Al-Arabia Sugar Mills Limited & others vs Federal Investigation Agency & others

Shahid Karim, J:- The Issue: This litigation seeks the judicial review of certain actions taken by the Federal Investigation Agency (FIA) set up by the Federal Investigation Agency Act, 1974 ("the 1974 Act") and the Securities & Exchange Commission of Pakistan (SECP) . In W.P No.40585 of 2020, Al-Arabia Sugar Mills ("Al-Arabia") and some of its officers have sought review of the letter of 27.07.2020 (The Advisor 's Letter) written by Mirza Shehzad Akbar , Advisor to the Prime Minister on Accountability and Interior ("the Advisor") and the call up notices issued by the officer of FIA (although Mr. Salman Aslam Butt, Advocate, addressed oral arguments on the Reference sent by SECP too, yet we do not find that challenge to be part of the composite challenge to Impugned Actions and Decisions in this petition). In W.P No.45338 of 2020 the challenge is to the letter dated 30.07.2020 issued under the hand of Tariq Ahmad, Additional Director of SECP and addressed to the Director General FIA (SECP Letter 1), a letter dated 12.09.2020 issued under the hand of Secretary SECP and addressed to the D.G FIA purporting to be a reference in terms of section 41B of the Securities & Exchange Commission of Pakistan Act, 1997 (1997 Act) (The Reference). This petition has been filed by JDW Sugar Mills Ltd. (JDW) and its officers and seek a further restraint against FIA from enforcing or acting in pursuance of the impugned letters. JDW has also filed W.P No.36787 of 2020 challenging the call up notices addressed to the petitioners No.3 to 7 under Section 160 of the Code of Criminal Procedure (Cr.P.C.) dated 17.8.2020 issued by the officer of FIA. W.P No.38555 of 2020 has been brought by Farooqi Pulp Mills Ltd. ("Farooqi") and seeks to lay a challenge to the Advisor 's Letter and the consequent call up notices served on the petitioner and some of its officers by FIA. During the oral arguments addressed by the learned counsel for the petitioners, they mounted focused challenges to the issuance of call up notices by FIA and to the making of a reference by SECP . These will be dealt with, in seriatim , during the course of the discussion that follows.

Facts:

2. On 20.02.2020 the Prime Minister of Pakistan constituted an Inquiry Committee. The convener of the Committee on 09.03.2020 wrote to the Secretary to the Prime Minister for expansion in the Committee so as to include the officers of SECP , Federal Board of Revenue (FBR) and State Bank of Pakistan (SBP). On 10.03.2020 the Ministry of Interior moved a summary to the Cabinet for constitution of a Commission to probe into "increase in sugar prices". Basing on the recommendations of the Inquiry Committee, on 16.03.2020 the Federal Government constituted a Sugar Inquiry Commission ("the Commission") under Section 3 of Pakistan Commission of Inquiry Act, 2017. The Commission was gazetted on 06.05.2020 and a preliminary report was submitted on 21.05.2020.

The Federal Cabinet adopted the Inquiry Commission report and decided to publish it for the consumption of public. An Action Matrix was approved by the Federal Cabinet and was brought under challenge before the Islamabad High Court which set aside the Action Matrix in its order dated 20.06.2020. In conclusion, the Islamabad High Court held that:- I. The constitution of the Commission vide notification, dated 16.03.2020, read with notification, dated 25.03.2020 and pursuant thereto its proceedings and report, dated 21.05.2020, have not been found to be ultra vires the Pakistan Commission of Inquiry Act, 2017 nor in violation of the fundamental rights of the petitioners. The report, dated 21.05.2020 was, therefore, lawfully considered by the Federal Cabinet in its meeting held on 21.05.2020.

II. Keeping in view the principles and law enunciated in the judgment of the august Supreme Court rendered in the case titled "Messrs Mustafa Impex, Karachi and others v The Government of Pakistan through Secretary Finance and others" [PLD 2016 SC 808] and highlighted in the judgment of a Division Bench of this Court, dated 23.04 .2020, handed down in ICA No. 36 of 2020, titled "Federation of Pakistan v. Ms Yadiyya S. Khalil and two others" , the expression "Federal Government" has been explicitly interpreted as "the collective entity descr ibed as the Cabinet constituting the Prime Minister and Federal Ministers". Moreover , it has been held that the functions and powers vested in the Federal Government cannot be delegated.

III. The decision of the Federal Cabinet, dated 21.05.2020, to the extent of delegating its functions and powers to respondent no. 4 i.e. Mr Shehzad Akbar , Special Assistant to the Prime Minister on Accountability and Interior and approval of "Action Matrix" is not in consonance with the law laid down by the august Supreme Court. It is noted that the Federal Government is empowered under section 18(b)(i) of the National Accountability Ordinance, 1999 to send a reference to the National Accountability Bureau but such a decision has to be taken in accordance with the aforementioned law expounded by the august Supreme Court.

IV. The learned Attorney General, taking a fair stance, has stated that he would advise the competent authority to submit the proposed action(s) for the consideration of the Federal Cabinet. The Federal Cabinet, after considering the proposed action(s), shall be at liberty to take such decisions as it may deem appropriate. This Court expects that the decisions taken shall be in conformity with the provisions of the relevant statutes e.g. the National Accountability Ordinance, 1999, the Income Tax Ordinance, 2001, the Company Act 2017, etc. V. This Court further expects that, while dealing with the matter , the concerned officials/public office holders will have regard to the principles of due process and fair trial and refrain from acting or making statements that could prejudice the right to fair trial or violate the principles highlighted by the august Supreme Court in the case titled "Suo Motu Case No. 28 of 2018" [PLD 2019 S.C. 01] and by this Court in the case titled "The State v . Dr Firdous Ashiq Awan" [PLD 2020 Islamabad 109]."

3. Pursuant to the order of Islamabad High Court, a Revised Action Matrix was issued by the Federal Cabinet on 23.06.2020 in which the Federal Cabinet decided as follows: E. INVESTIGA TION OF CORPORA TE FRAUD (BY FIA/SECP)Report In the light of findings of Inquiry Commission, FIA/SECP may investigate corporate fraud through associated companies, pointed out by the Inquiry Commission fixing responsibility of directors/major shareholders including, but not limited to; FIA/SECP Security & Exchange Commission of Pakistan (sic)

Timeline: 90 DAYS from the date of registration of inquiry by FIA/SECP (Report to be submitted to Federal Govt. through Ministry of Finance) Corporate fraud by Al-Arabia sugar mills through GNC undisclosed (gratis) sales and accounting jugglery of reversal of salesRefer Para 481 page 140 of Inquiry Commission Report Inexplicable transfer of Rs.1.195 Billion by Al- Arabia to Ramzan Sugar Mills not disclosed in financial statementsRefer Para 565 page 160 of Inquiry Commission Report Inexplicable transfer of Rs.402 Million by Al-Arabia to Sharif Feeds Mills and Sharif dairy Farms since 2017/18Refer Para 566 page 160 of Inquiry Commission Report Inexplicable cash transfer of Rs.2.25 Billion by Alliance sugar mills to Asad Hussain (Ali Traders Gujrat) through CPVs not disclosed in financial statements (Excess payment of Rs.3.4 Billion By Asad Hussain to the Company)Refer Para 568-571 page 161 of Inquiry Commission Report Corporate fraud of Rs.3.6 Billion by JDW through over-valued purchase of associated company JK Farming Systems Ltd. and booking losses through itRefer Para 558 page 158 of Inquiry Commission Report Corporate fraud of Rs.3.1 Billion by JDW through investment in Faruki Pulp Ltd. and bookingRefer Para 539 to 548 page 154-156 of Inquiry Commission Report impairment losses through it.

Inexplicable transfer of Rs.2.5 Billion by JDW through non-arm's cash transfers of various sister entitles via Amir W aris cash boyRefer Para 551 to 557 page 157-158 of Inquiry Commission Report Inexplicable transfer of Rs.7 Billion by JDW to Deharki Sugar Mills (non-arm's cash transfers) without true and full disclosure in the financial StatementRefer Para 562/563 page 159 of Inquiry Commission Report Falsification of accounts/double/parallel book keeping by the sugar mills E.INVESTIGA TION OF CORPORA TE FRAUD BY (FIA/SECP)Report SECP/ FIA may also conduct an internal inquiry into failure of its regulatory responsibility by its personal/of ficers in facilitating any sugar mill/company and take action against those found involved SECP to look into the weak/inef fective auditing role external Auditors/Firms of Sugar Mills/Companies identified in the report, fix responsibilities, take Appropriate action accordingly and propose remedial measures.

4. On 27.7.2020 acting pursuant to the Revised Action Matrix, the Advisor issued a letter to D.G FIA as well as the Chairman SECP in the following terms: "The Inquiry Commission to probe the Increase in sugar prices, which was constituted by the Federal Government under the Commission of Inquiry Act, 2017, vide Notification No.F-5/14/2020-FIA dated 16th March, 2020, has submitted its final report to Government on 21st May , 2020 (enclosed f/A).

2. The final report of the Inquiry Commission was presented to the Cabinet on 21st May 2020. The report was reviewed by the Cabinet and an Action Plan was approved on 21st May 2020 in light of findings and recommendations of the Inquiry Commission, comprising actions that are to be undertaken by various departments/ agencies for penal action, recoveries and fixing the regulatory framework.

