MIAN ALLAH NAWAZ, C J.---This petition, under Article 199 of the Constitution (1973) by Mst. Fehmida Begum, has been filed for the purpose of seeking following reliefs:--- "(1) That the writ petition may kindly be accepted and an appropriate writ may kindly be issued to the respondents to release the detenu immediately.
(2) That all the proceedings if any made by the respondents may kindly be declared illegal, unlawful, without jurisdiction and amounts to discrimination and also ultra vires to the Constitution of the Islamic Republic of Pakistan.
(3) That the petitioner and his family members may kindly be allowed to have, a meeting to the detenu and also be allowed to provide foods, medicines and other required things to the detenu.
(4) Any other relief for which the petitioner or the detenu is entitled under the law may also be granted and which this Hon'ble Court may deem fit keeping in view the specific circumstances."
2. The fact, briefly stated, giving rise to this petition are these: Mst. Fehmida/petitioner herein/is wife of one Mukhtar Hussaiii/detenu/now accused. The aforesaid detenu/accused had been working as employee in Ittifaq Foundry (Pvt.) Ltd. Owned by Sharif Family since 21-10-1989. The employees of various Agencies on 1940-1999 entered into his house unlawfully, violated its privacy and took away Javed Iqbal/brother of Mukhtar Hussain/detenu and Khurram Mukhtar/his son with warning to remaining members of the family to produce the aforesaid person. Faced with this situation, they produced the detenu before the Senior Superintendent of Police, Lahore on 21-10-1999, wherefrom, he was taken to one Col. Nadeem and from there was taken to some unknown destination.
Subsequently, it was found that he was being kept in the mess Ten Div. Lahore Cantt., Lahore. In these circumstances, the petitioner filed a Writ Petition No,23841 of 1999 which finally came up before our learned brother Mr. Justice Faqir Muhammad Khokher. On that date of hearing, it was revealed by the learned Deputy Attorney-General that the aforesaid Mukhtar Hussain had been arrested under the provision of National Accountability Bureau Ordinance (XVIII of 1999). The learned Deputy Attorney-General further informed that the detenu was being kept in Police Station Sarwar Road, Lahore. Feeling aggrieved, the petitioner lodged the instant Constitutional petition.
3. Pursuant to a pre-admission notice, parawise comments were furnished by the Bureau/stating therein that Ittefaq Foundry (Pvt.) Ltd./employer had obtained the facility of loan amounting to Rs,100 million from National Bank of Pakistan, WAPI)A House Branch, Lahore and a further amount of Rs,288.177 million; that two L.Cs worth Rs,155 million were also availed of; that the Company had not repaid the so obtained loans since 1994; that on 11-6-1998, Mian Nawaz Sharif became Prime Minister of country and he announced to hand over Company assets to Creditor Banks so as liabilities of Company be retired. Consequently, the Family of Sharif handed over three units namely M/s. Ittefaq Foundry (Pvt.) Ltd. Lahore, M/s. Brother Steel Ltd. And M/s. Ittefaqr Brothers (Pvt.)
Ltd., Lahore. A petition under section 284(2) of the Companies Ordinance, 1984 was moved for the purpose of according sanction to above proposed offer. During the hearing, it came out that value of aforesaid unit were not adequate to satisfy the loans of family. With the advent of National Accountability Bureau Ordinance (XVIII of 1999), a complaint was filed by National Bank of Pakistan with the Bureau. The said complaint was probed into and after that exercise, a reference under section 10/11 with section 9 and offences mentioned in Schedule to Ordinance was sent by the Chairman, NAB to the Accountability Court. The reference was made against six accused including Mukhtar Hussain, in following terms:--- "Since 1994, not a single penny has been deposited to the Bank against the liabilities of the Company. The version of the Sharif Family, available in their reply to the recovery suit as well as in other petitions, pending in different Courts have been examined in detail and found unsatisfactory.
