MEHMOOD MAQBOOL BAJWA, J. - Being aggrieved of the decision dated 24th and 28th of December, 2012 recorded by Chairman, National Accountability Bureau (hereinafter called the Chairman NAB) accepting the plea bargain on behalf of Sh. Muhammad Afzal (respondent No. 3) in Reference No. 62 of 2008 and order dated 11.01.2013 recorded by learned Judge Accountability Court No. 1, Lahore endorsing the said decision while accepting the application under Section 25(b) read with Section 15(a) of the National Accountability Ordinance (XVIII of 1999) (hereinafter called NAB Ordinance) and recording conviction against Sh. Muhammad Afzal, referred to in para (6) of the order, also issuing direction for his release, the Bank of Punjab, present petitioner, has assailed the legality and validity of said decision and order by invoking the Constitutional jurisdiction of this Court.
2. Facts in brief resulting in filing of Reference against Sh. Muhammad Afzal and others including his brothers, close relatives and the then President of the Bank of Punjab are that during the period of March 2006 to April 2007, twenty-three fake accounts were opened in the Bank of Punjab, Tufail Road Branch and Corporate Branch including those having no existence. The particulars of the business and the addresses of business concerns as well as their identification was also shown fictitious. This resulted into advance of eight billion rupees to the imposters though in fact Sh.
Muhammad Afzal and his brothers etc. Were real beneficiaries of said public amount. The matter was unearthed when Honourable Supreme Court of Pakistan took Suo motu notice. Matter was dealt with in "BANK OF PUNJAB and another v. HARIS STEEL INDUSTRIES (PVT) LTD. And others' (PLD 2010 SC 1109).
After detailed investigation by the NAB under the command of Apex Court, ultimately Reference No. 62 of 2008 was filed against Sh. Muhammad Afzal (respondent No. 3) and others.
Allegations in brief contained in the said reference were that Sh. Muhammad Afzal, respondent No. 3, Director, M/s. Haris Steel Industries in connivance with Hamesh Khan, the then President of the Bank of Punjab embezzled an amount of Rs. 8.404 billion including mark-up through loan facilities in the name of imposters against fake collaterals, fictitious guarantees and mortgage deeds.
3. Trial in the reference was in progress and near conclusion, when the learned Deputy Prosecutor General for NAB (Punjab) submitted an application before the learned Trial Court to endorse the decision of Chairman NAB made by him on 24th and 28th of December, 2012 given on the application of respondent No. 3 which application though was contested by the petitioner bank but was allowed by learned Trial Court on 11th of January, 2013.
4. Since the locus-standi of the petitioner's bank was questioned by learned counsel for respondent No. 3 at the very initial stage, therefore, being conscious of legal objection, learned counsel for the petitioner stated that petitioner is an "aggrieved person" within the meaning of Article 199 of The Constitution of the Islamic Republic of Pakistan, 1973 (Hereinafter called The Constitution). Referring to the background of fraud and embezzlement, filing of reference against respondent No. 3 etc. It was submitted that the said respondent and others obtained loan through imposters by adopting fictitious means in connivance with Hamesh Khan, the then President of the Bank of Punjab and the petitioner Bank being custodian of interest of million depositors was interested party and the mode and manner of acceptance of plea bargain and terms and conditions settled for re-payment of amount has caused loss to the petitioner and as such is an aggrieved party. Help was sought from the dictum laid down in "Mian FAZAL DIN v. LAHORE IMPROVEMENT TRUST, LAHORE AND ANOTHER" (PLD 1969 SC 223) and "MUHAMMAD AFZAL and others v. GOVERNMENT OF PAKISTAN and others" (1987 SCMR 2078).
5. Referring to the provisions of Section 25(b) of NAB Ordinance md order of learned Trial Court opining that acceptance of plea bargain is prerogative of the Chairman NAB, it was contended with vehemence that word "may" has been used in the provision under reference which does not confer un-limited and un-controlled power upon the Chairman NAB to accept the plea bargain which is subject to application of judicial mind requiring the Chairman NAB to protect the interest of aggrieved person prior to accepting the plea. Referring to the word "Prerogative" used by learned Trial Court, it was submitted that the expression has not been used in the provision of Section 25(b) of The NAB Ordinance. Alternatively argued that even otherwise, the use of expression would not confer unbridled power upon the authority exercising the same. Reference was made to "CONTROLLER OF PATENTS AND DESIGNS, KARACHI and others v. MUHAMMAD QUADIR HUSSAIN" (1995 SCMR 529).
Again making reference to the provisions of Section 25(b) of The NAB Ordinance, it was argued that expression "Discretion" has been used which does not mean use of powers by authority in the manner it likes. Submitted that use of word "discretion" in the statute as interpreted and defined casts duty upon the authority or person to exercise the same fairly, reasonably and the same cannot be allowed to be utilized arbitrarily, unjustly and with discrimination. Reliance was placed upon the dictum laid down in "Suo- Motu case No. 18 of 2010: In the matter of violation of Public Procurements Rules, 2004)" (PLD 2011 SC 927), "TARIQ AZIZ-UD-DIN and others Human Rights Cases No. 8340, 9504-G, 13936-G, 13635-P, 14306-G to 13309-G of 2009". (2010 SCMR 1301) and "ABID HUSSAIN and others v. P.I.A.C, and others" (2005 PLC (C.S) 1117).
Continuing the arguments, it was contended that the Chairman NAB while approving the plea bargain did not keep in mind the protection of interest of petitioner's bank which was essential in order to safeguard the interest of customers-account-holders and as such decision of the Chairman NAB does not fulfill the yardstick of 'reason' and 'relevance'. Help was sought from the Ratio expounded in "FEDERATION OF PAKISTAN AND OTHERS v. Ch. MUHAMMAD ASLAM AND OTHERS"
(1986 SCMR 916) and "GOVERNMENT OF N.W.F.P, through Secretary Education and others v. RUKHSAR All and 24 others" (2005 SCMR 22).
6. Referring to the facts of the case and decision of the Chairman NAB, it was contended that it is against the "public policy" and as such is liable to be set aside. Reference has been made to "KHAN ASFANDYARWALI and others v. FEDERATION OF PAKISTAN through Cabinet Division, Islamabad and others" (PLD 2001 SC 607).
7. Making reference to the facts of the case, in order to substantiate his contentions regarding unreasonableness, exercise of discre tion in utter dis-regard of settled principles to exercise same and against the public policy, it was argued that while determining outstanding liability of respondent No. 3, it was resolved that sum of Rs. 4.737 billion shall be paid within five years by submission of duly signed re-payment plan in ten equal biannual instalments and first installment shall become due after release of respondent No. 3 which in the opinion of learned counsel for the petitioner is sufficient to demonstrate "unreasonableness". Submitted that premium of re-payment of huge amount in a period of five years and that too without provision of any interest-mark-up is not understandable, sufficient to give conclusion that discretion was not exercised fairly and in a just manner and to protect the interest of the petitioner Bank. Further submitted that no provision of recovery of mark-up/cost of funds was provided in the decision from the date of loan and liability was determined to the extent of principal amount, causing huge financial loss not only to the petitioner's bank but also to its account holders. Further submitted that as per NAB's Sops, 34 percent down payment is pre-requisite for acceptance of plea bargain which was totally overlooked.
Continuing the submissions, it was argued that respondent No. 3 sold one villa in Dubai which fact was though brought into the notice of NAB but was not properly attended. It was also added that in order to secure the interest of bank, the provision must have been made to procure collateral/security for due re-payment. Contended that petitioner bank was not associated in the whole proceedings. Argued that plea bargain earlier made by respondent No. 3 was declined by the Chairman NAB through letter dated 13th of July, 2012 but within next five months second request was acceded to almost on similar terms and conditions.
Highlighting the cumulative effect, it was submitted that decision of the Chairman NAB as such got no legal sanctity and its endorsement by learned Accountability Court is also without any legal and justified cause.
8. Concise submissions in writing were made on behalf of NAB besides submission of verbal contentions in which attention was focused on the maintainability of application filed before the learned Accountability Court by the learned Deputy Prosecutor General, NAB (Punjab) contending that said law officer had no authority to make the application.
9. Controverting the arguments of learned counsel for the petitioner and defending the impugned decisions and order, at the very outset, it was submitted by learned counsel for respondent No. 3 that present petition as laid and framed is not maintainable as same has not been filed by "aggrieved party" within the meaning of Article 199 of The Constitution of the Islamic Republic of Pakistan, 1973. Relying upon the provision of Section 25(b) of The NAB Ordinance, it was contended that there are only three "Stakeholders" in the process of accepting or otherwise of plea bargain.
