SH. AHMAD FAROOQ, J. --- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for declaring the proceedings, being conducted by respondent No. 1/National Accountability Bureau in pursuance to a show-cause notice issued by the Governor of the State 'Bank of Pakistan, dated 17.3.2004, as illegal and without lawful authority.
2. Succinctly, the facts essential for the adjudication of lis in hand are that petitioners Nos. 2 and 3, who are Directors of petitioner No 1/M/s. Kamoka Textile (Pvt.) Limited, Teezab Mill, Jaranwala Road, Faisalabad, executed guarantees in favour of respondent No. 3/Allied Bank of Pakistan Limited, Peoples Colony "D" Ground Branch, for various facilities of finances being obtained by the said petitioner No 1. The petitioners contended that a dispute arose between them and respondent No. 3 regarding the outstanding dues, whereupon respondent No. 3 filed a suit bearing COS-No. 49/2002 against them for recovery under the Financial Institutions (Recovery of Finances)
Ordinance, 2001. The petitioners filed an application for leave to defend the said suit (PLA No. 114- B/2002), under. Section 10 of the Financial Institutions . (Recovery of Finances) Ordinance, 2001, wherein they raised various questions of fact and law and the same is still pending adjudication.
The petitioner further contended that respondent No. 3 having failed to recover the amount, which was not due to it through ordinary Courts of law, has initiated proceedings under National Accountability Ordinance against the petitioners. In this connection, prior to the issuance of notice, dated 2.9.2004, by National Accountability Bureau, a show-cause notice was also issued to-the petitioners by the Governor, State Bank of Pakistan, on 17.3.2004. The petitioners maintained that they informed respondent No. 1 through letter dated 17.9.2004, that the recovery suit filed against them was pending adjudication and as such, neither the amount due from them had been determined so far nor they could be summoned by, respondent No.'
1. The petitioners submitted that despite their written request, the respondent No. 1 is insisting on summoning them at the instance of respondent No. 3. The petitioners claimed that they could not be considered as wilful defaulter as defined in clause (r) of Section 5 of the National Accountability Ordinance, 1999, till the time their liabilities are adjudicated upon by a legally constituted Court. The petitioners asserted that there is no provision in the National Accountability Ordinance, 1999, for enabling the Accountability Court to determine and adjudicate the dues of a borrower for the benefit of financial institution. It is further averred in the petition that as a matter of fact, no amount is due from the petitioners, as stated by them in their application for leave to appear and defend the suit, submitted in Lahore High Court, Lahore. The petitioners have challenged the proceedings being initiated by respondent No. 1 during the pendency of a suit filed by the concerned financial institution in a Special Court established under the Financial Institutions (Recovery of Finances)
Ordinance, 2001. Hence, this petition.
3. Respondent No 1 submitted its report and parawise comments wherein they submitted that show-cause notices have been issued to the petitioners in an inquiry, which has been authorized by Chairman, National Accountability Bureau, on a Reference, under Section 31D of National Accountability Ordinance, 1999, sent by the Governor, State Bank of Pakistan, on a complaint made by Allied Bank of Pakistan/respondent No. 3, on 21.8.2001. Respondent No. 1 further contended that they are legally empowered to summon the petitioners under Section 31D of National Accountability Ordinance, 1999, in respect of defaulted loans notwithstanding anything contained in any other law for the time being in force as provided in Section 31D of the National Accountability 'Ordinance, 1999, which has an overriding effect. The respondent No. 1 also contended that under Section 25-A of the National Accountability Ordinance, 1999, read with Section 5(r) of the Ordinance ibid empowers them to determine a wilful defaulter and the same is in no way derogatory to the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. The respondent No. 1 explained that once the petitioners are declared as wilful defaulter during the investigation, being conducted by them, their case pending in the Special Court would be transferred to the Accountability Courts, under. Section 16-A of the National Accountability Ordinance, 1999.
4. Respondent No. 3. Also submitted their parawise comments, wherein they controverted the contentions raised by the petitioners. Respondent No. 3 asserted that a consolidated amount of Rs.
5,37,29,910.35 is outstanding and payable by the petitioners. Respondent No. 3 maintained that the petitioners have committed the offence of wilful default and liable to be proceeded under National Accountability Ordinance, 1999. They denied that the pendency of their recovery suit against the petitioners is a bar for initiating proceedings against the petitioners under the National Accountability Ordinance, 1999. Respondent No. 3 claimed that they are entitled to invoke the jurisdiction of the National Accountability Bureau as the petitioners have committed the offence of "Wilful Default".
5. Learned counsel for the petitioners submitted that the respondents Nos. 1 and 3 could not declare the petitioners as wilful defaulter prior to the adjudication of the suit of respondent No. 3, filed for recovery of the amount pending in this Court, under Financial Institutions (Recovery of Finances) Ordinance, 2001. He maintained that two parallel proceedings for recovery of the alleged amount of wilful default could not be initiated against a person. He argued that there is no provision in the National Accountability Ordinance, 1999 to determine and adjudicate the dues of a borrower. He claimed that the proceedings have been initiated by respondent No. 1 in order to circumvent the proceedings before a competent Court.
