1. S. AHMED SARWANA, J.---Islamuddin Shaikh (petitioner herein), a former member of the Senate of Pakistan, alongwith his several family members are directors and shareholders in eight limited companies and are also partners in two firms by the name of Sarbaz Traders and Star Industries (Para. 1 of the Petition). The said companies/forms borrowed money from various banks and financial institutions and as security for repayment of the loans the petitioner and his family members provided, among others, personal guarantees to the banks/financial institutions. The companies/firms committed default in payment of the loans whereupon the banks/financial institutions filed suits against the defaulters several of which have been decreed while others are allegedly still pending. It is stated that on the complaint of Vice-President of Habib Bank Limited four References were filed against the petitioner and his family members in the Accountability Court No,1, Karachi, under the provisions of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the Ordinance") alleging that the petitioner and his family members had committed the offence of corrupt practices and wilful default. The three References filed against them in Accountability Court No,1 were Reference No,10/2000 against Ajmal Corporation Ltd., the petitioner and its other directors in respect of willful default in payment of Rs,440.055 million, Reference No,11/2000 against Star Oil Mills (Pvt.) Limited, the petitioner and its other directors for willful default in payment of a sum of Rs,261.577 million and Reference No,12/2000 against Star Solvent Extraction Soap (Pvt.) Ltd. Against the petitioner and its other directors for default in payment of Rs,183.619 million. No document or information has been provided by the petitioner in respect of the fourth Reference.
2. On 3rd February, 2000 the Ordinance was amended, inter alia, by amendment of section 25 and insertion of section 25A relating to the release of a person after payment of loans etc. By following the procedure provided therein. It transpires that on 9-3-2000, Mr. Khawaja Naveed Ahmed, Advocate for the petitioner, sent an application under section 25A of the Ordinance to the Chairman, NAB that his client and all directors of Star Group of Companies wanted to settle their loans with the banks and requested that the offer made by him may be considered for reconciliation of the liability through the Conciliation Committee. After the said letter some correspondence and examination of the liability of the petitioner's group apparently took place. On 5th July, 2000 several provisions of the Ordinance including sections 25 and 25A were again amended. One of the significant amendments in the law was in section 25A and the words "Chairman, NAB" in clauses (a), (d) and (e) were substituted by the words "Governor, State Bank of Pakistan" (hereinafter referred to as "Governor SBP"). It appears that after the said amendment a number of meetings took place between the petitioner and the Conciliation Committee where the petitioner submitted a proposal which was considered by the Conciliation Committee which made its recommendations under section 25A(d) of the Ordinance in the following terms:-- "The Committee took up for hearing case of M/s. Islamuddin Sheikh. After detailed deliberation and discussion the borrower placed before the Committee a proposal that he could either himself dispose of Kiran Sugar Mills (KSM) at handsome amount or would arrange a bank guarantee to the tune of Rs,1.2 billion in favour of lenders and would himself run KSM. The lending institutions present in the meeting agreed with this proposal of the borrower. The CC suggested that the lenders could nominate three Chartered Accountants from amongst themselves to constitute a Committee alongside nominee Chartered Accountant of the borrower to determine the agreed outstanding amount payable by the borrower to each of the financiers. The CC announced that in case of failure of the borrower to provide bank guarantee for Rs,1.2 billion or to indicate the name of a buyer for the KSM by 31st January, 2001, the Committee would proceed to formulate its recommendations under the law for submission to the Governor without calling any further meetings of the borrower/lenders. The borrower later showed his inability to arrange a bank guarantee and also could not identify the name of any buyer for KSM. Having regard to the deliberations held in the meetings with the borrower and lenders the Conciliation Committee unanimously decided as under:-- I. Kiran Sugar Mills is a revivable unit and could be run profitably. The lenders could consider sale of the unit on the best available price subject to observance of all legal formalities/requirements in this regard. II. All the available securities with the banks may be considered for enforcement under law of the land. III. For any shortfall in recovery of outstanding amount the lenders could proceed against the borrower under law of the land." On 26-2-2001, the Governor, SBP, made the following endorsement on the recommendations of the Conciliation Committee: "I agree with the CC recommendations." On 