Shah Khawar, J.--The instant writ petition has been filed against the vices of the impugned notices issued by Respondent No, 2 on 21.4.2011, 5.5.2011 and 1.2.2012 by Respondent No, 2 on behalf of Respondent No, 1 whereby the petitioner was required to attend and produce documents before the Respondent No, 2 having seized of inquiry under Sections 19 and 27 of the National Accountability Ordinance, 1999 and Section 94 of the Criminal Procedure Code. In the impugned notices the petitioner has been informed that production of documents and other things is necessary for the purposes of inquiry against Ikhtiar Hussain (Proprietor M/s. Huraira Enterprises), Nasir Aziz (Proprietor M/s. Nasir Cloth House), Lahore, Muhammad Anwar Zubairi and others as sanctioned by the competent authority, into the offences alleged to have been committed under the provisions of National Accountability Ordinance, 1999.
2. Brief facts of the case are that the petitioner being Proprietor of Zaheerabad Seed Corporation, Tehsil and District Vehari has been dealing with Respondent No, 3-Bank Al-Habib Ltd., Tehsil Burewala, District Vehari and had obtained certain finance facilities. The petitioner availed finance facilities in the name of Zaheerabad Seed Corporation and Zaheer Cotton Ginning and Pressing Factory from Respondent No,
3. The finances are secured by way of mortgage of immovable properties and stocks being pledged with Respondent No, 3 under lock and key of Respondent No,
3. The Respondent No, 3 had deputed Muqaddam in the name and style of M/s. MYK, who had deployed M/s. Abdul Rauf, Malik Yasir and Bilal as Godown Keepers, while one Fazal-ur-Rehman was the Supervisor. According to the agreement arrived at in between the petitioner and Respondent No, 3, the Firm of the petitioner would purchase stock from outside and in case of its disposal, on the request of the petitioner's Firm the stock would be released by the Muqaddam.
According to the agreement, the Respondent No, 3 retains 15% margin and separate register was maintained regarding recovery of margin paid by the Firm. According to the petitioner, the following stocks were kept in the Godown under the key of the Bank-Respondent No, 3.
"(a) 28934-bags of wheat 100-kg each @ Rs,950/- per 40-kg Rs,6,87,18250/-.
(b) 2587-bags of potatoes each of 120-kg @ Rs,1500/- per bag Rs,3,76,30,500/-.
(c) 515-bags of Pedi each of 60-kg @ Rs,1575/-per bag Rs, 8,11,125/-.
(d) 1081-bags of cotton seed each of 40-kg @ Rs,1300 per bag Rs,14,05,300/-.
(e) 1625-kounds of Maize @ Rs,912/- per mound Rs,14,82,000/-."
3. According to the petitioner the total amount of stock comes to Rs,11,00,47,175/-. Since the stocks were perishable and the Respondent No, 3 has been repeatedly requested by the petitioner to dispose of the stock so that the same may not be destroyed. The said request of the petitioner's Firm was not acceded to and the petitioner's Firm was constrained to file a suit for declaration and permanent injunction against Respondent No, 3 with a prayer that the Respondent No, 3 be directed to dispose of stocks.
4. In the same manner the other associate organization of petitioner's Firm i.e, M/s. Zaheer Cotton Ginning and Pressing had also same arrangement with the Respondent No, 3 and the stocks were pledged with the Respondent No, 3 under the supervision of Muqaddam and details of stocks are hereunder:-- "(a) 28934-bags of wheat 100-kg each @ Rs,950/- per 40-kg Rs,6,87,18,250/- .
(b) 2587 bags of potatoes each of 120-kg @ Rs,1500/- per bag Rs,3,76,30,500/-."
5. It is contended that it transpired to the petitioner's Firm that Respondent No, 3 had misappropriated the stocks and there was a shortfall of the stocks. The civil suit field by the petitioner's Firm is being contested by Respondent No, 3.
6. It is also contended that to account for the mis-appropriated stocks, the Respondent No, 3 with mala fide intention and ulterior motives concocted a false story and got lodged FIR No, 436 dated 28.10.2010 registered under Sections 395 and 109 PPC at Police Station Machiwal, District Vehari on the complaint of the Branch Manager of the Respondent No,
3. In the FIR it was alleged that when the representatives of the Muqaddam were present on the site on 27.10.2010 at 8-15 p.m., on the behest of the present petitioner approximately fifty armed persons led by his employees, namely, Jabbar, Waheed and Nasir armed with lethal weapons illegally entered into the premises. The said persons overpowered Muqaddam and others and manhandled them with the butt of guns, kicks and blows. It is also alleged that the assailants made indiscriminate firing with their rifles, and shot guns and created scene of terrorism. The Keys of the godown were snatched by them, approximately 35 Trailers and Trucks were brought at site and pledged stocks were looted and loaded on them, hence the FIR.
