' CH. MUHAMMAD IBRAHIM ZIA, J.---The appellants, who were Ex employees of National Bank of Pakistan, were petitioners in Writ Petitions Nos. 888 and 893, which have been disposed of by the Division Bench of High Court through impugned consolidated judgment, dated 12-7-2011. Against the impugned judgment of the High Court the titled appeal has been filed with the leave of the Court.
2. The precise summary of facts necessary for disposal of this appeal is that both the appellants averred in writ petitions that they being permanent employees of National Bank of Pakistan were holding the post of Branch Managers, when they illegally implicated in some cases of misconduct and misappropriation due to rivalry of some Bank Officers. On the basis of alleged act of mis conduct, the Ehtesab Bureau is going to investigate the matter without any legal authority and they prayed for relief in the following terms:--
(i) Writ Petition-No.888 of 2011.
(a) restraining the respondents Nos.1 and 2 from investigating, inquiring or making any probe into the alleged acts of delinquencies/ misconduct attributed against the petitioners if at all there is any truth in the said allegations or in any way transgressing their jurisdiction as vested in them by virtue of the Ehtesab Act of 2001 or the Anti-corruption Act as the case may be;
(b) the respondents Nos.13, 14 and 16 must be directed to ensure that the said respondents Nos.1 and 2 do not usurp the powers and jurisdiction as vested in the offences in respect of Bank (Special Court Ordinance of 1984 as adapted in Azad Kashmir by virtue of AJ&K Council (Adaptation and Validation) Act of 1998 in the matter of the alleged acts of misconduct attributed to the petitioners if at all there is any truth in the said allegations;
(e) Since presently the special forum i.e. The offences in respect of Bank ( Special Court Ordinance of 1984 as adapted in Azad Kashmir by virtue of AJ&K Council (Adaptation and Validation) Act of 1998, has not been established in Azad Kashmir as yet, as such, the respondents Nos.3 to 12 be directed to mobilize the respondents Nos.15 and 16 to arrange the establishment of the special Court as visualized by the above referred statute;
(d) Any other relief to which the petitioners are deemed entitled to may also be granted very graciously."
(ii) Writ Petition No.893 of 2011.
(e) restraining the respondents Nos.1 and 2 from investigating, inquiring or making any probe into the alleged acts of delinquencies/ misconduct attributed against the petitioners if at all there is any truth in the said allegations or in any way transgressing their jurisdiction as vested in them by virtue of the Ehtesab Act of 2001 or the Anti-Corruption Act as the case may be;
(f) the respondents No.13, 14 and 16 must be directed to ensure that the said respondents No.1 and 2 don't usurp the powers and jurisdiction as vested in the offences in respect of Bank (Special Court Ordinance of 1984 as adapted in Azad Kashmir by virtue of AJ&K Council (Adaptation and validation) Act of 1998 in the matter of the alleged acts of misconduct attributed to the petitioners if at all there is any truth in the said allegations;
(g) Since presently the special forum i.e. "the Offences in respect of Bank (Special Court Ordinance of 1984 as adapted in Azad Kashmir by virtue of AJ&K Council (Adaptation and Validation) Act of 1998" has not been established in Azad Kashmir as yet, as such, the respondents Nos. 3 to 12 be directed to mobilize the respondents Nos. 15 and 16 to arrange the establishment of the Special Court as visualized by the above referred Statute.
(h) Any other relief to which the petitioners are deemed entitled to may also be granted very graciously. The learned High Court called pre admission comments from the respondents, which were duly filed and after hearing the parties the divisional bench of the High A Court dismissed the writ petition in limine through the impugned judgment.
3. Ch. Muhammad Taj, the learned counsel for the appellants, after brief statement of facts seriously attacked the impugned judgment on the ground that the judgment is violative of statutory provisions as well as the principle of administration of justice. He submitted that the petitioners were admittedly employees of the Bank an Institution, which is in the control of the Govt.
Of Pakistan and not the Govt. Of Azad Jammu and Kashmir, thus the Ehtesab Bureau has no jurisdiction to entertain any complaint or investigate in to any matter relating to such Institution. He further contended that under the provisions of sections 38 and 39 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, no such like proceeding can be initiated or continued without fulfilling the statutory condition of these provisions and the foremost condition is the permission of the State Bank of Pakistan. He referred to the definition of public office holder as incorporated in section 4 of the Azad Jammu and Kashmir Ehtesab Bureau Act. He submitted that in view of the peculiar facts of the case, the learned High Court has failed to properly appreciate the legal points involved and has wrongly dismissed the writ petitions in limine. He further argued that in view of the discussed statutory provisions the impugned judgment is not sustainable, hence this appeal merits acceptance.