1-3-2001 petitioner's son wrote a letter to Chairman, NAB, that his father had accepted the recommendations of the Conciliation Committee and requested him to withdraw the proceedings before the Accountability Court No,1, Karachi, and release him from custody. The petitioner also filed an application before the Court to stay the proceedings till such time that a decision was taken by the Chairman, NAB, but the Presiding Officer refused to consider his request and continued with the proceedings. Consequently, on 15-3-2001, the petitioner filed C.P. No,D-499 of 2001 seeking, inter alia, declarations that the continued trial of the petitioner in the Reference filed in the Accountability Court No,1, Karachi, after passing of the orders under section 25A(d) of the Ordinance, is ultra vires the section 25A, without jurisdiction and in violation of the vested and statutory rights of the petitioner and direct Chairman, NAB to withdraw the References before the Accountability Court No,1, Karachi, and release him from custody. During the course of the Constitutional Petition, Mr. Muhammad Anwar Tariq, learned DPGA, supplied to Mr. Abid S. Zuberi, learned counsel for the petitioner, a copy of the decision dated 7-4-2001 of Chairman, NAB on the recommendation of the Conciliation Committee to the effect that the alternate action proposed by the Conciliation Committee was beyond its jurisdiction and that the Reference against the petitioner be proceeded with as the borrowers had failed to pay the loan due to the lenders. The Constitutional Petition No,D-499 of 2001 was dismissed by this Court on 4-5-2001 in light of the provisions of sections 25 and 25A of the Ordinance and the observation of the Honourable Supreme Court in the case of Khan Asfandyar Wali (PLD 2001 SC 607) that the release of an accused in Accountability cases in subject to the approval of the Accountability Court and the High Court in the exercise of its Extraordinary Constitutional Jurisdiction would not grant any relief to the petitioner as alternate, adequate and efficacious remedy was available to him under the law. After disposal of the aforesaid petition, the petitioner moved three applications in References Nos. 10, 11 and ~ 12 of 2000 respectively, pending in the Accountability Court No,1, Karachi, praying that the order dated 7-4-2001 passed by Chairman, NAB (impugned Order No,1) be set aside and the Recommendations and decision of the Conciliation Committee and the Governor SBP be approved and he be released by order dated 17-5-2001, the learned Accountability Court No,1, Karachi, rejected all the three applications moved in the three References referred to above. Being aggrieved by the order of the Accountability Court No,1, Karachi, dated 17-5-2001 (impugned Order No,2), the petitioner has filed this Constitutional petition challenging the order dated 7-4- 2001 of the Chairman, NAB and the Order of the Accountability Court No,1, Karachi, dated 17-5-2001, seeking, inter alia, the following reliefs: "(a) declare the Impugned Order No,1 and Impugned Order No,2 to be illegal, without lawful authority and of no legal,effect, and to quash the same accordingly;
(b) declare that the recommendations of the Conciliation Committee and the decision thereon by the Governor State Bank of Pakistan are lawful, valid, and binding on all relevant authorities, including in particular the Chairman, NAB and respondent No,3;
(c) declare the proceedings before respondent No,3 pursuant to the references filed by respondent No,2, and the continued detention and trial of the petitioner to be illegal and without lawful authority, and the same may be quashed accordingly;
(d) direct respondent No,2 to withdraw all pending references against the petitioner pending before respondent No,3, and to permanently restrain respondent No,2 from filing any reference in future on the basis of the allegations in the references currently pending;
(e) direct the release of the petitioner forthwith." Mr. Aitzaz Ahsan, learned counsel for the petitioner, inter alia, submitted the following arguments in support of the petition:
(i) By insertion of section 25A of the Ordinance on 3rd February, 2000 a new forum in the form of a Conciliation Committee was provided to resolve, inter alia, the cases of willful default for which till then only section 25 was available according to which the Chairman, NAB was the principal authority to decide the question of release of a person being tried for the offence of corruption or corrupt practices and also nominate the members of the Conciliation Committee. However, by the Second Amendment of 5th July, 2000, section 25-A was amended whereby the powers of Chairman, NAB were curtailed and Governor, SBP was given the leading role in the constitution of the Conciliation Committee and giving his decision on the recommendations of the Conciliation Committee on the mode and manner of payment of the outstanding liability of the defaulter. The Conciliation Committee after examining the record of the bank and the borrower and hearing the petitioner herein submitted its recommendations which were duly approved by the Governor, SBP.
