' Brief facts out of which the present writ petition arises are that SVP/Chief of SAMG, of United Bank filed a complaint before the Chairman, National Accountability Islamabad against Messrs Shah Jewana Textile Mills Ltd. On 16-11-1999 on account of wilful default of payment of outstanding of the respondent-bank. Petitioner was arrested by the respondents and interim reference was submitted before the Accountability Court No,3 on 14-2-2000 and final reference was -- submitted before the said Court on 10-3-2000.
' Petitioner's wife being aggrieved filed a writ petition before this Court for release of the petitioner from NAB custody of the respondents which was dismissed by this Court. Petitioner's wife being aggrieved preferred an Civil Petition No,1630-L of 2000 before the Hon'ble Supreme Court and leave was granted petitioner was also granted ad interim bail by the Hon'ble Supreme Court on 5-7-2000 which was confirmed by the Hon'ble Supreme Court vide Order dated 10-7-2000. The proceedings before the trial Court was not stayed by the Hon'ble Supreme Court. The trial Court framed the charge against the petitioner and his co-accused. The trial Court also recorded the evidence of three prosecution witnesses. Petitioner denied the allegations levelled in the reference on the ground that since the matter had been settled with the Bank by way of settlement prior to the cut of date fixed for the said purpose. Therefore, petitioner is not defaulter on the date when the NAB Ordinance, 1999 came into force. The trial proceedings were in progress. The mother of the petitioner suffered a recurrence of a cancer growth which had earlier been treated in Canada.
Petitioner had to accompany her abroad for her treatment in Canada in an emergency. The petitioner submitted an application before Government of Pakistan Interior Division with the prayer to allow him to travel abroad which was granted by the Government of Pakistan Interior Division vide order dated 12-1-2001 for 30 days from the date of issue of the order dated 12-1-2001. Petitioner submitted an application before respondent No,2 with the prayer to exempt the petitioner for personal appearance and he be allowed to be represented by Ms. Saadia Malik during his absence, and also allegedly attached aforesaid Memorandum dated 12-1-2001 alongwith the application which was dismissed by respondent No,2 vide order dated 24-2-2001 and the case was adjourned for 9-3-2001. Petitioner approached the Government of Pakistan Interior Division for obtaining permission to travel abroad which was allowed by the competent authority for 30 days more vide order dated 21-2-2001. The petitioner filed an application before respondent No,2 for exemption for personal appearance. The same was also dismised by respondent No,2 vide order dated. 9-3-2001 and the case was adjourned for 24-3-2001 The petitioner filed two applications i.e, for review of the order dated 24-2-2001 and exemption from personal appearance on 24-3-2001 before respondent No,2. The petitioner allegedly attached medical certificate and reports of the doctor concerned in U.S.A. Alongwith the aforesaid application. Respondent No,2 dismissed both the applications vide two separate orders dated 24-3-2001. Respondent No,2 also wrote a letter to the worthy Registrar of Supreme Court of Pakistan informing about the situation and for soliciting guidance in that regard and the case was adjourned for 9-4-2001. Petitioner also filed similar application qua the subsequent dates i.e 9-4-2001, 30-4-2001 and 21-5-2001 before respondent No,2 with the prayer for exemption from personal appearance. Petitioner allegedly attach medical certificate qua his health alongwith these applications. The application of the petitioner was dismissed by respondent No,2 vide order dated 9-4-2001 and adjourned the case for 30-4-2001.
Similarly the 2nd application was also dismissed by respondent No, 2 on 30-4-2001 and the case was adjourned for 21-5-2001. The 3rd application was also dismissed by respondent No,2 vide order dated 21-5-2001. Bailable warrants of the petitioner was issued for sum of Rs,20,000 with one surety in the like amount for 11-6-2001. Respondent No,2 also issued notice to the surety to produce the petitioner and also as to why proceeding be not initiated against him for forfeiture of the bonds.
Petitioner being aggrieved filed this writ petition challenging the vires of the order dated 21-5-2001 through this Constitutional petition.
