This single judgment shall govern the subject petition as well as connected W.P.No.3199 of 2022 (National Accountability Bureau through Dy PGA, N.A.B. vs. Muhammad Alam Khilji & others) and W.P.No.3352 of 2022 (Ghulam Mehboob vs. The State & others) as all these petitions are canvassing similar questions of law and fact.
2. The petitioners herein were arrayed as accused in Accountability Court Reference No.24 of 2021 under Sections 18(g) read with Section 24 of the National Accountability Ordinance, 1999 (hereinafter referred to as "Ordinance") initially placed before the learned Administrative Judge, Accountability Court, Lahore. The reference was, however, subsequently returned to the Chairman, N.A.B. on promulgation of the National Accountability (Second Amendment) Act, 2022 (hereinafter referred to as "Act"), to be presented before the court of competent jurisdiction. In terms whereof, the reference was presented before the learned Administrative Judge Accountability Court, Rawalpindi. By way of order dated 26.10.2022, the learned Judge Accountability Court No.1, Rawalpindi observed that in the light of the "Act", he has no jurisdiction to further proceed with the trial of reference and, thus, returned the reference to the Chairman, N.A.B. alongwith all relevant record for its presentation before the concerned court and the Investigating Officer was directed to receive all the record from Ahlmad of the court on or before 01.11.2022. It was also observed that the accused (petitioners) are in police custody, the Investigating Officer was directed to receive the reference in time and produce the accused persons before the court of competent jurisdiction, which order is now impugned in this petition as well as W.P.No.3199 of 2022, wherein the petitioners are arrayed as respondents No.1 to 4.
3. In W.P.No.3352 of 2022, the petitioner, namely, Ghulam Mehboob is accused in A.C.R.No.02 of 2020 and he is calling in question the order dated 08.09.2022, passed by the learned Judge, Accountability Court No.II, Rawalpindi, whereby his bail application was disposed of with the following observations:- " Before proceeding further it is pertinent to mention here that post arrest bail of the petitioner has been dismissed on merits by Muhammad Saeed Ullah, Judge, Accountability Court No.II, Rawalpindi vide order dated 11.02.2022. All the grounds have been discussed in the above mentioned bail petition order. It would only wastage of time to discuss all grounds mentioned in the above mentioned bail petition order. Only fresh ground available to the petitioner is that in sub section (o) of section 5 of NAO 1999, amendment has been made and after the said amendment, it cannot be said that petitioner has committed any offence under National Accountability Ordinance. For reappraisal above mentioned section (o) is reproduced here:-
(o) "Offence" means the offences of corruption and corrupt practices and other offences as defined in the Ordinance "of the value less than five hundred millions".
It is argument of learned counsel for the petitioner that petitioner be allowed bail on this ground.
After perusal of the above mentioned amendment and definition of corruption and corrupt practices it becomes clear that since allegation of corruption against the petitioner is less than value of five hundred million rupees and only of 185 million (18.50 corars), therefore, it cannot become offence under NAO, hence, since it is not an offence of N.A.O. therefore, being duty Judge this Accountability Court has no jurisdiction to grant bail of this offence. This Court lacks jurisdiction to entertain this bail application because allegation against the petitioner is less than 500 million and the instant Reference is only of 240 million. As I have stated above that since undersigned has entertained this application as duty Judge and after above mentioned amendment offence of NAO is not made therefore, this Court lacks jurisdiction. Hence, cannot decide bail petition on merits. Petitioner can approach proper forum for redressal of his grievances, if so advised. Bail petition disposed of accordingly. File be consigned to the record room."
4. In response to these petitions, N.A.B. has submitted written statement as well as para-wise comments and on the last date, we directed the Prosecutor General, National Accountability Bureau, Rawalpindi to appear in person and the Secretary, Law & Parliamentary Affairs Department to arrange his representation for the purpose of assisting in the matter in issue.
5. For the purpose of ease and reference, all the accused before us shall be treated as "petitioners" and N.A.B. as "respondent-department".
6. After having heard learned counsel for the petitioners, Additional Prosecutor General, Deputy Prosecutor General and the learned Law Officer, we have perused the record.
7. It is an admitted fact on all hands that the "petitioners" were taken into custody by the "respondent-department" on the ground that they have committed an offence as defined in the "Ordinance". Separate references bearing No.24 of 2021 and 02 of 2020, respectively were placed before the National Accountability Courts concerned for conducting trial of the "petitioners". The "petitioners" while facing trial were in judicial custody. In the meanwhile, an amendment was introduced in the "Ordinance" through the National Accountability Act, 2022 by First and Second Amendment Act. This change in the "Ordinance" resulted into passing of the impugned orders, referred herein-above, whereunder the National Accountability Courts concerned refused to exercise jurisdiction in the matter and directed the "respondent-department" to produce the "petitioners" (accused) before the competent forum in time.
8. Before adverting to any other aspect, it would be advantageous to observe that there is no cavil to the fact that prior to the amendment in the "Ordinance", all the petitioners were treated as "accused" of an offence defined in the "Ordinance" and their custody was also regulated accordingly in the light of provisions contained in the "Ordinance" ibid. The situation in hand arose, when amendments were introduced in the "Ordinance" through the National Accountability (Amendment) Act, 2022. The most relevant for the issue, in hand, is Section 5(o), wherein "Offence" has been defined as under:-
(o) "Offence" means the offences of corruption and corrupt practices and other offences as defined in this Ordinance [of the value not less than five hundred million rupees], and includes the offences specified in the Schedule to this Ordinance"
"Public at large" is also defined in the following way through sub-section (s) of Section 5:- "at least one hundred persons"
The above two provisions brought a radical change and on said account, the "petitioners" became out of the ambit of offenders under the "Ordinance" as the alleged plundered amount was less than five hundred million rupees as yardstick fixed in sub-section (o) of Section 5. The "Ordinance" with the amendment since failed to cater the situation, so this ambiguity or lacuna in the law resulted into a quandary for the Accountability Courts on the one hand and on the other, the "petitioners" were left with no remedy and they were made to wait for something to happen from the Heaven for their future.