Later on 23rd June, 2020, the Federal Cabinet approved revised Action Plan Matrix (enclosed f/B) for penal action, recoveries and identifies the criminal Investigations to be carried out by various Institutions, as per their legal provisions, in light of the Islamabad High Court Judgment.

3. In its final report to the Government, the Inquiry Commission after having conducted forensic audit of nine (9) sugar mills, has pointed out specific instances of corporate fraud through associated companies through accounting fraud and inexplicable money-transfers leading to money-laundering by these companies.

4. It was observed by the Cabinet and the Prime Minister that as highlighted by the Inquiry Commission, the aforementioned acts, inter- alia are culpable under Companies Act 2017, Anti-money laundering Act 2010 and offences falling under Schedule of offences falling under Federal Investigating Agency , and hence fall within the mandate of SECP and FIA.

5. In view of the aforementioned, you are requested to undertake a comprehensive investigation of these instances of corporate fraud.

Additionally , SECP may also in light of findings of the Inquiry Commission inquire, fix responsibilities and take cognizance of the failure of the external auditors/ firms and also its own regulatory oversight mechanisms, as per applicable laws.

6. It will be highly appreciated if a comprehensive report covering the outcomes of actions taken in this regard is submitted by the FIA/SECP for review by the Cabinet within ninety days or initiation of actions or as per timeframe prescribed by the relevant laws.

7. The Government is committed to its vision of fair-play and transparency and assures of any assistance that may be required in the free, fair and transparent conduct of investigations in this regard."

5. The petitioners allege that acting under dictation, D.G FIA approved the constitution of a team to investigate into the matters of corporate fraud as per the revised Action Matrix in his letter addressed to the D.G Punjab Zone-I, Lahore. Simultaneously , on 30.07.2020 a letter was also written to D.G FIA by the Additional Director CSD/ Focal Person for LEAs which read as under: "2. In this regard, I am directed to inform that competent authority has nominated following two offices of the Securities and Exchange Commission of Pakistan (the "Commission") to provide technical assistance on the specific instances of corporative violations falling under Companies Act, 2017 and other laws administered by the Commission, during the subject investigations:

1. Mr . Sidney Custodio Pereira, Additional Registrar

2. Mr . Tahir Mahmood Kiani, Joint Director"

6. To complete the narration of facts, on 12.09.2020 a purported reference was made to FIA by SECP under Section 41B of 1997 Act which had been approved by SECP in its meeting held on 29.7.2020. The terms of the letter informed the D.G FIA regarding the reference and stated that: "Reference to the Commission meeting dated 27th July, 2020 wherein the Comm ission discussed in detail the Report of the sugar Inquiry Commission constituted under the Commission of Inquiry Act, 2017 to probe the increase in the prices of sugar in the country and our subsequent letter dated July 30, 2020.

The analysis of the report, prima facie, revealed that in addition to certain corporate crimes, there are allegations of inexplicable money transfers, money laundering, fraud and loss to the national exchequer and other related offences committed by corporate entities/ regulators persons and individuals connected with the affairs of such entities which are not cognizable by the Commission on its own under the administered legislation of the SECP .

In order to ensure that a comprehensive investigation take place and all allegations are probed, the commission decided to refer the aforementioned matter to FIA in exercise of its power under section 41B of the SECP Act, 1997 and other enabling provisions of law and in pursuance thereof th4e Commission deputed a team of senior officers, as experts, to assist the FIA in the investigation referred by the Commission through aforementioned letter .

We appreciate that FIA has initiated a thorough probe in the matter and SECP will continue to provide any further assistance that may be required. SECP on its part, has initiated necessary regulatory actions within its domain and also initiated a thorough review of regulatory oversight mechanism.

We request FIA to keep the Commission updated on the progress of the ongoing investigation.?

7. The officers of Al-Arabia, JDW and Farooqi received the call up notices from Ruqayya Ambreen D.D/LA W (Co-opted Member) of Investigation Team constituted by the D.G FIA in his letter dated 30.07.2020 under Section 160 Cr.P.C in inquiry No.134/2020 FIA ACC, Lahore. The notices are in the same terms and provide that: "A combined inquiry / investigation team of FIA/ SECP is conducting a criminal inquiry/ investigation of money laundering and financial/ corporate fraud against various sugar mills, relevant entities/ individuals, pursuant to findings of Sugar Inquiry Commission, 2020.

2. As per the information/ evidence available with the Combined Investigation T eam, you are cognizant of facts pertaining to the probe.

3. you are hereby called upon to appear (in person) before the Combined Investigation Team and answer such questions as may be put to you truthfully and honestly , on 1st September 2020, 9:00 AM at FIA Office, 1-T emple Road, Lahore without fail.

4. You are further required to bring your original CNIC along with you.

5. Mr. Adeel Baig (0334-6684916) has been designated as the focal person at FIA Office, 1- Temple Road, Lahore, to facilitate your appearance before the Combined Investigation T eam.

6. A non-compliance of this call-up-notic e will entail that you have nothing to say in your defence and render you liable for legal consequences, including arrest."

8. These call up notices are the provenan ce of the cause of action in these petitions and on the basis of which a challenge has been raised by the petitioners to have these notices declared ultra vires and non est as having been issued without lawful authority .

Challenge to Call Up Notices by FIA:

9. The learned counsels for the petitioners primarily submitted that the act of FIA in issuing the show cause notices does not have any basis in law. These were mechanically applied and reflexively treated on the Advisor's Letter and so, the petitioners have attacked the Revised Action Matrix of the Cabinet as well as the Advisor's Letter on the ground of government stonewalling the FIA's independence.

According to them jurisdictional facts do not exist so as to clothe FIA with the power to initiate an inquiry into an alleged allegation of money laundering and corporate fraud against the petitioners. They also allege that the decision to issue call up notices has been made under dictation from the Federal Government and FIA as an independent investigating agency has seriously compromised its independence by taking actions on the prompting of the Advisor .

Further that FIA could not take cognizance of any matter which related to the remit of SECP or was covered by the various offences mentioned under the Companies Act, 2017 (Act, 2017) as well as the 1997 Act. They also contended that FIA could not assume jurisdiction unless the prior conditions mentioned in 1974 Act were fulfilled viz. that the offence in respect of which the inquiry or investigation was being undertaken was mentioned in the Schedule of 1974 Act as also that these offences had been committed in connection with the matters concerning Federal Government and for matters conne cted therewith. It was urged with vehemence by the learned counsel for the petitioners that none of these two conditions was satisfied and therefore the assumption of jurisdiction by FIA was unlawful.

10. Reduced to its core, the central issue relates to this Court' s power to intervene at this stage and to second-guess the decision- making of the Federal Government, FIA and SECP , on judicially manageable standards. It was said by Chief Justice Earl Warren (of the US Supreme Court) in Miranda v Arizona 384 US 436 , that: "The quality of a nation' s civilization can be largely measured by the methods it uses in the enforcement of its criminal law ."

11. Prior to any discussion regarding the grounds of challenge mounted by the petitioners, we must allude to the principles settled by the Supreme Court of Pakistan with regard to judicial review of investigations undertaken by the investigating agencies which primarily is an administrative act. Also this involves the question of exercise of Executive Power by the Federal Government in whom the Constitution of Islamic Republic of Pakist an, 1973 ("the Constitution") vests such a power to be exercised and thereby casts a duty on the Federal Government to take care that the laws be faithfully executed . Further , the questions raised in these petitions relate to the Federal Government' s architecture of power and as stated by Lawrence Tribe and Joshua Matz in their book "Uncertain Justice" that: "For the most part, these debates play out exclusively in politics and between the political branches all in the shadow of the Constitution. Often, the precedents and constitutional interpretations in play come from a centuries-old dialogue between Congress and the President. Thanks to a matrix of rules that control when the Judiciary can involve itself in such affairs, questions about the separation of powers only rarely reach the Court.

When they do, the Court treads carefully . It has few duties more delicate than shaping the federal government' s architecture of power .

Its decisions can ripple out into hundreds of unforeseen contexts, affecting how Congress and the President address issues that aren't yet on anybody' s radar . They also affect political and party dynamics; telling the President that he must seek approval from Congress has greater impact when Congress is controlled by the opposition party . The justices know this well."

12. Therefore, any intervention by this Court will have to balance against the executive powers of the Federal Government to execute the laws which include the powers to prosecute. Brig. Rtd. Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others (1994 SCMR 2142 ) is the guiding pollstar in which a three-me mber bench of the Supreme Court of Pakistan laid down the periphery for interventions by the High Courts in investigations by the police and other investigating agencies.

We have not come across any precedent since then which tended to move the goalposts settled by Brig. Imtiaz Ahmad.

13. According to the Supreme Court of Pakistan, the basic theme underlying such interventions must be based on judicial restraint which, according to the Supreme Court, was so essential to the continuance of rule of law, for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts. (At page 2153 relying upon Duport Steels Ltd. v . Sirs (1980) 1 All ER 529 ). The scope of judicial review was explained in the following words: "Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:- "It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority . It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency ."