From the statement of the witnesses and the record provided by the complainant as well as other concerned departments, it is established that the accused company is in default to the National Bank of Pakistan, WAPDA House Branch, Lahore to the tune of Rs,1,06,31,62,937.81 since 1994. Besides the company, the persons mentioned in column No,3 of this challan had submitted their personal guarantees and in collaboration with each other have committed the offence of wilful default punishable under Ordinance No,XVIII of 1999. Mian Javed Shafi, Mian Yousaf Aziz, Mian Tariq Shafi and Mian M. Riaz Miraj had stated that the still division of Ittefaq, at all times, remained in possession of the Sharif Family. They had further stated that they had never been in possession of the company, thus, they were not liable to for the default committed by the Company. Though their version as to the possession of the company is true, however, as they had executed their personal guarantee yet they are also responsible for the liability if any, outstands after the sale of the company by the Committee constituted by the Court. In these circumstances, the persons namely, Mian Javed Shafi, Mian Yousaf Aziz, Mian Tariq Shafi,and Mian M. Riaz Miraj who had submitted the personal guarantee against these loans (besides the Sharif Family) and one of the present Director of the management Mrs. Fehmida Mukhtar are placed before the Court to determine that whether they are also guilty of wilful default under NAB Ordinance, 1999, or not? However, in any case, if the liabilities of the Creditor Banks/DFIs still exist even after the sale of the company by the committee, they will also be liable for the outstanding dues."
4. Mr. A.K. Dogar, Senior Advocate, the learned counsel for petitioner adopted the submissions made by Mr. Aitzaz Ahsan, Advocate in Writ Petition No,739 of 2000 and 6184 of 2000 (PLD 2000 Lahore 508). However, he added four more arguments in support of this petition:--- Firstly; The detenu was not the owner of any shares in Ittefaq Foundry nor he was associated with the owners nor he was defaulter. On this line of approach, it was suggested that neither the detenu was covered by the expression 'person' nor 'wilful defaulter' used in Ordinance, so the action against the detenu was plainly without jurisdiction. Reference was made to Government of Sindh v.
Raeesa Farooqi (1994 SCMR 1283). Secondly; that Mukhtar Hussain/accused was the employee of Ittefaq Foundry but was fictitiously shown as Director of the Company and had not filed any guarantee. It was stated that he was guarantor of the company and he had filed deed of guarantee on behalf of the company on the asking of the owners. Thirdly; that the accused was taken into custody on 21-10-1999; that the Ordinance was issued on 18-11-1999; that the arrest of the accused was clearly illegal and was mala fide. Fourthly; that the detenu is 60 years old. Lie is a diabetic patient; that no facility was being provided to him in jail.
5. That learned Deputy Attorney-General, in reply, contended that:-- Firstly; That the Ordinance was valid piece of legislation and so this Court had no jurisdiction to issue habeas corpus till this piece of legislation was declared ultra vires. Strength was sought from rule enunciated in 1992 SCMR 250. Secondly; that the reference has been filed before the Court of law that the petitioner was likely to be tried very soon. This was a simple answer to a petition for habeas corpus. Strength was sought from PLJ 1973 SC 49. (sic) Thirdly; that petitioner was entitled to move the NAB Court under the provisions of section 265-K, Cr.P.C. And so in presence of that provision, this petition is not permissible.
7. We have considered the rival contentions of the parties very carefully. We do not feel it necessary to answer number of questions/pertaining to jurisdiction of the Court; the reference had been filed before the Accountability Court and so this Court has no authority to interfere. There was also a question regarding the vires of Ordinance on the basis of retrospectivity and equality protection clause. These questions had already been answered in Writ Petitions Nos.739 and 6184 of 2000 (PLD 2000 Lah. 508). The only question, falling for consideration in his petition, is as to whether Mukhtar Hussain/detenu was neither a 'person' within the meaning of sub-clause (o) nor a defaulter within the ambit of sub-clause (r) of section 5 of the Ordinance. The fact of this petition hinges upon the aforesaid two provisions/sub-clauses (o) and (r) of section 5 of the Ordinance read as under:--- "(o) 'Person' includes in the case of a corporate body, the sponsor, Chairman, Chief Executive, Managing Director, elected Directors, by whatever name called, and guarantors of the company or any one exercising direction or control of the affairs of such corporate body, but will not include employees appointed and designated as Director or Chief Executive; and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having interest in the said firm, partnership or proprietorship concern or direction or control thereof;
(r) 'wilful default': a person is said to commit an offence of wilful default under this Ordinance if he does not pay or return or repay the amount to any bank, financial institution, cooperative society, or a Government department or a statutory body or an authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions, issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperative society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter: Provided that it is not wilful default under this Ordinance if the accused was unable to pay, return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government Department or a statutory body or an authority established or controlled by Government."
