TARIQ IFTIKHAR AHMAD, J.--- Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks post arrest bail in 'Inquiry No, 1(9)11534/1W-111/CO-K/T-36/NAB-L/04, dated 10.08.2016 issued under Section 19 of NAO, 1999.
2. Imtiaz Ahmad son of Sarfraz Khan and ham Saba availed Rs. 3.00 million finance facility under Kissan Dost Corporate Farming Finance Scheme vide sanction advice dated 15th July, 2004, which was further extended Rs. 2.550 million for construction of sheds & Rs. 2.00 million for purchase of 60 buffaloes vide Limit No, ACD/4774 12.08.2006 from Bank of the Punjab on recommendations of Bank of Punjab, Sabzi Mandi Branch, Okara (respondent No, 5) against the securities in shape of pledging land measuring 196-Kanals, owned by Imtiaz Ahmad petitioner, through Zari Pass Book.
No, 586973 and 366220, registered with revenue authorities. Respondent No, 5 BOP on 16.06.2009 filed' civil suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for recovery of Rs. 1,08,74,639/- alongwith mark-up at the prevailing rate and other charges besides liquidated damages @ 20%,before learned Judge Banking Court, Lahore, which was decreed vide judgment and decree dated 19.08.2009 and the decree was converted into execution petition, which proceedings are pending.
3. Respondent No, 5 (BOP) on 28.03.2016 tiled complaint raising the issue in question before the Director General, NAB, Punjab with various allegations against the petitioner and his co-accused and sought initiation of proceedings under. Section 9(a)(iii), (iv), (vi), (xi) & (xii) of National Accountability Ordinance. 1999 for preparing and providing fake and bogus document and concealing facts in connivance, assistance and abetment of bank officer of the concerned Branch.
The NAB conducted inquiry and vide Reference No, 1 (9)11534/1W-III/CO-K/T-36 NAB-L/04, dated 10.08.2016 issued notice to the petitioner and his co-accused to be served through District Police Officer, Okara and then warrant of arrest was issued against the petitioner by respondent No, 2 under Sections 18(e) and 24(a) of the National Accountability Ordinance, 1999 ("NAO of 1999")
The petitioner was arrested by NAB on 17.06.2017 and against his arrest petitioner has filed post arrest bail through instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on various grounds that NAB was lacking jurisdiction to conduct inquiry and that proceedings were conducted with mala fide intention and that in fact it was a matter between the customer and a financial institution under the Financial Institutions (Recovery of Finances)
Ordinance, 2001 ("FIO, 2001"). Further that it is special law which provides special mechanism for settlement of disputes and it has overriding effect whereas NAO 1999 being prior in time and is of general nature FIO, 2001 debarred the NAB to interfere into this matter and also that respondent No, 5 filed a civil suit for recovery of disputed amount on 15.06.2009 before the Court of competent jurisdiction where proceedings are pending under the relevant provision of law; that NAB proceedings are also in violation of mandate of Section 31(d) of NAO, 1999 without reference from Governor State Bank of Pakistan, hence this petition.
4. Learned counsel for the petitioner urged that finance facility availed by the petitioner and his co- accused was duly sanctioned by respondent No, 3 and it was comprising of two phases; in first phase under the Kisan Dost Scheme loan Rs. 3.00 (million) was extended against the land measuring 196-Kanal owned by the petitioner and sanctioned advise was issued after completion of all formalities. He added that said finance facility was extended for construction of sheds etc. and for purchase of buffaloes while the petitioner shown his other property and as such the finance facility availed by the petitioner was secured. Further added that respondent No, 5 availed legal remedy under the FIO, 2001 by filling suit for recovery, which was decreed in their favour and execution of that decree is pending with the Banking Court, however, with malu fide intention, respondent No, 5 lodged complaint before respondent No, 2 on 28.03.2016, who initiated inquiry/investigation after issuance of call up notice and then illegally issued warrant ofarrest without following the requirement of Section 31D of NAO, 1999 and the warrant of arrest was issued without any legal justification and the petitioner is in custody is also without legal or factual reasons and petitioner cannot be left at the mercy of the prosecution to keep him in jail for indefinite period. Learned counsel, in this regard relied upon judgment in Hamaish Khan v. NAB, etc. (2015 SCMR 1092), Alamdar Hussain v. National Accountability Bureau through Chairman and others (PLD 2017 Lahore 479) and another unreported judgment by this Court dated 10.04.2017 in Muhammad Sadiq Rehman v. NAB, etc. (W.P. No, 15288 of 2016).
