SYED MUHAMMAD FAROOQ SHAH, J.---Petitioner/accused named above, nomin ated in Reference bearing No, 21/2014, under sections 18(g) and 24(b) of the National Accountability Ordinance, 1999, seeks bail from this Court, beside she has made a prayer to quash the aforesaid Reference pending trial before the Accountability Court Sindh at Karachi.
2. Averments of the captioned petition transpire that the petitioner namely Mrs. Seema Sheerazi wife of co-accused Muhammad Adnan Sheerazi being a Director and guarantor of A.H. International Private Limited (company) borrowed finance facilities from Saudi Pak Agricultural and Investment Company (the financial institution) and the company defaulted in its repayment obligations. The financial Institution instituted a Banking Suit bearing No, 38/2006 before this court, on original side, against the company . The said Suit was disposed of by this court on 22- 5-2009, by way of compromise. It is averred that the total outstanding amount as alleged in the said Reference is Rs,250.515 Million, whereas the Personal Guarantees executed by the petitione r and two others including her husband in respect of the facilities availed from the Financial Institution was amounting to Rs,109,996,093 (Rupees One Hundred Nine Million Nine Hundre d Six Thousand and Ninety Three only) and Rs, 18,732,438 (Rupees Eighteen Million Seven Hundred Thirty Two Thousand Four Hundred and Thirty Eight Rupees Only). It is further averred by the petitioner that the financial facility availed by the company was of Rs, 125.665 Million, whereas the Reference has been made for exaggerated and exorbitant amount of Rs, 250.515 Million. On decree of the suit, the Financial Institution preferred execution application bearing No, 38/2008; the assets of the company and/or defendants including petitioner were auctioned but the sale proceeds according to the contents of the Reference were not forwarded to the Financial Institution, who preferred a Criminal Complaint in the year 2011 in the Banking Court bearing Criminal Complaint No, 86/201 1, which is still pending adjudication. The warrants issued against the petitioner at pervious address of the petitioner returned unserved as she was no more residing there. It is further stated that notice dated 14-12-201 1 under section 31-D read with section 5(r) of the NAB Ordinance was issued to the petitioner at the incorrect address, hence the petitioner had no knowledge or intimation of the said proceedings.
Thereafter , the State Bank of Pakistan was approached by the Financial Institution vide letter dated 25-1-2012 to issue seven days show cause notice under the relevant provisions of the Ordinance on 28-12-2012. It is stated that show cause notices were dispatched to the petitioner at the incorrect address and, therefore, the petitioner could not respond to the same as she was not aware of pendency of instant Reference.
3. It is further averred by the petitioner that she arrived in Pakistan on 6-12-2014 , when she was informed at the airport that her name has been placed on Exit Control List, though petitioner was never aware of the said Reference and was at her mother's residence on 2-1-2015, when the NAB officials arrested her though she is an ailing lady. The petitioner has setup number of grounds for quashment of proceedings as well as for concession of bail and stated that she has been implicated in the aforesaid Reference malafidely and contrary to the settled principles of law as she did not commit wilful default in absence of mens rea. It has further been submitted that petitioner is a housewife and the Financial Institutions has opted for a Criminal Complaint in addition to the instant Reference only to harass and intimidate her, who is being tried for the same offence twice at different forums which tantamount to double jeopardy .
4. On the other hand, the NAB (respondent) in parawise comments, by raising preliminary legal objections have vehemently denied the contents of the instant petition and submitted that the petitioner was Director and Guarantor of A.H. International (Pvt.) Ltd., had committed wilful default under section 5(r) of NAO, 1999 and the Reference has been filed by the respondent on completion of all codal formalities as provided under sections 5(r) and 31-D of NAO, 1999. It is further submitted that filing of Criminal Complaint does not preclud e the NAB authorities from filing instant Reference as NAO, 1999 has overriding effect upon all other laws for the time being enforced. It is further submitted that Petition contains disputed, integrated question of facts, which cannot be decided in extraordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973; more particularly , the petitioner/accused is nominated with specific role, narrated in paragraphs 3 and 4 of the Reference and para-6 of Investigation Report; that the petitioner/accused being Director and Guarantor of A.H. International Private Limited, availed finance facility of Rs, 125.665 Million along with cost of funds total amounting to Rs,250.515 Million till December , 2014 from Saudi Pak Agricultural and investment Company by mortgaging their immovable properties and subsequently committed wilful default and did not repay the finance facility availed from Saudi Pak Agricultural and Investment Company; that the petiti oner has played vital role in the commission of the offence, prima facie involved in cognizable/non-bailable offence of corruption and corrupt practices as defined under section 9(a)(viii) punishable under section 10 of N.A.O., 1999 and there appears reasonable ground for believing that she is guilty of the of fence, therefore, not entitled for any relief so claimed.