4. Sardar Muhammad Ryas, Deputy Chief Prosecutor, while, representing Ehtesab Bureau, submitted that the provisions of Ehtesab Bureau relied on and referred to by the learned counsel for the appellants have no nexus with the case in hand. The referred provisions deal with the matter of writing off, waiving, restructuring or refinancing any financial facility etc. And those don't deal with the criminal acts of misappropriation, fraud and forgery. Whereas, the appellants are involved in Criminal acts of fraud, forgery and misappropriation of more than 44 million rupees, which are purely the criminal acts attracting the provisions of penal laws. He further submitted that under the provisions of Ehtesab Bureau Act, specially, Schedule-II, the alleged acts of fraud, forgery and misappropriation fall within the domain of the Ehtesab Bureau, thus the learned High Court has rightly dismissed the writ petitions. In 'support of his arguments he placed reliance on a decision of Appeal No.3 of 2010 titled Abid Hussain vs. Ehtesab Bureau, decided by this Court on 2-6-2010.
5. Mr. Arshad Majeed Mallick, the learned counsel for the remaining respondents, argued the case at some length. He vehemently contended that the appellants have approached the Ehtesab Court and they have been granted pre-arrest bail. They have submitted themselves while applying for grant of bail from the Ehtesab Act, thus they are estopped by their conduct to challenge the jurisdiction of Ehtesab Court. Moreover, they have approached the Ehtesab Court, where effective alternate remedy is available, thus on this sole ground their writ petitions are not maintainable. He further contended that the cumulative reading of the provisions of Ehtesab Act, leaves no doubt in the mind that all the acts of fraud, forgery and misappropriation fall within the competence of the Ehtesab Bureau. He referred to the preamble of the Ehtesab Bureau Act. He further contended that under the provisions of section 2 of Ehtesab Bureau Act, this special law has overriding effect on other laws. He relied on with full vehemence on the provisions of section 3 of the Ehtesab Bureau Act, wherein it has been expressly provided that it shall apply to all persons who are in Azad Jammu and Kashmir. The petitioners committed the alleged criminal offences in Azad Kashmir, therefore, the Ehtesab Bureau Act's provisions are fully attracted. In support of his arguments he referred to PLD 2005 SC 323, PLD 2008 Lah, 105, 2004 SCMR 265, 1998 PLC (C.S.) 141; 1993 CLC 1101 and 2002 .MLD 1250. Facility, interest or mark-up without prior approval of the' State Bank of Pakistan.
6. We have heard the learned counsel for the parties and also analyzed the factual and legal aspect of the case. Admittedly the appellants who were employees of the National Bank of Pakistan and holding the post of Branch Managers, reportedly being found involved in embezzlement of a huge amount of Rs.44.89 millions by the Bank authorities. The embezzlement was discovered in the audit report and after holding preliminary inquiry, the Bank authorities referred the matter to Ehtesab Bureau for investigation. The appellants approached the Ehtesab Court for pre-arrest bail and they also filed writ petitions for restraint of the investigation. The involvement of the appellants in alleged acts of misconduct is the subject-matter of investigation and we don't like to express our opinion in this regard at this stage. We are only concerned to the nature of the allegations. The nature of the allegations clearly speaks that the Bank authorities have levelled allegation of fraud, forgery, embezzlement and criminal breach of trust against the appellants, which are clearly criminal penal offences. The learned counsel for the appellants has mainly relied on the provisions of Ehtesab Bureau Act's sections 38 and 39. For true perception, the referred statutory provisions are reproduced as following:-- "38. Cognizance of a Financial Offence with Prior Approval of the State Bank of Pakistan.---No Court established under this Act shall take cognizance of an offence against an officer or an employee of a bank or financial institution for writing off, waiving, restructuring or refinancing any financial facility,interest or makeup without prior appoval of the State Bank of Pakistan.
39. Inquiry, investigation or proceedings in respect of imprudent bank loans, etc.--- Notwithstanding any thing contained in this Act or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or reschedule loans except loans falling under the Azad Jammu and Kashmir Cooperative Bank (Repayment and Recovery of Loans) Act, 1987 or a loan obtained from a Cooperative Bank or Cooperative Society shall be, initiated or conducted by the Ehtesab. Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan."
' The bare reading of these statutory provisions leave no ambiguity that these deal with the specific matters relating to performance of bank employees in relation to their routine bank business, specifically writing off, waiving, restructuring or refinancing any financial facility or interest or mark- up. In relation to these specified matters if any employee is found involved in commission of any offence, the prior approval of the State Bank is required to proceed him against. Whereas, section 39 specifically deals with the matter of loans relating to Azad Jammu and Kashmir Cooperative Bank (Repayment and Recovery of Loans) Act, 1987. According to these statutory provisions no protection or immunity is extended to any bank employee in relation to criminal breach of trust, forgery, fraud and embezzlement.
