1. Justice Ghulam Mustafa Mughal, C.J.---Mr. Azhar Saleem Babar, Judge Banks (Offences) Special Court AJ&K Muzaffaranad has made the captioned reference for opinion of the Court on the following points formulated by him:-- "(a) The special Court relating to Bank offences has been established in AJ&K and I have been appointed as Judge of Special Court having exclusive jurisdiction over the scheduled offences mentioned in Schedule I attached to the Offences in respect of Banks (Special Courts) Ordinance, 1984;
(b) Sec. 4 of the Ordinance states that the scheduled offences shall be tried by the Special Court.
2. Furthermore, Sec. 5 of the Ordinance describes that a Special Court may take cognizance of any scheduled offence upon a report in writing of such facts made by any Police Officer. I have given detailed reason that on account of this provision of law, it is the local police who is competent to investigate the schedule offences and submit a report/challan to the Special Court;
(c) Banks Offences Special Court has been established under the authority of AJ&K Council under the Offences in respect of Banks (Special Courts) Ordinance, 1984. Whereas although Ehtesab Bureau Act has been adapted by AJ&K Council, yet no Ehtesab Court has been established by the Council in AJ&K."
3. Mr. Sadaqat Hussain Raja, the learned Advocate appearing for the applicant, inter alia, argued that Abid Hussain and others, accused before the learned Judge Banks (Offences) Special Court are admittedly employees of the National Bank of Pakistan and they are not holders of the Public Office within the ambit of Section 4(n) of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001. According to the learned Advocate as the accused are not holding any office or post in services of Azad Jammu & Kashmir or any post or service in connection with the affairs of the State, therefore, they cannot be arrested, investigated and tried by the Ehtesab Bureau under the scheduled offence of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001. In support of his submission the learned advocate referred to and relied upon Sections 19, 21 and schedule third of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
4. Mr. Zaffar Iqbal Azad, the learned DCP while arguing on behalf of the Ehtesab Bureau vehemently submitted that Ehtesab Act is a Special law and provisions contained in it are applicable to all the persons who are holding an office or post in the service of Azad Jammu and Kashmir or any post or service in connection with the affairs of the State or Council, therefore, Ehtesab Bureau has rightly assumed the jurisdiction because all the accused are charged with commission of scheduled offences of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 . The learned DCP further contended that the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 has been adapted by the AJ&K Council, therefore, it cannot be said that the Ehtesab Bureau or for that matter Ehtesab Court cannot try the accused who has committed a scheduled offence. He maintained that the offence with which accused are charged falls within scheduled I appended to the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001, therefore, the competency and jurisdiction of the Ehtesab Bureau cannot be challenged. He placed reliance on Civil Appeal No, 44/2011 titled 'Muhammad Shabbir & another vrs. Ehtesab Bureau Azad Kashmir and others' decided on 23.02.2012.
5. Sardar Karam Dad Khan, Advocate submitted that as the banks are neither in the administrative control of the AJ&K Govt. nor of the Council, therefore, the Officers serving in the banks do not fall within the ambit of the service of AJ&K or holder of the public office as is defined in Section 4(n) of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001. He submitted that the offences with which accused are charged can only be tried by the Judge Banks (Offences) Special Court appointed under Section 3 of the AJ&K Offences in Respect of Banks (Special Courts) Act, 1984.
6. Mr. Muhammad Idrees Mughal, Advocate has also assisted the Court by referring to the relevant provision of the Interim Constitution Act and submitted that the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 is only applicable to the banks, corporations and other financial institutions which are established by the Government or the Council within their respective administrative control.
7. The banks at present including NBP is not functioning with the affairs of the State or the Council, therefore, Ehtesab Bureau has no jurisdiction to investigate any offence which is covered by the law "Offences in Respect of Banks (Special Courts) Act, 1984.
8. We have heard the learned Advocates appearing for the parties and gone through the reference made by the learned Judge Special Court.