8. From a bare reading of sub-clause (o) of section 5 of the National Accountability Bureau Ordinance, 1999 it becomes clear that this sub-clause applies to the corporate bodies, firm, partnership or sole proprietorship. The word 'person' is followed by expression 'include' in this sub- clause. This expression has been defined by Black's Law Dictionary (Sixth Edition) in following terms:-- "Include. (lat. Inclauddere, to shut in, keep within.) To confine within, hold as in an in closure, take in, attain, shut up, contain, in close, comprise, comprehend, embrace, involve. Term may according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words thereto fore used. 'Including' within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation."
9. The aforesaid phrase was examined in famous case of Dilworth v. Commissioner of Stamps (1899 AC 99). In this case Lord Watson observed:-- "But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
Ordinarily this word is used as an expression of enlargement and implies that something else also falls within that word which was beyond its general organic meaning. This is, however, not the rule of thumb. Some time it conveys a restrictive meaning depending upon the context in which it is used. This expression shows inclusionary approach of law-making authority. Resultantly, it can be briefly said that the expression "include" is to be interpreted on the touchstone of both approaches given above after examining this expression in context of statute in which it is employed/used. On these touchstones, it is clear to us that the Sponsors, Chairman, Chief Executive, Managing Directors, elected Directors, by whatever name they are called, and guarantors of the Company or anyone, who exercises dominative control in the affairs of such a corporate body, come within the ambit of this sub-clause. This part of sub-clause is followed by another part which is exclusionary in approach. It says that it does not include the employees of the Company who were/are appointed and designated as Directors or Chief Executive or even as the sole proprietor. This part of the sub-clause is in the form of exception to first part. The underlying purpose of this exception is to save the employees from the applicability of first part and from the penal consequences of felonious act committed by their employer. The purpose of this part is, as already noted, to save employees of the Companies from unwarranted prosecution of act and omissions committed by their employer. Philosophy of this clause is so humane and highly noble and saves innocent helpless employees from the rigour of criminal action.
9.Applying the aforesaid principles to the facts and circumstances of the case in hand, we are in no doubt that Mukhtar Hussain was neither sponsor nor owner of the defaulting cooperate entity; nor he exercises any dominative influence in the working of defaulting Company. His and his wife's share were nominal. We are fortified by circumstances that even the Bank did not implead him as defaulting party when it filed a suit for recovery of loan in the Court of Special Judge Banking. We, therefore, have no hesitation in holding that he is neither a 'person' within the terms of sub-clause
(o) of section 5 of the Ordinance nor is a 'wilful defaulter' within the ambit of sub-clause (r) (ibid).
On these conclusions, we are very clear in saying that proceedings against the aforesaid Mukhtar Hussain were/are clearly without jurisdiction and, therefore, of no lawful consequences.
Accordingly, we quash the reference to the extent of Mukhtar Hussain detenu. The trial Court shall proceed with the remaining accused put up for trial in the abovementioned reference. This petition is accordingly allowed. Resultantly, Mukhtar Hussain/detenu shall be realised forthwith if he is not needed in any other case.
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Mian Allah Nawaz, C.J.
(Sd.)
Falak Sher, J.
(Sd.)
Mian Nazir Akthar, J.
(Sd.)
Tanvir Ahmad Khan, J.
(Sd.)
Malik Muhammad Qayyum, J. In view of majority opinion 3 to 2, this writ petition is hereby allowed with the grant of requested reliefs . Resultantly, Mukhtar Hussain detenu shall be released forthwith if he is not needed in any other case. Announced on 30-6-2000.
(Sd.)