9. Life and liberty is one of the cardinal fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"). Article 9 guarantees security of a person and Article 10 provides safeguards as to arrest and detention, which read as under:- "9. Security of person.-- No person shall be deprived of life or liberty save in accordance with law".
10. Safeguards as to arrest and detention.--(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding [three months] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of [three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation-I: In this Article, "the appropriate Review Board" means:-
(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
Explanation-II: The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, [within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy [or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity].
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
10. This Court, being the custodian of fundamental rights of the citizens, is bound to ensure protection of their rights not allowing anybody to curtail liberty without due course of law. Though in terms of Section 17 of the "Ordinance" as amended by the Act, the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Code") have been made applicable mutatis mutandis to the proceedings under the "Ordinance", unless those are inconsistent with the provisions of the "Ordinance" and in view thereof, we can observe that the custody of an accused in the circumstances can be regulated as per mandate of Section 167 read with Section 344 of the "Code", but this will serve only a limited purpose to regulate the custody of the accused. It will not be an answer as to under what offence, the accused has been kept in custody for an indefinite and unbridled period.
11. A wade through the "Ordinance" reveals that by way of amended Act, the legislature has though catered the situation, but to a limited extent. Section 4 of the "Ordinance" is quite relevant, which is reproduced below for ready reference and convenience:- "4. Application:
(1) This Ordinance extends to the whole of Pakistan and shall apply to all persons, including those persons who are or have been in the service of Pakistan, except persons and transactions specified in subsection (2),
(2) The provisions of this Ordinance shall not be applicable to the following persons or transactions, namely:-
(a) all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation, [transactions or amounts duly covered by amnesty schemes of Government of Pakistan.]
(b) decisions of Federal or Provincial Cabinet, their Committees or Sub-Committees Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working Party (CDWP), Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP), [Board of Directors of State Owned Enterprises (SOEs) and Board of Trustees/Directors of all Statutory Bodies], the State Bank of Pakistan and such other bodies except where the holder of the public office has received a monetary gain as a result of such decision;
(c) any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office except offences falling under clauses (ix), (x) and (xi) of sub-section (a) of section 9;
(d) procedural lapses in performance of any public or governmental work or function, project or scheme, unless there is evidence to prove that a holder of public office or any other person acting on his behalf has been conferred or has received any monetary or other material benefit from that particular public or governmental work or function, whether directly or indirectly on account of such procedural lapses, which the said recipient was otherwise not entitled to receive;
(e) a decision taken, an advice, report or opinion rendered or given by a public office holder or any other person in the course of his duty, unless there is sufficient evidence to show that the holder of public office or any other person acting on his behalf received or gained any monetary or other material benefit, from that decision, advice, report or opinion, whether directly or indirectly, which the said recipient was otherwise not entitled to receive;
(f) all matters, which have been decided by, or fall within the jurisdiction of a regulatory body established under a Federal or Provincial law [;and] [(g) all matters where the funds, property or interests not involving or belonging to the appropriate government, except for the offences under clause (ix), (x) or (xi) of sub-section (a) of section 9.] (3). Upon the National Accountability (Amendment) Act, 2022 (XI of 2022), coming into force, all pending inquiries, investigations, trials or proceedings under this Ordinance, relating to persons or transactions mentioned in clause (a) of sub-section (2), shall stand transferred to the concerned authorities, departments and Courts under the respective laws".
(underlining supplied for emphasis)
From the perusal of above referred provision of law, it is though manifest that in terms thereof, all pending inquiries, investigations, trials or proceedings under the "Ordinance" relating to persons or transactions find mentioned in clause (a) of sub-section (2) shall stand transferred to the concerned authorities, departments and courts under the respective laws but the case of the "petitioners" is not covered under the above provision of law and they have been left unattended by the legislature to languish behind the bars.
12. We are cognizant of the fact that initially when there was no provision in the "Ordinance" for releasing an accused on bail, the Hon'ble Supreme Court of Pakistan in Khan Asfandyar Wali's case (PLD 2001 Supreme Court 607) held as under:- "197. It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remain available to their full extent....notwithstanding anything contained in any legislative instrument enacted by the Chief Executive." Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction as such section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably".
Even otherwise, no person can be left remediless in any eventuality and more specifically, when the life and liberty is involved.
13. Resultantly, We allow instant petition (W.P.No.3197 of 2022) and W.P.No.3352 of 2022 and set- aside the orders dated 26.10.2022 and 08.09.2022, passed by the learned Judge, Accountability Court No. I and II, Rawalpindi. In consequence whereof, the petitioners namely, Muhammad Alam Khilji, Muhammad Azam Alam, Muhammad Nazim Alam, Muhammad Asif Alam and Ghulam Mehboob, are released on bail subject to their furnishing bails bonds in the sum of Rs.1,00,000/- each with one surety each to the satisfaction of the Deputy Registrar (Judicial) of this Court.
14. So far as W.P.No.3199 of 2022 is concerned, same stands disposed of on above terms.
15. Before parting, it is, however, observed that if some government agency/department e.g. Police, F.I.A. etc. feels that the "petitioners" have committed any offence under any penal law of the Federation or the Province, such government agency/department would be at liberty to proceed against them in accordance with law with no legal impediment in their way.