1. SAJJAD ALI SHAH, J.---The petitioner through instant petition seeks quashment of the proceedings emanating from Reference No.20 of 2011 initiated by the National Accountability Bureau (NAB) on a written complaint filed by the Pakistan International Airlines Corporation (PIAC).
2. Mr. Muhammad Anwar Tariq, learned counsel appearing for the petitioner, contends that on account of non-payment of government dues proceedings against petitioner as "wilful defaulter" on the complaint of PIAC have been initiated by the Chairman, NAB. Per counsel, the complaint pertaining to the cases of "wilful defaulters" cannot be taken cognizance of by the Chairman NAB unless the complaint is routed through the Governor, State Bank of Pakistan, and a notice of seven- days is issued to the alleged "willful defaulter" to explain his point of view. In support of his contention learned counsel has placed reliance on the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 905). It was next contended that if such procedure is not adopted then the very initiation of proceedings and all subsequent acts would wholly become illegal and void.
3. According to the learned counsel, the initiation of proceedings against petitioner as "wilful defaulter" without reference from the Governor, State Bank of Pakistan, amounted to an illegality which, rendered the entire proceedings be null and void. In support of his contention counsel has placed reliance on the judgment of this Court in the case of Messrs Kaloodi International (Pvt.) Ltd. v. Federation of Pakistan (PLD 2001 Karachi 311). He, therefore, prays that the proceedings initiated by the NAB by way of Reference No.20/2011 may be quashed.
4. On the other hand, Mr. Noor Muhammad Dayo, Additional DPGA appearing for the NAB, contends that it was not only a case of willful default but of misappropriation of the Government dues, therefore, non-routing of complaint through Governor, State Bank of Pakistan, and/or non-issuance of notice by the Governor, State Bank of Pakistan, upon the petitioner would not render proceedings as coram non judice. Mr. Dayo while referring to the provisions of section 9(a)(iii) and (xi) of the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance 1999") contends that the subject case was of misappropriation of the Government dues and was well within the competence of the Chairman NAB.
5. We have heard the learned counsel for the respective parties and perused the record as well as case law cited at bar.
6. The admitted position as per record appears to be that the Petitioner was a partner of Messrs Cargo Aids (Pvt.) Limited, a registered partnership firm, which firm was working with the PIAC as one of its Cargo Sales Agent under IATA registration. The firm in routine used to receive airway bills from PIAC for booking cargo and the amount so collected from its clients/public whose cargo used to be carried by PIAC was to be deposited with PIAC by rendering periodical accounts and use to get its commission. The firm submitted sale report for the period ending September 15, 2007 with the cheques of the amount so collected on behalf of PIAC but on presentation the cheque was dishonoured, the firm was declared as defaulter the accounts were verified and it transpired that the firm has also failed to deposit the amount of sale for the period 16th to 30th June, 2007, 1st to 15th July, 2007, 16th to 31st July, 2007, 1st to 15th August, 2007, and 16th to 31st August, 2007 and on account of such default ultimately a complaint was lodged with the NAB for initiation of proceeding against the firm its Chief Executive and partners for their willful default in payment of Rs.132,237,272.
7. After necessary investigation the Chairman NAB on 24-11-2011 filed Reference No. 20 of 2011 before the NAB Court against the Petitioner and his other partners of the firm including Manager Finance of PIAC for causing loss to PIAC to the tune of Rs.127,845 (M) and thus, accused of corruption and corrupt practices as envisaged under section 9(a) of the National Accountability Ordinance, 1999 and punishable under Section 10 of the National Accountability Ordinance, 1999.
8. We are fully in agreement with the proposition propagated by Mr. Anwar Tariq that a person is said to commit an offence of willful default under the NAB Ordinance if he does not pay or return the amount due from him to any bank, financial institution, cooperative society, government department, statutory body or an authority established or controlled by the government on the day 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 a public office, with the provision that in case of default concerning a bank or a financial institution a 7 days' notice has been given to such person by the Governor, State Bank of Pakistan. There is also no cavil to the proposition that in number of judgments this Court has held that proceedings against "willful defaulter" arising from the reference which is filed without issuance of statutory notice by the Governor, State Bank of Pakistan are liable to be quashed as the same being illegal and nullity in the law which cannot be cured by subsequent issuance of notice or order of Governor, State Bank of Pakistan, directing the Chairman NAB to proceed with the matter.
9. However, in this case to our minds there appears to be another aspect of the matter i.e. The firm was acting as an agent for PIAC and was collecting sale proceeds of airway bills on behalf of PIAC as its agent and was liable to render the true accounts and to deposit the collected against the sale proceeds of the airway bills and thereafter entitled to an agreed commission. There is no doubt in our mind that the firm and its partners were entrusted dominion over its property by the PIAC in the capacity of agents and were under a legal obligation to render true and lawful- accounts and to deposit with PIAC all collections on their behalf and their failure to do so amounts to committing criminal breach of trust in respect of the property so entrusted and therefore within competence of the Chairman NAB under section 9(xi) of the Ordinance, 1999 to cognizance in respect of corruption and corrupt practices under section 9(xi) of the Ordinance, 1999 for which neither any permission from the Governor, Slate Bank of Pakistan is required nor a notice in terms of section 5(r) of the Ordinance, 1999 is liable to be issued.
10. We are further of the view that notwithstanding, the fact that PIAC in their complaint requested the Chairman NAB to take cognizance against the firm as "wilful defaulter" but from bare perusal of complaint filed by the PIAC the relationship between the firm and PIAC was established as of principal and agent and an alleged criminal breach of trust, therefore, it was well within the Competence of the Chairman NAB to take cognizance of the offence in the appropriate provision of the Ordinance, 1999. The petition, therefore, is without any substance and, therefore, is dismissed.
11. At this juncture Mr. Anwar Tariq requests that the petitioner may be permitted to file an application under section 265-K Cr.P.C. Before the trial Court, in our opinion there is no prohibition for so doing but not on the grounds which were agitated before this Court.