3. The recommendations made by the Conciliation Committee having been approved by Governor; SBP and the petitioner having agreed to the same, his liability stood resolved and all proceedings against him should be stopped and lie should be released forthwith under section 25A(h) of the Ordinance.
(ii) The Chairman, NAB has the authority to refuse to accept the recommendations of the Conciliation Committee duly approved by the Governor, SBP only on four grounds stated in section 25A(g) of the Ordinance. The order of Chairman, NAB dated 7-4-2000 does not refer to any one of the four grounds on the basis of which he refused to accept the aforesaid recommendations and as such his refusal or rejection of the recommendations is without jurisdiction and liable to be set aside.
(iii) The Accountability Court's order is based upon a void order of Chairman, NAB and it has given its own reasoning and justification in support thereof. Neither party had pleaded that the Conciliation Committee or the Governor, SBP was biased, however, the learned Accountability Court exceeded its jurisdiction by alleging collusion on the part of the Conciliation Committee and Governor, SBP which is not supported by any evidence on record and the order of the Accountability Court is therefore liable to be set aside. Mr. Muhammad Anwar Tariq, learned DPGA, submitted the following arguments in reply to the arguments advanced by Mr. Ahsan:
(i) The Constitutional petition has been filed against an interlocutory order passed by the Accountability Court which is not permissible under section 32 of the Ordinance as an appeal is provided against the final judgment only and all Courts are barred from entertaining any appeal against any interlocutory order of the Accountability Court passed-during the proceedings pending before it. The petition therefore is not maintainable and referred, amongst others, to the cases reported in 1976 SCMR 450; PLD 1978 Lah. 1459; 1976 MLD 1656; 1996 SCMR 115; 1998 SCMR 328; 1999 SCMR 1881 and judgment dated 25-8-2000 passed by a Division Bench of this Court in the case of Agha Siraj Ahmed Durrani v. Accountability Court and another C.P. No,D-1243 of 2000.
(ii) The proceedings pending against the petitioner are criminal in nature and such proceedings cannot be stayed or hampered by filing a Constitutional petition and referred to the following cases reported in 1982 SCMR 73; PLD 1992 SC 353; 1993 SCMR 1117.
(iii) The superior Courts do not approve fragmentary decisions in pending cases and all questions arising from interlocutory orders must be agitated in the appeal filed against the final order. He added that the petitioner had filed several petitions in the High Court including C.Ps. Nos. D-881 of 2000 and 499 of 2001 to challenge the proceedings before the Accountability Court which were all dismissed. Thereafter applications under section 265-K of Cr.P.C. In the three proceedings before the Accountability Court were also dismissed against which he has filed this petition. This kind of fragmentary proceedings are not proper and this petition should therefore be dismissed and referred to the following cases reported in PLD 1975 SC 457; PLD 1983 SC 21 and PLD 2001 SC 7.
(iv) The order of the Accountability Court is in accordance with law as the Conciliation Committee in its recommendations did not determine the amount outstanding against the petitioner and the schedule of repayment and consequently its recommendations are in violation of section 25A(c) of the Ordinance.
(v) There were three references against the petitioner relating to the liabilities of three Limited Companies. The petitioner had no authority to enter into a compromise with NAB or anyone else without the authority of a Resolution passed by the Board of Directors of the three companies and bind them or any of their directors or shareholders. Further, the alleged compromise with the Conciliation Committee for the same reason is not binding on Kiran Sugar Mills Ltd., or its directors, guarantors and shareholders.
(vi) The Chairman, NAB's order dated 7-4-2001 has merged into the order of the Accountability Court and cannot be challenged in these proceedings. The Impugned order dated 17-5-2001 passed by the Accountability Court gives the detail reasoning and no fault or illegality can be found in the same. The petitioner should wait for the final order and in case he is aggrieved by it, he can challenge all the interlocutory orders in the appeal against the final judgment before this Court. Exercising his right of reply .Mr. Aitzaz Ahsan submitted the following arguments on the question of maintainability of the petition:
(i) The order of Chairman, NAB dated 7-4-2001 as well the order of the Accountability Court dated 17-5-2001 suffer from patent legal infirmities and clearly show that they were passed without application of mind by the respective authorities. He added that in cases where an authority does not apply its mind and/or its orders are in gross violation of the specific provision of law, a Constitutional petition is a proper remedy as held in several judgments of the superior Courts of the country including those reported in 1996 CLC 833; 1998 CLC 2065; PLD 1996 Lah. 672 and 1983 CLC 2828.