Mian Allah Nawaz, C.J. FALAK SHER, J:---Having had the advantage of perusing the judgment drawn up by the learned Chief Justice granting the petition and quashing the reference qua Mukhtar Hussain detenu holding that being an employee of Ittefaq Foundry (Pvt.) Limited, a body corporate, was beyond the periphery of the expression "person" defined in section 5(o) of the National Accountability Ordinance, 1999, thus, was not amenable to be proceeded against for the "willful default" of the latter within the contemplation of section 5(r) (ibid) text whereof for the sake of convenience of reference is reproduced herein below:-- "5(o) 'Person' includes in the case of a corporate body, the sponsors, Chairman, Chief Executive, Managing Director, Elected Directors, by whatever name called, and guarantors of the company or any one exercising direction or control of the affairs of such corporate body, but will not include employees appointed and designated as Director Chief Executive; and in the case of any firm partnership or sole proprietorship, the partners, proprietor of any person having interest in the said firm, partnership or proprietorship concern or direction or control thereof; 5(r) 'Wilful default': a person is said to commit an offence of wilful default under this Ordinance if he does not pay or return or repay the amount to any bank, financial institution, cooperative society, or a Government Department or a statutory body or an authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions, issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperative society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be and a period of thirty days has expired thereafter: Provided that it is not wilful default under this Ordinance if the accused was unable to pay, return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government Department or a statutory body or an authority established or controlled by Government." I have not been able to persuade myself to subscribe to the findings arrived at for the reasons that had it been a case of an employee or an employee Director simpliciter, as perceived by section 5(o) (ibid.) then the opinion expressed may seem to be well-based, but factually it is not so.
2. Because the detenu having furnished personal guarantee for securing M/s. Ittefaq Foundry (Pvt.)
Limited's loan in question for intents and purposes falls within the ambit of the expression "guarantors of the company" enshrined in section 5(o) itself.
3. Which has been appended to the Reference as Item 49, Appendix 'VV'; photo stat whereof was furnished by the learned Deputy Attorney-General Kh. Saeed-uz-Zafar, complete text of which is reproduced as under:- "The Manager, National Bank of Pakistan, WAPDA House Branch; Lahore Guarantee In consideration of your having at our request entered into an agreement, dated 31-10-1993 (hereinafter referred to as the said Agreement with Mr/M/s. J.F.L. (hereinafter referred to as 'the Customer'), I/we hereby jointly and severally guarantee to you repayment within two days from demand of all sums due and payable to you under the said Agreement, provided the total amount recoverable from me/us under this guarantee shall not at any time exceed the sum of Rs,155 (M)
(Rupees one hundred fifty-five Millions only) plus service charges and all other sums due under the said Agreement. I/we jointly and severally further agree as under:---
1. My/our liability under this guarantee shall be that of principal-debtor and you may at your option hold me/us primarily responsible for the labilities of the Customer.
2. This guarantee shall continue to remain binding on me/us until receipt by you of written notice of discontinuance thereof and notwithstanding such notice I/we shall continue to remain liable to you for all sums due and owing to you by the Customer whether certain or contingent at the time of receipt by you of such notice and also for any credits established for the Customer and or all instruments drawn on you or accepted by you, for the benefit of the Customer and purporting to be on a date on or before the date of receipt of such notice, even though actually paid or honoured after that date.
3. This guarantee shall not be discharged or prejudiced by any partial payments or settlement of account or existence of a credit balance of the Customer at any time or by discharge of the Customer by operation of law or for any other reason.
4. You may as you think fit and without reference to me/us grant to the Customer time or other indulgence or make or accept any arrangement or composition with him in respect of any payment hereby guaranteed and also vary, release, realise or in any way deal with any securities or rights nOw or hereafter held by you in respect of the sums due under the said agreement.
5. The insolvency, liquidation or winding up of the Customer shall not affect me/our liability and I/we will continue to be liable to you until all moneys due from the Customer have been paid.
6. If the Customer is at any time declared bankrupt/insolvent or a winding up order is made against him you may prove in bankruptcy, insolvency or winding up proceedings for the whole amount of money due from the Customer and I/we shall continue to be liable for the full amount guaranteed hereunder until you have received full payment.
7. Any accused (sic) settled between you and the Customer or any demand by you on the Customer or his agent or any judgment or award obtained by you against the customer or any statement from you stating the amount due to you at any time from the Customer shall be accepted by me/us as conclusive evidence of my/our liability under this guarantee and shall be binding on me/us and I/we hereby waive all rights to question and or challenge the same.
8. In the case of Customer or ourselves being a firm, any change in his/our Constitution shall and affect our liability hereunder.