5. Learned Special Prosecutor NAB and learned counsel for the respondent representing respondent No, 5 opposed this argument and stated that petitioner and his co-accused committed heinous offence, which falls within the ambit of Section 9(aXiii),(iv),(vi), (xi) & (xii) of National Accountability Ordinance, 1999; added that petitioner and his co-accused availed finance facility from the bank by committing fraud after using forged and bogus documents and thereafter misappropriated the loan amount and committed criminal breach of trust by selling the buffaloes purchased out of the finance facility and did not construct sheds and action taken and proceedings conducted by NAB against them was quite justified. It is further stated that BOP availed other remedy by way of filing civil suit of recovery of disputed amount and under the settled matter respondent also competently initiated criminal proceedings under NAO, 1999, calling for his appearance /Trough a called up notice were legally justified. Also stated that since it was not a wilful loan default, as such there was no legal requirement to proceed under Section 31-D of the NAO, 1999. Lastly submitted that on the basis of exhaustive inquiry and investigation, the petitioner and his co-accused were found involved in committing offence under Section 9 of the NAO, 1999 and as such does not deserve to be released on bail.
6. We have given due consideration to the arguments and perused the record carefully.
7. It is evident that facts are admitted to the extent that petitioners and his co-accused Iram Saba availed finance facility under Kissan Dost Scheme. The said loan was sanctioned on 14.07.2004 by BOP while creating charge over land measuring 196 Kanal owned by the petitioner and his co- accused Iram. Saba. The loan facility was enhanced/extended on 08.12.2016 for the purpose of construction of sheds with covered area and to purchase 60 buffaloes. It is evident that both these finance facilities were secured facilities as against it a charge by the bank was created over the land owned by the petitioner and his co-accused. Thus the relationship between the petitioner and his co-accused and respondent No, 5 were as of customer and financial institution, which are to be covered and governed under F10, 2001 and thereafter respondent No, 5 filed civil suit under Section 9 of the F10, 2001 against the petitioner and his co-accused on 16.06.2009. The learned Banking Court passed judgment and decree in favour of respondent No, 5 on 19.08.20N for recovery of sum of Rs. 1,08,74,639/-. It is also evident from the record that proceedings for the execution of decree at the stage of auction of pledged property is pending with the said Banking Court. Though-it has been contended by respondent No, 4 that property of the petitioner and his co-accused pledged with the bank is not of the value to satisfy the loan. On the other hand, respondent No, 5 BOP on 28.03.2016 filed complaint to NAB against the petitioner and his co-accused, however, we are mindful that in case of default committed by loanee, the NAB can proceed and invoke its jurisdiction subject to fulfilling mandate of Section 31-D of NAO, 1999, which required that NAB against any person, company or financial institution without reference from the Governor State Bank of Pakistan cannot conduct inquiry, investigation or proceeding in respect of such loan. This Court has already handed down order dated 10.04.2017 in W.P. No, 15288 of 2016 titled "Muhammad Sadiq Rehman v. NAB, etc." that such action/proceedings initiated by NAB are, ii violation of Section 3.1-D of NAO, 1999. As far as question of exercising. jurisdiction into the matter is concerned, if created restriction on the NAB in view of judgment reported in Alamdar Hussain v. NAB through Chairman and 3 others (PLJ 2017 Lahore 448). Furthermore, it is notable that as loan was availed by the petitioner and his co-accused, therefore, the attraction of provision of Section 9(a) of the NAO, 1999 would require further investigation. Therefore, keeping him in custody for indefinite period would be unjustified as the petitioner was arrested on 17.06.2017. In this respect judgment of apex Court is relied upon Hamaish Khan vs. NAB and others (2015 SCMR 1092).
8. It has also been contended by learned Special Prosecutor for NAB that in respect of extended finance facility regarding construction of sheds and purchase of buffaloes, the revenue record of the petitioners and his co-accused was got checked from the revenue authorities, the same was found bogus.
In addition to that we have noted that finance facility was extended by respondent No, 5 in the year 2006 for construction of sheds etc. and purchase of buffaloes and for extension of finance facility, petitioner produced documents to show that he and his co-accused are also owner of additional land. It is evident that when the matter was reported by BOP/respondent No, 5 to Director General NAB, these documents were again verified from the revenue report and report was received that these were bogus documents. However, the fact shall remain that in the year 2006, revenue record was found/reported as correct. If it was wrongly reported as correct, no action was taken against Bank Officers or the revenue officials who had made false verification and in this respect record is silent and subsequent report obtained from the NAB authorities that these were fictitious documents made the case of petitioner for grant of bail as one of further inquiry.
9. Resultantly this petition is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bonds to the tune of Rs. 2,00,000/- with two sureties in the like amount to the satisfaction of learned Trial Court.