9. Precise facts necessary for disposal of the instant reference are that a case under Sections 467, 468, 419, 420, 471, 109 APC read with Section 5(2) PCA was registered at Police Station Anti- corruption Muzaffarabad on 12.05.2010 against Abid Hussain and others, accused regarding the alleged fraud, misappropriation and embezzlement committed by them while serving in National Bank of Pakistan, kahuta Branch. FIR No, 11/10 under sections, 406, 409 APC and Section 5(2) PCA was also registered against the same accused with Police Station Kahuta on 08.02.2010 on the report of Malik Naeem, Assistant Commissioner Kahuta. It appears that the Azad Jammu & Kashmir Ehtesab Bureau also started investigation with regard to the commission of abovementioned offences. The aceused filed applications before the different Courts which were consolidated by this Court and ultimately were sent to the District and Sessions Judge, Muzaffarabad on the ground that he has been vested with the powers to adjudicate upon the matter as Special Court but later on, Mr. Azhar Saleem Babar was appointed as Judge Banks (Offences) Special Court vide Notification No, Law-5/3/89-AJKC dated 14.10.2011. The order of sending the bail applications to the District Judge Muzaffarabad was challenged through leave to appeal before the Azad Jammu & Kashmir apex Court through Civil PLA No, 3/10 titled Abid Hussain Khan vrs. Ehtesab Bureau. Vide Judgment dated 11.11.2011 the Hon'ble Chief Justice of the apex Court Azad Jammu & Kashmir disposed of the Civil PLA No, 175/11 in the following manner:- "After issuance of Notification No, LAW-5/3/89-AJKC, dated 14th October 2011, this petition for leave to appeal has become infructuous. Mr. Azhar Saleem Babar, Judge Banking Court shall hear and dispose of the pre-arrest bail application, which was filed in the High Court.
10. Sardar Karam Dad Khan, counsel for the non-petitioners has brought in into my notice that under the order of the High Court, record was transferred to District and Sessions Judge Muzaffarabad, which has to be sent to Banking Court. It is hereby ordered that the record pertaining to the instant pre-arrest bail application and other applications shall be transferred to Banking Court."
11. It is also necessary to mention here that earlier in Civil PLA No, 3 of 2010 titled Abid Hussain Khan vrs.
12. Ehtesab Bureau and others decided on 02.06.2010 the apex Court directed as under:-- "After hearing the learned counsel for the parties and appreciation of the facts and circumstances of the case coupled with the statement of the learned counsel for the parties at bar, further pendency of this petition or proceeding in this case, will not, in my estimation bring any fruit for the parties. As the learned counsel representing the bank and the Deputy Chief Prosecutor representing the Ehtesab Bureau Investigating Agency have undertaken and stated at bar that for conducting inquiry and investigation, unbiased competent officers will be deputed and proceedings will be conducted in legal, transparent and fair manner. In view of the above state of affairs, this petition for leave to appeal is disposed of in the terms trial the learned Chairman Ehtesab Bureau shall take personal interest in the matter, appoint competent impartial Investigating Office and also ensure the completion of the investigation within unnecessary delay and without any discrimination against all those who found involved in commission of the alleged offences, misconduct etc. The employer bank authorities shall also depute unbiased competent inquiry officer preferably from Pakistan to conduct the inquiry proceedings according to bank service and other laws in transparent, fair and legal fashion."
13. The matter again went in apex Court in Civil Appeal No, 44/2011 titled Muhammad Shabbir and another vrs. Ehtesab Bureau AJ&K and others. This appeal was decided on 23.02.2012. Their lordship has observed at page 17 of the judgment "thus keeping in view the nature of alleged criminal act of the appellants, prima-facie the allegations levelled against them fall within the offences enumerated in schedule I and II of the Ehtesab Bureau Act, therefore, the juxtaposition appreciation and analysis of the statutory provision makes it clear that any person whether he is a public office holder or not involved in commission of any of the scheduled offences of Ehtesab Bureau Act, can be investigated or inquired into by the Ehtesab Bureau".