According to the learned counsel, the accused has to file application, to be decided by the Chairman NAB and in case of acceptance of plea bargain, terms and conditions of which has to be settled by the Chairman NAB, the learned Accountability Court has to accord approval. Submitted that in the circumstances, the Bank of Punjab got no locus-standi to invoke the jurisdiction of this Court.
Argued that filing of writ petition in fact is sponsored by malice-in-fact in view of the dictate of the Government of the Punjab.
10. Again referring to the provisions of Section 25(b) of The NAB Ordinance, it was opined that acceptance or rejection of plea bargain is prerogative and discretion of the Chairman NAB who is not bound to consult anyone. Further argued that settlement of terms and conditions of plea bargain, regulating the mode of payment and determination of any other amount exclusively falls within the domain of the Chairman NAB, not subject to challenge. Contended that prior to decision by the Chapman NAB, he was to follow the procedure mentioned in Section 25(b) of The NAB Ordinance which was acted upon and there is no allegation of violation of said procedure. Argued that prior to acceptance of plea bargain, if self-styled aggrieved party is given right of audience, it will defeat the intention of legislature.
Making reference to the order passed by learned Accountability Court, it was submitted that independent and judicial mind was applied to the facts and circumstances of the case by providing right of hearing to the petitioner bank and as such no exception can be taken to it.
11. Dealing with the role of petitioner bank, it was contended that role of Bank is self-contradictory.
Explaining the same, it was stated that bank restructured loan on new terms and conditions but on the other hand, on the direction of Government of Punjab filed writ petition to victimize the respondent on political basis.
12. Relying upon the terms and conditions of plea bargain, it was submitted the mark-up was duly included in the remaining amount and in order to ensure re-payment of amount by respondent No. 3, duly signed advanced cheques were required to be given. Further submitted that it was also clearly stipulated that in case of failure of respondent to honour terms and conditions, trial of reference shall be revived, reference of which has also been made by the learned Trial Court in the impugned order.
13. Controverting the assertion of petitioner on merits, it was submitted that legitimate liability of respondent No. 3 is Rs. 8.404 billion, also referred by Honourable Supreme Court of Pakistan in its order. Same amount, argued, was determined by Higher Management of Bank of Punjab while re- scheduling the loan.
Continuing the arguments, it was contended that terms and conditions for re-payment provide full security/guarantee of payment and the list of the properties submitted by respondent was examined in different meetings held in NAB Headquarter and that too in the presence of representatives of the Bank of Punjab. Further submitted that name of respondent No. 3 as per conditions shall remain in Exit Control List till liquidation of liability. All these facts, submitted, clearly demonstrate provision of adequate safeguard to ensure the repayment.
14. Repelling the argument with reference to conduct of the respondent particularly regarding sale of villa No. W-49, Emirates Hill, Dubai, it was contended that transaction was concluded before consideration of plea bargain by the Chairman NAB. Even otherwise, argued, that said transaction was not effected by respondent as it was not possible for him to go abroad in view of inclusion of his name in the Exit Control List and there was intervention of third party in the said fraudulent transaction and that too at the instance of Naeem-ud-Din, President of the Bank of Punjab.
15. Highlighting the consequences in case of acceptance of writ petition, it was submitted that it would not only cause serious prejudice to respondent No. 3 and his family but would also offend the principle of natural justice. Argued, that in case of interference, it would be only example of exercise of jurisdiction by this Court to set at naught the plea bargain.
16. Dealing with the legal effects of impugned decision and order, it was argued that same cannot be interfered as implemented and acted upon. Reliance was placed upon "Dr. MUHAMMAD ANWAR KURD and 2 others v. THE STATE through Regional Accountability Bureau, Quetta" (2011 SCMR 1560).
Further submitted that due to acceptance of plea bargain by the Chairman NAB and its endorsement by learned Accountability Court, vested rights accrued in favour of respondent No. 3 cannot be interfered. Help was sought from the dictum laid down in "GHULAM NABI v. PROVINCE OF SINDH and others" (PLD 1999 Karachi 372), "ASIAN FOOD INDUSTRIES Ltd. And others v. PAKISTAN and others" (1985 SCMR 1753), and FEDERATION OF PAKISTAN through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza MUHAMMAD IRFAN BAIG and 4 others" (1992 SCMR 2430).
17. Heard adversaries at length, perused the material available on record.
18. Since at the very outset maintainability of writ petition as laid and framed was questioned by the learned counsel for respondent No. 3, also disputing the "Locus Standi" of petitioner bank, therefore, it is desirable to deal with the objection first of all. Referring to the provisions of Article 199 of The Constitution of the Islamic Republic of Pakistan, it was submitted that petitioner bank is not an "aggrieved party".
19. In order to invoke Constitutional jurisdiction under Article 199 of The Constitution of the Islamic Republic of Pakistan, seeking relief by way of writ of "Mandamus" or "Certiorari" there must be an "aggrieved party." calling in question "Action" or "Omission" of a person, functioning in connection with affairs of the Federation, a province or a local authority provided no other adequate remedy is available to such party.
20. Availability of statutory remedy will normally oust the jurisdiction of this Court as held in "MIAN SULTAN ALIANGHIANA v. MIAN NUR HUSSAIN" (PLD 1949 Lahore 301), "SHAUKAT KHAN v. ASSISTANT POLITICAL AGENT. LANDI KOTAL, KHYBER AGENCY AND OTHERS" (2002 Supreme Court Judgments 593) and "WEALTH TAX OFFICER and another v. SHAUKAT AFZAL and 4 others" (1993 SCMR 1810).
However, in unexceptional circumstances such bar would not oust the jurisdiction of this Court.
Dealing with the proposition it was held in "INAYAT BIBI, ETC. v. EJAZ AHMAD, ETC." (1996 Supreme Court Judgments 408) at page 414 as follow:- "It is to be noticed that the remedy under Article 199 is discretionary and High Court can refuse the writ, if it is satisfied that an adequate remedy is available to the aggrieved party, unless there are exceptional circumstances. But, the rule that before invoking the constitutional jurisdiction of High Court, the other remedy provided by the statute must be exhausted is a rule of convenience and discretion by which the Court regulates its proceedings rather than a rule of law, and instances are not lacking that relief was granted despite the availability of alternate remedy. See Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, etc. (PLD 1961 SC 119), The Murree Brewery Co. Ltd. v Pakistan through the Secretary to Government of Pakistan, Works.
Division and two others (PLD 1972 SC 279) and Syed ALI Abbas and others v. Vishan Singh and others (PLD 1967 SC 294)".
Dealing with the moot point, the Apex Court has held in "SALAHUDDIN AND 2. OTHERS v. FRONTIER SUGAR MILLS & DISTILLERY LTD,, TOKHAT BHAI and 10 others" (PLD 1975 SC 244) that question of adequacy of alternate remedy must be judged with reference to speed, expenses and convenience of obtaining relief under writ jurisdiction. Same view was adopted in "THE PRESIDING OFFICER v. (1) SADRUDDIN ANSARI AND (2) LAL MUHAMMAD BIN YOUSUF" (PLD 1967 SC 569).
21. Plea of "voluntary return" or "bargain" can be pleaded by the accused person under the provision of Section 25 Of The NAB Ordinance by approaching the Chairman NAB while making an offer for return of assets or gains acquired or made by him. The Chairman NAB may make an appropriate order at the request of person approaching him within the meaning of said provision. Order made under Section 25(b) of The NAB Ordinance shall be subject to approval of the trial or Appellate Court as the case may be.
Any such order admittedly is not subject to challenge because nothing has been provided in The NAB Ordinance in this regard.
Section 32 of The NAB Ordinance provides right of appeal and revision. Under Section 32(a) of The NAB Ordinance, a convict person or Prosecutor General, if directed by the Chairman NAB may prefer an appeal aggrieved by the final judgment and order of the Court under the Ordinance.
No other person or party is entitled to avail right of appeal or revision etc. In view of the matter, question of availability of alternate remedy and that too adequate to the petitioner does not arise at all and as such the petitioner bank undeniably is not in a position to challenge the decision of the Chairman NAB and order of learned Trial Court by any mode except approaching this Court under Article 199 of The Constitution.
22. It is worth mentioning that the provision of the Constitution put clog upon aggrieved party to invoke Constitutional jurisdiction of High Court if "Adequate remedy" is available to such party. It does not speak of "Alternate remedy". Even otherwise, every alternate remedy provided by law may not be considered as "Adequate remedy" in each and every case and question of efficacy has to be determined keeping in view facts and circumstances.
Pursuant to above discussion, what to speak of availability of adequate remedy, even alternate remedy is not available to the petitioner.