(ii) The Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali, in paragraph 272 has clearly stated that the power of the High Court under Article 199 of the Constitution cannot be taken away, abridged or curtailed by subordinate legislation in so far as it purports to oust the jurisdiction of the superior Courts. Consequently, any provision of the NAB Ordinance which oust the jurisdiction of the High Court to entertain a Constitution petition where an authority exercises powers in blatant violation or contravention of law or passes mala fide orders, the High Court in the exercise of its Constitutional jurisdiction would be justified in entertaining a Constitutional petition and setting aside the impugned order. As the order of the Chairman, NAB dated 7-4-2001 is contrary to the provisions of section 25A(g) of the Ordinance, it is a void order and the order of the Accountability Court upholding the same for extraneous reasons is consequently void and this Court in exercise of its Constitutional jurisdiction has the power to set aside both orders and declare the, prosecution of the petitioner before the Accountability Court to be without lawful authority and set him free. Ms. Ismat Mehdi, learned counsel for Governor, SBP (respondent No,4), submitted that all applications or matters referred to or received by Governor, SBP before or after the Second Amendment in section 25A were referred by him to the Conciliation Committee for consideration and after receiving their recommendations he passed orders thereon as required by section 25A(e) of the Ordinance. She added that in the instant case Governor, SBP followed the same procedure and asserted that under the provisions of section 25A of the Ordinance, Governor, SBP is not required to assign any reason for his decision and therefore his noting that he agreed with the recommendations of the Conciliation Committee were according to the requirements laid down by law. We have heard Mr. Aitaz Ahsan, learned counsel for petitioner, Mr. Muhammad Anwar Tariq, learned DPGA and Ms. Ismat Mehdi, learned counsel for Governor, SBP. After perusing the provisions of the Ordinance and carefully examining the judgment of the Honourable Supreme Court of Pakistan, it appears that the controversy in the present petition revolves around the interpretation of a few provisions of the Ordinance and the effect of the various amendments made therein and that it can be disposed of in light of the judgment of the Honourable Supreme Court in the case of Khan Asfandyar Wali which has decided the vires of the Ordinance and laid down the guidelines for deciding the pending and future cases relating to the said Ordinance and our own judgment dated 31-5-2000 in the case of Kaloodi International (Pvt.) Limited v. Federation of Pakistan and others (C.P. No,D-1897 of 2000 (PLD 2001 Kar. 311). It would therefore, be appropriateto reproduce here only those provisions of the Ordinance which are necessary and relevant for the disposal of the petition. These sections are: "18. Cognizance of offences.--(a) The Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an officer of the NAB duly authorized by him.
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on--
(i) a reference received from the appropriate Government; or
(ii) receipt of a complaint, or
(iii) its own accord.
(c) Where the Chairman, NAB, or an officer of the NAB duly authorised by him, is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against any person, he shall refer the matter for inquiry or investigation.
(d) The responsibility for inquiry into an investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman (or by an officer of the NAB duly authorised by him) NAB.
(h) By the First Amendment dated 3-2-2000, among others section 5(r) was added in the Ordinance which reads as follows: "Section 5(r) 'willful default' .--A person is said to commit an offence of willful 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, cooperatives 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 willful default under this Ordinance if the accused was unable to pay, return or repay the amount as aforesaid on account of any willful 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." By the Second Amendment dated 5-7-2000, inter alia, section 31-D was introduced in the Ordinance. It reads as follows: "31-D. Inquiry, investigations or proceedings in respect of imprudent bank loans, etc.-- Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan: Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conduct without reference from the Governor, State Bank of Pakistan."
4. A perusal of section 18(a) of the Ordinance clearly shows that the Accountability Court shall not take cognizance of any offence except on a reference made by the Chairman, NAB or an Officer of NAB duly authorised by him. Clause (b) of the said section which empowers NAB to initiate reference is to be read with section 31-D and directions issued by the Honourable Supreme Court- in the case of Khan Asfandyar Wali in cases of willful default defined in section 5(r) of the Ordinance.