14. It was specifically cautioned that Judges must take care not to intrude upon the domain of the other branches of Government and reliance was placed upon the case of Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313) which drew a distinction between judicial review and an appeal. The Supreme Court of Pakista n then went on to quote a passage of Lord Reid' s speech which stated that: To quote a passage from Lord Reid's speech in "Wiseman.v . Borneman" ((1971) AC 297., at 308):-- "Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that should first seek the comments of the accused of the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party ."

15. The important principle of criminal law was reiterated in the above observations with regard to the right of an accused to be heard at the stage of investigation and it was left to the discretion of the police officer to decide whether the prosecution can raise proceedings on the basis that there was a prima facie case. It was then reiterated by the Supreme Court that the jurisdiction in such matters being exercised by the High Court was one under sub-clause (a)(ii) of clause (1) of Article 199 of the Constitution to declare that "any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect ". Further the Supreme Court settled the principles which ought to guide the High Court in dealing with such matters:

17. Along the same lines has the law developed in this country . As recently as January, 1994, this Court in "Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others" (PLD 1994 SC 281), had the occasion to deal with the question of the "nature of the continued control exercised by the Court over the investigation" in the light of two orders made by a learned Judge in the High Court during the pendency of a writ petition. The first order directed the Investigating Officer to finalize the investigation by a certain date and in the second order which was made on the statement of the Investigating Officer that out of the 21 accused persons, only two had been arrested and that challan was being submitted, the learned Judge observed that if "most of the accused have not been arrested what is the use of submitting the challan", that he was not satisfied with the performance of the Anti-Corruption Department and directed notice to be issued to the Additional Director Anti-Corruption to appear and show cause "as to why adverse observation about his efficiency and performance should not be passed by this Court and the same should be placed on his personal file". This Court thought it necessary to reiterate the Privy Council's classic words of caution to the Courts in the matter of interfering with the police investigation in Khawaja Nazir Ahmad case AIR 1945 Privy Council 18 namely: "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matter which are within their province and into which the law imposes upon them the duty of enquiry ... ... There is a statutory right on the part of the police to investigate the circumstances of an alleged cogni zable crime without enquiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code to give directions in the nature of habeas corpus.. In such a case as the present, however , the Court's functions begins when a charge is preferred before it and not until then."

This Court held, therefore, "that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction".

16. Finally , it was held that: In other words what the petitioner wanted the High Court to do was to assume the role of Investigator . This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court. We must hold, therefore, that the learned judges in the High Court were eminently justified is not assuming that role.

17. The rules settled by the Supreme Court of Pakistan in the above precedent have continued to guide the Courts in matters where the litigants have sought judicial review of the investigations initiated by the police or other investigating agencies and which have found a prima facie case to exist to vest them with powers to continue with the investigation. While making the above observations, the Supreme Court of Pakistan also relied upon an oft-quoted statement in Norwest Holst Ltd. v. Department of Trade and others (1978) 3 All ER 280 which af firmed a rule that: "But on the other side, -and the other side are entitled to fairness just -as the suspect is, fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins ...."

18. In this judgment the English Courts have divided every investigation into three different phases. The investigation or inquiry by the police officer is the administrative phase of the investigation and it is under these circumstances that the above observations have been made so as to confer on the inquirer to be able to investigate without having to inquire from the suspect what his side of the matter may be. These principles have been reiterated in a recent case of the House of Lords of the UK (as it then was) in R. (On The Application Of Corner House Research and Others) v. Director of the Serious Fraud Office [2008] UKHL 60. The issue related to the powers of the Director of the Serious Fraud Office to make a decision not to prosecute under the Anti-T errorism Crime and Security Act, 2001.

In performing his functions, the Director was subject to the superintendence of the Attorney General (this aspect has been mentioned to establish a relation with the 1974 Act and will be adverted to at a later stage). The Director instituted and proposed to conduct criminal proceedings and for the purpose initiated investigation into suspected offences which appeared to him to involve serious and complex fraud. The Prime Minister and the Cabinet were of the considered opinion that the Director must discontinue the ongoing investigation in the public interest and urged the Attorney General and the Director to consider the public interest in relation to the pursuit of the investigation. In the final analysis, the Director decided that the investigation should be discontinued. This was challenged before the Courts and finally reached the House of Lords which handed down the judgment cited above. The House of Lords reiterated the rules settled by the Courts for judicial review of investigations in the following terms: "31. The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly , the courts have recognised (as it was described in the cited passage of Matalulu) "the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits".

Thirdly , the powers are conferred in very broad and unprescriptive terms.

19. However , in the same vein, it was accepted on the basis of a plethora of judgments that the decisions of the Director were not immune from review by the Courts but that authority makes plain that only in highly exceptional cases will the Court disturb the decision of an independent prosecutor and an investigator . This echoes the views expresse d in Brig. Rtd. Imtiaz case by the Supreme Court of Pakistan. Also the House of Lords stated the rules which must guide the investigators in exercising the discretion vested on them which was not unfettered. It was held that: "32. Of course, and this again is uncontroversial, the discretions conferred on the Director are not unfettered. He must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully . He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice."

20. There are two other relates issues which can be culled out from this judgment and which will have a nexus with the arguments raised by the learned counsel for the petitioners in taking strong exception to the alleged interference of the Federal Government in passing instructions to FIA. These aspects will be adverted to at a later stage while dealing with those arguments. However , for the present moment, the following observations from the House of Lords capture and illuminates the power of this Court in dealing with the issue raised by the petitioners and the narrow confines within which this Court must deal with those issues: "The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make . Such an approach involves no affront to the rule of law, to which the principles of judicial review give effect (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, T ransport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 73, per Lord Hof fmann)."

21. We will bear in mind that the task of the Agency often involves a complicated balancing of a number of factors which are peculiarly within the agency' s expertise. We are also confronted with the question whether the decision made by FIA in issuing the call up notices was one that it was lawfully entitled to make. This Court will not engage in any further question at this stage and leave the investigator to proceed in the matter if it is held that it is entitled to do so.

22. Let us now advert our attention to the question of jurisdiction raised by the learned counsel for the petitioners relying upon the preamble of the 1974 Act, which proves that: "WHEREAS it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for matters connected therewith."

23. It was contended by the learned coun sel that the constitution of FIA is for a specific purpose delineated in the preamble and though the preamble was not part of the main enactment, it must serve as a guiding light in order to resolve the ambiguity regarding the precise scope and sweep of the powers of FIA. It was submitted that the investigation must be in respect of offences committed in connection with the matters concerning the Federal Government. Therefore, the key words are "in connection with the matters concerning the Federal Government" and in no other cases can FIA set in motion an inquiry or investigation which would then be outwith the authority of FIA. This was countered by the learn ed Attorney General for Pakistan by relying upon a judgment of a full bench of this Court reported as Asif Saigol and 2 others v. Federation of Pakistan and two others (PLD 2002 Lah. 416) and the following observations made therein: "9. It is well-established that preamble is not a part of statute as such and its scope is only to indicate legislative intention. It is equally settled that if the enacting provision is clear the same has to be given effect, by giving plain and literal meaning of the words and in such a situation reference to preamble may not be made."

Plain reading subsection (1) hardly admits of any doubt as to the command contained in this section.

It authorizes the Federal Government to constitute the Agency "for inquiry into and investigation of, the offences specified in the Schedule, including an attempt....... The meaning is very clear that the Agency can inquire into and investigate the offences mentioned in Item No. 1 of the Schedule. I see no ambiguity in the words used in section 3 of the Act. There is no word limiting or restricting the power of the Agency to inquire into and investigate offences specified in the Sche dule, but committed in respect of the Banks owned and managed by. Federal Government. I see no reason to read into subsection (1) of section 3 of the Act, the words "Committed in respect of or in relation to Government owned/managed Banks". At the cost of repetition it may be restated that if the language of the enacting part is clear and unambiguous, there is no need to refer to the preamble . I, therefore, hold that the Agency had competently registered and investigated the cases and that F.I.Rs. could not be quashed on the ground that the Agency lacked power to register the cases.

24. In a later judgment of the Supreme Court of Pakistan, viz. D.G FIA and others v. Kamran Iqbal and others (2016 SCMR 447) a contrary view was taken and the following holding of the Supreme Court has been emphasized by the learned counsel for the petitioners in support of the proposition:

4. There is no cavil to the proposition that the FIA has been established/constitut ed for investigation of certain offences committed in connection with matters concerning the Federal Government and in connection therewith. Such is discernable from the preamble of The Federal Investigation Agency Act ("The Act"), which reads as follows:- "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for matters connected therewith".

5. Indeed, preamble to a Statute is not an operative part thereof, however , as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same.

6. Keeping in view the intent of the Act as spelt out from the preamble and the fact that through the Act the FIA, in terms of the schedule to the Act has been granted jurisdiction and power to act in respect of several offences under the P.P.C. which are cognizable by the local police also, and also in order to avoid a conflict of jurisdiction, the only conclusion that the Court may draw is that for exercising jurisdiction in the matter of the offences enumerated in the schedule to the Act there has to be some nexus between the offences complained of and the Federal Government or else there shall be overlapping of the jurisdiction of the local police and the FIA creating an anomalous situation which certainly is not the intent of the legislature..."