23. Submitting arguments with reference to "Locus standi" of the petitioner Bank and relying upon the provisions of Section 25 (b) of The NAB Ordinance, it was contended that there are three stake holders in the process of acceptance or otherwise of plea bargain namely, the accused, the Chairman NAB and in case of approval of plea, either the trial or Appellate Court for its endorsement as the case may be. Argued that in the circumstances, how the petitioner Bank can be considered as "Aggrieved party".
There is no cavil to the proposition that only aggrieved person can maintain the Constitutional petition for issuance of writ of "Certiorari" or "Mandamus". Reference may be made to "FEDERATION OF PAKISTAN and others v. Mian MUHAMMAD NAWAZ SHARIF and others" (PLD 2009 SC 644).
24. The expression "Aggrieved party" has not been defined in the Constitution, which expression has been defined in BLACK'S LAW DICTIONARY Sixth Edition, (Centennial Edition (1891-1991) as follow:- "one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation".
25. Dealing with the definition of word under discussion, it was held by Honourable Supreme Court in "MUHAMMAD AFZAL and others v. GOVERNMENT OF PAKISTAN and others" (1987 SCMR 2078) at page 2082 as follow:--- "It has already been held by this Court in Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 that the right considered sufficient for maintaining a constitutional petition is not necessarily a right in the strict juristic sense, but it is enough if the applicant discloses that he had a personal interest in the performance of legal duty which, if not performed or performed in a manner not permitted by law, could result in the loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise".
In the case of "ASADULLAH MANGI and others v. PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others" (2005 SCMR 445) while dealing with the expression, it was held at page 460 as under:- "A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter, unless whatever right, personal or otherwise, on which the application is based is established, no order can be issued under Article 199, Muntizma Committee v. Director K.A. PLD 1992 Kar. 54, Mahmoona v. Ilam Din PLD 1984 Lahore 228, Assam Fisheries Farms and Industries Ltd. v. The development Compromission Assam and others AIR 1953 Assam ISB and Mehboob Khan v. Deputy Commissioner Lakh Imput and others ' AIR 1953 Assam 145".
26. Making reference to the case-law. On the proposition the Honourable Apex Court also dealt with the word.^'"Aggrieved party" in the "case of "PROVINCE OF BALOCHISTAN through' Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others" v. MURREE BREWERY. COMPANY LTD.
Through Secretary" (PLD 2007 SC 386) asked it was held at pages 391 & 391 as under:- "The word aggrieved or aggrieved party has not been defined in the Constitution, however, from time to time, it has been Interpreted by the superior Courts in the given circumstances of the case".
18. In the case of. Messrs Associated Cement Companies Ltd. ,y, Pakistan, through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; it was observed that writ petition can be maintained by a person provided he be an "aggrieved person" and in order to be an aggrieved person imperative for him to show any of his proprietary or personal right; as recognized by law, to be invaded or denied. Person unable to show any of his rights as recognized by law to be invaded v . or ,denied has no cause of action to seek any relief, In the case, of Nisar Ahmad and 2 others, y. Additional v. Secretary Food 4 and Agriculture., Government of Pakistan and 3 others 1979 SCMR 299 (also reported in 1979 SCMR 389) it was held, that the .Petitioner in order to avail such jurisdiction must establish direct or indirect .Injury to Himself and substantial interest in the subject-matter..)pf proceedings. The case of Nisar Ahmad (supra) was followed in the case of Anjuman Araian Bhera v. Abdul Rashid and others 1982 PSC 888; wherein it was endorsed that a party must show some interest in the property to which some legal sanctity was attached in order to bring itself within the ambit of the definition of "aggrieved party", In the case of Mst. Noor Jehan Begum v. Dr. Abdul Samad and others 1987 SCMR 1577; it was held that mere possibility that a person can obtain, property by making highest bid if a property is disposed of by public auction does not give such a potential bidder a vested right in property. Such person is not an aggrieved person and has no right to maintain a Constitutional petition, In the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318 it was observed that a person could not be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or Province in respect of any right which he may have in relation to the performance of the said functions and if he did not have any right directly in the matter had no locus standi to maintain Constitutional petition. Relief sought must be in relation to grievance of said aggrieved person and not the grievance of any third person, In the case of Dalmia Cement Ltd. v. District Local Board, Karachi and 2 others PLD 1958 (W.P) Karachi 211, the High Court of West Pakistan at Karachi, after making reference to a number of judgments i.e. (i) the judgment of Supreme Court of India in case of Charan . Jit Lai v Union of India, wherein it was held that: "It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of constitutionality of that law.
This principle has been very clearly stated by Huges J. In McCabe v. Atchison (1914) 235 U.S. 151 in these words:- "It is an elementary principle that in order to justify the granting of the extraordinary relief, the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact clearly established of injury to the complainant not to others which justifies judicial interference".
In a case (ii) (Indian Sugar Mills Association v Secretary to Government Uttar Pardesh Labour Department and others) the Full Bench of Allahabad High Court in India held that- "We do not want to express any opinion whether those orders were right or wrong but other writs, directions or orders, cannot be placed on the same footing as a writ of habeas corpus and every one of the several missing persons of this State cannot be given the right to come up and agitate and re-agitate against an Act or order like the one in question when he cannot show that his rights were directly affected by that order"
In a case (iii) (Surrenderor Transport and Engineering Co. Ltd., Kalka and others v. State of Punjab) a Division Bench of the Punjab High Court held that:- "This petition can be dismissed on the short ground that the petitioners have, no locus standi to challenge the validity of the Act, for it has been held repeatedly that a statute may be assailed only by one relying on an alleged invasion of his own Constitutional rights. The invasion must affect his interests adversely and this interest must be a genuine proprietary interest and not merely a remote interest vide Article 13 of Willough by on the Constitution of the United States, Volume I. The tax in the present case is to be paid not by the petitioners who are plying their vehicles on hire but by the passengers who are carried or by the owners of goods which are transported and it seems to me, therefore, that the present petition is incompetent".
Finally it concluded that:- "It is un-necessary to quote, form more authorities because the position appears to be fairly clear that the petitioner which does not pay toll tax cannot come to the Court for the relief on the ground that the contractors whose trucks are employed by the petitioners pay the tax and are expected in the ordinary course to include that tax in their charges and thus to indirectly recover them from the petitioners has not even attempted to meet this objection of Mr. Abbasi and has cited no authority to the contrary. I, therefore, hold that the petitioners have no locus standi to file the writ petition and that it is not maintainable."
27. Keeping in view the Rule of law expounded in the Reports cited, we would like to examine the facts of the case in order to determine the status of petitioner bank as "Aggrieved party".
It is an admitted fact that News Item was published in Daily "News" on 21.06.2007 in respect of scam in Bank of Punjab. Inquiry was initiated by Director General NAB (Punjab) to un-earth the facts but there was no progress in the matter about two years and later on Bank of Punjab approached the apex Court by filing petition under Article 184(3) of The Constitution.
After conclusion of investigation, it transpired that Sh. Muhammad Afzal, respondent No. 3, Director M/s. Haris Steel Mills in connivance with Hamesh Khan (co-accused), the then President, Bank of Punjab, embezzled an amount of Rs. 8.40.4 billion (including mark-up) by obtaining loan facilities in favour of fake persons against fake securities. It was also concluded that Sh. Muhammad Afzal and his close relatives including brothers etc. Are the beneficiaries of embezzled. Amount. Reference No. 62 of 2008 was accordingly submitted on 10.02.2012 under Section 18(g) of The NAB Ordinance, copy of Reference is available at page (32) of writ petition. Disclosure of facts clearly demonstrates that interest of the Bank of Punjab was seriously prejudiced as the. Amount in billions deposited with the petitioner bank by account-holders and customers was used in the mode and manner by respondent No. 3 and others not sanctioned by law and against the well-established codal and legal formalities to safeguard the interest of Bank.
Though in reference, the then President of Bank was also cited as an accused but at this stage determination of his liability is not to be adjudicated upon because it is not a moot point. Reference has been made to this fact only in order to decide the question of "locus standi" of the petitioner's Bank in order to approach this Court by filing Constitutional petition.
It is also not disputed that Bank of Punjab filed Constitutional Petitions No. 20 to 27 and 39 of 2009 before the Honourable Supreme Court against Sh. Muhammad Afzal (respondent No. 3), and others. Different interim orders made by Honourable Supreme Court on 27th of May, 15th and 29th of June, 14th and 16th of July, 21st of July, 2009, 10th of August and 21st of August, 2009 and on other dates of hearing are sufficient to suggest not only the nature of dispute, particulars of the parties litigating and interest of petitioner's bank.
It is the case of respondent No. 3 himself during the course of arguments and in concise submissions that loan was re-scheduled. Attributing malice-in-fact to the Bank of Punjab, it was also stated that move by Bank of Punjab to approach NAB and Honourable Supreme Court of Pakistan was clothed with malice to put pressure upon respondent. No. 3 on political basis under the dictate of Government of the Punjab.
