SARDAR MUHAMMAD SARFRAZ DOG AR, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Usman Saeed seeks indulgence of this Court by way of challenging the vires of the impugned order dated 20.07.2019 passed by the learned Judge, Accountability Court No. III, Lahore, whereby an application moved by the petitioner seeking his release on account of lack of jurisdiction of NAB, has been dismissed.
2. Brief facts of the case are that in his capacity as Vice-President/Head of "Foreign Exchange Department" at National Bank of Pakistan, the petitioner filed a written complaint before the NAB on 15.05.2018, alleging therein that due to non-payment of the availed finance facilities, the bank was exposed to a potential liability of approximately Rs. 2 billion. Said complaint of the petitioner was termed as confessional statement and an inquiry was authorized against him by the Competent Authority , vide letter dated 16.5.2018 and the same was subsequently upgraded to an investigation, vide letter dated 19.9.2018. During the course of investigation it was revealed that the petitioner was involved in misappropriation of funds of National Bank of Pakistan as he maneuvered and tampered various General Ledger Heads of the bank with mala fide intention in order to cause loss to the Bank and adopted following modus operandi for the commission of crime:-
(i) Illegal adjustment of borrowers paymen ts for repayment of FE-25 (Foreign Exchange-25) Import Loan into other GL heads of the bank instead of remittin g those repayments to NAB head office for adjustment of Import Loans under FE-25 of those parties.
(ii) Illegal adjustment of FE-25 Import Loans of different parties/companies by debiting other GL heads/accounts of the bank in an unlawful and unwarranted manner . As per procedure, GL Heads/Accounts of the bank cannot be used for adjustment of FE-25 import Loans, instead FE-25 Loans can only be adjusted by debiting borrower's/party's account.
(iii) Illegal adjustment of FIM (Finance against Imported Merchandize) Facility of different parties by debiting Bill of Exchange GL Head/account of the bank in an unlawful and unwarranted manner . As per procedure, Bill of Exchange GL head/Account cannot be used for adjustment of FIM
(iv) Issuing Delivery Orders to different parties against their goods without recovering due amounts from them merely on the basis of false promises.
3. Consequent thereto, Accountability Court Reference No. 84 of 2018 was filed before the learned Judge Accountability Court, Lahore in terms of section 18(g) read with section 24(b) of NAO, 1999 and petitioner/accused was sent to face trial under section 9(a)(iii)(vi) and (xi) punishable under section 10 and schedule thereto of National Accountability Ordinance, 1999 (hereinafter referred as "NAO, 1999"). During the pendency of the Reference before the learned Judge Accountability Court, Lahore, the petitioner moved an application for his release due to lack of jurisdiction of NAB, but the same was dismissed through order dated 20.07.2019 which is impugned herein. The concluding para of the said order is reproduced as under:- "xxx The allegation against the accused is that he illegally facilitates different companies by issuing delivery orders without recovering amounts from them and thus practiced fraud in collusion with the companies and caused loss to the bank to the tune of Rs. 2 billion. In my humble view ruling cited by the learned counsel for the petitioner is not applicable in this case for the reason that no relationship of customer and financial institution exists between the parties and there is no dispute of default or wilful default between the parties. The jurisdiction of banking court is attracted where relationship of customer and financial institution exists between the parties. In the instant case the present petitioner/accused Usman Saee d is VicePresident/Head of Foreign Exchange Department in National Bank of Pakistan and he is not customer of the bank. Moreover , there is no question of determination of amount of default or amount due against the petitioner/accused as the accused did not advance any loan to different companies and rather he facilitated those companies by not recovering the amount due from them and he issued delivery orders to different parties witho ut recovering the due amount from them merely on the basis of false promises. In the circumstances, it appears that the petitioner/accused is not the customer of the bank and no relationship of customer and financial institution exists between the parties and as such question of default and wilful default does not arise at all. I am of the view that this case is not triable by banking court under FIO and rather NAB has jurisdiction in the matter as fraud is allegedly committed by the petitioner/accused. Accordingly the application moved by the petitioner/accused for his acquittal on the ground of lack of jurisdiction of NAB has no merits and the same is hereby dismissed."
4. Learned counsel for the petitioner submits that while passing the impugned order , the learned Judge failed to appreciate the admitted position that 9 out of 22 companies/parties challenged NAB's jurisdiction to investigate the banking transactions emanating from their business relationship with NBP which was being managed by the petitioner , that the matter in hand is betw een a customer and the Bank and the Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law which has laid comprehensive mecha nism for prosecution of offences committed by a customer with the Bank and the Ordinance, 2001 ibid has been given Overriding effect over other laws whereas, the NAO, 1999 is prior in time and is a general in nature, hence, NAB does not have the jurisdiction to intervene into the matter on this score alone. It is further contended that the trial before the learned Judge Accountability Court is the abuse of process as the charges levelled against the petitioner are not covered under the penal clauses provided in The National Accountability . Ordinance, 1999 (herei nafter referred as "NAO, 1999") as such NAB has no jurisdiction to initiate inquiry/investigation in the financial matter , rather Banking Court under Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO) has exclusive jurisdiction and is proper forum to try the offences of wilful default. Adds that the companies committed default in the payment of dues, hence, only the Banking Court has jurisdiction to resolve the question of default amount due and NAB has no jurisdiction in the matter . Further adds that while passing the impugned order , learned Accountability Court erred in appreciating the dicta laid down by this Court in case titled "Mian Ayaz Anwar and others v. State Bank of Pakistan and others "
(2019 CLD 375 ).