25. Thus, the Supreme Court of Pakistan held in Kamran Iqbal that the preamble of the 1974 Act must guide the courts in these matters and on that basis concluded that for exercising jurisdiction with regard to the offences in the schedule, there must be some relation between the offences complained of and the Federal Government. Doubtless, the Supreme Court was merely restating the salutary legislative practice of prefixing a preamble to give a statement of the objects and reasons for every Act. A preamble was "a key to open the minds of the makers of the Act and the mischief which they intended to redress". (Chief Justice Dyer in Stowell v Lord Zouch (1962) Plowed 353). Preamble continues to serve that purpose as the recent Supreme Court decision in Workers Welfare Funds v East Pakistan Chrome Tannery (Pvt.) Ltd. (PLD 2017 SC 28) shows. We harbour no doubt in our mind that the judgment of the Supreme Court is binding on us and since it lays down a contrary view than the Full Bench of this Court, it must prevail. We will respectfully follow the judgment of Kamran Iqbal.

26. In the above context, we will now proceed to analyse the contention of the learn ed counsel for the petitioners that these matters had no connection with the Federal Government and, therefore, the assumption of jurisdiction by FIA was unlawful.

27. To recapitulate, the Federal Governme nt constituted a Commission under the Act of 2017 and the terms of reference were drawn up which have been mentioned in paragraph 2 of the Commission' s report. Some of the terms which will have a gravitational pull on these questions are enumerated below: a. "Whether the production, this year, was low as compared to past years? Was low production the primary reason for increase in prices? b. ... c. Did the Mills purchase sugarcane at exorbitantly higher prices than the minimum support price? If yes, then reasons thereof; d. Reasons for mills not purchasing sugarcane, for a limited period of a few weeks, from the farmers and its impact, if any, on sugar prices; e. ... f. Market manipulation/ cartelization by sugar mills, if any; g. ... h. Whether margins between Ex-Mill and retail prices increased, compared to previous years, or otherwise. If yes, reasons thereof and potential beneficiaries; i. ... j. Hoarding at whole sale/Retail level and within sugar mills vis--vis stocks of last year; k. ... l. ... m. Role of various stakeholders, including government institutions and private sector in increase in sugar prices, including timely/preventive/ pre-emptive remedial measures to control sugar prices and malafide, if any , of any stakeholder .?

28. Article 90 of the Constitution confers the executive authority of the Federation in the Federal Government and by Article 97 extends it to the matters with respect to which Parliament has power to make laws. That the Federal Government has a connection in the matters which were made terms of reference for the inquiry Commission can be established by reference to the various provisions of the Constitution and the legislative entries in the 4th Schedule. Item No.7 of Part 2 of 4th Schedule relates to national planning and national economic coordination including planning and coordination of scientific and technological research. Item No.13 relates to inter- provincial matters and coordination. Item No.58 of Part I of the 4th Schedule refers to the matters which under the Constitution are within the legislative competence of the Parliament or relate to the Federation. Furthermore, Article 151 of the Constitution relates to inter-provincial trade and mandates that trade, commerce and intercourse throughout Pakistan shall be free. It further gives power to the Parliament to impose by law such restrictions on the freedom of trade and commerce between one Province and another in the public interest. By Article 156, the President shall constitute a National Economic Council to be headed by the Prime Minister who shall be the Chairman of the Council and the Chief Ministers shall be part of that Council. The National Economic Council shall review the overall economic condition of the country and formulate plans in respect of financial, commercial, social and economic policies. The Rules of Business, 1973 enacted under Articles 90 and 99 of the Constitution in its distribution of business among the Divisions has set up the National Food Security and Research Division. Some of the businesses being dealt with by this Division are as follows: "1. Economic coordination and planning in respect of food, economic planning and policy making in respect of agriculture.

2. Imports and exports control on food grains and foodstuffs, inspection, grading analysis of food grains and foodstuffs, maintenance of standards of quality for import and export and inspection, handling, storage and shipment of rice exports.

7. Plant protection, pesticide import and standardization, aerial spray , plant quaran tine and locust control in its international aspect and maintenance of locusts warning organizations.

10. Procurement of foodgrains, including sugar - (a) from abroad; (b) for Federal requirement; (c) for inter-Provincial supplies; and (d) for export and storage at ports.

14. Price stabilization by fixing procurem ent and issue prices including keeping a watch over the price of food grains and foodstuffs imported from abroad or required for export and those required for inter -provincial supplies.?

29. Thus, the Federal Government has constituted a National Food Security and Research Division for undertaking the businesses spelt out above and the terms of reference of the Commission are inextricably tied in with the business of this Division as set out in the Rules of Business. This was the primary concern of the Federal Government in setting up an inquiry commission and it cannot be argued that the Federal Government was exceeding its powers conferred by the Constitution to exercise its executive authority in respect of the matters which were beyond its competence. The decision of the Federal Cabinet and the terms of reference of the Commission hews closely with each other and there is no potential conflict so as to stifle the inquiry by FIA, on the threshold, on this basis. We accept that this mandate of law has to be established in each case and the reliance of the learned counsel for the petitioners on precedents which hold otherwise can at best be held to be authorities for their own facts. In those cases, the courts found, on the prevailing facts, that the Federal Governm ent had no concern in the matters. In the facts under consideration, we have no doubt that the Federal Government had an intimate concern with the matters which were referred to FIA on which inquiry has been started by the competent officers of FIA. Finally , Article 91(6) enacts that "The Cabinet, together with the Ministers of State shall be collectively responsible to the Senate and the National Assembly ." This provision imbues the concept of ministerial responsibilities to the Parliament and in order to discharge that burden and to save itself the ignominy of Parliamentary censure, the Cabinet took various decisions on an issue which impacted the general public.

30. The learned counsel for the petitioners submitted that the letter by the Advisor to the D.G FIA and Chairman SECP dated 27.07.2020 is a dictation to these agencies and statutory bodies and is an attempt to bring undue influence to bear on these agencies by the Federal Government. The poverty of this argument is at once apparent from an entire reading of the provisions of the 1974 Act and the rules framed. As stated above, the Federal Government's concern was closely tied in with the matter which was referred to the Commission and on which the Cabinet made its deliberations. It was pursuant to the Cabinet's decision that the Advisor wrote a letter to the D.G FIA and the Chairman SECP . The issue whether such a letter could be addressed to these two officers will be dealt with separately as the letter has dif ferent connotation in respect of each of these of ficers. First we shall take up the issue regarding D.G, FIA.

31. The Federal Investigation Agency (Inquiries & Investigations) Rules, 2002 were made by the Federal Government in exercise of powers conferred by sub-section (1) of section 9 of the 1974 Act. Rule 3 provides that: "(3) Initiation of action by the Agency . (1) The Agency may, subject to rules 4 and 5, initiate an inquiry or investigation either on its own initiative or on receipt of a complaint or oral or written information.

(2) After an inquiry or investigation has been registered the inquiry or investigation shall proceed with care and discretion and no undue publicity shall be given to it. Special care shall be taken to ensure that no unnecessary damage is caused to the prestige, reputation and dignity of any public servant involved in the case."

32. Thus, the agency may initiate an inquiry or investigation either on its own initiative or on receipt of a complaint or oral or written information. The answer to the question whether the Advisor could have written to D.G FIA lies in the construction of rule 3 set out above. The letter , at worst, could be treated as written information by the Federal Government to the agency to confer upon it the power to initiate an inquiry as was done in the present case. The letter makes a reference to the report of the Commission and conveyed a decision of the Cabinet and the Prime Minister to the effect that the Commission' s report warranted further action to be taken amongst others by the agency . There was nothing wrong with this act on the part of the Advisor who was merely acting pursuant to the decision of the Cabinet. The letter reiterates that "the Government is committed to its vision of fair play and transparency and assumes of any assistance that may be required in the free, fair and transparent conduct of investigations in this regard". Therefore, the letter also conveyed the Federal Government's commitment in ensuring that the inquiry or investigation be conducted freely , fairly and in a transparent manner . We have no reason to doubt the bona fide of the Federal Government and are unpersuaded on the arguments regarding ulterior motives to lurk under the surface. No material was brought on record to show that the action was fanciful or unmeritorious or was driven by impropriety . It is another matter that in the Advis or's Letter , the FIA has been required to submit a comprehensive report on the actions taken for review by the Cabinet within ninety days. This request made by the Advisor on behalf of the Federal Government cannot be termed as unreasonable or irrational by imputing that this impinges upon the fairness and transparency of the inquiry or that the FIA emerged maimed and enfeebled by the request in returning a bipartisan finding. The following discussions will lend actuality to the analysis.

33. Section 3 of the 1974 Act constitutes the agency in the following terms: "3. Constitution of the Agency:- (1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of, the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such of fence.

(2) the Agency shall consist of a Director General to be appointed by the Federal Government and such member of other officers as the Federal Government may , from time to time, appoint to be members of the Agency ."