Submission of applications," two in' number, one rejected and second accepted by respondent No. 3 to liquidate his liability towards Bank of Punjab is another factor to be kept in view while determining the status of the petitioner to invoke Constitutional jurisdiction Of this Court.
28. Dealing with the question of maintainability of petitions filed by petitioner Bank (Constitutional Petitions No. 20 to 27, 39 & 45 of 2009 and Human Rights Cases No. 20424-P, 20982-P of 2009 and 19465-P of 2009, the Honourable Supreme Court examined the" respective contentions of parties in the judgment recorded in "BANK OF PUNJAB and-another v. HARIS STEEL INDUSTRIES (PVT) LTD. And others" (PLD 2010 SC 1109) and(while repelling the arguments advanced by learned counsel for the respondents including respondent No. 3, it was held at-page 1129 as follow:- "22. As has been mentioned above, the matter in question relates to one of the gravest financial scams in the banking history of our country as a1 result of which the Bank of Punjab stood cheated of an enormous amount of around eleven billion rupees which amounts of money in fact belonged to around one million innocent depositors including depositors of small amounts of money whose life-savings and property had come under serious threat casting thus an obligation on this Court to move in protect and defend the right of property of such a large Section of the population i.e. About ten lakh depositors and customers of the Bank of Punjab which right of property stood guaranteed to them by Article 24 and Article 9 of The Constitution"
29. No doubt, perusal of Section 25(b) of The Ordinance highlights the person-party, (stakeholder of plea bargain) in which there is no reference to any party whose interest has been prejudiced as argued by learned counsel for respondent No. 3 but same by itself would 'not be sufficient to decide the question of locus standi of the petitioner in the manner and style suggested.
30. Facts referred in brief and litigation by Bank of Punjab clearly reveals that the Bank of Punjab not only got personal interest but also interest of a large group of account-holders is involved who deposited the amount with bank.
Even otherwise, the interest of the Bank of Punjab cannot be denied in view of opinion formulated by apex Court while deciding case of "BANK OF PUNJAB" (PLD 2010 SC 1109) in which it has been held at para (25) of the judgment that not only a colossal amount of money/property belonging to at least one million depositors i.e. a large Section of the public was at stake but the existence of the Bank of Punjab was also reportedly at stake.
31. Viewed from whichever angle, we are of the considered view that objection raised by respondent No. 3 is based on surmises and conjectures and the material available on record as discussed clearly proves that Bank of Punjab is an "Aggrieved party" within the meaning of Article 199 of The Constitution.
32. Adverting to the merits of the case, question for consideration before us is whether the decision of the Chairman NAB can be interfered duly endorsed by learned accountability Court or got absolute immunity being "prerogative" of the Chairman NAB. We have also to resolve and determine the scope and extent of interference, if permissible.
33. For the sake of convenience we reiterate the grounds of attack and shield of defence canvassed during the course of arguments by adversaries.
Impugned decision and order has been assailed being result of improper exercise of discretion, offending fundamental rights, natural justice and against public policy.
Adversary in rebuttal controverting the arguments submitted that it was "prerogative" of the Chairman NAB, not subject to any judicial interference by any Court except provided in the NAB Ordinance. Even otherwise, it was submitted that decision was made in accordance with law.
34. At the very outset, it is desirable to add here that Article 199 of The Constitution draws no distinction between the persons performing and those not exercising judicial, quasi-judicial or executive functions. Limitation imposed is that act or omission assailed must be by a person in connection with the affairs of the Federation, a Province or a local authority.
We are though conscious of the fact that learned counsel for the petitioner was not able to lay his hands on any case-law directly supporting the contention regarding annulment of decision of the Chairman NAB as argued by learned counsel for respondent No. 3 but the fact by itself would not be sufficient to suggest immunity and exercise of "prerogative" by the Chairman NAB. Moot point has to be decided keeping in view facts and circumstances while focusing attention on the grounds of attack and pleas of defence.
35. Prior to dealing with other contentions, it would be desirable to deal with plea of respondent No. 3, claiming absolute immunity to interfere in the impugned decision 1186 C.L. Pakistan Company & Tax Law Reports Vol: XVIII contending that the Chairman NAB exercised his prerogative as referred by learned Accountability Court in .Order assailed.
Section 25(b) of The NAB Ordinance which is relevant to resolve the controversy does not use the expression "prerogative".*but word "Discretion" has been used, In the opinion of learned' counsel for the respondent, 'keeping in -view the language of section, it. Amounts to prerogative as exclusive discretion has been vested in the Chairman NAB.
The word "prerogative" has been defined in BLACK'S LAW DICTIONARY (Sixth Edition) as follow:-- "An Exclusive or peculiar right or privilege. The special power, privilege! Immunity, right or advantage vested in an official person, either personally, or in respect of the things to. His office or in an official body, as a Court or legislature".
The same word has been defined in the concise Oxford Dictionary as follow:- "Right of Sovereign, theoretical subject to no restriction. Peculiar right or privilege natural or divine giving advantage, privilege or faculty"
The argument keeping in view the definition of expression referred to and use of expression "Discretion" in Section 25(b) of the NAB Ordinance would not advance the plea of respondent No. 3.
36. Even if .It is presumed for the sake of arguments that power conferred upon Chairman NAB is "prerogative" and "privilege", it would not advance the plea of respondent No. 3, claiming complete immunity. In view of dictum laid down by Honourable Supreme Court of Pakistan in "CONTROLLER OF PATENTS AND DESIGNS, KARACHI and others v. MUHAMMAD QUADIR HUSSAIN" (1995 SCMR 529), whereby while deciding appeal from the judgment of learned High Court of Sind dated 23.08.1989 passed in Constitutional Petition No. D-128 of 1985, provisions of Section 79 of The Patent and Designs Act (II of 1911) were examined containing the expression "Prerogative of the. Federal Government".
Referring to the judgment in "Laker Airways Ltd. v. Department of Trade (1977) 2 ALL E R. 182, it .Was held at page 533 as follow:- "There can be no cavil with the proposition that the Government of Pakistan or for that matter any of holder of its offices, or any Government functionary do not enjoy any conventional prerogative a^ was or is available to Grown, in England. Except those discretionary powers which are either specifically conferred by the Constitution or under any law passed . By the Parliament. We are also of the view that any discretionary power available to the Government or its functionaries in the nature of prerogative either under the Constitution or under any of Act of the Parliament is subject to the process of judicial review by. The superior Courts, in accordance with their jurisdiction under the Constitution. However, any exercise of discretionary power in the nature of prerogative claimed by the Government or holding of any of its offices, ot its functionary&s has to be justified either under some statute law or under the provisions of the ' Constitution, before it, is pressed into service before a Court": Lord Denning while speaking in Report "LAKER AIRWAYS'" (1977 (2) All ER 182 opened as follow:- .
"Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the Court just as any. Other discretionary power which is vested in the executive".
37. Viewed from. The angle, claim of absolute immunity to the decision of the Chairman NAB cannot be endorsed.
38. It is further to be noted that power of "Judicial Review" as compared to "Jurisdiction" is available to the superior Courts enshrined by The Constitution which by no stretch of imagination either can be curtailed or abridged.
Concept of Judicial Review was dealt with Honourable Supreme Court in the case of "(1) Saiyyid ABUL ALA MAUDOODI" (PLD 1964 SC 673) and it was held that Courts following British common law not barred from subjecting executive or judicial action to judicial review even where there is no express requirement of "reasonable grounds" for taking administrative action.
39. Scope of exercise of power of Judicial review was also examined by apex Court in"'SUO MOTU CASE No. 18 of 2010" (PLD 2011 SC 927) and while making reference to the case-law from Pakistani and Indian jurisdiction it was held at pages 956-957 as follow:- "The exercise of Constitutional powers by the High Court and the Supreme Court, under the relevant Articles, have been categorized as power of "Judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and High Court or the Supreme Court can, in exercise of the powers of Judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities of the government, or those which can be legally treated as "Authority", if arbitrary, unreasonable or contrary to law, is amenable to the writ jurisdiction of the Supreme Court or the High Courts and can be validly scrutinized on the touch stone of the Constitutional mandate. Common cause, A. Regd. Society v. Union of India (AIR 1999 SC 2979)".
40. Dealing with the scope of judicial review of executive authority, the Honourable apex Court, while referring to the case of "Asia Foundation and Construction Ltd v. Trafalgar House Construction Ltd. (1997) 1 Supreme Court Cases 738) has held in "Dr. AKHTAR HASSAN KHAN and others v.