7. The local police fully investigated the case and found the prosecution story as false and baseless. The local police submitted discharge report under Section 173 Cr.P.C. Before the learned Illaqa Magistrate.
8. Feeling aggrieved, the Respondent No, 3 filed Criminal Complaint No, 53 before the Special Court (Offences in respect of Banks), Lahore against Zaheerabad Seed Corporation, Zaheer Cotton Ginning and Pressing, the petitioner, Muhammad Waheed, Jabbar Hussain, Nazir Ahmad and Muhammad Tayyab. After recording cursory statements of the witnesses the said criminal complainant was admitted for hearing on 17.1.2012 by the learned Special Judge, the petitioner and other accused persons in the complaint were summoned who are facing trial.
9. It is also on the record that the Respondent No, 3 filed a suit for recovery before this Court in original jurisdiction and the petitioner's Firm filed application for leave to defend and written statement in this Court. Another suit for recovery was also field by the Respondent No, 3 against Zaheerabad Cotton Ginning and Pressing which is also pending adjudication before the learned Judge Bank Court, Multan.
10. According to the petitioner the Respondent No, 3 did not stop here rather filed a complaint against the petitioner's Frim before Respondent No, 1, the National Accountability Bureau, Punjab, Lahore regarding the same incident regarding which recovery suits, FIR and complaint has been filed.
11. The impugned notices dated 21.4.2011, 5.5.2011 and 1.2.2012 are the outcome of the inquiry initiated by the Respondent No, 1 and notices issued by Respondent No,
2. It is contended that petitioner appeared before Respondent No, 2 and informed that the Bank has filed recovery suits, got lodged FIR which stood cancelled and has also filed criminal complaint which is pending adjudication before the learned Special Judge. It is contended by the petitioner that the Respondent No, 2 on the behest of Respondent No, 3 in the garb of inquiry is pressing the petitioner hard for repayment of the amount in favour of Respondent No, 3.
12. The impugned notices have been challenged by the petitioner, inter alia, on the grounds that petitioner and its Firm cannot be prosecuted by different authorities at the same time which is in violation of Article 13 of the Constitution of Islamic Republic Pakistan, 1973, which provides protection against double punishment., this Court as well as the learned Judge Banking Court, Multan have taken cognizance of recovery suits field by Respondent No, 3 which are pending adjudication. Moreover, the petitioner along with his partners are facing criminal private complaint pending adjudication before the Special Court (Offence in respect of Banks), Lahore. It is prayed that the inquiry initiated against the petitioner and his Firm may be declared ultra tires to the Constitution and the law and same be set aside.
13. The Respondents No, 1 and 2 (NAB) filed reports and parawise comments. It is averred by Respondents No, 1 and 2 that the impugned notices have been issued under Sections 19 and 27 of the National Accountability Ordinance, 1999 enabling the petitioner to offer his defence; the civil and criminal proceedings can be initiated simultaneously as the decree of the Civil Court is not admissible in the criminal proceedings; during the course of inquiry; that finance facilities were extended to the petitioner by Respondent No, 3 on the basis of pledged stocks for an aggregate of Rs,82,208,206/-; the petitioner has criminally misappropriated the pledged stock which falls within the jurisdiction of National Accountability Bureau.
14. We have heard the learned counsel for the petitioner as well as the learned Law Officer appearing on behalf of National Accountability Bureau and counsel for the Respondent No, 3.
15. Learned counsel for the petitioner has reiterated his stance as taken in the writ petition which need not to be reproduced. Learned Law Officer and learned counsel appearing on behalf of the respondents vehemently opposed the instant writ petition by maintaining that the National Accountability Bureau has all the authority to take cognizance of the matter despite the fact that suits for recovery and private criminal complaints are pending adjudication before the appropriate legal forums. It has been contended that the petitioner as well as other partners of the petitioner have committed two distinct crimes which could be inquired into and tried separately. They contended that such practice does not amount violation of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as in the said Article prosecution and punishment for same offence more than once is prohibited. They maintained that the misdeeds committed by the petitioner and other associates could be tried distinctly by the learned Banking Courts, Special Court, (Offences in respect of Banks), Lahore and the National Accountability Bureau. It is vehemently contended that the acts of commissions of the petitioner and his associates are covered under the National Accountability Ordinance, 1999 and the National Accountability Authorities can simultaneously proceed against them under the National Accountability Ordinance, 1999. Further that the alleged offence committed by the petitioner and other associates is a Scheduled Offence as provided under Section 10(2) of the National Accountability Ordinance, 1999. They have placed reliance on the case of "Muhammad Nadeem Anwar vs. SECP" (2014 SCM R 1376). It is contended that the Hon'ble Supreme Court of Pakistan in the said judgment has declared that where an accused person acts in such a manner which constitutes offence punishable under two separate and different laws then one could be proceeded against simultaneously under the provisions of two different laws and bar placed under Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 would not be applicable.