34. The purpose of FIA constituted by section 3 above is to inquire into and investigate all the offences specified in the Schedule. These two different streams of administrative powers have been conferred on FIA, one relating to an inquiry and the other investigation of offences. No distinction has been made in the 1974 Act between two concepts of inquiry and investigation. Learned Attorney General for Pakistan submitted that FIA generally follows the procedure whereby firstly inquiry is held into the offences and thereafter upon registration of the case investigation takes place. It further seems that as a matter of practice, FIA considers these two as distinct aspects. In the present cases, inquiry is being conducted and for the purpose call up notices have been sent to the officers of the petitioners. The expression "inquiry" has been defined in section 4(1)(k) Cr.P.C. to include every inquiry other than trial conducted by Magistrate or Court. At least in the Cr.P.C. the distinction between an inquiry and an investigation can very well be gathered from a construction of the various provisions relating to inquiries and investigations to which no reference has been made in the 1974 Act. It would, therefore, not be proper to draw any inference regarding the term on the basis of Cr.P.C. In the context of 1974 Act, we can find some discussion on these two terms in Adamjee Insurance Co. Ltd. v. Assistan t Director , Economic Enquiry Wing (1989 P.Cr.L.J 1921) where it was stated that: "...W e are in respectful agreement with the view, expressed in the above-cited Privy Council case namely , that an investigation may commence even without recording F.I.R. We may also point out that subsection (1) of section 5 gofers to two terms, i.e. 'inquiry' or 'investigation. The use of the cove two terms in the above subsection indicates that they connote two different meanings. In our view inquiry can be termed as the first step towards investigation.

15. We are mindful of the fact that the task of the F.I.A. to unearth concealed offences of the nature in question is difficult one and, therefore, one cannot expect that even at the initial stage of inquiry /investigation there would be definite evidence as to the commission of the offence. Because of the very nature of the offences some roving inquiry or probe is bound to be made/conducted. But at the same time, we cannot be unmindful of the fact that for, smooth running of business , which is of paramount importance, for the national economic 'growth, there should not be any un-warranted and Uncalled for interference in it by a Government functionary like one, the respondent. Any unfounded inquiry/probe as to the criminal involvement of a company/firm or a businessman may cause irreparable pecuniary loss to it/him besides harassme nt and, therefore, the least which is required of the respondent is that he should be satisfied as to the allegation before initiating inquiry /investigation against any one and, therefore, there must be at least some definite allegation against the company/firm/individual before it or he is to be subjected to inquiry or investigation or is made to divulge its or his business dealings.

35. Shehnaz Begum v. The Hon'ble Judge of the High Court of Sindh and Baluchistan (PLD 1971 SC 677) was relied upon to hammer in the grounds of mala fide and jurisdictional error to be the only grounds of challenge to a criminal investigation, by the courts.

36. Section 4 is crucial from our perspective and reads as follows: "4. Superintendence and administration of the Agency:- (1) the superintendence of the Agency shall vest in the Federal Government.

(2) the administration of the Agency shall vest in the Director -General who shall exercise in respect of the Agency such of the powers of an Inspector General of Police under the Police Act, 1861 (V of 1861), as may be prescribed by rules."

37. The above provision was not relied upon during the arguments by the learned counsel for the petitioners but in our opinion occupies a central position in squaring the roles of the Federal Government and FIA. It vests the superintendence of the Agency in the Federal Government. Thus, the Federal Government can not only write to the Agency regarding commission of an offence or in respect of investigations or inquiries but can also review the fairness of actions taken by the Agency in the inquiries and investigations conducted by it. It has an overarching role over FIA and is empowered to exercise powers comprised in the compendious term of "superintendence." It goes without saying however that the Federal Government is not empowered to regulate the inquiries and investigations being carried out by the Agency in such a way so as to reach unlawful results or to influence the officer who is investigating the offences to reach a result which is not countenanced by law. The Federal Government cannot under the cloak of superintendence exercise its powers for some extraneous or improper considerations such as pursuant for some racial bias, political vendetta or corrupt motive. The superintendence and any act taken must be taken in good faith and for the purpose of fulfilling the Federal Government' s objective of enforcement of the rule of law and that the laws be faithfully executed. Section 4 of the 1974 Act puts paid to the arguments of the learned counsel for the petitioners that the Feder al Government could not have written to the D.G FIA in the manner that it did and was not conferred with any authority or power to enter into missives with the Agency . For the purpose of this proposition, we will revert to the judgment of the House of Lords in Director of Serious Fraud Office referred to above.

Under the Anti-T errorism Crime and Security Act, 2001, the superintendence of the Director of Serious Fraud Office was conferred on the Attorney General. Thus, the Director was subject to the superintendence of the Attorney General and in the investigation launched by the Director , the Attorney General continued his superintendence of the invest igation by not only supervising the investigation but also at one stage considered whether the ongoing investigation was in the public interest or not and in the discharge of his functions of superintending the Serious Fraud Office he decided to review the case in detail which review was indeed carried out by the Attorney General and involved the consideration of many files. All of these acts of the Attorney General were considered and approved by the House of Lords as being acts within the contemplation of the powers of the Attorney General conferred by the statute regarding superintendence of the SFO. The same power has been vested on the Federal Government by section 4 of the 1974 Act and it cannot be denied by the petitioners that in the discharge of its objectives of lawful superintendence, the Federal Government may, have with the motive of enforcement of laws and to ensure National Food Security , firstly discussed the matter in the Cabinet and thereafter written a letter to the Agency for an inquiry into the matter . Once again, it is reiterated that notwithstanding the Advisor's letter and its contents, the final decision would be one for the Agency to make independently of the Federal Government and having due regard to the statutory obligations under the 1974 Act. This is of the essence of a Rights-based democracy .

38. It is the boast of our democracy that we have 'a government of laws and not of men'. (Justice Scalia in Morrison v Olson 487 US 654 (1988).

39. It was in the same judgment that the rule was reiterated that "Governme ntal investigation and prosecution of crimes is a quintessentially executive function".

40. In Administrative Law and Regulatory Policy (Seventh edition) by Stephen G. Breyer , Richard B. Stewart, (Cass R. Sunstein, Adrian Vermeule and Michael E. Herz the distinction between 'directive' authority and `decisional' authority over the exercise of powers by the executive of ficials and agencies was brought forth in the following words: "Related to the power to hire and fire, but conceptually and legally distinct, is the question of whether the president can tell executive officials what to do - whether he has a "directive" or "decisional" authority over their exercise of their duties and powers. This debate, which has divided scholars, has both a constitutional and a statutory dimension."

The traditional and mainstream position is that if Congress assigns a task - say, setting an air quality standard - to the head of an agency , the president cannot dictate the substance of the decision, and thus a decision made in direct contravention of a presidential command would be legally valid. (Of course, the situation is different if Congress has given decision making authority to the president.)

The conventional wisdom has been that the president has quite limited power here, as a matter of law. In one important sense, the president is often prevented from "dictatin g policy" to units within the executive branch. The president cannot dictate policy to any unit insofar as that policy runs counter to the statute under which the unit operates. But, in addition, the president' s authority to dictate policy is limited by the fact that Congress has assigned the policy-making task to the agency . It seems questionable, for example, whether the president could directly overrule the FOREIGN ARBITRAL AWARD' s decision to grant a license to fly - despite the fact that the FOREIGN ARBITRAL AWARD is part of the Department of Transportation - for Congress has delegated the authority to license to the administrator , not to the president..."

41. The above principle applies to the role of FIA in the present setting of 1974 Act where the Federal Government by law, has superintendence over it. The Federal Government has directive , but no decisional authority over FIA which cannot be dictated by a policy which runs counter to the statute. Peter Strauss (an American Law Professor) summarises the issue in Overseer or The Decider?

The President in Administrative Law , 75 Geo. W ash. L. R W. 696, 702-704 (2007): "The difference between oversight and decision can be subtle, particularly when the important transactions occur behind closed doors and among political compatriots who value loyalty and understand that the President who selected them in their democratically chosen leader . Still, there is a difference between ordinary respect and political deference, on the one hand, and law-compelled obedience, on the other ."

42. We will here, briefly allude to the construction put on the term "superintendence" by various treatises and dictionaries to bring home the concept lest its significance may not be lost in the setting of the 1974 Act. In Words and Phrases, Permanent Edition (vol.40C), it has been stated that: "Superintendence" means the act of superintending, care, and oversight, for the purpose of direction, and with authority to direct."

43. Likewise Merriam-W ebster's Collegia te Dictionary (Eleventh edition), the words 'superintend' and 'superintendence' have been defined as: "to have or exercise the charge and oversight of" "the act of function of superintending or directing: supervision"

And "supervision" in turn, means that: "the action, process or occupation of supervising: esp. a critical watching and directing (as of activities or a course of action)."

44. Thus the term "superintend' and its derivative clearly means an act of oversigh t and presumes an authority to direct to exist. It also includes the directing of activities or a course of action. We are in no manne r of doubt that the Legislature vested the Federal Government with the powers of oversight over FIA in all matters coming within its jurisdiction. We will here reiterate that this oversight does not connote directing a course of action on the part of Federal Government which has no basis in law or which perpetuates an illegality . To this end, the request of the Federal Government for a report to be submitted within 90 days for its review , is not ultra vires and is covered by its power of superintendence vested under section 4 of the 1974 Act. We do not propose to construe section 4 in these proceedings, so as to give a defin ite meaning to the word "superintendence" in all its permutations. Our holding is confined to challenge in these petitions regarding the decisions in Revised Act Matrix.