FEDERATION OF PAKISTAN and others" (2012 SCMR 455), that once the competent authority in the government has taken a decision backed by law, it would not be in consonance with the well- established norms of judicial review to interfere in policy making domain of executive authority, In "COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v. MINISTER FOR THE CIVIL SERVICES" (1985) 1 Appeal Cases 374), it was enunciated that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law, or prerogative, rather than a statutory source and a minister acting under a prerogative power might, depending on its subject-matter, be under the same duty to act fairly as in the case of action under a statutory power.
In brief three conditions were laid down to interfere in the action falling within the executive domain which are as follow:- "(1) "Illegality" which means that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(2) "Irrationality" was referred to as "Wednesday unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesday Corporation (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the question to be settled could have arrived at it.
(3) "Procedural Impropriety" is another ground which means and includes failure of authority to observe basis rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision".
Question of "Illegality", "Irrationality" and "Procedural Impropriety" was also dealt with by a learned Division Bench of this Court in "Ch. IFT1KHAR AHMED v. CHIEF SECRETARY, PUNJAB and others" (2012 PLC (C.S.) 1470).
41. Dealing with question of exercise of powers of Judicial review, it was opined by House of Lord in "INLAND REVENUE COMMISSIONERS AND NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD." (1982 law reports (Appeal Cases) 617) that in order to exercise power of Judicial review there must be sufficiency of interest of the party.
Examining the moot point, in "PRESTON v. INLAND REVENUE COMMISSIONERS (1985) 2 ALL ENGLAND LAW REPORTS 327), it was held that Judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise.
42. In view of above state of law, action of any authority, officer or Government is subject to Judicial review of this Court but keeping in view the conditions referred to in the judgments.
43. At this stage, it is also desirable to examine provisions of Section 25(b) of The NAB Ordinance conferring "Discretion" in favour of the Chairman NAB in order to appreciate the respective contentions of adversaries regarding the domain of such authority (which admittedly is always subject to control of certain conditions going to be dealt with later on).
Provision under reference no doubt confers "discretion" upon the Chairman NAB but the legislature in its wisdom also provided yardstick while exercising such power. The words "In his discretion" are followed and controlled by expression "after taking into consideration the facts and circumstances of the case", sufficient to give irresistible conclusion that offer of accused for plea bargain is to be examined and accepted while attending facts of the case in order to reach just conclusion keeping the scale in a balance position.
44. Even otherwise, exercise of 'discretion' is subject to certain conditions and limitations.
In the case of "THE MONTGOMERY FLOUR AND GENERAL MILLS LTD., MONTGOMERY v. THE DIRECTOR, FOOD PURCHASED, WEST PAKISTAN and others" (PLD 1957 (W.P.) Lahore 914), it was held that all discretion must be exercised justly, fairly and reasonably and arbitrary exercise of discretion was held to be inconsistent with the mandate of the Constitution.
Describing mode and manner of use of discretion, it was resolved in "ABID HUSSAIN and others v.
P.I.A.C, and others" (2005 SCMR 25) at page 36 as follow:--- "The Judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, swe9t will, or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. Aman Ullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman R.T.A, v. Pakistan Mutual Insurance Company PLD 1991 SC 14, Pacific Multinational (Pvt.) Ltd. v. I.G. Of Police PLD 1992 Karachi 283, Person Manufacturing Ltd. v.
Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15, Ramana v IA. Authority of India AIR 1979 SC 1628, Dwarka Nath Prasad Ata! v. ' Ram Rati Devi AIR 1980 SC 1992, Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nisamuddin v Civil Aviation Authority 1999 SCMR 467".
Dealing with the provisions of The Securities and Exchange Ordinance (XVII of 1969) and referring to the opinion of Keneth Gulp Davis in the Administrative Law Text, the Honourable Supreme Court, in the case of "AMANULLAH KHAN and' others v. THE FEDERAL GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and others" (PLD 1990 SC 1092) expounded the doctrine of "Structuring the discretion" and it was opined at page 1147 as follow:- "Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kennth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary powers are open plans, open policy statement, open rules, open findings, open reasons, open precedents and fair informal procedure.
Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by rules or policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times".
Principle of "structuring the discretion" was reiterated in ABID HUSSAIN and others v. P.I.A.C, and others11 (2005 SCMR 25).
45. In the case of "TARIQ AZIA-UD-DIN and others" (2010 SCMR 1301), it. Was held that action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion.
Dealing with the mode of exercise of discretion, the apex Court in "Suo Motu Case No. 18 of 2010"
(PLD 2011 SC 927) held at page 954 as follow:- "There are certain norms for exercise of discretion. We are not challenging the discretionary powers of the executive but the same have to be exercised judicially and in a reasonable manner as held in the case of "Tariq Aziz-ud-Din": In re (2010 SCMR 1301). The authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly, evenly and justly. Reference may be made to the cases of "Abid Hussain v. PIAC" (2005 PLC (CS) 1117), "Abu Bakar Siddique v. Collector of Customs" (2006 SCMR 705), Walayat AH v. PIAC"
(1995 SMR 650)".
Reference was also made to the case of "SHARP v. Wakefield" (1891 AC 173) in which Lord Halsbury observed that when it is said that something is to be done within the discretion of authorities, it means that something is to be done according to the rules of reasons and justice, not according to. Private opinion, according to law and not humour.
46. Question of exercise of discretion was also dealt with in "WALAYAT ALI MIR v. PAKISTAN INTERNATIONAL AIRLINES CORPORATION through its Chairman and another" (1995 SCMR 650), "FEDERATION OF PAKISTAN AND OTHERS v. Ch. MUHAMMAD ASLAM AND OTHERS" (1986 SCMR 916), and "CHAIRMAN. REGIONAL TRANSPORT AUTHORITY, RAWALPINDI v. PAKISTAN MUTUAL INSURANCE COMPANY LIMITED, RAWALPINDI" (PLD 1991 SC 14) and it was held that discretion has to be exercised keeping in view principle of justice and fairness and while exercising discretion, aim and object of rules or regulation under which it was authorized to act should be kept in view.
47. Last but not least we may advantageously make reference to the dictum laid down in "SECRETARY, GOVERNMENT OF PUNJAB and others v. KHALID HUSSAIN HAMDANI and 2 others" (2013 SCMR 817). While making reference to the Ratio expounded in "Messrs GADOON TEXTILE MILLS and 814 others v. WAPDA and others" (1997 SCMR 641) it was held that in the administrative law, the authority is vested with a certain amount of discretion and the said discretion has to be exercised by applying independent mind uninfluenced by irrelevant or extraneous consideration.
48. Question of exercise of discretion was examined in following cases by Supreme Court of India
(1) "STATE OF NCT OF DELHI AND ANOTHER v. SANJEEN ALIAS BITTOO" (2005) 5 Supreme Court Cases 181), "TATA CELLULAR v. UNION OF INDIA" (1994) 6 Supreme Court Cases 651), "DELHI TRANSPORT CORPORATION v. D.T.C. MAZDOOR CONGRESS AND OTHERS" (1991) Supp. (1) Supreme Court Cases 600), "RAMANA DAYARAM SHETTY V INTERNATIONAL AIRPORT' AUTHORITY OF INDIA AND OTHERS" (1979)
3 Supreme Court Cases 489), "Commissioner of Income Tax, Bombay and others v Mahindra and Mahindra Ltd. And others" (AIR 1984 SC 1182) and it was held that if discretion is exercised arbitrary or is result of an abuse of power or mala fide, same can be interfered.
49. Administrative action of authority or public functionaries will also be subject to Judicial review if is against public policy. (SEE: DELHI TRANSPORT CORPORATION v. D.T.C MAZDOOR CONGRESS AND OTHERS" (1991 Supp (1) Supreme Court Cases 600).
50. Executive, Judicial or Quas/-Judicial orders made in violation of fundamental rights shall also be subject to scrutiny by the High Court and Supreme Court. Reference may be made to "BANK OF PUNJAB and another v. HARIS STEEL INDUSTRIES (PVT) LTD. And others" (PLD 2010 5C 1109), "TARIQ AZIZ- UD-DIN and others, (Human Rights Cases)", (2010 SCMR 1301), "Mrs. MANEKA GANDHI v. UNION OF INDIA and another (1978) 1 Supreme Court Cases 248) and (1) Saiyyid ABUL ALA MAUDOODI (2)
MISBAH-UL-ISLAM FARUQI AND (3)UMAR FAROOQ v. (1) GOVERNMENT OF WEST PAKISTAN AND (2) THE GOVERNMENT OF PAKISTAN (PLD 1964 SC 673).