5. We have considered the arguments advanced by learned counsel for the petitioner and learned Prosecutor representing the respondent/NAB. W e have also carefully scanned the material brought on record.
6. Mr. Farogh Naseem, learned counsel very frankly submitted that the petitioner did not repay the defaulted and decretal amount to Saudi Pak but she cannot be treated as "wilful defaulter" under the Ordinance, as envisaged under section 9(a)(viii) read with section 5(r) of the N.A.O., 1999. Learned counsel submitted that petitioner is a household and well-educated lady was unaware of the management of the company and never fully participated in its affairs. Besides she has not been served with a mandatory notice as she was no more residing at the address mentioned in the notice/warrants i,e, resid ent of Bungalow No,30 Saba Avenue, Phase-V , Extension, DHA, Karachi.
While placing reliance on the case of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607) it was argued that no prosecution for wilful default shall be launched before the expiry of 30 days, as statutory notice in addition to seven days' notice shall also be served on the alleged defaulter that she has committed any "wilful default". The report of Governor , State Bank of Pakistan as to the prima facie guilt or innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other dues falling within contemplation of section 5(r) of the Ordinance.
7. Conversely , learned Additional Prosecutor General representing the respondent/NAB argued that the petitioner in collusion with two other accused has committed wilful default of huge amount and the mandatory notice has duly been served upon her. It is further subm itted that the petitioner was fully aware about the compromise decree drawn by this court in Suit No, B-38/2006 . It is urged that the prosecution have collected the necessary required evidence to connect the petitioner in connection of the aforesaid offence, who was admittedly a working Director in the above said company and the loan/financial assistance to the company has not been repaid, despite execution proceedings initiated on agreed decretal amount in Suit No, B-38/2006 by this Court. Learned Prosecutor submitted that as per PISCES/IBMS Data Base Travel History of petitioner , entries on her passport No, AD- 5127462 shows that she had frequently travelled to Abu Dhabi/Dubai from Pakistan and made as many as fifty four
(54) trips, which includes arrival and departure of disputed period, therefore, contention of learned counsel touching the non-service of notice upon her at the mentioned address is not attracting, particularly , the record shows that through a legal notice dated December 14, 2011, the Financial Institution, Saudi Pak Agricultural and Investment Company Ltd., calls upon the petitioner and others to pay the outstanding decretal amount of Rs, 125,664,849 together with cost of funds as allowed by the Court and to return the misa ppropriated/stolen hypothecatic machinery and equipment within 30 days and the said notice has duly been served through TCS Express and Logistics, firstly on 17th December , 2011, received by one Mehboob and a show cause notice under section 31(D) of N.A.O., 1999 had also been served upon her. The petitioner being Director of the Company , M/s A.H.
International Pvt. Ltd. Was required to call up within seven days, as to why she should not be proceeded against as a "wilful defaulter" as defined in N.A.O., 1999; there was sufficient documentary proof that the said notices were delivered on 29-11-2012 through TCS, received by one M. Bakht, subsequent notice was delivered on 29-10-2012 received by the same person and third notice was also delivered on 31-12-2012 received by one Shareef on behalf of the petitioner being her employee/agent, which is suf ficient proof of service of legal notice upon the petitioner .
