vide order dated 24.7.2008 to the respondents/NAB to comply with the order of the learned High Court, one of the employee of the petitioners, namely, Irfan Ali was not only arrested from the Court premises when he was sitting with his counsel in the bar room, but was dragged and was physically maltreated and it was only due to intervention of this Court that he was not released from the clutches of the NAB officials. Thus the petitioners genuinely apprehend that in case, the writ petitions are not transferred from the Lahore High Court the petitioners would not be able to seek justice and pursue the same at Lahore due to hostile and partial attitude of the investigating agency. They further contended that since the Provincial Government is showing extra ordinary interest in the case, therefore, fair and impartial hearing of the petitions would not be possible in the Province of Punjab. According to them, since the loan amount has already been rescheduled therefore, the petitioners are no more defaulters and the coercive measures applied by investigating agency are not warranted. They have stated that under Article 186-A of the Constitution this Court has the power to withdraw any case, appeal or other proceedings pending before a High Court to it and dispose the same of or transfer the same to any other High Court in the interest of justice. According to them, it is a fit case for transfer of the writ petitions to this Court for doing complete justice. In support they referred to the cases of Muhammad Tahir Siddiqui & another v. National Accountability Bureau & another (2003 SCM R 1085), Federation of Pakistan v.
Khalid Malik (1999 SCM R 275), and Mst. Bushra Raheel v. Sajjad Haider Khan & others (1994 SCM R 2009).
4. Dr. Babar Awan, learned Sr.ASC for Respondents No, 11 and 12 supported the above contentions and stated that untoward incident whereby an employee of. the petitioner company who had come to pursue the case before this Court was not only manhandled but was taken into custody within the Supreme Court premises despite the restraint order passed, is the manifestation of highhandedness and partial attitude of the investigating agency hence, the petitioner's request for transfer of the case from Lahore High Court is genuine and reasonable. He prayed that the case may either be disposed of by this Court or be transferred to any other High Court for disposal.
5. Raja Muhammad Ibrahim Satti, learned Sr. ASC appearing on behalf of NAB controverted the above contentions and urged that NAB initiated proceeding on the complaint filed by Acting President of the Bank, of Punjab, in pursuance of report of audit team mentioning that loans of billions of rupees were sanctioned to fake and unidentified borrowers against inflated/unreal value of collaterals and non-existent business places. He stated that though the proceedings could not take place in the Lahore High Court due to pendency of these constitution petitions before this Court yet, since the learned Chief Justice of Lahore High Court has constituted a special bench consisting of two senior most Judges to hear the petitions, therefore, there is no need to transfer the petitions.
6. Mr. Muhammad Akram Sheikh, learned Sr.ASC appearing on behalf of Bank of Punjab while controverting the contentions raised by learned counsel for the petitioners urged that the grounds taken in the petitions for transfer are ill-founded as in all circumstances the Courts are duty bound to protect life, liberty, honour and dignity of citizens and the petitioners deserve to be treated at par with others. While placing reliance on the cases of Brig. (R) Imtiaz Ahmed v. Government of Pakistan & others (1994 SCM R 2142) and Muhammad Arshad v. Said Asim Saqlain etc. (1994 SCM R 969) he stated that there is no justification for transfer of the petitions from Lahore High Court to this Court otherwise there would be a flood of such like applications.
7. Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan while supporting the contentions of the learned counsel for the petitioners submitted that since attitude and behaviour of the investigating agency was abnormal and coercive methods were constantly applied in preventing the petitioners and their employees to pursue the matter at Lahore, therefore, it would be highly appropriate to transfer the petitions to some other High Court, for disposal.
8. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the entire record, minutely, with their assistance.
