MUHAMMAD IQBAL KALHORO, J.---Petitioners, accused in Reference No.16/2018 pending before learned Accountability Court IV, Sindh at Karachi filed unsuccessfully there an application under section 265-K, Cr.P.C. for their acquittal decided through impugned order dated 15.04.2019, have filed this petition for quashing of the said reference on the ground, among others, that NAB had no jurisdiction to initiate proceedings and file reference against them and that the proceedings before learned Accountability Court are coram non judice.
2. The case revolves around allegations against management of Shell Pakistan Ltd. (SPL) regarding illegal sale of aviation fuel (Jet propulsion) in open market. The petitioners have been arraigned in the reference being Account Managers (Military and Special Carrier General Aviation) SPL with allegations that they illegally signed five agreements and supplied JP-1 to Messrs Aerolube Private Ltd. (APL) in bulk despite the fact that Messrs APL was not a registered Company.
3. We have heard learned counsel for the parties. Learned defence counsel has submitted that the petitioners have not committed any offence under the National Accountability Ordinance, 1999 (NAO, 1999) and they have been falsely implicated in the present case; that the alleged act of the petitioners, who are employees of Shell Pakistan Ltd. (SPL) falls within the ambit of regulated activity amenable to only Oil and Gas Regulatory Authority Ordinance, 2002 (Ordinance, 2002); that OGRA Ordinance is a complete code in respect of petroleum industry, individual rights and matters connected therewith as defined by section 29, which further provides bar to any court to take cognizance in such matter; that NAB at the time of investigation did not consider that aspect of the case and wrongly assumed jurisdiction; that OGRA Ordinance being special enactment has overriding effect on other laws including NAO, 1999; that only remedy in respect of regulated activity available to the Authority is under section 25 of the Ordinance, 2002 and can only be tried by the court upon a complaint filed by the Authority; that for 'an offence to be tried under NAO, 1999, misuse of authority, illegal gain or undue benefit are necessary constituents which are completely amiss in the present case vis-a-vis alleged act of the petitioners; that it is settled law that NAB cannot encroach upon or examine contractual matters arising of valid agreements; that no law has been violated by the petitioners and none has been alleged by the prosecution in the charge; that even the prosecution is not sure as to what offence has been committed by the petitioners which is evident from the charge; that no incriminating evidence has been collected against the petitioners; that learned trial court has erred in dismissing the application under section 265-K, Cr.P.C.; that Shell Pakistan. Ltd. approached the Authority against imposition of penalty for alleged violation of Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016 and OGRA Ordinance, 2002 which was decided by OGRA vide a decision dated 07 10.2017 dismissing the review petition as not maintainable and upholding imposition of penalty of Rs.10 Million on it. Learned counsel has submitted that in view of such proceedings and penalty, the continuation of proceedings before learned Accountability Court is in violation of principle of double jeopardy envisaged under Article 13 of the Constitution, section 403, Cr.P.C. and section 26 of General Clauses Act. He has further read out some portions from evidence of the witnesses to emphasize that petitioners have not committed any offence at all, not to mention offences under NAO, 1999. He has relied upon case law reported as PLD 1978 SC 121, PLD 2008 SC 166, 2008 SCMR 1118 and PLD 2016 SC 276 in support of his contentions.
4. In contra, learned Special Prosecutor NAB and I.O. of the case have opposed this petition and have further argued that all the witnesses have been examined by the trial court and currently cross-examination of the I.O, the last witness, is in progress. The trial is at fag end and exercise of discretionary powers under Article 199 of the Constitution at this point in time is likely to jeopardize the prosecution case as petitioners are not the only accused in the reference but six other accused are facing the trial in respect of allegations which are intertwined qua role of all the accused including the petitioners that they in connivance with each other by illegal sale of Jet Fuel to open market have caused colossal loss of Rs.2.37 billion to the national exchequer.
5. We have considered the case of each party in the context of contentions forwarded and the material placed before us including the case law relied upon at the bar. At the onset, it may be stated, that all the witnesses have been examined by the trial court and it is only the last witness, the I.O. of the case, whose cross-examination is being conducted. The case insofar as prosecution is, is almost over. At this stage, expressing an opinion into mexits of the case especially based on evidence that too under discretionary constitutional jurisdiction will not only prejudice the case of the parties but is likely to deprive both of them an appellate forum which otherwise in the wake of final decision by the trial court would be available to the aggrieved party. The petitioners are not the only accused in the reference but have been arraigned therein along with other accused and the nature of allegations and overlapping role of each accused in causing the effect leading to alleged loss to the national exchequer is such that separating attribution to one accused from the other is not possible without undermining the whole prosecution case. And secondly such an approach would amount to resolving the controversy in piecemeal which has never been the scheme of law. Learned counsel's contention that no offence has been committed by the petitioners under NAO, 1999 or for that matter under any other law is premature in that it can only be settled after deep and at the minuscule level examination of the evidence, which exercise under the constitutional jurisdiction is not permissible on the one hand and on the other would be tantamount to stretching things beyond the prescribed limits. The Honourable Supreme Court's view expressed in PLD 1999 SC 937 and PLD 2001 SC 7 has been that when the conclusion of the trial is in sight, the interference by the superior courts to exercise jurisdiction for quashing the Case/reference would defeat the ends of justice requiring final determination, after completion of preliminaries.
6. As to contention of double jeopardy, it may be stated that penalty of Rs.10 Million imposed on SPL by OGRA Authority vide a decision dated 11.01.2017 for violation of Pakistan (Refining, Blending, Transportation, Storage and Marketing) Mlles, 2016 and OGRA Ordinance 2002 was a result of a show cause notice to the Managing Director Messrs SPL Karachi. This penalty was not an outcome of any proceedings held in the trial and in respect of the same offence by a competent court of law to attract principle of double jeopardy enshrined under Article 13 of the Constitution and section 403, Cr.P.C. The proceedings in terms of a show cause notice would not equal the ones held in the trial which are basically meant to find out guilt or otherwise of an accused in the alleged offence on the basis of evidence. The show cause notice follows a quite distinct procedure than the one held in the regular trial where mandatorily evidence of the parties is recorded and appreciated, whereas in the former no such exercise is resorted to. More so, the petitioners were not the subject of the show cause notice nor they faced the same proceedings in person before the relevant Authority of OGRA to claim concession under the doctrine of double jeopardy. It was essentially the company (SPL) which was held accountable by means of the same. The Honourable Supreme Court in the case of Muhammad Nadeem Anwar v. Securities Exchange Commission of Pakistan through Director NBFCs Department Islamabad (2014 SCMR 1376) has held that even if both sets of offences have been committed by the accused in one go but accused has acted in such a manner as to constitute offences punishable under two separate and distinct laws, the principle of double jeopardy would not come into force. In the case of Adam v. Collector of Customs, Karachi (PLD 1969 SC 446), it has been held by Honourable Supreme Court that no question of double jeopardy would arise when simultaneously and subsequently trial has been held to determine guilt of an individual who has been concerned in the offence in respect of goods which are the subject matter of adjudication proceedings, and since the proceedings for adjudication by the custom authority and criminal prosecution of the offender in the court are not inter-dependent, they can proceed simultaneously and neither can remain under suspension for the sake of other. We are, therefore, clear in our mind that imposition of penalty on the company of the petitioners will not be considered a bar to the proceedings held against them under NAO, 1999 in terms of Article 13 of the Constitution and section 403, Cr.P.C.
7. For what has been discussed above, we don't find any merits in the instant petition and dismiss it accordingly.