9. In the event of my/our death, bankruptcy, liquidation, winding up or insolvency this guarantee shall not be determined and it shall continue to be binding and operative against my/our successors-in interest and assignees until all moneys due to you from the Customer have been paid.
10. Where the Customer purports to act on behalf of another person or corporation or company, you shall not bound to enquire into the power of the Customer and the amount due from the Customer shall be covered by this Guarantee notwithstanding any absence or insufficiency or irregularity in the exercise of such powers.
11. If the Customer is a minor or a person under a legal disability or in the committee or association or other unincorporated body which has no legal existence or which is under no legal liability to discharge the obligation undertaken or purported to be undertaken by him/it or on his/its behalf, this guarantee shall be valid and binding on me/us notwithstanding such fact and I/we shall remain liable jointly and severally with the customer.
12. Until all moneys and liabilities due from or incurred by the Customer to you shall have been paid or discharged I/we shall not either by paying off any sum recoverable hereunder or by any other means or ground, claim any set off or counterclaim against the Customer in respect of any liability on my/our part or claim or prove in competition with you in respect of any payment by me/any of us hereunder or be entitled to claim or have the benefit of any set off, counterclaim or proof against or dividend composition or payment by the Customer of his estate or the benefit of any other security which you may now or hereafter hold for any money or liabilities due or incurred by the customer to you or to have any share therein.
13. In the event of this guarantee ceasing from any cause to be binding as a continuing guarante 11 me/us, you may open a fresh account or continue any existing account with the Customer and no moneys paid into any such account by or on behalf of the Customer and subsequently withdrawn shall alter or diminish my/our liability under this guarantee.
14. Any demand for payment or notice under this guarantee shall be deemed to have been sufficiently given if sent by post or delivered by hand to the last known address of the person to when or to whose personal representatives such demand or notice is to be made or given and shall be assumed to have reached the addressee in the ordinary course if sent by post and no period of limitation shall commence to run against me/us or any of us until two days after demand for payment in writing shall have been made or given as aforesaid.
Dated this______________ day of ___________ (Sd.)
Guarantor (S)."
4. Concerning which the arguments advanced by the learned counsel for the petitioner that the expression "Guarantors of the Company" pertains to the company limited by guarantee in contradistinction to company limited by shares perceived by sections 2(8), 2(9) and 17(a) (iv), (v) of the Companies Ordinance, 1984 is not tenable relevant text whereof for the sake of convenience of reference is reproduced as under:-- "2(8).--'company limited by shares' means a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them; 2(9).--'company limited by guarantee' means a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its winding up; 17(a)(iv).--that the liability of the members is limited; and (v).--that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges and expenses of winding up, and for adjustment of the rights of the contributories among themselves such amount as may be required, not proceeding a specified amount."
5. A conjunctive reading of the afore referred provisions of the Companies Ordinance, 1984 patently demonstrates the basic distinction as to juridical classification of the juristic persons i,e, a company limited by shares and a company limited by guarantee viz. In the case of the former, liability of the company's member is limited to the extent of unpaid face value of the shares one holds, while in the latter it is to the covenanted amount undertaken by a shareholder to contribute towards assets of the company in the event of its winding up, which bears no nexus with the expression "guarantor of company" envisaged by section 5(o) of the National Accountability Bureau Ordinance, 1999.
6. Consequently, the detenu's confinement by the National Accountability Bureau Authorities being a guarantor of the company for the default in question is unexceptionable; resultantly, the petition being devoid of any substance fails and is hereby dismissed.
(Sd.)