51. Unreasonableness is another factor which can be taken into consideration to interfere in the administrative action as held in the case of "Saiyid ABUL A'ALA MAUDOODI (Supra), Dr. AKHTAR HASSAN KHAN and others v. FEDERATION OF PAKISTAN and others" (2012 SCMR 455), and "COUNCIL OF CIVIL SERVICES UNION AND OTHERS v. MINISTER FOR THE CIVIL SERVICES" (1985) 1 AC 374).
52. There is no cavil to the proposition that dispensation of justice being sacred duty not only requires the Judicial or quasi-judicial authority but also cast equal responsibility upon public functionaries to act fairly, justly, without any discrimination and keeping in view the relevant law, rules etc.
53. Keeping in view the provisions of Section 25(b) of The NAB Ordinance, particularly the expressions "In his discretion after taking into consideration the facts and circumstances of the case accept the offer on such terms and conditions, as he may consider necessary", we are of the considered view that assignment and duty cast upon the Chairman NAB under the said provision is not administrative in nature but is of guess/-judicial as he has to protect and safeguard the rights and interest of the party as. Well who was victim of the accused (Emphasis supplied). Further it also clearly suggests the mode of exercise of discretion.
54. Now we dilate upon the merits of the petition keeping in view the respective contentions of adversaries and in the light of well-settled proposition of law, referred and discussed in-depth.
55. Determination of exact liability of respondent No. 3 as assessed in the impugned decision was questioned by-the petitioner bank.
56. It is the case of petitioner Bank that plea bargain was accepted by Chairman NAB to the extent of principal amount of Rs. 8,404 billion but there was no mention of payment of mark-up, cost of funds for more than five years.
Assertion has been disputed by the learned counsel for respondent No. 3 arguing that total liability including all ancillary charges is Rs. 8.404 billion, out of which Rs. 3.667 billion already stands recovered and transferred to the bank of Punjab and outstanding liability is only to the extent of Rs.
4.737 billion regarding which plea bargain was accepted.
The National Accountability Bureau in its concise submissions (para (1)(b) on facts), disclosed that bank record reveals that an amount of Rs. 8.404 billion rupees was disbursed to the fake companies of respondent No. 3 which does not include cost of funds or the mark-up.
Since the exact liability of respondent No. 3 is under question which cannot be determined on the basis of admitted documents, therefore, same objection in order to set at naught the decision cannot be taken into consideration as fate of controversial questions of fact cannot be decided by this Court, while exercising Constitutional jurisdiction. Reference may be made to "THE PRESIDING OFFICER v. (1) SADAR UP DIN ANSARI AND (2) LAL MUHAMMAD BIN YOUSUF" (PLD 1967 SC 569), "PROVINCE OF PUNJAB through Chief Secretary and 5 others v. Malik IBRAHIM AND SONS and another" (2000 SCMR 1172), "MCt. KANIZ FATIMA through legal Heirs v. MUHAMMAD SALIM and 27 others" (2001 SCMR 1493)* and "COLLECTOR OF CUSTOMS, LAHORE and others v. UNIVERSAL GATEWAY TRADING CORPORATION and another" (2005 SCMR 37).
57. However, according to the petitioner, plea bargain accepted is contrary to the liability determined by NAB in Reference No. 62 of 2008, filed against respondent No. 3 and others which is Rs. 11.589 billion up till 31.12.2009 but even then margin was given to the respondent in the impugned decision which assertion cannot be lightly ignored in view of para (15) of the reference, according to which total loss caused to the Bank of Punjab by respondent No. 3 and Muhammad Munir etc. With the aid, abetment and assistance of high Ranking Officers of the Bank of Punjab (Named in the reference) and Seth Nisar Ahmad etc. Is Rs. 11.589 billion including the principal amount of Rs.
8.404 billion and consequential loss of Rs. 3,185 as mark-up till 31.12.2009.
According to para (1)(c) of "submission on facts", in concise statement submitted by NAB, joint investigation team headed by Aftab Sultan, Additional Inspector-General, Punjab Police was constituted by Honourable Supreme Court of Pakistan and the investigation team determined the liability of accused as Rs. 12.804 billion till 31.12.2010 and if calculated till 31.12.2009, it comes to Rs.
11.589 billion, the same amount, determined by the NAB, which prima facie supports the stance of the petitioner.
There must have been specific determination of liability of respondent No. 3 in this regard, which though decided but yardstick is not known.
58. Non-association of the petitioner Bank in the plea bargain proceedings was also canvassed as a ground of attack which was repelled on behalf of respondent No. 3 on two-fold grounds. First, provisions of Section 25(b) of The NAB Ordinance does not suggest any such compulsion stating the number and particulars of stakeholders in order to accept the offer of plea bargain and second, while repelling the same on factual premises, it was submitted that high ranking officers of bank were associated in the proceedings.
However, reply submitted by NAB before this Court, suggests that the NAB, while admitting the status of the petitioner as "Interested party" in the plea bargain admitted that petitioner Bank was not heard by the Chairman NAB prior to holding of Executive Board Meeting (EBM) for approval of P.B. But it was asserted that it was done in good faith after taking into confidence the President of Bank. It was further suggested that Bank of Punjab gave verbal consent, in principle, to consider the request made by respondent for plea bargain in accordance with law.
59. No doubt, the right of hearing and audience has not been provided in explicit form in Section 25(b) of The NAB Ordinance to the person aggrieved by the act of accused who approaches the Chairman NAB for plea bargain but non-provision of such right by itself would not be sufficient for the authority not to take and consider view-point of such aggrieved person.
Maxim "Audi Alterum Partem would be applicable to the judicial as well as non-judicial proceedings and executive acts and it would be read into every statute subject to certain exceptions. If right of hearing has not been expressly provided in the statute, provisions of the Constitution can be put into service. Reference may be made to "MRS. ANISA REHMAN v. P.I.A.C. AND ANOTHER" (NLR 1994 SCJ 531).
In "State of U.P. v.. Muhammad Nooh" (AIR 1958 SC 86) it was held that violation of principle of natural justice would render the decision nullity.
Same Rule of law was expounded in "Mr. MANEKA GANDHI v. UNION OF INDIA AND 'ANOTHER" (1978) 1 Supreme Court Cases 248).
60. Seeking help from the dictum laid down in "JUSTICE KHURSHID ANWAR BHINDER and others v.
FEDERATION OF PAKISTAN and another" (PLD 2010 SC 483), it was argued by learned counsel for respondent No. 3 that doctrine of "Audi alteram partem" would not help the petitioner as it is not of universal application.
We have gone through the Rule of law expounded in the Report cited at bar but we cannot find ourselves in agreement with the contention due to distinguishable facts. In the report 'under discussion, it was held that doctrine is intended to inject justice into law and cannot be applied to defeat the ends of justice or to make the law lifeless or absurd. It was also held that right of hearing cannot-be validly claimed in emergent situation, paralyzing the administrative process, imminent danger or injury to paramount public interest.
In the present case, there was no such situation: Amount in billions of public-at-large was involved and as such paramount public interest required the Chairman NAB to know and consider the view- point of petitioner's bank.
There was also no such urgency before the Chairman NAB who in its wisdom had to deal with emergent situation. Similarly, one would be even unable to suggest that provision of right of hearing would have resulted to defeat the ends of justice.
We have gone through the exceptions enunciated at page 540 of the Report but same exceptions do not attract to the facts of the case. Admittedly, no wide discretion was vested with the Chairman NAB as is evident from the provision of Section 25(b) of The National Accountability Ordinance, 1999, sufficient to suggest that discretion is controlled by the provision itself.
Likewise, the respondent failed to suggest, how the case is covered within the other exceptions, In view of the matter, argument canvassed would not advance plea of respondent.
61. In view of the above state of law, there can be no cavil to the proposition that right of audience should have been provided to the petitioner bank.
62. We are not un-mindful that no specific form of hearing can be suggested in such eventuality but nevertheless there must have been conscious attempt to know the view-point of petitioner by adopting any mode in order to know the stance and grievance of the party enabling the authority to keep balance while deciding the matter and conscious of what is right or wrong?
63. We are also conscious of the domain of the executive authority and public functionaries vested in it by the statute, empowering them to decide the matter according to the material available on record and norms of law and justice endorsing the view-point of one party, while ignoring the stance of other but according to the well-established principles of natural justice acceptance of plea of aggrieved party is not a condition to attach sanctity to the decision but provision of hearing and audience in any mode, whatsoever, to be evolved by the authority keeping in view the circumstances of case is legal compulsion, pre-requisite to attach sanctity on merits.