45. The Executive branch of the government is its leadership branch. The executive power of the Federal Government extends to the matters with respect to which Parliament has power to make laws. Under Article 90(1) of the Constitution, the Federal Government consists of the Prime Minister and the Federal Ministers. The power to prosecute is the power to execute and enforce laws and is a part of the executive powers of the State. The Constitution does not prescribe any particular prosecutorial regime and the executive power to prosecute depends entirely on the laws enacted by the legislature. Article 142(b) of the Constitution empowers the legislature to enact criminal law and to make law for criminal procedure. Thus the proper legislature creates offences, provides procedure for their investigation, trial etc. and creates offices through which criminal prosecutions are to be conducted. It is well established that if the exercise of power to prosecute involves violation of the Constitution or a statute, the courts will intervene (Pick Wo v. Hopkin (1886)

118 US 356. However , the following observations of Chief Justice Rehnquist (of US Supreme Court) in US v Armstrong (1996) 517 US 456 capture the doctrine of judicial deference to the decisions of the investigators and inquirers in the following words: "Judicial deference to the decisions of these executive offices rests in part or an assessment of the relevant competence of prosecutors and courts. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function".

46. It was held in US v Nixon (1974) 418 US 683 that "since the executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case, it is contended that President' s decisions is final in determining of the evidence is to be used in a given criminal case". It was also stated in Berger v US 295 US at 88 that "the twofold aim of criminal justice is that guilt shall not escape or innocence suffer". Perhaps with this aim in mind that guilt should not escape, the Federal Government acting under its executive authority and its power of superintendence conferred by the Legislation was constrained to write to the D.G FIA which was in our opinion treated as information and on which inquiry was set in motion by the D.G FIA. Priorly , the report of the Bespoke inquiry had also been compiled which is voluminous to say the least and which was also sent to the D.G FIA along with letter on the basis of which the request was made by the Federal Government. Therefore, we do not find sustainable the allegation of dictation in the letter written by the Advisor . The letter could have been and in fact was indeed considered as an information by the Agency on which the inquiry commenced. We have no doubt that the inquiry shall proceed in a meritorious manner and any decision made by the Agency will exude fairness and independence. There is no reason for us to fear that in writing a letter to the agency the Federal Government brought to bear undue pressure and influence on the agency in the discharge of its duties and obligations. It was merely fulfilling its constitutional obligations. During the course of the arguments, learned counsels for the petitioners did not advert to any aspect of bad faith on the part of either the Federal Government or the Agency which in any case is not discernible from the events preceding the writing of the letter by the Advisor . The Federal Government, it clearly seems, was actuated by a surge in prices of sugar and therefore proceeded to hold an inquiry into the factors which led to the rise in the prices. This issue in the opinion of the Federal Government impacted the lives of the people of Pakistan generally and so the Federal Government was entitled to employ all means at its disposal and within its power to inquire into the reasons which prompted an unsavory situation. This is quintessentially an executive function and this Court will be loath to substitute its opinion for that of the Federal Government. Be that as it may, the provisions of the 1974 Act do make it clear that the superintendence of the agency vests in the Federal Government and in the exercise of that power the Federal Government through its Advisor wrote a letter to the Agency . We hold that the element of dictation is conspicuously missing in the entire act of the Federal Government. It was said by Chief Justice Earl W arren in Miranda v Arizona 384 US 436 that: "The quality of a nation' s civilization can be largely measured by the methods it uses in the enforcement of its criminal law ."

47. The learned counsel for the petitioners raised a nuanced argument on the basis that the offences if at all made out in the report of the Commission are covered by the special laws such as Companies Act, 2017 and the 1997 Act, Income Tax Ordinance, 2001 and the Sales Tax Act, 1990. Also that the Commi ssion' s report does not make a reference to an offence covered by the Anti Money Laundering Act, 2010 regarding which call up notices have been sent by the officers of FIA. The learned counsel for the petitioners presumes in making this argument that during the course of the inquiry the investigators of FIA will entirely base the result of their inquiry on the report of the Commission. We do not find any material on record which would lead to the conclusion that the report of the Commission will form the basis of any inquiry being conducted by FIA. It is entirely the discretion of the officers of FIA to see how they can make use of the report of the Commission and to what extent their inquiry will be predicated on that report. Such an opinion cannot be proffered by this Court at this stage and therefore the argument raised on this basis is moot at best. Connected with this argument, is the further argument by reference to the various observations made in the inquiry report to compel this Court to hold that the offence of money laundering cannot be culled out from the findings of that report and so the call up notices are ultra vires on that account. The short and simple answer to this is that the call up notices do not make a reference to the Commission' s report and proceed on the basis of an information available with the investigation team regarding money laundering and financial/ corporate fraud. Doubtless, the offence of money laundering is part of the Schedule of the 1974 Act and is within the cogniza nce of FIA. The investigating or prosecuting agency in the Act of 2010 includes FIA and by section 21, the court shall take cognizance of any offence punishable under Section 4 upon a complaint in writing made by the investigating officer. The argument of Mr. Salman Aslam Butt, Advocate on the basis of a complaint in writing to be made by the Financial Monitoring Unit (FMU) is untenable since the only provision which obliges the court to take cognizance on a complaint in writing made by FMU is contained in section 21(3) which is in respect of subsection (1) of section 33. That is a distinct offence and is not attracted to the circumstances of the present cases. Mr. Salman Akram Raja, Advocate referred to the judgment of the Supreme Court of Pakistan passed in C.P No.17 & 19 of 2019 and certain observations made with regard to the commission of a predicate offence in respect of the Act of 2010. However , the holding of the Supreme Court of Pakistan in that judgment does not have any reference to the present cases, in that, the Act of 2010 separately defines the offence of money laundering by sections 3 and section 4 prescribes the punishment for money laundering. The Schedule to the 1974 Act includes the offences under the Act of 2010 relating to money launder ing and in respect of which the inquiry has been started by FIA. Learned counsels argued that the acts complained of would be covered by the offences under the Companies Act, 2017, Income Tax Ordinance, 2001 etc. which are not part of the schedule of 1974 Act. First, it cannot be left to the choice of a person to plead that he be charged for an offence under one or the other laws. If a prima facie offence is made out, an investigation may ensue. Secondly , no opinion has been formed by FIA as yet and the cases are at the inquiry stage only. This Court cannot short circuit the FIA's powers to proceed in the matter . This argument, at best, is an argument of double jeopardy and the time to raise it has yet to arrive.

48. As we have stated earlier this Court is merely concerned with the question whether the Agency was lawfully entitled to make the decision to start an inquiry into the allegation of money laundering. The answer to this question is in the affirmative and we do not find any jurisdictional error or illegality in the exercise of jurisdiction by FIA. We hold that the inquiry being conducted by FIA is proper and in accordance with law. Before we tear ourselves away , we may add that it is expected that due process of law shall be followed by FIA in conducting the inquiry which will be independent and impartial in all respects. The officer of FIA holding the inquiry shall bear in mind the rule that the aim of criminal justice is that guilt shall not escape or innocence suffer. In conclusion, we hold that FIA has lawfully and competently taken cognizance of the matters and to this extent the petitions are dismissed.

49. As a corollary to the above issue, the challenge has also been laid to the act of D.G FIA in writing to SECP for nomination of two officers to become part of the investigating team of the offences in which the inquiry is being conducted. This submission should receive a short shrift. The learned Attorney General for Pakistan has not been able to refer to any provision in the 1974 Act which empowers the D.G FIA to solicit the services of officers from another agency . Such a course of action is ultra vires and has no basis in law. The act of the D.G FIA in writing to SECP for nominating two officers is struck down . Consequently , the SECP's letter dated 30.07.2020 for nominating two officers for investigation to become part of the joint team of FIA is also struck down to that extent . In this respect, the petitions are allowed .

Section 41-B reference:

50. The second challenge in the petitioners' case is to a purported reference made in the exercise of powers conferred under Section 41-B of the 1997 Act by the SECP . This decision was conveyed to the D.G FIA on 12.09.2020 by the Secretary to the Commission while stating that: "Reference to the Commission meeting dated 27th July, 2020 wherein the Commission discussed in detail the Report of the sugar Inquiry Commission constituted under the Commission of Inquiry Act, 2017 to probe the increase in the prices of sugar in the country and our subsequent letter dated July 30, 2020.

The analysis of the report, prima facie, revealed that in addition to certain corporate crimes, there are allegations of inexplicable money transfers, money laundering, fraud and loss to the national exchequer and other related offences committed by corporate entities/ regulators persons and individuals connected with the affairs of such entities which are not cognizable by the Commission on its own under the administered legislation of the SECP .

In order to ensure that a comprehensive investigation take place and all allegations are probed, the commission decided to refer the aforementioned matter to FIA in exercise of its power under section 41B of the SECP Act, 1997 and other enabling provisions of law and in pursuance thereof th4e Commission deputed a team of senior officers, as experts, to assist the FIA in the investigation referred by the Commission through aforementioned letter .