Falak Sher, J. TANVIR AHMAD KHAN, J.---I have the advantage of going through the proposed judgments written by the Hon'ble Chief Justice and Mr. Justice Falai( Sher. Perusal of the documents appended with this Constitutional petition demonstrates that M/s. Ittefaq Foundry (Pvt.) Ltd. Obtained/secured a loan of Rs,100 millions from National Bank of Pakistan, WAPDA House Branch and a further amount of Rs,288.77 millions along with 2 L.Cs. Worth Rs,155 millions. Mian Muhammad Nawaz Sharif while he was Prime Minister announced publicly on television and radio to hand over three units, namely, M/s. Ittefaq Foundry (Pvt.) Ltd., Lahore, M/s. Brothers Steel Ltd. And M/s. Ittefaq Brothers (Pvt.) Ltd.; Lahore to the Creditor Bank so as to liquidate the liability. However, it came to light during the proceedings under section 264(2) of the Companies Ordinance, 1984 that the assets so handed over through public announcement were negligible as compared to the quantum of liability which was to the tune of Rs,1,83,16,02,937.81. The emphasis of the learned counsel for the petitioner during the course of arguments was that Mukhtar Ahmad the alleged detenu though considered the 4th son of Mian Muhammad Sharif, yet he was simply an employee of the Ittefaq Foundry (Pvt.) Ltd. And was merely shown as Director of the Company in name, was such, he was not either covered with the definition of "person" as defined in section 5(o) of the National Accountability Ordinance, 1999 or "wilful default" as envisaged under section 5(r) thereof. As far as the personal guarantee executed by Mukhtar Ahmad is concerned, learned counsel Mr. A.K. Dogar stated that the reference to the "Guarantor of the Company" in the definition of "person" is to the guarantee provided at the formation of the company. Khawaja Saeed-uz-Zafar learned Deputy Attorney-General has controverted the stance taken by the petitioner stating that the subject-matter of this Constitutional petition involves disputed question of facts resolution whereof would entail a detailed enquiry which exercise cannot be gone into in these proceedings particularly so when the petitioner has not an adequate remedy under section 265-K, Cr.P.C. He has also stated that the petitioner's husband was not only a Director of the company but he had also executed personal guarantee on 31-10-1993 qua the loan to the tune of Rs,155 millions advanced to the Ittefaq Foundry (Pvt.) Ltd., as such, it cannot be stated that the guarantee was given at the formation of the company. I have considered the contentions. As far as the jurisdiction of this Court under Article 199 is concerned, this issue has been set at rest by the judgment of the Hon'ble Supreme Court while upholding Military action of 12-10-1999 holding as under: "(1) that notwithstanding the proclamation of 14th October, 1999 and Provisional Constitution Orders.. Nos.1, 2, 4 to 9 of 1999 and 1 of 2000, the Constitution of 1973 still remains as the paramount law of the land subject to certain conditions namely that certain parts of it had been held in abeyance.
(2) That the power of judicial review vesting in superior Courts under Article 199 and other Articles of the Constitution continue to remain in field. The mere fact that the Judges of the Superior Courts have taken new oath under P.C.O. No,1 of 1999, does not disable them from their power to interpret laws and scrutinize the actions of NAB and its functionaries. The power under Article 199 had not been taken away by any ouster clause. The Courts have full authority to scrutinize/judge the validity of any act or action of functionaries including the functionaries of NAB. The superior Courts have power to declare any action, act or proceedings of NAB which are found to be without any lawful authority or suffer from excess of jurisdiction or mala fide."
This brings me to an irresistible conclusion that the jurisdiction of this Court is all prevailing and can declare any action of NAB illegal if the same is without jurisdiction, mala fide or coram non judice. I do not want to dilate much on this issue as the same was also elaborately discussed by the Hon'ble Chief Justice in the judgment of the Full Bench rendered in W.P. 739 of 2000 (Mrs. Shahida Faisal v. Federation of Pakistan and others (PLD 2000 Lahore 508) where it was held asunder: "From the above conclusion, the question No,1 is answered accordingly. We have, thus, no doubt, in our mind that this Court has jurisdiction to issue writ against NAB and its functionaries and declare its acts/actions without lawful authority if such acts/actions/arrest are found to be without jurisdiction."
However, with profound respect I do not agree with the conclusion of the Hon'ble Chief Justice in the present case wherein he has held that since case of Mukhtar Ahmad does not fall within the definition of "person" or "wilful default" as defined in the National Accountability Ordinance, as such, proceedings against him are without jurisdiction and ordered his release.
I have noticed that the main purpose of the promulgation of NAB Ordinance as reflected from the preamble is not only to take effective steps against corruption and corrupt practices but also initiate measures to recover outstanding amount from the persons who have defaulted in the payment of loans of Banks, Financial Institutions, Government and other Agencies. The word "person" as well as "wilful default" has been defined as under:--- "5(o).--'Person' includes in the case of a corporate body, the sponsors, Chairman, Chief Executive, Managing Director, Elected Directors, by whatever name called, and guarantors of the company or any one exercising direction or control of the affairs of such corporate body, but will not include employees appointed and designated as Director or Chief Executive; and in the case of any firm partnership or sole proprietorship, the partners, proprietor or any person having interest in the said firm, partnership or proprietorship concern or direction or control thereof; (Underlined is mine).
