' On 17-5-2010 when the matters were fixed for Katcha Peshi, we with the consent of the learned counsel for the parties had ordered that the matters would be finally heard and decided at the Katcha Peshi stage.
2. Since identical points are involved in Constitutional Petition No,259 of 2010 and Criminal Miscellaneous Application No,35 of 2010, we intend to dispose of both the proceedings by this common order.
3. The facts as they appear from the record are that the petitioner was an employee/Manager of Cathay Pacific for Pakistan, Afghanistan and Central Asia and retired in the year 2002 on attaining the age of superannuation while the applicant, Muhammad Rasheed Hassan, in Criminal Miscellaneous Application No,35 of 2010 was the then General Manager Fleet Planning, PIA. On 18-3- 1999 an agreement was executed between the PIA and Cathay Pacific where the former acquired five aircrafts on lease for two years. Under the agreement, the maintenance of the said aircrafts were agreed to be undertaken by the Cathay Pacific. There were subsequent agreements for extension of the lease for another period of five years whereafter the said aircrafts were purchased by the PIA. During the lease period the PIA has also purchased the sixth aircrafts. The Board of Directors of PIA, constituted a High Powered Committee headed by a then retired Air-Vice Marshal.
The said Committee approved the transaction between the two airlines, which was also approved by the Board. It is also an admitted fact that the aircrafts remained part of PIA Fleet and generated revenue for the airline.
4. The record further reveals that, on account of some matrimonial dispute, the petitioner's ex wife, Mrs. Meher Rohinton Minwalla, filed proceedings before the Royal Court of Jersey (Samedi Division) for getting her share in the properties of the petitioner, which amounts of the petitioner were lying with the respondent No,4 Bank. In the meantime, the Jersey Police on acquiring knowledge of the proceedings between the petitioner and his ex wife, suspected the amount of the petitioner lying in Standard Chartered (Jersey) Limited as amount earned through money laundering. Consequently, the Attorney-General of Jersey on police report had approached the Federal Government of Pakistan to examine the issue as to whether the amounts of the petitioner lying in the Standard Chartered (Jersey) Limited were the proceeds of crime or criminal acts. On receipt of this information, Jersey Police started investigation and the NAB, at the direction of the Federal Government, has also joined hands. The NAB officials visited Jersey whereas the Jersey Police visited Pakistan to investigate the issue as to whether the petitioner in any manner has earned the amounts lying with the respondent No,4 by illegal means and or by criminal acts.
5. On the direction of the Federal Government, the NAB engaged Q.C. And Solicitors before the Royal Court of Jersey and joined the proceedings as one of the parties. The NAB representing the Federal Government has taken the stand that the amount lying in petitioner's account in Standard Chartered (Jersey) Limited were the kickbacks, which he has received from Cathay Pacific. The matter was contested and at the time, when the drafting of the Judgment was well-in-advance before the Royal Court of Jersey, Mr. Bellhomme, representing the Federal Government of Pakistan, sought and obtained leave to file further evidence in Jersey Court and the parties have filed short written submissions on the additional evidence. In the summary of further evidence, it was stated that on 1-6-2007, the NAB has filed a Reference with the Accountability Court in Pakistan at Karachi against the petitioner alleging therein that the petitioner, applicant, Muhammad Rasheed Hassan, and one private person Pervaiz Hussain, had by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage and non-bailable warrants were issued by the Accountability Court against these persons. In the supplementary evidence before the Royal Court of Jersey, a freezing order in respect of the properties of the petitioner in Pakistan, which includes Hotel Metropole, was also placed.
6. The record further reveals that after filing of the additional evidence, the proceedings before the Royal Court of Jersey were abandoned by the NAB representing the Federal Government, which was respondent No,6. The Royal Court of Jersey, after hearing the parties, held that the assets in the Petitioner's account were not the proceeds of criminal conduct, namely, fraud under the Jersey Laws. The Royal Court of Jersey by its common Judgment, allowed the Petition of the ex wife of the petitioner and rejected the claim of the Federal Government holding that the amounts of the petitioner lying with the respondent No,4 were not earned out of criminal acts.
7. Admittedly, against the aforesaid Judgment of the Royal Court of Jersey, no appeal was preferred by any of the parties, including the Islamic Republic of Pakistan, which was arrayed as respondent No,6 in the proceedings, nor steps were taken either abroad or before any Pakistani Court, challenging the findings of the Royal Court of Jersey till date.