We appreciate that FIA has initiated a thorough probe in the matter and SECP will continue to provide any further assistance that may be required. SECP on its part, has initiated necessary regulatory actions within its domain and also initiated a thorough review of regulatory oversight mechanism"

51. The learned counsel for the petitioners mounted various arguments to discred it the reference and not only challenged the process by which the decision was reached by the Commission as also referred to the language of section 41-B to invite this Court to hold that the reference was disloyal to the language chosen by the legislature and the intenti on underlying that provision. In a nub, the arguments revolve around lack of independent application of mind to the relevant facts on the part of the Commission; the violation of natural justice including notice and opportunity to reply and finally absence of reasons relevant to particular cases. These, according to the learned counsels, were the core functions of the Commission prior to making a decision whether to send a reference to FIA for investigation. The Reference by the Secre tary of the Commission has its source in the decision of the Commission made in the meeting held on 29.07.2020 (The decision). The minutes of the meeting have been appended with this judgment as an appendix. Portions of the decision however will be referred while analyzing and collating the arguments of the learned counsel for the petitioners with the decision made in the meeting of 29.07.2020.

52. Priorly , the argument of the learned counsel for the petitioners that the decision made by the Commission on 29.07.2020 suffered from the dictated exercise of jurisdiction must be dealt with. As adumbrated, the Advisor to the Prime Minister had written jointly to the D.G FIA and Chairman SECP on 27.7.2020 bringing to their notice the revised Action Plan Matrix approved by the Cabinet and containing a request that action be commenced with a report to the Federal Government within ninety days for its consideration. At the outset, it may be mentioned that unlike the 1974 Act, there is no provision of superi ntendence of the Federal Government over SECP . In fact, the provisions of the 1997 Act make it abundantly clear by its section 3 that: "3. Establishment of the Commission.- (1) There is hereby established a Commission to be called the Securities and Exchange Commission of Pakistan. (2) The Commission shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its own name and, subject to and for the purposes of this Act, may enter into contracts and may acquire, purchase, take, hold and enjoy movable and immovable property of every description and may convey , assign, surrender , yield up, charge, mortgage, demise, reassign, transfer or otherwise dispose of or deal with, any movable or immovable property or any interest vested in it, upon such terms as it deems fit."

53. Therefore, the Commission is an independent regulatory body and has a significant role to play in establishing an equality and human rights culture. A duty has also been cast by subsection (3) of section 3 on the Federal Government to ensure the promotion of independence of the Commission and that means independence from the Federal Government as well. Therefore, notwithstanding the letter by the Advisor and its contents, we harbour no doubt that the Commission was required to act independently in the making of any decision without being influenced by the Advisor's letter or any hint of influence that it may have contained. It is not the case of either the Federal Government or SECP that dictation was given to the Commission to proceed in a certain manner . We strongly discountenance any such dictation to be inferred from the Advisor's Letter on behalf of the Federal Government and will proceed to analyse the decision on the basis that no dictation can be given by the Federal Government to SECP in the discharge of its solemn duties under the 1997 Act or the Companies Act, 2017. However , it is also an established principle regarding statutory discretions that the authorities entrusted with such discretions are entitled to take into consideration public policy and in this regard the policy of the government may be a relevant factor . This rule has been brought out in De Smith' s Judicial Review (7th edition) in the following words: "...Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct tribunals, are usually entitled and are often obliged to take into accou nt considerations of public policy , and in some contexts the policy of a minister or of the Government as a whole may be a releva nt factor in weighing those considerations; but this will not absolve them from their duty to exercise their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior ..."

54. As stated in the above extract of the Treaties, the consideration of public policy or policy of the government as a relevant factor will not relieve SECP of its duty to exercise its independent judgment.

55. That the policy of the Federal Government is a relevant factor can very well be culled out from a holistic reading of the 1997 Act.

Section 1 1 provides that: "11. The Commission to furnish information.- The Commission shall furnish to the Federal Government or the Board such information with respect to the policy it is pursuing or proposes to pursue in the performance of any of its functions under this Act as the Federal Government or the Board may, from time to time, require."

56. Thus, the Federal Government may require the SECP to furnish such information as it requires in respect of any policy it is pursuing. This gives expression to the exercise of executive authority by the Federal Government and its power of oversight over SECP affairs. Section 12 sets up the Securities and Exchange Policy Board (the Board) which is to be appointed entirely by the Federal Government and its primary function is to advise the Federal Government with the consultation of the Commission, on all matters given in section 21. In all policy decisions, the Board has an overriding role vis a vis the Commission in its sole discretion. Finally , the Federal Government has the freedom to do anything that is not prohibited by law. (See Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374). This freedom is the consequence of the principle of legality that everything is legal that is not prohibited. This has been called the "third source" of authority for government action. (For a detailed discussion see 1992 LQR 626).

57. The above discussion leads to the ineluctable conclusion that the Federal Government was indeed conferred with the authority to write to the SECP on a policy issue and also to seek information in terms of section 11 of 1997 Act. This, however , does not lead to the further conclusion that SECP was obliged to act on the direction of Federal Government to achieve a desired result. To that extent, the SECP was to act as an eminently indep endent regulator , free from shackles and in uninfluenced by any intended goals, conveyed overtly or covertly .

58. Professor Elena Kagan (now Justice of US Supreme Court) writing in Presidential Administration 114 Harv . L. RW.2245 (2001) referred to the raison d'etre of establishing an independent agency: "In establishing [an independent] agency , Congress has acted self-consciously , by means of limiting the President' s appointment and removal power , to insulate agency decision making from the President' s influence. In then delegating power to that agency (rather than to a counter part in the executive branch) , Congress must be thought to intend the exercise of that power to be independent. In such a case the agency' s heads are not subordinate to the President in other respects; making the heads subordinate in this single way would subvert the very structure and premises of the agency ."

59. By the decision, SECP has subverted the very structure and premises of an independent agency .

60. People deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety and improves the performance of the economy without imposing unacceptable and unreasonable cost on society; regulatory policies that recognize that private sector and private markets are the best engine for economic growth.

61. A reading of SECP' s decision in its meeting held on 29.07.2020 betrays an unsettled course of events and our first impression is that the decision was made with undue haste. The entire reading of the decision fails to disclose a decision to have been made by SECP for filing a reference under Section 41B. Some of the extracts of the decisio n will have to be referred in order to bring home the point. For example, the SECP observed that: "...A bare perusal of the report demonstrates that few sugar mills may have commi tted fraud through their associated companies which potentially led to money-laundering and caused a substantial loss to national exchequer ."

Further , the SECP said that "the report indicates that": "The report indicates instances of violations of the Companies Act, 2017 and AML Act which fall in the domain of the SECP and FIA, respectively . Therefore, any investigation by the SECP in isolation, may create some legal implications and for the purpose of violation of Anti Money Laundering Laws the Commission has to refer the matter to FIA. Accordingly , the investigation by the SECP alone, under its administered legislation, will not suffice the purpose since the Anti Money Laundering Act, 2010 and offences falling under the schedule of the offences comes under the FIA and are deeply interconnected and linked with underlying violations of the Companies Act. "

The SECP went on to observe that: "Therefore, in order to ensure a comprehensive investigation and cover all aspects of the corporate frauds committed by the sugar companies and to avoid contradictory findings and to build a solid case that can be successfully prosecuted, the only viable option is for both SECP and FIA to conduct this investigation jointly , and to allow FIA to lead the investigation with the help of the SECP . The Commission shall depute a team of senior officers to assist FIA and jointly probe all allegations under one umbrella."

Finally , the decision was made in the following terms: "It was also decided that since FIA has already taken cognizance of the instant matter, therefore, in order to provide support to FIA, the Commission RESOL VED to depute a team of the following officers to be part of the combined team to provide them full assistance with reference to matters/ instances related to the SECP .

(i) Mr . Sidney Custodio Pereira, Additional Registrar (ii). Mr . Tahir Mahmood Kiani, Joint Director"

(iii) Mr . Ahmad Abdul Moiz Khawaja, Deputy Director (Reserve- would be provided if requested by FIA).

Any officer who assisted Sugar Commission may provide assistance on FIA's request for 2-3 days within prior permission of respective Commissioner .

In view of aforesaid decision of the Committee as required, a letter pertaining to the above referred under Section 41B of the SECP Act 1997 may be issued to FIA."

62. It can be seen from a consideration of the portions of the decision set out above that the allusion of SECP is to the inquiry commission report and reliance has been placed on the findings given in that report. Thereafter by reference to the report, SECP thought that any investigation by SECP in isolation may create legal complication and therefore the investigation by SECP alone will not suffice. Thereafter SECP concluded that the only viable option was for SECP and FIA to conduct the investigation jointly and to let FIA lead the investigation with the help of SECP. The Commission resolved to depute a team of officers to assist FIA and jointly probe all allegations. But the essence of SECP's decision is encapsulated in the last paragraph reproduced above where the Commission clearly made the decision that since FIA had taken cognizance of the matter , therefore, a team of officers be made part of the combined team "in order to provide support to FIA". The names of the officers who were depute d to be part of the FIA's team were then provided.

Thereafter followed, strangely and without any plausible reason, the decision of the meeting to make reference under Section 41B.

63. Thus, firstly as explicated, we do not find a meaningful decision to have been made in respect of a reference under Section 41B of the 1997 Act. The entire meeting dwelt on the inquiry commission report and the fact that FIA had taken the lead in launching an investigation into the offences and so the Commission must lend its support by appointing two officers to comprise the joint team. The decision to send a reference under Section 41B was a bolt from the blue and is not preceded by any reasons for making a reference let alone a consideration for making a reference under Section 41B. The substantial decision made by SECP was in respect of appointing the of ficers to be part of the combined team and no deliberations preceded the decision of making a reference under Section 41B.