5. By the First Amendment of 3rd February, 2000 'willful default' as defined in section 5(r) which is basically a civil offence was changed into a criminal offence and made tribal by the Accountability Court and in after by the Second Amendment section 31-D was added in the Ordinance which specified certain conditions without the previous fulfilment of which no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re-scheduled loans could be initiated or conducted by NAB against any person, company or financial institution. The mandatory condition prescribed for commencing, initiating or conducting any inquiry, investigation or proceeding, inter alia, in respect of wilful default is a reference from Governor, SBP. This Bench while discussing the import of section 31-D of the Ordinance in the case of Kaloodi International, observed as follows: "Now we will revert to the provisions contained in section 31-D, to examine the effect of the insertion of this section by Ordinance XIV of 2000, dated 5-7-2000. As already observed the section starts with non obstante clause which has overriding effect on any other provisions contained in the Ordinance or any other law for the time being in force and it does not purport to place merely a bar or fetter on the taking of cognizance by the Accountability Court, but it provides clearly and without any ambiguity that all the powers of initiating inquiry or investigation, appraising the material and evidence and deciding whether it would be appropriate and just to proceed further against an alleged wilful default and it would be appropriate to refer the matter to the Accountability Court, has been taken away from the Chairman, National Accountability Bureau, and after divesting the Chairman, National Accountability Bureau of all such powers, they have been conferred on the Governor, State Bank of Pakistan. Thus, after insertion of section 31-D of the NAB Ordinance, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re-scheduled loans shall be initiated or conducted by the National Accountability Bureau, against any person without reference from the Governor, State Bank of Pakistan. The result is that after the insertion of section 31-D, all such matters are to be placed before the Governor, State Bank of Pakistan and he is the competent Authority in law to take a decision if any inquiry, investigation or proceedings in respect of the loans and wilful defaults shall be initiated or conducted by the National Accountability Bureau, or not. The expression "proceedings" used in section 31-D, are very wide in its import and includes the initiation of proceedings and references by the National Accountability Bureau before the Accountability Court. Thus. Section 31-D, does not place merely a bar on taking of cognizance by the Court without reference from Governor, State Bank of Pakistan to the National Accountability Bureau and thereafter, reference by Accountability Court under section 18(a) of the National Accountability Bureau Ordinance, 1999, but prohibits the initiation of every proceedings...."
6. This Bench consequently held that any reference made by the Chairman, NAB without a reference from the Governor, SBP would be illegal and a nullity in law. However, to provide protection to the pending cases a proviso has been added to the section to the effect that the cases pending before any Accountability Court before coming into force of the Second Amendment shall continue to be prosecuted and conducted without reference from the Governor, SBP.
7. In the case of Khan Asfandyar Wali, the Honourable Supreme Court of Pakistan while upholding the Constitutional validity of section 5(r) of the Ordinance creating the offence of 'wilful default', discussing the significance of the introduction of section 31-D in the Ordinance on 5-7-2000 and referring to the Rule-making powers of the President of Pakistan, wisely observed in paragraph 219 as follows: "219.. ...However, in order to ensure across-the-board accountability we order the following directions for the application of section 5(r) of the impugned Ordinance. The same shall be suitably incorporated in the Rules to be framed under section 34 of the Ordinance, which shall, on promulgation, become part of the Ordinance:--
(i) No prosecution for 'wilful default' shall be launched before the expiry of 30 days' statutory notice and an additional 7 days' notice shall also be served on the alleged defaulter to satisfy Governor, State Bank of Pakistan that he has not committed any 'wilful default' . The report of Governor, State Bank of Pakistan as to the prima facie guilt or innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other public dues falling within the contemplation of section 5(r) of the Ordinance. The Governor, State Bank of Pakistan shall record his recommendation within 7 days with reasons therein.
