1. IMAM BUX BALOCH, J. --- Through this Constitutional Petition, petitioner seeks post arrest bail in a complaint of Pakistan International Air Lines Corporation regarding payment of Rs,195 Millions in the head of short payments, mark up and principal amount. The petitioner was arrested on 25-1-2011 by Investigating Officer of NAB Sindh in compliance of warrant of arrest issued by D.G NAB Sindh against the petitioner and his remand was obtained for 15 days on 26-1-2011 from the Court of Administrative Judge of Accountability Courts Sindh.
2. The facts leading to the filing of the present petition are that PIA filed a complaint against Messrs Cargo Aids (Pvt.) Limited and its Partners in the NAB. Upon such complaint, the Director General NAB ordered for conducting investigation against Syed Sohail Hassan CEO Messrs Cargo Aids (Pvt.)
3. Limited, PIAC Officers/ officials and others in the light of the. complaint of Pakistan International Airlines Corporation whereby it is mentioned that cheques issued by the Agency dated 1st October, 2007 and 10th October, 2007 amounting to Rs,24.955 drawn on Allied Bank Limited, Sindhi Muslim Housing Society Branch, Karachi for the account of PIA in respect of payment towards sales period 1.15 September 2007 has been dishonoured by the Bank, hence the Agent was declared defaulter by IATA and PIAC. However, as per investigation of the NAB Authorities, it is claimed that actual defaulted amount is calculated to the tune of Rs, 195 Millions in the head of short payments, markup and principal amount.
4. Mr. Syed Mehmood Alam Rizvi learned counsel for the petitioner argued that petitioner is not a wilful defaulter but has been involved in the case with mala fide, ulterior motives by the officials of the PIAC. He further argued that mala fide can be ascertained from the fact that though postdated cheques of 25th to 31st October, 2007 amounting to Rs,4,66,16,203 were given by the petitioner, but the same were not encashed on such dates and on the contrary the petitioner Firm was declared as defaulter on 22-10-2007 and since then the business of. the petitioner has been stopped. He further argued that the default as alleged by the PIAC on the part of the petitioner is a commercial default and that the PIAC is not a statutory body and actually is a Corporation functioning individually hence the NAB Authorities has not jurisdiction to investigate into the matter. He further argued that the petitioner never avoided to repay the outstanding amount, but actually it was due to his partners who cheated and committed fraud with The petitioner and further because of stoppage of his business by the PIAC and though he several times requested the PIAC 'officials to allow him to start his business otherwise he could not be able to recover the amount lying with the customers in the pipeline. He further argued that petitioner is ready and willing to pay the outstanding amount in instalments if the PIAC officials ascertain the exact amount and provide him opportunity to pay the same. He nevertheless, finally argued that keeping of petitioner in custody is fruitless instead after releasing him on bail he would be able to negotiate with PIAC to lift the outstanding amount of PIAC. He therefore, prayed for grant of bail to the applicant/ accused in the above circumstances.
5. On the other hand learned D.P.-G. NAB Mr. Aslam Butt contended that since 2007, Rs,195 Millions are outstanding against the petitioner, his cheques were dishonoured and he has committed fraud and cheating with the PIAC. It is contended that PIAC is a statutory body and its affairs are being indirectly controlled by the Defence Division of the Federal Government. In the above circumstances, learned D.P.-G. contended that NAB has jurisdiction to investigate the complaint of PIAC. Learned D.P.-G. has relied upon the case of PIA Corporation v. Tanweer-urRehman (SBLR 2010 SC 303).
6. We have considered the submissions of the parties. As regards the contention of learned counsel for the petitioner that NAB authorities have no jurisdiction to investigate the present case as the PIAC is not a statutory body having no force. Sections 3 and 6 of the Pakistan International Airlines Corporation Act, 1956 (Act XIX of 1956) deals with Establishment and Incorporation as well as the appointment of Board of Directors including Chairman of the PIAC. Sections 3 and 6 read as under:--
(3) Establishment and incorporation. (1)---As soon as may be after the commencement of this Act, the Central Government shall establish a Corporation to be called the Pakistan International Airlines Corporation.
(2) The Corporation shall be a body corporate by the name of the Pakistan International Airlines Corporation, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire and hold property both movable and immovable and to carry out the functions and duties of the Corporation under this Act, and shall by the said name sue and be sued.
(6) The Board of Directors. (1) The Board of Directors shall subject to the provisions of subsection
(2) consist of eleven Directors of whom seven including the Chairman, shall be appointed by the Central Government and four shall be elected by shareholders other than the Central Government; provided that when the Board is first constituted after the commencement of this Act the four Directors to be elected as hereinbefore provided shall be elected by the Directors of the said Company within one month of the date of the commencement of this Act and shall be deemed to be the elected Directors of the Corporation under this subsection.
(2) If the Central Government subscribe to not less than 51 per cent of the value of shares referred to in clause (b) of subsection (2) of section 25, the number of Directors to be appointed by the Central Government under subsection (1) shall be increased from seven to eight and the number of Directors to be elected thereunder shall be reduced from four to three.
7. The Federal Government is the controlling authority of the functions of the PIAC. It is clear that Federal Government/ Central Government has power to control upon the functions of the PIAC. The contentions of learned D.P.-G. NAB having force. This point was decided by Honourable Supreme Court in the case of PIA Corporation v. Tanweer-ur-Rehman (supra), in which the Honourable Supreme Court observed as under:-- "More so, the power to appoint Chairman and Directors remains with 'the Government and in addition to it the Government also holds the controlling shares of more than 50%. Further the appellant -corporation is providing carriage of persons and goods, which is one of the functions of the State, as mentioned in the Federal Legislative List and its affairs are indirectly controlled by the Defence Division of the Federal Government, therefore, the above test stands fully satisfied and we are persuaded to hold that the appellant corporation is performing its functions in 'connection with the affairs of the Federation."
8. As regards the contention that petitioner has committed a commercial default have no force as the petitioner has admitted that he has made default by not paying dues of PIAC deliberately and intentionally since 2007. As regards his contention that the petitioner may be allowed to run his business and is ready to pay dues of PIAC in instalments is baseless contention raised at this stage.
9. Admittedly the petitioner has made wilful default and the provisions of section 5(q) are fully attracted to his case. Section 5(q) reads as under:-- "Wilful default" a person [or a holder of public office] is said to commit an offence of willful 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 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, and a [thirty days' notice has been given to [such person or holder of public office]."
10. For the foregoing reasons, we had dismissed the instant petition vide our short order dated 7-2- 2011. These are the reasons for the same.