5(r).--'wilful default'; a person is said to commit an offence of wilful default under this Ordinance if he does not pay or return or repay the amount to any bank, financial institution, cooperative society, or a Government Department or a statutory body or an authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperative society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be and a period of thirty days has expired thereafter: Provided that it is not wilful default under this Ordinance if the accused was unable to pay, return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government Department or a statutory body or an authority established or controlled by Government." The perusal of reference filed before the Accountability Court demonstrates that not only Mukhtar Ahmad but his wife as well as mother were Directors of the Company. It is also mentioned in the reference that the persons mentioned in column No,3 of the challan had also submitted their personal guarantees. Name of Mukhtar Ahmad finds mention in the said column. It is also reflected from the list of documents appended with the reference that at Serial No,49 it is stated that he executed personal guarantee on 31-10-1993 for a sum of Rs,155 millions. Personal guarantee executed by Mukhtar Ahmad is in the following words: The Manager, National Bank of Pakistan, WAPDA House Branch, Lahore. Guarantee In Consideration of your having at our request entered into an agreement, dated 31-10-1993 (hereinafter referred to as the Said Agreement with Mr/M/s. I.F.L. (hereinafter referred to as "the Customer"), I/we hereby jointly and severally guarantee to you repayment within two days from demand of all sums due and payable to you under the said Agreement, provided the total amount recoverable from me/us under this guarantee shall not at any time exceed the sum of Rs,155 (M)
(Rupees one hundred fifty-five Millions only) plus service charges and all other sums due under the said Agreement. I/we jointly and severally further agree as under:
1. My/our liability under this guarantee shall be that of principal debtor and you may at your option hold me/us primarily responsible for the liabilities of the Customer.
2. This guarantee shall continue to remain binding on me/us until receipt by you of written notice of discontinuance thereof and notwithstanding such notice I/we shall continue to remain liable to you for all sums due and owing to you by the Customer whether certain or contingent at the time of receipt by you of such notice and also for any credits established for the Customer and or all instruments drawn on you or accepted by you, for the benefit of the Customer and purporting to be on a date on or before the date of receipt of such notice, even though actually paid or honoured after that date.
3. This guarantee shall not be discharged or prejudiced by any partial payments or settlement of account or existence of a credit balance of the Customer at any time or by discharge of the Customer by operation of law or for any other reason.
4. You may as you think fit and without reference to me/us grant to the Customer time or other indulgence or make or accept any arrangement or composition with him in respect of any payment hereby guaranteed and also vary, release, realise or in any way deal with any securities or rights now or hereafter held by you in respect of the sums due under the said agreement.
5. The insolvency, liquidation or winding up of the Customer shall not affect me/our liability and I/we will continue to be liable to you until all moneys due from the Customer have been paid.
6. If the customer is at any time declared bankrupt/insolvent or a winding up order is made against him you may prove in bankruptcy, insolvency or winding up proceedings for the whole amount of money due from the Customer and I/we shall continue to be liable for the full amount guaranteed hereunder until you have received full payment.
7. Any accused (sic) settled between you and the Customer or any demand by you on the customer or his agent or any judgment or award obtained by you against the customer of any statement from you stating the amount due to you at any time from the Customer shall be accepted by me/us as conclusive evidence of my/our liability under this guarantee and shall be binding on me/us and I/we hereby waive all rights to question and of challenge the same.
8. In the case of Customer or ourselves being a firm, any change in his/our Constitution shall and affect our liability hereunder.
9. In the event of my/our death, bankruptcy, liquidation, winding up or insolvency this guarantee shall not be determined and it shall continue to be binding and operative against my/our successors, in interest and assignees until all moneys due to you from the Customer have been paid.
10. Where the Customer purports to act on behalf of another person or corporation or company, you shall not be bound to enquire into the power of the Customer and the amount due from the Customer shall be covered by this guarantee notwithstanding any absence or insufficiency or irregularity in the exercise of such powers.