8. A perusal of record transpires that Saudi Pak Agricultural and Investment Company Ltd. Had filed a Suit bearing No, B-38/2006 against petitioner and others for recovery of Rs, 125,664,849 along with markup, cost of funds, charges, costs till the date of finalization of whole amount. Record shows that on 22-5-2009, the said suit was decreed against the defendants Nos. 1 to 4 including the petitioner . The decree drawn by this Court in the aforesaid suit shows that the plaintif f (Financial Institution) and defendants Nos. 1 to 4 (including petitioner) had filed compromise application under Order XXIII, Rule 3, C.P.C., which was allowed, resultantly , the suit against petitioner and others was decreed as prayed for in the plaint along with cost of funds from the date of default till finalization, in the following terms:- "That the defendants Nos. 1 to 4 jointly and severally do pay to the plaintiff a sum of Rs, 125,664,849 along with cost of funds from the date of default till finalization.
It is hereby further ordered that an injunc tion be and is hereby granted against the defendants Nos. 1 to 4, their employees, agents or any other person or person acting on their behalf from disposing, charging, alienating or transferring the mortgaged property/ hypothecated assets; It is hereby further ordered and decreed that in default of the payment to the plaintiff as aforesaid, the mortgaged property of defendants mentioned in the Schedule below , or a sufficient part thereof, be sold and that for the purpose of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the Mortgaged Property; It is hereby further ordered and decreed that the money realized by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff as aforesaid and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest/markup as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 and that the balance, if any, shall be paid to the defendants or other persons entitled to receive the same.
SCHEDULE OF MOR TGAGE PROPER TY "Land measuring 10-02 acres and situa ted at Deh Kalo Khohar Taluka Bola Khan District Dadu (Nooriabad Industrial Estate/Spinning Unit of A.H. International (Pvt.) Limited)".
9. It is an admitted fact that the decretal amount could not be finalized hence the Financial Institution has filed a complaint against the petitioner and others under section 20(1)(5) and all other enabling provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 and other applicable laws with a prayer to admit the complaint against the petitioner and four others on consideration of facts stated therein, the warrant was issued against all accused including petitioner , who is wife of co-accused namely Adnan Sheerazi (Guarantor/Accused) and the said case is proceeding against accused persons under section 20(1)(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001). It shall be advantageous to reproduce hereunder the definition of "wilful default" as defined by section 5(r) of N.A.O., 1999:- "Section 5(r)
"Wilful default" a person or a holder of public office is said to commit an offence of wilful default under this Ordinance if he does not pay or continues not to pay, or return or repay the amount due from him to any bank, financial institution, cooperative society ,... Government department statutory body or an authority established or controlled by a Government on the date that it became due as per agreement containing the obligation to pay, return or repay or according to the laws, rules, regulations, instructions, issued or notified by the State Bank of Pakistan, or the bank, financial institution, cooperative society , Government Department, statutory body or an authority established or controlled by a Government, as the case may be, and a thirty days notice has been given to such person or holder of public office.
Provided that it is not wilful default under this Ordinance if such person or holder of public office was unable to pay return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society , government department, statutory body or an authority established or controlled by Government; Provided further that in the case of default concerning a bank or a financial institution a seven days notice has also been given to such person or holder of public office by the Governor , State Bank of Pakistan; Provided further that the aforesaid thirty days or seven days notice shall not apply to cases pending trial at the time of promulgation of the National Accountability Bureau (Amendment Ordinance, 2001)".
10. Mandatory condition prescribed for commencing, initiating or conducting any inquiry , investigation or proceedings, inter alia, in respect of "wilful default" was a Reference from Governor , State Bank of Pakistan. The Reference available on the record has duly been made by the Chairman, in view of Supreme Court's decision in Khan Asfand Yar Wali's case (PLD 2001 SC 607), which laid down the procedure to be followed in pending cases by the Accountability Courts. Provisions of section 31(D) of the Ordinance reads in the following words:- "Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry , investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from the Governor , State Bank of Pakistan; Provided that cases pending before any Accountability Court before coming into force of National Accountability Bureau (Second Amendment) Ordinance , 2000, shall continue to be prosecuted and conducted without reference from the Governor , State Bank of Pakistan".