16. We have minutely gone through the above referred view of the Hon'ble Supreme Court of Pakistan. In the said case the petitioner was being tried under two different Statutes i.e,
(i) Under the Companies Ordinance 1984 and
(ii) The National Accountability Ordinance 1999.
' In the case, subject matter of the judgment, the petitioner being Chief Executive Officer of the Bank had allegedly obtained loan facilities fraudulently, falsified Bank records, misappropriated funds of Bank and his company had also committed corrupt practices. The criminal complaint was filed against the petitioner by the Security and Exchange Commission of Pakistan, in terms of Sections 230 (7) and 283-K of the Companies Ordinance 1984. In the same manner complaint was also lodged under Sections 9, 10 and 11 of the National Accountability Ordinance 1999. Both the offences arose from distinct laws providing different procedures and forums for initiating proceedings simultaneously.
17. The case law as referred has no bearing on the petitioner. Admittedly the Respondent No, 3 has initiated actions against the petitioner by way of filing recovery suits in the banking jurisdiction and to the extent of placing criminal liability the Respondent No, 3 has filed a criminal private complaint against the petitioner before the Special Court (Offences in respect of Banks) Lahore. The offences under which the petitioner is facing charge in the private complaint do not constitute offences mentioned in the Schedule of National Accountability Ordinance, 1999.
18. Bare perusal of the National Accountability Ordinance 1999 reveals that the petitioner and his associates do not fall within the definition of holder of public office as contemplated in Section 5 (National Accountability Ordinance 1999). Section 9 of National Accountability Ordinance, 1999 defines the corruption and corrupt practices. Rather in Section 9-A(a) (ix) the offence of willful default falls within the Schedule Offences of National Accountability Ordinance, 1999. Perusal of record reveals that the Respondent No, 3 did not file any complaint against the petitioner and his associates for committing offence of willful default.
19. We have also gone through the "Schedule" in terms of Section 10-B of the National Accountability Ordinance, 1999 which provides Scheduled Offences cognizable by the National Accountability Authorities. We did not find the provision of Pakistan Penal Code against which the petitioner and his associates are being charged, as Scheduled Offences contemplated in the "Schedule".
20. It will be quite relevant to reproduce Section 5(n) of the National Accountability Ordinance, 1999 which reads as follows: "Section 5(n) "Offence" means the offence of corruption and corrupt practices (and other offences) as defined in this Ordinance and includes (the offences) specified in the Schedule to this Ordinance.
21. Admittedly the case of the petitioner and associates is not covered by Section 5(n) of the National Accountability Ordinance, 1999.
22. In the same manner Section 16-A of the National Accountability Ordinance, 1999 gives power to the Chairman, National Accountability Bureau to apply to any Court of law or Tribunal, seized of any matter involving offence under the National Accountability Ordinance, 1999 and same shall be transferred in the Courts constituted under the National Accountability Ordinance, 1999. This is also not the case of respondents. If the petitioner and associates would have been tried by any Court of law or Tribunal in offences provided under the National Accountability Ordinance, 1999 same could have been got transferred by the Chairman, National Accountability Bureau.
23. There is no cavil with the proposition that under Section 19 of the National Accountability Ordinance, 1999 the Chairman, National Accountability Bureau or any officer duly authorized may during the course an inquiry or investigation under an offence under the National Accountability Ordinance, 1999 can call for information from any person and can procure documents relevant to the inquiry and investigation, can examine any person acquainted with the facts and circumstances of the said case. In the same manner under Section 27 of the National Accountability Ordinance, 1999 the Chairman, National Accountability or any duly authorized officer have the power to seek full and complete assistance and call for any information and document relevant to or in connection with any matter pending before the National Accountability Bureau. In the instant case the impugned notices issued to the petitioner under the provisions of Sections 19 and 27 could not have been pressed into service for the reason that the 8 petitioner and his associates are not involved in any case cognizable by the National Accountability Authorities and punishable under the Scheduled Offences as contemplated by the National Accountability Ordinance, 1999.
24. The case law cited by the learned Law Officer and learned counsel for the respondents is not applicable in the instant case. Admittedly the petitioner and his associates are facing prosecutions both in the learned Banking Courts as well as before the Special Court (Offences in respect of Banks), Lahore and could not be prosecuted under the National Accountability Ordinance, 1999 as they have committed no offence punishable under the National Accountability Ordinance, 1999.
25. We are of the considered view that in the instant case D Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 places bar on such prosecution which may amount to double jeopardy.
26. We have no other option but to strike down the impugned notices dated 21.4.2011, 5.5.2011 and 1,2.2012 issued by Respondent No, 2 on the behest of Respondent No, 1 as having been issued without any lawful authority. The inquiry initiated by the National Accountability Bureau against the petitioner and his associates is also declared to be unconstitutional and void ab initio.
27. Writ petition allowed.