14. The reference has to be answered while keeping in view the above stated dictums of the apex Court as well as the provision contained in the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001. It is admitted position that the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 has been enacted by the Azad Jammu & Kashmir Legislative Assembly. Under Section 2(2) of the Act, the provisions of this act shall have effect notwithstanding anything contained in any other law for the time being in force. Section 3 of the Act deals with its application which is as under;-- "Application.--It extends to the whole of Azad Jammu & Kashmir and shall apply to the following persons wherever they may be;--
(a) all persons in Azad Jammu & Kashmir
(b) holders of public office
(c) all persons who are suspected to have abetted commission of an offence triable under this Act, and
(d) all persons who are associates as defined in Section 4.
15. In Section 4(n) the holders of Public Office have been defined as under:--
(n) "Holder of Public Office" means a person who,
(i) has been the President;
(ii) is, or has been, the Prime Minister of Azad Government of the State of Jammu & Kashmir, Speaker of the Legislative Assembly, Deputy Speaker of the legislative Assembly, Minister, Advisor to the President/Prime Minister/Council, Special Assistant or Consultant to the Prime Minister, Parliamentary Secretary. Member of Legislative Assembly or the Council, Political Secretary, Advocate General including Additional/Assistant Advocate General, Public Prosecutor and Additional Public Prosecutor, Chairman of the Development Authority, Chairman of a District Council, Chairman of a Zakat Council Zakat Committee and member therein, and any one who holds, or has held, a post or office with the rank or status of a Minister, (iii)is holding, or has held, an office or post in the services of Azad Jammu & Kashmir or any post or any service in connection with the affairs of the State, or of a local council constituted under any State Law relating to the constitution of local councils, or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the council and the Azad Government of the State of Jammu and Kashmir, other than a person who is a member of any of the armed forces of Pakistan, or for the time being is subject to any law relating to any of the said forces, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank financial institution, undertaking or other organization established,controlled or administrated by or under the Azad Government of the State of Jammu and Kashmir or any Board, Team, Task force, authority or any such other body known by any name set up by the President, the Government or the council,, including any post in any department authority or a Transport Authority.
16. (iv)Is holding or has held an office in a corporation and any other body constituted by a law,
(v) (a) is or has been, the Chairman or Vice Chairman of a Zila Council, municipal Committee, a Municipal Corporation or a metropolitan corporation constituted under any State law relating to local councils;
(b) for the purpose of sub-clauses (iv)(a) the expressions "Chairman" and "Vice-Chairman" shall include "Mayor, Deputy Mayor, Administrator and Deputy Administrator" as the case may be, and the respective councilors therein,
(vi) has served, or has retired or resigned, from or has been discharged or dismissed from the Armed Force of Pakistan."
17. Before answering the proposition, we would like to refer the scheme of the Azad Jammu & Kashmir Interim Constitution Act, 1974. Section 19 of the Act commands that the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws. Similarly, under Section 21(7) the executive authority of the Council shall extend to all matters with respect to which the Council has power to make laws. Under Section 31 of the AJ&K Interim Constitution Act, 1974 the powers of the Legislative Assembly and the Council have been listed which are as under:-- "Legislative Powers.--(1) Subject to the succeeding provisions of this Section, both the Council and the Assembly shall have the power to make laws-
(a) for the territories of Azad Jammu & Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may be. (2) Subject to sub-section (3).
(a) the council shall have exclusive power to make laws with respect to any matter in the Council Legislative List set out in the Third S Schedule, hereinafter referred to as the Council Legislative list; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative list.