6. Conversely, learned counsel for respondent No. 1 submitted that the suit filed by respondent No. 3/Bank is for recovery of the amount in question, whereas the proceedings being conducted by National Accountability Bureau is in respect of an offence, as envisaged under Section 5(r) of the National Accountability. Ordinance, 1999. He argued that mens rea for not making the repayment of the loan is the main ingredient of Section 5(r) of National Accountability Ordinance, 1999. Hence, it is a distinct offence, which is cognizable under the National Accountability Ordinance, 1999.
7. Arguments heard. Record perused.
8. At the outset, we would like to point out that the grievance of the petitioners in the instant petition is only in respect of a notice, dated 2.9.2004, issued by respondent No. 1, whereby they have been required to attend, the office of the National Accountability Bureau in connection with the proceedings on a reference, sent by the Governor, State Bank of Pakistan, under Section 31D of the National Accountability Ordinance, 1999. Section 22 of the National Accountability Ordinance, 1999 authorizes the Chairman, National Accountability Bureau, to enquire into and investigate any suspected offence, which appears to him on reasonable grounds to involve an offence under the Ordinance ibid and which has been referred to him or of his on accord. In the instant case, the petitioners have not joined the enquiry or the investigation and they would, of course, get an opportunity of putting forth their defence including the issue of the jurisdiction of the National Accountability Bureau to proceed further with the matter in dispute. As far as the issuance of the impugned notice is concerned, the same has been done after fulfilling the prerequisites, envisaged in Section 5(r) of the National Accountability Ordinance, 1999, which requires a 30 days' notice by the Financial Institution/Bank and 7 days notice by the Governor, State Bank of Pakistan to the person, alleged to have committed an offence of wilful default. Similarly, the condition of a reference from the Governor, State Bank of Pakistan, prior to initiation of proceedings in respect of defaulted loans by the National Accountability Bureau as provided in Section 31D of the National Accountability Ordinance, 1999, has been fulfilled in the instant case.
9. Moreover, the proceedings under the Financial Institutions (Recovery of Finances) Ordinance, 2001 are civil in nature, whereas, the proceedings, under the. National Accountability Ordinance, 1999, are within criminal jurisdiction. It is, a well- settled proposition of law that civil and criminal proceedings can proceed simultaneously as the nature and object of both the proceedings is quite distinct. It has been held in "Sardar Khalid Saleem v. Muhammad Ashraf and others" (2006 SCM R 1192) that criminal proceedings are not barred in the presence of civil proceedings, rather, civil and criminal proceedings can be proceeded simultaneously. It is also worth consideration that a writ petition against mere issuance of a notice is not maintainable. In Mir Nabi Bakhsh Khan Khuso v. Branch Manager, National. Bank of Pakistan, that pat (2000 SCM R 1017), it was held that a writ of prohibition could not be issued because no adverse action had been taken against the petitioners except issuance of a notice. It is pertinent to observe here that the enquiry or investigation against the present petitioners has not been completed so far and the action against them would only be taken, when there is sufficient material to justify the filing of a reference against them, as provided in Section 18(g) of the National Accountability Ordinance, 1999. Furthermore, mere anticipation or apprehension of a penal action does not give rise to a cause of action for invoking writ jurisdiction of this Court (Reference National Steel Rolling Mills and others v. Province of West Pakistan (1968 SCM R 317(2)).
10. There is another aspect of this case, which requires serious consideration. The National Accountability Ordinance, 1999 is the first law in Pakistan, wherein an action or omission of non- payment of any amount due from any person to any Bank or Financial Institution etc. Has been made an offence of Wilful Default, as defined in Section 5(r) read with Section 9(a)(viii) and Section 31D of the National Accountability Ordinance, 1999. The vires of the said provisions were challenged before the Hon'ble Supreme Court of Pakistan in Khan Asfand Yar Wall case, reported as PLJ 2001 SC 817 and the same were not declared ultra vires of the Constitution. Rather, the Hon'ble Supreme Court of Pakistan observed that in view of persistence of corruption and genuine emergent need for the recovery of outstanding amounts from those persons, who have committed default in the repayment of amounts to Banks, Financial Institutions, Government and other. Agencies and all measures, having failed to recover the same through ordinary Courts of law, it became necessary to promulgate this extra-ordinary legislation in the extra-ordinary circumstances prevalent in the country. The Hon'ble Supreme Court of Pakistan came to the conclusion that there was a need for creation of an offence of "wilful default" and mechanism for recovery of the same as is purported to have been done under Section 5(r) of the National' Accountability Ordinance, 1999. Moreover, the term "wilful default" has not been defined in any other law except the National Accountability Ordinance, 1999, which has been given an overriding effect, notwithstanding anything contained in any other law for the time being in force, according to Section 3 of the Ordinance ibid. Hence, the provisions of any other law are inapplicable and cannot be pressed into service to challenge an action qua wilful default by the National Accountability Bureau.
11. For the foregoing reasons, we do not find any illegality in the impugned notice, dated 2.9.2004, issued by respondent No. 1 to the petitioners, as the same has been issued after fulfilling all the requirements postulated by the National Accountability Ordinance, 1999. Resultantly, the impugned notice, dated 2.9.2004, cannot be declared as illegal or without lawful authority. Hence, the instant petition, being devoid of any merit, is accordingly dismissed. .