' By way of instant constitutional petition, Zahid Ali Noor petitioner has sought concession of post- arrest bail in Accountability Court Reference No, 51 of 2016.
2. Precisely, the facts necessary for adjudication of instant petition are that an inquiry was initiated by the NAB Authorities in year 2015 on receipt of complaint dated 13.5.2015 from Tariq Majeed, Company Secretary Media Time Limited on the allegations that petitioner Zahid Ali Noor, Ex- General Manager Media Times Limited used to receive money on account of sale of newspapers from different news agencies in his personal account maintained at Standard Chartered Bank New Garden Town Branch, Lahore and did not deposit these amounts to the company account and misappropriated/embezzled the same. The inquiry was later on up-graded into investigation and consequently Accountability Court Reference No, 51 of 2016 was placed before the learned Judge Accountability Court, Lahore and petitioner/accused was sent to face the trial under section 9(a)
(iii)(iv)(ix) & (x) punishable under section 10 and schedule thereto of National Accountability Ordinance, 1999 (hereinafter referred as "NAO, 1999").
3. Learned counsel. For the petitioner submitted that as per lodgment against the petitioner, the allegations against the petitioner are ill-founded and no offence whatsoever is made out against him. He added that allegations leveled against the petitioner do not disclose commission of any offence under the NAO, 1999 and as such NAB has exceeded its jurisdiction, while implicating the petitioner in the instant case. He added that NAB has exceeded its authority, while taking cognizance of the matter in issue. Learned counsel maintained that from the allegations itself at the most civil liability is made out and prosecution of the petitioner is un-warranted.
4. Conversely, learned Special Prosecutor representing the NAB resisted the instant petition on various grounds.
5. We have heard learned counsel for the petitioner as well as learned Special Prosecutor NAB and also perused the record.
6. It is quite evident from the available material that the petitioner was implicated in the alleged offence on the allegations that he being General Manager Circulation Media Times Limited misappropriated/ embezzled an amount of Rs, 30.641 million by receiving money from various news agencies in his personal account against sale of Newspapers. The accused Zahid Ali Noor used to receive cash from different news agencies against sale of newspapers in his personal account maintained at Standard Chartered Bank, New Garden Town Branch, Lahore. The accused Zahid Ali Noor misappropriated that money by not crediting/depositing into the respective accounts of the news agencies and inflicted loss to the company. During the course of investigation, the petitioner was arrested on 29.4.2016 in execution of warrants of arrest issued by the NAB under the provision of NAO, 1999. Petitioner remained on physical remand for 62 days and then he was sent to judicial lock up by the learned Administrative Judge, Accountability Courts, Lahore vide order dated 2.7.2016. On completion of investigation, Accountability Court Reference No, 51 of 2016 was filed on 6.09.2016.
7. Perusal of the record depicts that prior to filing of Reference by the NAB, on the written complaint made by Ali Kazim Waheed, Managing Director of the Company, FIR No, 574 dated 14.5.2015 was registered under section 408, P.P.C. With Police Station Ghalib Market, Lahore on the same allegations. After registration of above-said FIR, on 18.5.2015, the petitioner sought ad-interim pre- arrest bail which was granted to him till 29.4.2016 by the learned Additional Sessions Judge, Lahore.
On the said date, when the petitioner was arrested by the NAB he was on pre-arrest bail granted by a Court of competent jurisdiction. In such circumstances when the case was already pending before a court of competent jurisdiction, NAB could not have taken the cognizance of the matter without invoking the provisions of section 16-A(a) of the NAO, 1999, which for the sake of ready reference is reproduced as under:- 16A. Transfer of cases:
(a) Notwithstanding anything contained in any other law for the - time being in force, the Chairman NAB may apply to any court of law or tribunal that any case involving any offence under this Ordinance pending before such court or tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall be deemed to be a reference under section 18 of the Ordinance, and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.
' In view of the above, the NAB could not have taken the cognizance of the matter without invoking the provisions of section 16-A(a) of the NAO, 1999. Reliance in this respect is placed upon the judgment of Hon'ble apex Court in the case reported "Anti-Corruption Establishment, Punjab through D.G. v, National Accountability Bureau through Chairman NAB and others" (2016 SCMR 92).