8. The NAB has filed Reference No,26 of 2007 against the petitioner, the applicant and one private person Pervaiz Hussain, alleging therein that the petitioner has got the kickbacks/commission for the transaction for a sum of US$ 10.5 Million from Cathay Pacific and in turn the petitioner has paid a sum of US$ 2.45 Million to the applicant and US$ 5.25 Million to Pervaiz Hussain. However, during pendency of the Reference, Pervaiz Hussain has died as a result of which reference against him stood abated, while the applicant has made an Application under section 265-K, Cr.P.C. Before the Accountability Court No,1, Karachi, which was dismissed against which Criminal Misc. Application No,35 of 2010 was filed, which is tagged and is being heard along with the present Petition as decision on either of the proceedings would have effect on the other.
9. In the Reference the allegation against the accused persons named hereinabove was that on account of short term lease with Cathay Pacific and subletting of maintenance facilities, the PIA has suffered losses. It was further alleged in the reference that Cathay Pacific intentionally and deliberately engaged the petitioner to sell out its discarded fleet of B-747-300 aircrafts to PIA at exorbitant rates for which the Cathay Pacific paid a sum of US$ 10.5 Millions to the petitioner, out of which US$ 245,000 were paid to the applicant and US$ 5,25,000 to private person Pervaiz Hussain.
10. It has been contended by Mr. Abdul Hafeez Pirzada, learned Counsel for the petitioner, that the Reference filed against the petitioner and other co-accused was tainted with malice. He submitted that in the reference there was no mention that the respondent No,3 had earlier investigated the issue of receiving kickback/commission by the petitioner and the Federal Government had approached the Royal Court of Jersey wherein the Islamic Republic of Pakistan had joined the Proceedings and were arrayed as respondent No,6 in the said Judgment. He has further submitted that the Royal Court of Jersey had decided the issue involved in the reference holding therein that the amounts lying in the Standard Chartered (Jersey) Limited were not the proceeds of crimes or criminal acts of the petitioner. He next contended that in the first place this Reference is barred under section 11, C.P.C. And in the second place in view of the foreign judgment of the Jersey Court, which was conclusive between the parties, the NAB Reference based on the same facts against the petitioner and others, is liable to be quashed being barred under sections 13 and 14 of C.P.C.
11. The further contention of Mr. Pirzada was that once the Royal Court of Jersey has pronounced the Judgment wherein it has held that the petitioners' money lying in the Standard Chartered (Jersey)
Limited were not the proceeds of criminal acts or money laundering or otherwise, the NAB cannot initiate the present proceedings by way of Reference against the petitioner or any other co- accused on the same facts as the Royal Court of Jersey was the Court of competent jurisdiction and its judgment was binding on the parties. The learned counsel has further submitted that the PIA, one of the parties to the Agreement, did not make any complaint that it has suffered any loss of any nature. According to him, the parties privy to Agreement never approached the NAB to file the present Reference.
12. Mr. Abdul Hafeez Pirzada, the learned counsel for the petitioner has further contended that it was held in the Judgment of the Royal Court of Jersey that neither any offence nor any irregularity has been committed by the petitioner nor the amount of US$ 10.5 Million lying in the Standard Chartered (Jersey) Limited was earned by the petitioner through illegal means and/or corrupt practices. He further submitted that the Judgment has attained finality and was given effect as well as the amount in the Bank was paid to the ex-wife of the petitioner, according to law.
13. In addition to the above, the learned counsel for the petitioner has contended that the proceedings before the Accountability Court against the petitioner and other co-accused were violative of Article 13 of the Constitution, which restrains the State from punishing and/or prosecuting a person twice for the same offence. According to him, the petitioner having been prosecuted by the Royal Court of Jersey on the material placed by the joint investigation team of Jersey Police and NAB, cannot be prosecuted on the same facts by the NAB as it would be violative of Article 13 of the Constitution read with section 403, Cr.P.C. In support of his contention, the learned counsel has relied upon the case of Muhammad Asif Marghoob v. Pakistan and others reported in 2008 M LD 1735, wherein a Division Bench of this Court has relied upon the case of Muhammad Irshad Khan v. Chairman, NAB reported in 2007 PCr.LJ 1957, which was confirmed was the honourable Supreme Court in the case of Chairman, NAB V. Muhammad Irshad Khan reported in 2008 SCM R 1012.
14. Mr. Mehmood A. Qureshi, the learned counsel appearing in the connected Criminal Miscellaneous Application No,35 of 2010 for the applicant, has adopted the arguments of Mr. Abdul Hafeez Pirzada.