18. A perusal of the above provision of the interim constitution Act makes it crystal clear that both Council and Assembly shall have powers to make laws for territory of Azad Jammu & Kashmir for all the State Subjects within allotted sphere. The Council has been vested with the exclusive powers to make laws with respect to the matters enumerated in the Council Legislative List set out in the third schedule. In the third schedule the Council is empowered to appoint its administrative Courts for council subjects. Similarly under Item No, 14 the Council has the authority to coordinate with the Government of Pakistan for establishment of banks to conduct the banking business in Azad Jammu & Kashmir. Under Item 52 the matters incidental or ancillary to any of the matters enumerated in the Council list also comes within the ambit of the Council and legislation to that effect could be made by the Council. The Azad Jammu & Kashmir Council has adapted the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 vide Act No, 4/2005. Under subsection (3) Section 1 it shall apply to all the persons serving in, or in connection with affairs of the departments under the administrative control of the Azad Jammu & Kashmir Council and the departments or functions of the Azad Government of the State of Jammu & Kashmir which have been placed or may, henceforth, be placed under the administrative control of the Azad Jammu & Kashmir Council under sub-section (3) of Section 19 of the AJ&K Interim Constitution Act, 1974. Under Section 2(2) of the Adaptation of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 the Ehtesab Bureau established in Azad Jammu & Kashmir has been authorized to exercise and extend its functions to the departments under the administrative control of Azad Jammu & Kashmir Council and the departments of the Azad Govt. of the State of Jammu & Kashmir which have placed or may henceforth be placed under the administrative control of the Azad Jammu & Kashmir Council under sub-section (3) of Section 19 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
19. A perusal of Section 4(n) i,e, the definition of public office holder and sub-section (3) of Section 1 and sub-section (2) of Section 2 of the Azad Jammu & Kashmir Ehtesab Bureau (Adaptation and Extension) Act, 2005 leads to irresistible conclusion that the banks are not under the administrative control of the Government or Council rather the later is vested with the authority to coordinate with the Government of Pakistan for conducting the business in Azad Jammu & Kashmir, therefore, despite of the fact that the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 has been adapted by the Council, in our considered view the employees of the banks do not come within the definition "holder of public office" as has been defined in Section 4(n) of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001. The Council has not adapted the definition of the public office holder listed in Section 4(n) rather it has limited the application of the said Act only to the departments in the administrative control of the Azad Jammu & Kashmir Council and the departments which are for the time being under the administrative control of the Council. In this regard we may refer the cases titled "United Bank Ltd. Employees Union through its President and General Secretary at Muzaffarabad and 4 others vrs. United Bank Ltd. through its President etc." (PLJ 2000 SC (AJ&K) 181), "Habib Bank Ltd. through its Manager Kalyal Chakswari Branch, Mirpur vrs. Zulfiqar Ali Malik and 2 others" (PLJ 2000 SC (AJ&K) 151) and "Genuine Rights Commission through Munir Ahmed Farooqi, Advocate and others vrs. Federal Government through Chief Secretary, Islamabad and 11 others"
20. (PLD 2006 HC (AJ&K) 1). The Azad Jammu & Kashmir Offences in Respect of Banks (Special Courts)
21. Act, 1984 has been adapted in Azad Jammu & Kashmir and the Council is vested with the authority to appoint a Judge of Special Court for trying the scheduled offences under the powers available to the Council in the Council Legislative List.
22. With all humbleness and humility, we would like to observe that the provisions of the Azad Jammu & Kashmir Ehtesab, Bureau (Adaptation and Extension) Act, 2005 adapted by the Azad Jammu & Kashmir Council and the omission of the definition of the holder of public office in the said Act has not been brought into the notice of the apex Court, therefore, the judgments mentioned in the earlier part are distinguishable. Even otherwise, the holder of public office for the purpose of Council could be read only to the extent of departments under the administrative control of the Azad Jammu & Kashmir Council and the departments or functions of the Azad Govt. of the State of Jammu & Kashmir which have been placed under the administrative control of the Azad Jammu & Kashmir Council under sub-section (3) of Section 19 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. We are of the view that the Azad Jammu & Kashmir Ehtesab Bureau can take cognizance for commission of the scheduled offences in respect of the accused persons or public office holders who are under the administrative control of the Council or the Council departments or the officers who are in the administrative control of the Council under Sub-section (3) of Section 19 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. The jurisdiction of the Special Court offences in respect of Banks (Special Courts) Act, 1984 as has been adapted in Azad Jammu & Kashmir is still intact and the offences relating to the banks can only be tried by the Judge Banks (Offences) Special Court under the provisions contained in the Azad Jammu & Kashmir Offences in Respect of Banks (Special Courts) Act, 1984 and the Ehtesab Bureau has no jurisdiction to investigate and try the offences relating to the banks except banks functioning under the administrative control of the Azad Jammu & Kashmir Government or Council. The reference stands answered in the terms indicated above.