8. The offences of cheating and breach of trust become cognizable under the NAO, 1999 if those are committed with members of public at large. The Hon'ble Supreme Court of Pakistan in the case titled "Abdul Aziz Memon v. State" (PLD 2013 SC 594), relevant at page 638), has settled the issue by holding:- the offence of cheating mentioned in section 9(a) (ix) of National Accountability Ordinance, 1999, and the offence of criminal breach of trust referred to in section 9(a) (x) of National Accountability Ordinance, 1999, can be dealt with under the said Ordinance only if such offences affect "the public at large", as stipulated therein, and, thus a. Reasonable classification exists in those provisions so as to ward off a criticism based upon discrimination........
' The Hon'ble apex Court, in the case reported as "Rafiq Haji Usman v. Chairman, NAB and another"
(2015 SCMR 1575) while pondering upon the term 'member of the public at large' held that "we are of the view that 13 persons would hardly constitute public in its literal and ordinary sense; furthermore meaning of the word large i,e, "considerable or relatively great size, extent or capacity having wide range and scope" does not bring 22 or 13 persons as the case may be within its concept and fold. Thus from this angle as well the said section seemingly perhaps can be held not attracted to the instant case. It is trite law that the provisions of law which constitute criminal offences shall be strictly construed and applied, thus prima facie we have not been persuaded by the plea made by the learned Deputy Prosecutor General that in such a case section 9(x) ibid shall be attracted".
9. In view of principles enunciated in the judgment (supra) and keeping in view the facts and circumstances of the instant case, we have no hesitation to hold that there exists reasonable grounds for further inquiry into the guilt of the accused and in such an eventuality the accused becomes entitled to bail as a matter of right but not grace. Even otherwise, the allegation leveled prima facie does not constitute an offence authorizing National Accountability Bureau to take cognizance of the matter in terms of "NAO, 1999". The object and purpose of framing the Ordinance, ibid was very clear in its terms and dictates and it was not meant to allow the private individuals to settle their disputes by seeking interference of NAB Authorities. Reference in this respect, if needed, can be made to "Rafiq Haji Usman v. Chairman, NAB and another" (2015 SCMR 1575) and "Muhammad Rasheed Hassan v. The State through Secretary Ministry of interior and another" (PLD 2008 Karachi 146).
10. The contention raised by the learned Special Prosecutor NAB that it was not a dispute between two parties as the petitioner misappropriated the funds of the company which is a public limited company and most of the funds of the company raised from general public is misconceived as it is not a case where the money has been taken from the public in large number and scale. Company has been defined in section 2 of The Companies Ordinance, 1984, which for the sake of ready reference is reproduced as under:-
(7) "company" means a company formed and registered under this Ordinance or an existing company;
(8) "company limited by shares" means a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them; "company limited by guarantee" means a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its winding up; From the perusal of the above, it is clear that a company is an artificial person. It can act only through some human agency called the Board of Directors, who control and administer the affairs of the company and act as its agent but they are not the agent of members of the company. In this case, public limited company is involved which covered under the head of Companies Limited by shares wherein the word "liability" refers to the liability of the shareholders towards the company, meaning thereby this is limited to the value of the shares subscribed to or the amount of guarantee given by them which makes it clear that members of public at large are not involved in this case.
11. It is also significant to point out here that in order to rule out misuses of discretion and to standardize the selection procedure at NAB's level, the consideration for cognizance of cases to be investigated by NAB, the Chairman NAB has framed Standing Operating Procedures F (SOPs) with the title "Priority for Cognizance of Cases". As per Serial No, (iv) of the above-referred SOP, NAB has pecuniary jurisdiction in the "cases involving interest of members of public at large, where number of defrauded persons is more than 50 persons and amount involved is not less than Rs, 100 million."