15,. As against this, the learned Deputy Prosecutor-General. NAB, has submitted that paragraph No,69 of the Judgment of, Royal Court of Jersey if read carefully clearly indicates that the proceedings before the NAB were independent of the findings, given by the Jersey Court. He has contended that the NAB Reference was independent and was confined to the acts of the petitioner in regard the payments, which he has made to the applicant and private person, Pervaiz Hussain and the observations made in the Judgment in Jersey Court in no way restrains the NAB from prosecuting the petitioner and others.
16. On our query, the learned Deputy Prosecutor-General, NAB admits that the amount stated in the Reference against the petitioner was identical to the amount on which the Royal Court of Jersey has given finding. He has further candidly conceded that the findings given by the Royal Court of Jersey were binding on the parties including NAB.
17. The only point urged by the learned Deputy Prosecutor-General, NAB, before us was that the Reference sought to be quashed through these proceedings, is based on distinct facts and findings of the Royal Court of Jersey, would in no way extend the bars contained either in section 11 or section 13 or section 14 or Article 13 of the Constitution or under section 403, Cr.P.C. He did not take us to the record nor cited any case law in support of his contentions.
18. We have heard the learned counsel for the petitioner, the Deputy Prosecutor-General, NAB and have perused the record. The first issue raised by the learned counsel for the petitioner was the scope of the Judgment of the Royal Court of Jersey and its applicability on the pendency of the proceedings initiated by the NAB through the impugned Reference.
19. We have gone through the Judgment of the Royal Court of Jersey, which has taken note of the fact that the Islamic Republic of Pakistan has joined the proceedings before the said foreign Court on their own. It has also taken note that the Federal Government has authorized the NAB to engage counsel to represent its viewpoint. The NAB has also jointly investigated the case with the Jersey Police against the petitioner both within Pakistan and abroad. The NAB has placed material against the petitioner and other co-accused before the Royal Court of Jersey in order to establish that the amounts lying with the respondent No,4 Bank were the proceeds of criminal acts of the petitioner.
Thereafter, when the matter was at the stage of draft judgment, the counsel representing the Federal Government sought leave of the Royal Court to file additional evidence. The court granted such leave and the counsel filed a statement that the NAB has filed a separate Reference against the petitioner and other co-accused before the Accountability Court in Pakistan and 'had obtained orders of seizure of the properties of the petitioner.
20. After filing of the additional evidence/statement the respondent No,7 abandoned the proceedings whereafter the Judgment was announced by the foreign Court. In this regard, paragraphs Nos.66, 67, 68, 69 and 73 of the Judgment of the Royal Court of Jersey are relevant in which it has held that the assets with which the court was concerned were not the proceeds of criminal conduct and, therefore, be paid to the wife in order to satisfy the Judgment of the U.K.
These findings of the Royal Court of Jersey were neither challenged by the Federal Government nor any suit to challenge the said foreign judgment in terms of section 13, C.P.C. Was filed before any court in Pakistan. Therefore, the said foreign Judgment of the Jersey Court, being passed by the court of competent jurisdiction, has attained finality and is conclusive, binding the parties.
21. We, therefore, hold that the issue raised in the Reference by the NAB has been settled by the Judgment of Royal Court of Jersey holding therein that the amount lying in respondent No,4 Bank was not the proceeds of criminal conduct of the petitioner. We further hold that the petitioner, applicant and or the private person, namely, Pervaiz Hussain, cannot be tried nor before the Accountability Court on the basis of the NAB Reference, wherein allegation against the petitioner is that he on receipt of the amount of commission, which amount was subject matter of the Royal Court of Jersey, had passed it on to the applicant and the private 'person having protection guaranteed under Article 13(a) of the Constitution. In this regard the provision of Article 13(a) of the Constitution provides that no person shall be prosecuted nor punished for the same offence more than once. The petitioner having been prosecuted and found not guilty of the charge of earning amount by corrupt means is entitled to the protection guaranteed under Article 13(a) of the constitution.