11. We have opportunity of examining the effect of judgment reported as PLD 2004 Karachi 638 in the case of Asim Textile Mills Limited v. National Accountability Bureau, it was held, that in order to harmonize the provisions of two legislations, the amount of liability of a borrower has to be determined through judicial disposition by a Civil or Banking Court and once such determination attains finality or is not disputed, the mechanism provided under the N.A.O., 1999 can be invoked. In the instant case, the quantum of liability has already been determined through a Banking suit mentioned above, therefore, the dicta as laid down in the cited rulings is attracting in all its fours.
12. So far as the contention of Dr. Farough Naseem relating to the principle of double jeopardy is concerned, it is an admitted position that neither the trial before the competent forum has been commenced nor same has been concluded on conviction of the petitioner , therefore, the pre-condition for attracting the principle of double jeopardy that there must have been an earlier trial of the accused seeking protection under second trial for the offences charged is not available. It is also an admitted fact that there was no earlier trial against the petitioner which was culminated on her conviction as Article 13(a) of the Constitution of Pakistan read with section 403, Cr.P.C. And section 26 of the General Clauses Act stipulates that no person can be vexed twice and prosecuted or punished for the same offence. It appears that petitioner was guilty of offence under another enactment, therefore, through same chain .Of facts she can be tried, convicted and punished under very offence comm itted by her as held by the apex Court in the Case of Muhammad Nadeem Anwar v. Security Exchange Commission of Pakistan (2014 SCMR 1376 = 2014 CLD 873). The learned Prosecutor has rightly contended that there was no earlier trial of the same crime sought to be proved in the second prosecution/trial; as to establish double jeopardy , it was incumbent upon the petitioner to show that earlier trial has been conducted by the Court of competent jurisdiction and the trial has been ended in a judgment of conviction or acqu ittal. Therefore, the argument of learned counsel touching the principle of double jeopardy is not attracting in the facts and circumstances of the present case.
13. It is not out of context to mention here that the amount of liability of borrower has to be determined through judicial pronouncement by civil or Banking Court and once such determination attains finality or is not disputed, the mechanism provided under the NAB Ordinance, 1999 can be invoked. For the sake of reference placitem (a) in the case of Asim Textile Mills Ltd. v . NAB ( PLD 2004 Karachi 638 ) is reproduced as under:- "Ss. 25-A & 5(r)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 7(4) & 4---Settlement of disputes---Procedure---Amount of liability of a borrower has to be determined through judicial disposition by a Civil or a Banking Court and once such determination attains finality or is not disputed, the mechanism provided under the National Accountability Ordinance, 1999, can be invoked."
14. Crux of the aforementioned discussion is that joint and several liabilities of the petitioner being a borrower has been determined through judicial disposition as the compromise decree drawn by this Court in the Banking Suit against the petitioner and three other judgment debtors attained finality; the petitioner and others were jointly and severally held liable to pay sum of Rs,125,664,849 along with cost. Of the fund from the date of default till finalization, therefore, following the dictum in the A case of Asim Textile Mills, mentioned as supra, the mechanism provided under N.A.O., 1999 can be invoked.
15. In view of whatever mentioned above, we reached at the irresistible conclusion that loan amount released by the Financial Institution has not been repaid by the petitioner and others, which constitutes an act of "wilful default", therefore, it will be unsafe to quash the proceedings of a case sub judice before the Accountability Court. So far as bail plea of the petitioner is concerned, prima facie, the allegations levelled against the petitioner or in her capacity being Director of the Company to repay the outstanding dues advanced as a loan facility , has been admitted in compromise application in Suit No,38/2006. Suffice it to say that huge decretal amount of financial institution is outstanding against the petitioner and others; they were fully aware about such decretal amount and defaulted wilfully , intentionally and deliberately to repay the same. In the mentioned circumstances of the case, the petitioner is not found entitled for the relief claimed through instant petition including concession of bail. Resultantly , the petition is dismissed. However , the trial Court is directed to expedite the trial and conclude it at an earliest, preferably within a period of three months under intimation to this Court through M.I.T -II.
16. Before parting with the order , it needs to make clarification that the observations recorded above are tentative in nature and relevant for the purpose of the instant Petition, therefore, the trial court shall not be influenced in any manner whatsoever .