7. The definition of holder of public office as incorporated in clause "N" f section 4 of the Ehtesab Bureau Act is also not helpful to the appellants. As the provisions of section 3 of the Ehtesab Bureau Act are very much clear. This special law is not only applicable to holder of public office rather it applies to some other persons also, which reads as following:- "3. Application.---It extends to the whole of Azad Jammu and Kashmir and shall apply to the following persons wherever they may be;-
(a) all persons in Azad Jammu and 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." (Underlining is ours)
' The clause 'a' of section 3 is very much clear that this law is applicable to all the persons in Azad Jammu and Kashmir irrespective of the fact that they are holder of public office or not?, thus Mr. Arshad Majeed Mallick, the learned counsel for the respondents has rightly relied on this statutory provision. This provision leaves no room for any exemption or exception to any person against whom there is allegation of commission of offence specified in Schedule-I and Schedule-II of the Ehtesab Bureau Act. Under the provisions of section 25 of the Ehtesab Bureau Act, the Chairman Ehtesab Bureau is empowered to inquire into and investigate any suspected offence triable under this Act. Section 17 of the Ehtesab Bureau Act, reads:- "All the persons accused of a scheduled offence or an offence punishable under section II shall be prosecuted for such offence by Courts established pursuant to this Act. Under clause "0" of section 4 of Ehtesab Bureau Act, the term "offence" has been defined as following:-- "offence" means the offence of corruption, and corrupt practices punishable under Schedule-I, or under any of the laws mentioned in Schedule-II of this Act."
' Thus it is clear that Ehtesab Bureau is competent to inquire into or investigate any matter relating to all the scheduled offences.
8. Mr. Arshad Majeed Mallick,' the learned counsel for the respondents has rightly placed reliance on Syed Nadeem Hussain Kazmi's case (PLD 2008 Lah. 105). In this case the Bank employees against whom the challan was pending before Special Banking Court, however, subsequently the case was transferred to Accountability Court and thereafter NAB authorities reinvestigated and after reinvestigation the challan was submitted before the .Accountability Court. An objection was raised regarding the application of the provisions of NAB Ordinance, which was turned down by the Accountability Court, ihus the order was challenged in the writ petition before the High Court. The Division Bench of the High Court while interpreting section 4 of NAB Ordinance i.e. The parimateria provisions of section 3(a) of the Ehtesab Bureau Act, observed as following:-- "10. Both learned counsel failed to mention section 4 of the Ordinance, which is most relevant to the present controversy, which reads as under:- "Application.---It extends to the whole of Pakistan and shall apply to all persons in Pakistan, all citizens of Pakistan and persons who are or have been in the sere ice of Pakistan wherever they may be."
' Section 4 has clearly provided three categories of persons to whom the Ordinance applies i.e., all persons in Pakistan, all citizens, and persons who are holders of public offices or have been holding public office.
11. We asked repeatedly to the learned counsel for the petitioner as well as the learned counsel for National Accountability Bureau to refer to any case-law from our Courts on the point, but according to them there is no reported case on this point, that is not the fact. It has been held by Karachi High Court, reported as Muhammad Nazim Ud Din v. Chairman, NAB PLD 2007 Karachi 586.
The relevant portion of the report reads as under:- "Section 4 of the NAB Ordinance clearly defines that the said Ordinance shall extend to whole of Pakistan and apply to all persons in Pakistan that is to say that all citizens of Pakistan and persons who are or have been in the service of Pakistan whatever they may be."
' According to the above judgment of a learned Division Bench of Karachi High Court, the Ordinance is applicable on the serving and retired persons in the service of Pakistan and also to all other persons and citizens of Pakistan." (underlining is ours)
' 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.
9. The appellants have failed to make out any case for exercise of writ jurisdiction in their favour.
Even otherwise they have submitted before the Ehtesab Court and taken benefit of bail before arrest and this ' fact has been deliberately concealed from the Court. According to the settled principle of law, the party who approaches the Court with unclean hands, doesn't deserve for discreationary relief. The learned counsel for the respondents, in this regard has rightly referred to 1998 PLC (C.S.) 141.
10. Another aspect of the matter that the appellants have got ample opportunity of alternate remed before the forum provided by the law and it has been rightly relied by the learned counsel on Abdul Rehman's case 1993 CLC 1101 that in presence of alternate remedy writ jurisdiction cannot be exercised.
' For the above discussed reasons, finding no force in this appeal, the same is I dismissed with no order as to costs