64. Specific stance was taken by the petitioner regarding its non-association which was though questioned by respondent No. 3 but the NAB admitted this fact with reservation in reply submitted before this Court, .As referred, earlier, according to which omission was in good faith and verbal consent was given which could not be substantiated. Similarly, argument advanced by respondent No. 3 regarding right of hearing to the petitioner Bank could not be proved. It is not disputed that right of hearing was provided to the Bank of Punjab prior to deciding the first offer of plea bargain as referred in clause (vi) of the letter No. 34/l/Bank-B-34/NAB July 13, 2012 (available at pages 63- 64 of paper-book) in compliance of order dated 26.06.2012 made by Honourable Supreme Court but there is nothing on record either to suggest provision of hearing or even intimation to the petitioner to put its stance intimating the terms and conditions of plea bargain offered by respondent No. 3. Even otherwise, stance of petitioner has not been questioned by NAB in its reply as referred earlier.
It is not understandable why the petitioner was not asked to submit its view-point about the terms and conditions of re-payment, re-offered by respondent No. 3, when right of hearing was provided while deciding earlier application though under the dictate of apex Court.
65. Provision of right of hearing to the Bank of Punjab in the peculiar circumstances of the case was altogether more important keeping in view the nature and background of dispute. It is not a simple case of fraud and embezzlement causing loss to a banking company but in fact was attempt to deprive round about one million depositors- account holders from their right, safeguarded by The Constitution.
Right of audience to petitioner bank by any mode was in fact right of hearing to the said account- holders who were deprived of their right of property, involving violation of fundamental rights as held by apex Court in "BANK OF PUNJAB and another v. HARIS STEEL INDUSTRIES (PVT.) LTD, and others" (PLD 2010 SC 1109).
66. Pursuant to above, we are of the considered view that right of canvassing its case before Chairman NAB was not provided to the Bank of Punjab, violation of doctrine of "Audi-Alterum Partem". Had there been opportunity of hearing to the petitioner, the possibility of fate of the offer of plea bargain otherwise with reference to determination of exact liability, mode and manner of payment of amount may not be ruled out.
67. Next question for adjudication is exercise of discretion by the Chairman NAB in a proper, just and fair manner or otherwise.
68. In order to appreciate the contentions, it is desirable to know the terms and conditions of plea bargain, mode and manner of payment, communicated by NAB and accepted by respondent No. 3 in pursuance of decision of the Chairman NAB.
69. Copy of other terms and conditions also suggesting mode of payment was marked as (Ex. P6) by learned Trial Court and available at pages 49 & 50 of the paper-book. The terms and conditions are reproduced for ready reference.
"(1) Total amount of Plea Bargain is Rs. 8.404 billion out of which Rs. 3.667 billion already recovered and transferred to the Bank of Punjab while a sum of Rs. 4.737 billion is payable by you.
(2) . The repayment period is for five years, by way of submission of a duly signed repayment plan based on ten equal bi-annual payments spread over five years i.e. Ten instalments of Rs. 473.7 million each, first installment of which will be payable after six months from the date of your release.
(3) Your Plea Bargain request on standard legal format of NAB, duly annexed by half very- repayment schedule of 5 years, need to be duly witnessed by an authorized officer of NAB and should be attested by the M.S. Of the hospital where you are detained.
(4) It will be your responsibility to muster your resources to honour the terms of P/B either through sale of properties (mortgaged with bank and/or marked under caution by NAB) OR through generation of funds from the activities of your business, if you are released from the custody in order to arrange the repayment accordingly.
(5) Further, your are also required to undertake that any shortfall in the above arrangements to meet the determined Plea Bargain liability will be covered by you exclusively from your own resources.
(6) In case any other properties belonging to you or your family are traced later on, the same shall be included in the list of properties and after approval of Chairman NAB shall be disposed of for payment of above liability, if required.
(7) In case you fail to fulfill any of the condition of this Plea Bargain, the amounts and the assets surrendered by you or your family shall be forfeited by the Chairman NAB and criminal prosecution shall be initiated, as per the law.
(8) In case of any ambiguity in respect of execution of above PB, in any manner whatsoever, the decision of Chairman NAB shall be final.
(9) All accused of this case should continued to be placed on ECL.
(10) The Passports of all accused will continue to be retained with NAB until complete payment of Plea Bargain.
(11) Post dated cheques of remaining amount (Ten equal bi-annual instalments of Rs. 473.7 million each), favouring Chairman NAB would also be submitted by you, as security.
(Default of which will directly attract Section 489-F of Cr.P.C, (In fact it should have been PPC), a non-bailable criminal offence).
(12) If at any stage it transpires that villa No. I-W- 49, Emirates Hill third (6604) Dubai has been transferred with the connivance of you or your son, Harris Afzal, then its sale proceeds will be returned to Chairman NAB under the repayment schedule of PB.
(13) The vehicles, jewelry items, cheque books, weapons,' property documents and other personal belongings of you or your family or other individuals/ entities, ceased during the inquiry/raid-of NAB, Punjab and which are held. With NAB (P) having not surrendered to the respective Accountability Court or to. The BOP salvage committee would be returned to their respective owners, after due. Verification.
(14) Complaint filed by NIB Bank Ltd. For Rs#331 Million against Ham's Steel Mills will be handled separately, as a separate inquiry has been authorized by NAB since October,.2009 and the matter is sub judice in LHC, Lahore for execution of Financial Decree against recovery suit filed by NIB Bank Ltd. Therefore,- no coercive measures to be taken in this regard.
(15) You will be eligible for release from the judicial custody only after acceptance of all formalities as ordained by the terms of this Plea Bargain".
70. It is not disputed that this was the second offer made by respondent No. 3 for plea bargain and first was ultimately declined by the Chairman NAB intimated to respondent No. 3 through his advocate vide Letter No. 34/1/Bank-B-34/NAB, dated July 13, 2012, copy of which is available at pages 63-64 of the petition.
Perusal of para (2) of letter suggests .Grounds which influenced the competent authority to reject offer of plea bargain which can be summarized as follow:- "(1) Failure of respondent to disclose exact and clear source or plan to pay back the plea bargain amount (Rs.3.418 Billion), (2) Lengthy schedule of re- . Payment of loan, i.e. 12 years, re-payment plan with three years as grace period and 18 biannual equal instalments, (3) Request for not charging any future mark-up till the last-payment (4) Illogical request for return of properties with the. Bank of Punjab and the Bank of Punjab Salvage Committee, (5) Incredibility of accused (respondent No: 3) and (6) Lack of bona fide intention".
71. After rejection of first offer in July, 2012, the Chairman NAB, while accepting; the second offer of plea bargain though with certain modifications should have acted with more care and caution and in a judicious manner as second offer, was endorsed within a period of five months. No doubt, the period between two offers by itself would riot suggest improper exercise of discretion but keeping in view the grounds mentioned in para (2)(v)(vi) of Letter dated duly 13, 2012 questioning the credibility and bona fide of respondent No. 3, the offer should have been examined in a judicious mode and manner.
72. Comparison of the terms and conditions for repayment given by respondent at the time of first offer and accepted in second offer clearly gives impression to a man of ordinary prudence that discretion was not acted upon justly, evenly and fairly.
No doubt in the first offer, period of 12 years with grace period of three years was proposed for re- payment but in the second offer, it was suggested as five years by reducing the period suggested earlier but even period of five years is not so short which aspect has to be taken into consideration from the date of sanctioning loan. It is not disputed that questioned and impostor transactions commenced from March, 2006 and continued uptill April, 2007.
While deciding the period of re-payment, it should have been kept in view that embezzled money was deposited by the account-holders having different financial status including depositors of petty amounts and the Bank of Punjab was custodian of said amount, In fact, interest of the account-holders was not kept in view who were being compensated by the petitioner Bank.
Delayed payment would have also caused loss to the petitioner bank in its business, ultimately, adversely reflecting upon the economy of the country.
73. One of the reasons for rejection of earlier plea bargain was non-disclosure of source of payment of amount ,and same is the position in the second Offer but premium was granted by the NAB to respondent No. 3 by incorporating, clause (4) holding the respondent to muster resources either through sale of properties (mortgaged with bank or marked caution) or through generation of funds from the activities of his business, if he is released from the custody in order to arrange the re-payment accordingly. Keeping in view, the mode of options, there can be no two opinions that respondent No. 3 cannot be compelled to adopt first course. We are not unmindful of clause (8) of the terms and conditions, according to which in case of any ambiguity in respect of execution of PB, the decision of the Chairman shall be final but the contents of clause (4) as laid and framed clearly stipulates un-reasonableness, also giving impression of exercise of discretion according to the sweet pleasure and will of the authority.
74. No doubt payment has to be made in biannual instalments but keeping in view the total period of repayment, said provision by itself is not sufficient to protect the interest of the bank and its account-holders.
75. There is no specific finding regarding exact liability of respondent No. 3 keeping in view the view-point of bank.
76. No provision, whatsoever, was made for any down payment. 'Note' mentioned under clause (g) of additional conditions incorporated in approval plan, available at pages 47 would not be sufficient to create exemption for down payment.