64. The learned counsel for the petitioners sought to cast aspersions on the process of decision making by SECP . The circumstances surrounding the decision making by SECP exudes deference to the Federal Gove rnment in every step. This is despite our conclusion that no material was placed on record to establish that the Federal Government compelled the attainment of certain results on the part of SECP . But, contrarily , SECP made a fetish of its independence as is evident from the events set out below . The meeting of SECP took place on 29.7.2020 and to give effect to the first decision in that meeting, viz. to appoint two officers to be part of the combined team, a letter was written on the very next day i.e. 30.07.2020 to the D.G FIA informing him of the nomination of two officers of SECP to provide technical assistance. Clearly , this was in response to the earlier letter written by the D.G FIA on 30.07.2020 but also was an act in compliance with the decision of the Commission in its meeting on 29.7.2020. Interestingly , the making of the reference did not follow immediately and was done belatedly on 12.9.2020 by the Secretary to the Commission. On a proper objective analysis, the lack of probity in making the decision is at once apparent from the fact that when the SECP made the decision on 29.7.2020 to appoint officers for the combined team, D.G FIA had yet to make the request which was only made on 30.7.2020 (a day later). This begs the question: Was the SECP in possession of information that the letter will be definitely written the next day and so proceeded to make the decision in advance? Interestingly , every act of FIA was taken on 30.7.2020 and thereafter . Neither the Chairman nor any of the Commissioners bothered to advert their attention to these matters nor did they require during the meeting, to insist on seeing the request on the basis of which they were to form an opinion of appointing two officers to be part of the combined team of FIA. Sadly , for the Commissioners, the combined team was constituted on 30.7.2020 by the D.G FIA conveyed by the letter of Director , Law, FIA. Doubtless, the entire Commission (SECP) acted mechanically , under ulterior motives and whimsically . In doing so, the Commissioners abdicated their core function of impartiality and made a mockery of the salutary principles of informed decision-making which was at the heart of their role as gatekeepers. If we are permitted to say, they acted as "lions under the throne." The integrity of SECP was seriously compromised by the decision on the facts of the case. This aspect is apart from the proceeding discussion of its legality on the touchstone of rules of fairness and reasonableness.

65. As a regulatory authority tasked to make independent decisions, SECP was under a bounden duty by the rule of law in the exercise of its official power . The rule of law has in recent years acted as a significant constraint upon the exercise of administrative discretion in different circumstances. As a general principle, it has provided the major justific ation for constraining the exercise of official power promoting the core institutional values of legality and due process. Also the SECP is subject to statutory duties of an overarching nature that apply when more specific statutory powers and duties are exercised. The SECP had a duty to act fairly and to observe procedural propriety . We have noticed above that the SECP in fact made no deliberations on different aspects of the matter referred to it by the Federal Government and to connect it with its decision under Section 41B of the 1997 Act. The entire decision of Commission is based on consideration of the various aspects of the inquiry commission report sent to it by the Advisor to the Federal Government and this clearly shows that the Commission abrogated its duty as a decision maker to apply its independent mind on the matter in hand without rebuttal referring to the report of the inquiry commission. It is abundantly clear and can be gleaned from the entire reading of the resolution of the SECP on 29.7.2020 that it was sadly oblivious of its position as an independent regulator and its duty to enforce the rule of law in its various nuances and facets. This was perhaps because the Commission did not in fact make any decision regarding reference under Section 41B. The entire decision related to the appointment of officers to be part of the investigative team constituted by FIA and nothing more. In order to justify the decision of the Commission for making a reference, adequate reasons must have been given and the failure to do so is procedurally unfair and makes the decision as irrational. In public law, there is no general duty to give reasons however as noted in the Treaties by De Smith: "But the increasing number of so-called "exceptional" circumstances in which fairness or procedural fairness does now require that reasons be afforded to an affected individual means that the general proposition is meaningless apart from demonstrating that the mere fact that a decision-making process is held to be subject to the requirements of fairness does not automatically lead to the further conclusion that reasons must be given. However , it is certainly now the case that a decision-maker subject to the requirements of fairness should consider carefully whether , in the particular circumstances of the case, reasons should be given. Indeed, so fast is the case law on the duty to give reasons developing, that it can now be added that fairness or procedural fairness usually will require a decision-maker to give reasons for its decision. Overall, "the trend of the law has been towards an increased recognition of the duty to give reasons and there has been a strong momentum recently in favour of greater openness in decision-making. What were once seen as exceptions to the rule which stated that reasons were not required, are now becoming examples of the norm; while the case where reasons are not required may be taking on the appearance of exceptions."

66. Thus, according to the above reproduction, there is a trend towards an increased recognition of the duty to give reasons which leads to openness in decision making. The duty to give reasons must be perform ed in such a way that it sufficiently shows that the public authority has directed its mind to the issue and its failure to do so is a breach of procedural fairness. One ground on which fairness may require that reasons be provided is that reasons enable a person aggrieved by a decision to know not only whether he may appeal. However , in R. Civil Service Appeal Board Ex p. Cummins ham [1991] 4 All ER 310 the duty to give reasons is also established in a case where an aggrieved person may maintain an action for judicial review on the ground of illegality or irrationality .

The House of Lords in "Doody [1994] 1 AC 531" made it clear that: "....it may be that the very importance of the decision for the individual for example, a decision concerning personal liberty" is such that the individual cannot be left to receive an unreasoned decision, as if "the distant oracle has spoken"."

67. For the petitioners in this case, by the making of the reference by the SECP , the distant oracle has spoken and so the petitioners could not be left to receive an unreason ed decision. They had a right to be provided reasons by the Commission in support of its decision. In such cases of breach of duty to give reasons or adequate reasons, the remedy is an order of quashing the unreasoned decision.

68. We have chosen not to proceed to enter into the thicket of the controversy regarding the true construction of section 41B of the 1997 Act. This we will leave to another case in the future. Suffice to say for the moment that section 41B is the most potent weapon in the armoury of powers possessed by SECP . It relates to investigation of regulated activity and acts under the administered legislation by very powerful investigating agencies like NAB and FIA. Therefore, the referenc e could not be made lightly by SECP as a matter of routine and without proper application of mind. Such a decision strikes at the very economic and financial lifeline of a country and may spiral into unpalatable results, especially to be faced by the Federal Government. The decision must have been preceded by a rigorous and informed decision making independent of the inquiry commission report and while considering the aspects of the individual corporate entities whose case was place d before the Commission. An omnibus and wholesale order could not have been passed by SECP as was done in its decision and individual cases ought to have been sifted and analyzed to see whether each case merited a reference or not. The decision should have been made on a balance of probabilities by invoking its powers of inquiry and by referring the matter to its officers to compile a report in respect of the allegations. We have no doubt in our mind that the individual companies have a right to adequate disclosure of allegations before a decision is taken and to enable them to make a meaningful and focused representation. The decision is woefully lacking in the duty of adequate disclosure by SECP . Considering these circumstances, we have no hesitation in holding that SECP acted under dictation and failed to carry out a fact-specific balancing exercise before making the reference. The Commission has failed to act fairly and its decision was aberrant.

69. This was all the more necessary on account of the arguments of the petition ers? counsels that there is a wide array of criminal offences in the 1997 Act and the 2017 Act to empower the SECP to proceed against the petitioners. This option, too, was not explored while making the decision. In fact no discussion took place in meeting in this regard. Further , the Chairman and the Commissioners did not advert their attention to the precise scope of section 41B and whether cases were fit to be referred to FIA as a reference.

70. Last but not the least the Commissio ners did not have their attention drawn to the decisions of the Board published vide SRO 130(I)/2020 dated 24.02.2020. The decision relevant for our purposes was taken on 3.5.2019 (in the Board' s meeting) which resolved that: I. all cases referred to law enforcement agencies be withdrawn forthwith in the abse nce of valid reason not to do this in specific cases in which case the Board must be apprised for further consideration; II. all officers of the Commission deputed to law enforcement agencies be repatriated back to the Commission forthwith unless there is a valid reason (like a court order) in which case the Board has to be notified for further consideration; III. no further cases to be referred to law enforcement agencies or officers deputed to such agencies without clearance of both the Commission and the Policy Board; IV. with immediate effect the law enforcement agency concerned should be required to pay charges to reimburse the commission fully the costs incurred as a consequence of deputing any officer or officers by the Commission; and V. formal letters be issued forthwith to law enforcement agencies to comply with the above.?

71. The SECP was bound by the above decision of the Board. The decision impu gned before us blatantly flouts this decision and fall foul of it.

72. In closing, we hold the decision of SECP (of 29.7.2020) to be null and of no effect. It is set aside. The SECP , may, however choose to initiate proceeding anew , according to law , and in light of the above observations.

73. In view of the above, our conclusions are as under: I. The act of the D.G FIA in writing to SECP for nominating two officers is struck down . Consequently , the SECP' s letter dated 30.07.2020 for nominating two of ficers for investigation to become part of the joint team of FIA is also struck down to this extent.

II. The decision of SECP dated 29.07.2020 is also held to be null and of no legal ef fect. It is set aside.

III. W e hold that FIA has lawfully and competently taken cognizance of the matters and to this extent petitions are dismissed.

74. Petitions partly allowed in the above terms.