22. The claim of the NAB in the reference is that the petitioner, who was an employee of Cathay Pacific, had earned commission from his employer for persuading the PIA to enter into the agreement of short and long terms leases of the aircrafts. It was further alleged in the reference that out of the amount of the commission received by the petitioner, an amount of US$ 2,45,000 was passed on to the applicant in Criminal Miscellanous Application No,35 of 2010 and US$ 5,25,000 to the private person, namely, Pervaiz Hussain. The applicant was the General Manager, Corporate Planning, PIA at the relevant time when the two Airlines have entered into different agreements in regard to short and long term lease of the aircrafts and their subsequent purchase of six aircrafts by the PIA. It is not the case of the NAB that the PIA had suffered any loss on account of the Agreements nor any complaint of the nature was ever made by the Board of Directors of .PIA. It is an admitted position that all the agreements entered into between the two Airlines were approved by the Board of Directors of PIA on the recommendations of a High Powered Committee, constituted by the Board, which Committee was headed by a senior official of the rank of Air Vice- Marshal. The allegation in the Reference that the applicant influenced the Board and the Committee to enter into different agreements with Cathay Pacific, on receipt of his share out of the commission from the petitioner, is inconceivable. One fails to understand as to how a General Manager, PIA i,e, the applicant in Criminal Miscellaneous Application No,35 of 2010, can either influence the Board or the Committee to enter into the transactions with the Cathay Pacific.
23. The contention of the learned Deputy Prosecutor General, NAB, that it was not the kickbacks but was the commission amount pocketed by the petitioner from Cathay Pacific, which has been made basis of the NAB Reference, inter alia, on the ground that the Agreements restricted the parties from paying commission to the middlemen. If this argument is accepted then there could be no criminal liability fixed either on the petitioner or on any other co-accused on the breach of clause of such agreements. It appears that the NAB has taken cognizance of the matter on its own and has not collected material to establish any loss or damage caused either to the PIA or to the national exchequer. The NAB authorities investigating the matter neither have the expertise in assessing and/or evaluating the agreements nor such material along with the Reference was placed before the Accountability Court to establish that the Reference was not tainted with malice.
24. We have also noticed that the NAB has not even pleaded in the Reference that the Islamic Republic of Pakistan, whom they were representing before the Royal Court of Jersey, was one of the respondents in the matter in which the issue against the petitioner in regard to the amount of commission was decided finally in his favour. This conduct of the NAB in not referring such a crucial fact shows that it has not approached the Accountability Court with clean hands.
25. Additionally, provisions of section 403, Cr.P.C. Further bars the Judgment of the Royal Court of Jersey as it exonerates the petitioner holding therein that the amount lying with the Respondent No,4 was not earned by illegal means or corrupt practices. The Judgment of the Royal Court of Jersey was conclusive, attained finality and was acted upon in as much as the amount of the petitioner lying with the respondent No,4 Bank was disbursed to his ex wife in execution of the decree/judgment of the UK Court. Therefore, the same amount cannot be made subject matter of the Reference against the petitioner and other co-accused.
26. We are conscious of the fact that huge sums of money are involved in the reference but we cannot loose sight of the fact that the transaction now objected to by the NAB was approved by the Competent Board of PIA on the recommendations of the Committee constituted by it. The NAB cannot through reference shift the burden either on the petitioner or on the co-accused exonerating the Members of Board of Directors of PIA and members of the Committee, who were in authority and had approved the transactions. In all fairness, the NAB should have implicated the members of the High Powered Committee as well as the Board of Directors, who have finalized/approved all the transactions between the two Airlines. This has not been done deliberately and criminal responsibility has been shifted upon the petitioner, who was neither an employee 'of the PIA nor the PIA had any grievance against him and or against the applicant or the private person. Till date, the PIA has never complained to have suffered any loss on account of lease/purchase of the aircrafts, which shows that the deal between the parties was proper.
27. We, in the given circumstances and fem. The aforesaid reasons, are of the view that if the entire material collected by the NAB is brought on record, it would not land into conviction of the petitioner or any of the co-accused as the proceedings before the Accountability Court, inter alia, are barred under Article 13(a) of the Constitution, section 403, Cr.P.C. Besides the provisions of sections 11 and 13 of C.P.C. Moreover, there is insufficient material on record to connect the petitioner or the applicant with the alleged offence. We are fortified by the Judgment of the honourable Supreme Court of Pakistan in the case of NAB v. Muhammad Irshad Khan reported in 2008 SCM R 1012 and the case of Muhammad Asif Marghoob Siddiqui v. Pakistan reported in 2008 M LD 1735.
' These are the reasons of our short order dated 21-5-2010 .Whereby we allowed this Petition and Criminal Miscellaneous Application No, 35 of 2010. Accordingly, the bail bonds furnished by the petitioner and the applicant stands cancelled and sureties discharged.