(ii) Any settlement arrived at with the defaulters by the Chairman, National Accountability Bureau or compounding of any offence shall be subject to the decision of the Accountability Court. In paragraph 220 of the judgment, the Honourable Supreme Court elaborated the reason for the adoption of the above course of action in the following words: "220. Adoption of the above course shall not affect the initiation of investigation and its continuation to its logical end or the proceedings pending before any Authority/Court under NAB Ordinance. These instructions are being issued under Article 37 read with Article 187 of the Constitution, which empowers this Court to issue any appropriate directions, orders or decrees, as may be necessary for doing complete justice in any case or matter pending before it which are enforceable throughout Pakistan. While referring to its earlier judgment in the case of Zafar Ali Shah wherein it was held that the pending trials of the proceedings may continue subject to the said Order, the Honourable Supreme Court in paragraph 314 of the Khan Asfandyar Wali's judgment also ordered as follows: "314. We, therefore, direct that this order shall not affect the trials conducted and convictions recorded or any order passed or proceedings taken thereunder and the pending trials/proceedings may continue subject to this order." Thereafter, the Honourable Supreme Court gave the following directions for the prudent enforcement of its judgment, making necessary amendments in the law and framing Rules under section 34 of the Ordinance in the following terms: "317. We, therefore, allow these petitions with the observations that this order and the directions contained therein shall come into force with immediate effect. However, the Federal Government is directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from today in order to make necessary amendments, modifications, alterations or substitutions as the case may be, to give effect to the above directions. No costs." (Paragraph 317).
8. There is no iota of doubt that the law declared and the directions given by the Honourable Supreme Court of Pakistan are binding on every person, authority and Court in Pakistan and would apply to all the proceedings related or connected with the provisions of the Ordinance including the proceedings in the present case.
9. In the case of Kaloodi International, this Court, after discussing in detail the observations of the Honourable Supreme Court in the case of Khan Asfandyar Wali, elaborated the procedure which must be followed to comply with the directions of the Honourable Supreme Court in all cases of willful default pending at the time of the pronouncement of the said judgment. The Constitutional petition is hereby admitted and following our previous judgment, it is disposed of in the following terms:
(1) The Accountability Court is directed to keep the proceedings of References Nos. 10, 11 and 12 of 2000 against the petitioner in abeyance with directions to the concerned authorities to serve a thirty days' statutory notice on each alleged wilful defaulter providing him her an opportunity to submit his/her explanation, if any, or to pay or return or repay the amount due to the lender, and if the amount due is paid, returned or repaid within 30 days of the service of the statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal of the prosecution and release of the accused/alleged wilful defaulter.
(2) The Accountability Court shall issue further directions that if the amount due is not paid within thirty days of the service of the statutory notice as above, then a 7 days' notice shall be served on the alleged defaulter to satisfy the Governor, State Bank of Pakistan, that he has not committed any wilful default. If the alleged defaulteris able to satisfy the Governor, SBP, that he has not committed a wilful default then the recommendations of the Governor, SBP, recorded in writing with reasons therefor, shall be submitted for final decision of the Accountability Court.
(3) If the alleged defaulter fails to pa/ or return or repay the amount due to the lender within the statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor, SBP within the additional 7 days' period, that he has not committed any wilful default and the Governor, SBP holds the alleged defaulter to have prima facie committed the offence of wilful default in his recommendations for reasons recorded therein, the Accountability Court may recommence the proceedings from the stage where it was kept in abeyance.
(4) During the aforesaid period, all possibilities and avenues of conciliation between the lender and the borrower shall be considered and explored in light of the provisions of the Ordinance and the observations of the Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali (PLD 2001 SC 607). We will particularly emphasize that if a conciliation is arrived at during the statutory period between the lenders and the borrowers to the satisfaction of the other independent and impartial members of the Conciliation Committee and the arrangements is not opposed to public policy and larger national interest and tends to promote the industrial, economic and investment environment in the country and is conducive to restore the confidence of investors, the Governor, SBP and- all concerned shall objectively and seriously consider whether after such arrangements, it still remains a case of wilful default as envisaged in the Ordinance. The Governor, SBP and all concerned shallfurther consider whetherafter conciliation/settlement agreed upon between the lenders and the borrowers, the amount advanced by the lenders still remains due and payable forthwith and the immediate non-payment whereof amounts to wilful default, justifying prosecution or continuance of prosecution of the borrowers treating them as wilful defaulters.
(5) In case the procedure for conciliation is resorted to by the parties, all 'the authorities concerned shall strictly comply with the provisions of the Ordinance and all other relevant applicable laws.
(6) All the concerned authorities including the Conciliation Committee, if any, Governor, SBP and Chairman, NAB shall consider all legal points raised by the borrower and all laws applicable in the circumstances of the case and pass speaking orders giving reasons therefor keeping in view the provisions of the Ordinance, the observations of the Honourable Supreme Court of Pakistan in Khan Asfandyar Wali's case, the general law of the land and the principles of natural justice. The above are the details of the short order passed on 4-6-2001. There shall be no order as to costs.