12. Likewise, learned High Court of Sindh at Karachi, in a case reported as "Rauf Bakhsh Kadri v. The State" (2003 MLD 777), on the issue of pecuniary jurisdiction has held as follows:- "28 ....................... Learned Prosecutor General himself conceded that each and every instance of corruption of a small functionary of the State or acceptance of a small amount of illegal gratification might not be triable under the Ordinance. Even otherwise the observations of the Honourable Supreme Court in Asfandyar Wali's case indicate that the Legislation was intended to deal with large scale corruption of public officers and others that they had indulged in during the recent past. We can also take notice of the fact that in most cases references have been filed in respect of white collar crime of a large magnitude. Moreover it must be kept in view that one of the objects of the Ordinance which distinguishes it from previous laws is return of assets acquired through corrupt means, corruption or corrupt practices through the process stipulated in sections 25, 25-A and 26. Obviously commencement of proceedings under the Ordinance could be justified upon rationale hypothesis if it is found that it would be in the national interest to allow the accused to secure a pardon if the amount likely to be recovered is fairly substantial.
29. At the same time an important feature of this Ordinance which distinguishes if from all previous laws is that it provides for recovery of assets acquired through corruption or misuse of power as well outstanding dues of financial institution and Government agencies through mechanism of pre-bargaining. The creation of the offence of "willful default" has been upheld by the Honorable Supreme Court. However, an Accountability Court can take cognizance of an offence only upon a reference being made by the Chairman, NAB or an officer duly authorized by him. These provisions tend to show that only when the amount involved is substantial and it is considered worthwhile to employ the coercive methods of recovery that a reference under the Ordinance would be justifiable.
30. For the foregoing reasons we are inclined to hold that the qualifications laid down in clause (ix) will also have to be read in the other clauses of section 9(a). In other words the discretion of the Chairman, NAB or an officer authorized by him to file a reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law."
' Similarly, learned High Court of Sindh at Karachi in C.P. No, D-1210 of 2016 "Amjad Hussain v.
Chairman NAB and another" regarding the pecuniary jurisdiction has held as under:- "41. This is because there may be cases falling below Rs, 100M which cannot be prosecuted by any other agency and as such rather than letting the culprit off Scott free he/it should be prosecuted by NAB at the discretion of the Chairman. However in cases below Rs, 100M which can be dealt with by other agencies such as FIA, ACE we would expect NAB to send such cases to such alternate agencies for prosecution by virtue of section 18(d) of the NAO, which reads as under:- ' After perusal of the above-quoted judgments, we are of the view that the amount involved in the instant matter is not of large magnitude as has been held in the above-referred judgments.
13. There is yet another aspect of the matter that the petitioner was arrested on 29.04.2016 and since then he is behind the bar whereas, reference was filed on 6.09.2016. As far as legal position is concerned, reference can be made to provision of section 24(d) of the. Ordinance which is reproduced as under:- "(d) Notwithstanding anything contained in the Code, where the holder of public office or any other person, accused of an offence is arrested by NAW under this Ordinance, NAB shall as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produced him before the Court within a period of twenty four hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days and the Court may remand an accused not exceeding fifteen days at a time and for every subsequent remand, the Court shall record reasons in writing copy of which shall be sent to the High Court."
On perusal of above provision of law, it is clear that a person cannot be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded. Petitioner is in judicial lock up since his arrest i,e, 29.04.2016, whereas, as pointed out by learned Special Prosecutor General NAB reference was filed on 6.09.2016 but no progress whatsoever has taken place towards the conclusion of trial. It was also held by the August Supreme Court of Pakistan in the case "Aga Jehanzeb v. NAB and others" (2005 SCMR 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail. Even otherwise, the commencement of trial could not come in the way of grant of bail, if in the opinion of the court, a case for further inquiry was made. Reliance is placed on "Sved Khalid Hussain $hah v. The State" (2014 SCMR 12).
14. For the foregoing reasons, we are persuaded to allow the instant petition and enlarge the petitioner Zahid All Noor on post-arrest bail subject to furnishing his bail bonds in the sum of Rs,5,00,000/- (five lac) with one surety in the like amount to the satisfaction of the learned trial Court. The petitioner shall appear before the learned trial Court on each and every date till final disposal of the instant prosecution case.
15. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.