9. Admittedly, the learned Judges in the Lahore High Court, on the complaint made by learned counsel for the petitioners, directed on 18.6.2006 that no uncalled for harassment shall be caused to the petitioners. Despite that, on the next date of hearing i,e, 01.7.2008, which was fixed for filing of report and pars wise comments, it was complained by the petitioners that they were made to suffer extensive humiliation and indignities inasmuch as one raid after the other was conducted and in course thereof cash, office equipment, vehicles and other valuables were removed. Freezing of the CDC account was also complained by the petitioners. In the circumstances, the learned Judges were constrained to pass yet, another restraint order on 1.7.2008 thereby ordering that no further coercive measures shall be adopted against the petitioners. It appears that the subsequent order was consciously passed by learned Judges in the High Court because, report as required, was not furnished by investigating agency on the said date, and it was again complained by the petitioners that hostile attitude of investigating agency was persisting. It was not end of the matter yet necessity was felt by the Court to appoint a bailiff to visit the site and prepare a detailed report.
The bailiff submitted his report on 12.07.2008 pointing out, inter-alia that when visited, the premises of the company were locked, employee were not permitted to enter into, the safes lying, in the office were broken and cash etc. was taken away by the NAB Officials. Further though fifteen days period had expired on 8.7.2008 and Accountability Court had not confirmed the order regarding seizer of the property yet, the Investigating Agency was not prepared to vacate the premises and it was done under the garb and clog of suo motu powers by the NAB authorities. A number of vehicles belonging to the petitioners as well as customers, were also seized by the NAB authorities and they were not prepared to release those which belonged to the customers even. Thereafter, the matter was partly 'heard on 14.7.2008 and was adjourned for 15.7.2008 for remaining arguments. On that date one of the learned Judges (Tariq Shamim, J,) declined to hear the case. It was such state of affairs that this Court was approached with the request that since behaviour of the investigating agency was hostile, belligerent and inimical towards the petitioners and the NAB officials in Punjab Province were bent upon to it apply coercive methods despite restraint orders passed by the High Court and due to high handedness of the NAB officials at Lahore, it was made impossible for the petitioners to seek protection of law, therefore, the writ petitions may be transferred from learned Lahore High Court, to this Court.
10. These petitions were taken up by this Court on 22.7.2008 when the learned counsel for the petitioners reiterated their concern regarding hostile attitude Of the NAB officials and requested that since the NAB officials despite restraint order passed by the High Court were bent upon to harass and pressurize the petitioners, therefore, they may be restrained to apply coercive methods.
The matter was adjourned to 24.7.2008 however, it was ordered by this Court that interim. order passed by the High Court dated 01.7.2008 and the orders passed in continuance shall remain in field. Here we would like to point out with grave concern that when order was passed on 24.7.2008 to maintain the position which was subsisting prior to the restraint order, learned counsel for the petitioners yet, again approached this Court and complained about the incident that after passing of the above order when the parties disbursed, one of the employee of petitioners namely, Irfan Ali, while sitting in the Bar Room along with Advocate on Record was apprehended by the NAB officials, dragged, severely beaten and taken away, hence, action may be taken against the culprits.
Resultantly, the concerned officials including the Investigating Officer of the case as well as the Chairman NAB were called by this Court. As the Investigating Officer admitted that said Irfan Ali was arrested from the Supreme Court premises, therefore, the concerned officials were sent behind the bars for initiation of proceedings for contempt of Court. However, on 30.7.2008, on furnishing unconditional apology they were released and proceedings were dropped.
10-A. Sequence of above narrated events suggests that conduct of the NAB authorities especially at Lahore (National Accountability Bureau, Punjab) is not above board and we see force in the contention of the learned counsel for the petitioners that due to coercive tactics applied by the NAB authorities and other officials, the petitioners are unable to pursue remedy before the Lahore High Court freely, therefore, we, in the interest of justice, deem it proper to allow the petitions.
Consequently, these Constitution petitions are allowed and Writ Petitions No, 7104, 5192, 5847, 7852 and 4789 of 2008 are withdrawn from the file of learned Lahore High Court, Lahore and transferred to Islamabad High Court, Islamabad for disposal in accordance with law and on merits.
11. Criminal Original Petitions No, 44 and 48 of 2008 have become infructuous and are disposed of accordingly.