11. If the Customer is a minor or a person under a legal disability or in the committee or association or other unincorporated body which has no legal existence or which is under no legal liability to discharge the obligation undertaken or purported to be undertaken by him/it or on his/its behalf, this guarantee shall be valid and binding on me/us notwithstanding such fact and I/we shall remain liable jointly and severally with the customer.
12. Until all moneys and liabilities due from or incurred by the Customer to you shall have been paid or discharged I/we shall not either by paying off any sum recoverable hereunder or by any other means or ground, claim any set-off or counterclaim against the Customer in respect of any liability on my/our part or claim or prove in competition with you in respect of any payment by me/any of us hereunder or be entitled to claim or have the benefit of any setoff, counterclaim or proof against or dividend composition or payment by the Customer of his estate or the benefit of any other security which you may now or hereafter hold for any money or liabilities due or incurred by the customer to you or to have any share.
13. In the event of this guarantee ceasing from any cause to be binding as a continuing guarantee on me/us, you may open a fresh account or continue any existing account with the Customer and no moneys paid into any such account by or on behalf of the Customer and subsequently withdrawn shall alter or diminish my/our liability under this guarantee.
12. Any demand for payment or notice under this guarantee shall be deemed to have been sufficiently given sent by post or delivered by hand to the last known address or the person to whom or to whose personal representatives such demand or notice is to be made or given and shall be assumed to have reached the addressee in the ordinary course if sent by post and no period of limitation shall commence two days after demand for payment in writing shall have been made or given as aforesaid. Dated this______________ day of____ (Sd.)'
Guarantor(s).
If personal guarantee of the type quoted above is read in the exclusionary clause in the definition of "person" as argued, it would have disastrous effect on the recovery of loans advanced by the Banks. Then the guarantees so provided by the loanee in such-like cases would even not be worth the papers they are written upon. It would tantamount to frustrate the intention of the law-makers.
The specific exclusion from the definition of "person" is only of employee appointed and designated as Directors or the Chief Executive but in no circumstances personal guarantor would come within purview of the exclusionary clause. I also fail to understand that how the petitioner's husband's case would not fall within the purview of "wilful default", when since 1994 not a single penny has been paid. The Hon'ble Chief Justice in' his. Judgment delivered in W.P. 739 of 2000 (PLD 2000 Lah.
508) has pointed out the grim dismal picture of the loans taken from the Banks and other Institutions is the country which come to the tune of Rs,141.135 Billions at the end of December, 1999.
NAB Ordinance for the first time has initiated move for the recovery of loans and the trial of offenders who have wilfully defaulted in the payment of loans as such, I am of the view that any interference in this matter would tantamount to frustrating the intention of this Ordinance. I do not want to dilate much upon this issue as the trial in the reference is to be conducted by the learned Accountability Court.
There is another aspect of this case which also cannot be lightly ruled out that the conduct of the petitioner husband after execution of personal guarantee is such that he did not bother to honour the stile in spite of passage of more than 7 years. This demonstrates that the conduct of the petitioner is such that discretionary relief under Article 199 of the Constitution being equitable in nature cannot be exercised in his favour. Reliance in this respect is placed upon the latest pronouncement of the Hon'ble Supreme Court reported as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) wherein it was held as under: "The case remains unfit for extension of any relief here on account of the appellant's own conduct, of which the most revealing is that the petition in the High Court was verified and affirmed by Hafeezur-Rehman, the Managing Director of the previous C.A.A. Contractor, thereby relegating the relief to the appellant for the benefit of another, since a firm is nothing but a sum total of its partners. The jurisdiction under Article 199 of the Constitution being discretionary, the Court, where equities require, may, even in the best of cases, choose to decline interference. Even since the principle was recognized in Nawab Syed Rounaq Ali case PLD 1973 SC 236, the same has frequently been resorted to. This is one such case where, even though the respondents are found liable redress need not follow. For such reasons, I am constrained to hold that this appeal should fail but the parties be left to bear their own costs."
Resultantly for what has been stated above the writ petition having no force is dismissed. The best course in these circumstances for the husband of the petitioner is that he should place all his cards before Accountability Court where the trial would be conducted uninfluenced by any observation made by this Court in this order.
(Sd.)
Tanvir Ahmad Khan, J.