5. Conversely , learned Additional Deputy Prosecutor General, while controverting the contentions raised by learned counsel for the petitioner contended that the petitioner , being an employee of National Bank, by using his official capacity committed the offence of corruption and corrupt practice as defined in section 9(a) of "NAO, 1999" as such the instant case does not fall within the ambit of Banking Court as the petitioner is not customer of the Bank and relationship of customer and Financial Institution does not exist between the parties. It is also contended that the matter in hand also does not pertain to wilful default, rather the offence commi tted by the petitioner is that he committed fraud and looted the money belonging to the Bank in collusion with the different companies/customers.
He also argued that the petitioner's case is not triable by Banking Court under (F10) rather falls under the jurisdiction of NAB, as petitioner remained involved in misappropriation of funds of National Bank of Pakistan, who maneuvered and tampered various general ledger heads of the bank with mala fide intention to cause loss to the Bank. He further adds that the NAO, 1999 is a special law and has overriding effect on other laws, hence, this petition is liable to be dismissed.
6. The crucial point involved in this case is whether Financial Institutions (Recovery of Finances) Ordinance, 2001 would prevail over the National Accountability Ordinance, 1999 or otherwise. It would be seen that both these pieces of legislation contain non obstante clauses which provide that the provisions of each Ordinance would prevail notwithstanding anything to the contrary contained in any law for the time being enforce. Thus, when there are two special laws both of which contain overriding clauses, in the case of conflict between the two laws generally the statute later in time will prevail over the statute prior in time. Howeve r, we are of the opinion that this presumption is not automatic; instead a host of other factors including the object, purpose and policy of both statutes and the legislature's intention, as expressed by the language employed therein, need to be considered in order to, determine which of the two special laws is to prevail. Guidance in this respect, can be sought from the judgment of Hon'ble Supreme Court of Pakistan, reported as "Syed Mushahid Shah and others v. Federal Investigation Agency and others " (2017 SCMR 1218 ), wherein, the Hon'ble apex Court of the country has held as under:- "When there were two special laws both of which contained overriding clauses, and there was a conflict between them, generally the statute later in time would prevail over the statute prior in time---Said presumption, however , was not automatic, instead a host of other factors including the object, purpose and policy of both statutes and the legislature's intention, as expressed by the language employed therein, needed to be considered in order to determine which of the two special laws was to prevail."
7. The factual backdrop of the case is quite simple, in that, the petitioner joined National Bank of. Pakistan as Officer on 12.5.1995 and he was lastly promoted as Vice President, National Bank of Pakistan. In his capacity as Vice President/Head of "Foreign Exchange Department" at. National Bank of Pakis tan, the petitioner filed a written complaint before the NAB on 15.05.2018, alleging therein that due to non-payment of the availed finance facilities, the bank was exposed to a potential liability of approximately Rs. 2 billion. The National Accountability Bureau has been established under the National Accountability Qrdinance, 1999 (No. XVIII of 1999), the preamble of which states that, "It is expedient and necessary to provide for effective measures for the detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority , misappropriation of property , taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto ." Likewise, preamble of Financial Instit utions (Recovery of Finances) Ordinance, 2001 (F10) reads as under:- "An Ordinance to repeal, and, with certain modifications, reenact, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
WHEREAS it is expedient to repeal and with certain modifications, re-enact the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for the purposes hereinafter appearing; AND WHEREAS the President is satisfie d that circumstancesexist which render it necessary to take immediate action; NOW , THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October , 1999 and Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:-
8. Admittedly the petitioner is not customer of the Bank rather he was employee of the Bank, as such relationship of customer and financial institution does not exist between the parties and secondly there is no question of determination of amount of default or amount due against the petitioner/accused as he did not advance any loan to different companies, rather he facilitated those companies by not recovering the amount due from them coupled with the fact that he was found involved in misappropriation of funds of National Bank of Pakistan as he maneuvered and tampered various General Ledger Heads of the bank with mala fide intention in order to cause loss to the Bank, whereas, the Banking Court has jurisdiction under . The Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO 2001) in those cases where the relationship of customer and financial institution exists between the parties. It is manifestly clear that the provisions of The Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO 2001) will come into play in the eventualities mentioned in the preamble itself which does not cover the offence allegedly committed by the petitioner , while being in the service of a Bank. The "NAO, 1999" being a special law promulgated for the said purpose, it caters the offence committed by a 'Holder of public office'. Keeping in view the facts and circumstances of the case and the gist of allegations levelled against the petitioner , it can safely be held that the case of the petitioner is fully covered in terms of Section 9 of "NAO, 1999".
9. So far the order impugned herein is concerned, after hearing learned counsel for the petitioner and going through the available record appended with the instant petition, it has been noticed that impugned order is well reasoned and conclusion arrived at in the same is perfectly valid and quite in accordance with law and peculiar "facts and circumstances" of the case, therefore, impugned order needs no interference. It goes without saying that august Supreme Court of Pakistan in the case of "Farooq Hussain and others v. Sheikh Aftab Ahmad and others"
(PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the court below; relevant portion of the said order is hereby reproduced:- "It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the court below . In such a case, re-tracing the same path travelled by the court below appears to be an unnecessary exercise and a waste of public time which can be allocated to other cases where the decisions of the courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the court below , the reasons for the reversal or modification must be set forth.
3. This approach adopted by the court, is by no means a shortcut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play . It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well-reasoned judgment of the court below through a short order serves the purpose adequately ."
10. In view of what has been discussed above, instant petition being lc without merits is hereby dismissed .