77. Though there is a dispute between the parties regarding inclusion of mark-up amount, finally determined (Rs. 4,737 Billion) which aspect relating to factual controversy cannot be resolved but admittedly, no provision was made regarding payment of mark-up till the payment of last-installment.
According to the amount calculated at page (1) of approval plan (See Page 45 of the petition), total liability after re-scheduling and adding mark-up as on November, 2007 is Rs. 8.404 billion.
In the circumstances, how this premium will satisfy a man of ordinary prudence to stamp the acceptance of offer as reasonable and just, when there is also no provision regarding the future mark-up etc. Fill the liquidation of liability in totality as determined.
78". Provision of issuance of post-dated cheque (clause 11) of the terms and condition marked (Ex.PG) by Trial Court for. Re-payment of remaining amount in ten equal biannual instalments in favour of Chairman NAB also is not sufficient to suggest adequate security though may expose respondent No. 3. To face trial under Section 489-F of the Pakistan Penal Code, 1860, as referred in said clause.
79. Mere retention of passport and keeping the name of all the accused in Exit Control List cannot be considered adequate safeguard .To procure the payment of amount as per schedule.
80. As per clause (13) of terms and condition (Ex. P6), the vehicles, jewelry items, cheque books, weapons, property documents and other personal belonging taken into custody during raid- inquiry, in the custody of NAB (Punjab) not yet surrendered to the Accountability Court or to the Bank of Punjab salvage committee shall be returned to their respective owners, after due verification.
Return of property documents to the respondent and other accused though can be justified in view of clause (4) of the terms and condition, in order to generate funds for payment (one of the option mentioned) but return of vehicles, jewelry items, weapons is not understandable which items could have been utilized for liquidation of liability. The approval plan and terms and conditions cannot justify this undue favour. Otherwise, instances should have been quoted to justify it by showing similar treatment with other accused in past whose plea bargain was accepted in a similar mode and manner. Position would have been, different one if the respondent has liquidated his total liability even as per determination of NAB.
81. While declining the first offer of plea bargain, incredibility and lack of bona-fides was also considered as added factors, to reject the offer referred to in para (2)(v)(vi) of Letter dated 13th of July, 2012 but just with five months, while accepting the second offer on 24th and 28th of December, 2012, same grounds were ignored and that too without justifying it, just incorporating clause (12) of other terms and conditions (Ex. P6-page 50 of the petition), stating that if at any stage, it transpires that villa No. J-W-49, Emirates Hills, Dubai has been transferred with the connivance of respondent No. 3 or his son, its sale proceeds will be returned to the Chairman NAB under the repayment schedule of PB. It is not understandable, how and why the table was turned.
82. We have also gone through the order of learned Accountability Court. Its opinion treating power of Chairman NAB to accept plea bargain as "prerogative" has been repelled by us in earlier part of the judgment while dealing with it from different directions. Though attempt was made to justify the decision of Chairman NAB while overruling the objections but in view of discussion made, we are not in a position to endorse the order of learned Trial Court.
83. We have considered the case-law, cited at bar by learned counsel for respondent No. 3 reference of which has also been made in the concise statement.
Relying upon the dictum laid down in "Dr. MUHAMMAD ANWAR KURD and 2 others v. THE STATE through Regional Accountability Bureau, Quetta" (2011 SCMR 1560), it was argued that plea bargain is a process which cannot be reversed if accomplished by due course of law. Help was also sought from the Ratio expounded in "GHULAM NABI v. PROVINCE OF SINDH and others" (PLD 1999 Karachi 372) and "MUHAMMAD ZAHIR SHAH and 49 others v. PROVINCIAL POLICE OFFICER, KHYBER PUKHTUNKWHA, PESHAWAR and 4 others" (2012 PLC (C.S.) 905). Perusal of the facts of Report of "GHULAM NABI v. PROVINCE OF SINDH and others" (PLD 1999 Karachi 372) reveals that provisions of The Sind Irrigation (Amendment) Ordinance (VII of 1999) were assailed by the petitioners being agriculturalist getting supply of irrigation water through water courses from outlets in different canals.
Dealing with the contentions of the parties, inter alia, it was held that where vested right had matured in favour of someone through fulfilment of all requirements of law and adverse action has been taken in exercise of executive power, such action can be declared to be unlawful.
Rule of law when examined in fact supports the contention of the petitioner and not the respondent, In order to apply the Ratio, it was the bounden duty of respondent to place on record the material to endorse his vested right (Acceptance of plea bargain by the Chairman NAB and its endorsement by Accountability Court) showing that said right product of observance of all requirements of law (emphasis supplied) but in view of discussion made, there can be no two opinions that the decision of Chairman NAB and its endorsement consequently does not fulfill the yardstick highlighted.
Likewise, the proposition expounded in "FEDERATION OF PAKISTAN through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza MUHAMMAD IRFAN BAIG and 4 others" (1992 SCMR 2430) defining the expression "vested right" though cannot be questioned but we are unable to endorse the contention of vested right in favour of respondent for the reason, discussed on legal as well as factual premises.
No doubt vested rights originate from contract, statute and by operation of law as held in "MUMTAZ ALI BOHIO and 24 others v. FEDERAL PUBLIC SERVICE COMMISSION through Chairman at Islamabad and another" (2002 SCMR 772) but keeping in view facts and circumstances of the case as discussed, it cannot be said that acceptance of plea bargain is outcome of proper observance of statute.
84. Judgments of Accountability Court were challenged in appeals before learned Baluchistan High Court and after dismissal of same, matter came up before the apex Court in the case of "Dr. MUHAMMAD ANWAR KURD and 2 others v. THE STATE through Regional Accountability Bureau, Quetta" (2011 SCMR 1560). Repelling the contention of appellants regarding the misconception to understand the provisions of Sections 15 and 25 of The National Accountability Ordinance (XVIII of 1999) and proviso, conviction was maintained by the Apex Court in consequence of acceptance of plea bargain by NAB and its approval by the Accountability Court.
Perhaps, the learned counsel for respondent No. 3 relied upon the dictum to substantiate his contention that decision of Chairman NAB to accept the plea bargain and its approval by the accountability Court cannot be questioned but the facts of the case under reference and grounds upon which conviction was assailed are distinguishable. The petition before us has not been filed either by the convict or by NAB but jurisdiction has been invoked by the aggrieved party on the grounds of exercise of discretion on wrong premises and unreasonableness etc.
85. Pursuant to above discussion, we have reached to a definite conclusion that decision of the Chairman NAB is outcome of "Illegality" "Irrationality" and "Procedural Impropriety" as defined and discussed by Lord Dip-lock in "COUNCIL OF CIVIL SERVICE UNION AND OTHERS v. MINISTER FOR CIVIL SERVICES" (1985) 1 AC 374). Reference may also be made to "TATA CELLULAR v. UNION OF INDIA"
(1994) 6 Supreme Court Cases 651).
86. In view of discussion made above, we are also convinced that decision of the Chairman NAB is also against the well-established principle of "Structuring of Discretion".
The decision is also based on exercise of discretion not warranted by law and against public policy while accepting the terms and conditions of plea bargain particularly with reference to determination of liability and mode of payment.
87. We may observe here that we are not putting any clog on the powers of the Chairman NAB conferred upon him under Section 25 of The National Accountability Ordinance (XVIII of 1999) to accept the plea bargain but the mode and manner in which it was accepted cannot be endorsed in view of discussion.
88. The next question for consideration is what appropriate order should be made in the circumstances.
It is settled proposition of law that while setting aside the order of authority in Constitutional jurisdiction, High Court cannot substitute its own findings in place of findings of such authority.
Reference may be made to "AKBAR ALI v. (1) RAZI-UR-REHMAN KHAW AJA, (2) THE ELECTION TRIBUNAL, SARGODHA DIVISION. (3) ABDUL WAHID. PRESIDING OFFICER, AND (4) IMTIAZ AHMAD SAHI, MAGISTRATE.
1ST CLASS, LYALLPUR/RETURNING OFFICER, JARANWALA (PLD 1966 SC 492), "SHAH JAHAN and others v.
Syed AMJAD ALI, HAWALDAR and others" (2000 SCMR 88) and "TATA CELLULAR V. UNION OF INDIA"
(1994) 6 Supreme Court Cases 651).
89. Pursuant to above discussion, while accepting the writ petition, setting aside the decision of the Chairman NAB dated 24th and 28th of December, 2012 and order dated 11th of January, 2013 recorded by learned Accountability Court No. 1, Lahore, matter is remanded to the Chairman NAB to re-examine and decide the offer of plea bargain made by respondent No. 3 after providing opportunity of hearing to the petitioner bank, by adopting any mode and in accordance with law.