2. Learned counsel for the petitioner submits that impugned order does not contain any reason. He further submits that impugned orders passed by respondent No,2 are contradictory in nature in case all the orders qua the exemption of petitioner be read together. He further submits that respondent No,2 did not apply his mind at the time of passing the impugned order. He further urged that respondent No,2 had passed the order in mechanical manner without adverting to the contents of the application filed by the petitioner. He further submits that impugned orders were passed by respondent No,2 are not sustainable in the eyes of law. Petitioner was allowed by the Government of Pakistan Interior Division to go abroad alongwith her ailing mother which was attached alongwith the application for exemption but the respondent No,2 did not advert to this aspect of the case at all and passed the impugned order on surmises and conjectures. He further urged that the petitioner till date got permission from the Government of Pakistan Interior Division to remain abroad petitioner did not misuse the concession of bail. Petitioner has become ill as is evident from medical reports attached with the applications tiled by the petitioner before respondent No,2. Respondent No,2 without applying his independent mind rejected the application of the petitioner and passed the impugned order. He further submits that the impugned orders are in violation of the law laid down by the superior Courts. In support of his contention he relied upon the following judgments: ' 1986 PCr.LJ 2977 (Walayat Hussain's case)
' 1980 PCr.LJ 1 (Muhammad Hussain's case).
' 1980 PCr.LJ 3 (Pervaiz-ur-Rehman's case).
' 1983 PCr.LJ 1242 (Muhammad Akram's case)
3. Learned Deputy Attorney-General raised the following preliminary objections:
(i) That the petitioner has challenged the vires of the interim order through this Constitutional petition Therefore, writ petition is not maintainable.
(ii) The writ petition is not maintainable by virtue of section 32(c) of National Accountability Ordinance, 1999.
' He further submits that writ petition is not maintainable in presence of alternative remedy of appeal available to the petitioner against final order. In support of his contention he relied upon the following judgments: ' 2000 SCMR 702 (Messrs Sui Southern Gas Co. Ltd's case) and ' 1993 SCMR 1177 (Sindh Quality Control Board of Drug's case)
' He further submits that this Court has no jurisdiction to take the cognizance of the matter by virtue of section 9(B) of National Accountability Bureau Ordinance, 1999. He further submits that the impugned order was passed by respondent No,2 in accordance with law. Petitioner was granted bail by the Hon'ble Supreme Court and respondent No,2 solicited guidance from the Hon'ble Supreme Court through the worthy Registrar. The Hon'ble Supreme court directed respondent No,2 to proceed in the matter in accordance with law as applicable to such cases. He further submits that respondent No,2 is not aware of permission granted by Interior Ministry or by the NAB to the petitioner. The permission granted by the NAB or Interior Ministry relates to exit control and not to the trial of the accused before Accountability Court. He further submits that petitioner opted to go abroad without prior intimation either to respondent No,2 or to the Hon'ble Supreme Court of Pakistan. He further urged that surety of the petitioner had given undertaking to produce the petitioner in Court on each date of hearing. Similarly undertaking was also given by the petitioner before the Hon'ble Supreme Court at time of granting bail to the petitioner by the Hon'ble Supreme Court. Petitioner had violated his undertaking. He further submits that it is the discretion of the trial Court to grant or refuse the exemption to the petitioner. He exercised discretion justly, fairly and after providing several opportunities to the petitioner to appear before him. The petitioner failed to avail the opportunities and the respondent No,2 was constraint to pass the impugned order. This Court has no jurisdiction to take the role of the trial Court.
4. Learned counsel for the petitioner in rebuttal submits that writ petition is maintainable against the interim order as the impugned order is a final order to the extent of exemption. In support of his contention he relied upon the following judgments: ' 1988 MLD 2949 (Mian Muhammad Farooq's case) and ' 1985 CLC 2758 (Mst. Sherin Masood's case).
' He further submits that the impugned order is in violation of the mandatory provisions of Criminal Procedure Code and the law laid down by the superior Courts. Therefore, writ petition is maintainable.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioner's wife filed writ petition before this Court which was dismissed. Petitioner's wife being aggrieved filed civil petition before the Hon'ble Supreme Court and the leave was granted by the Hon'ble Supreme Court. Petitioner was also granted bail by the Hon'ble Supreme Court, reported as 2001 SCMR 294 (Ms. Shahida Faisal and others v. Federation of Pakistan and others). The relevant observation qua the jurisdiction of High Court by interpreting section 9-B of the NAB Ordinance, 1999. The Hon'ble Supreme Court has laid down the following principle: "From the bare reading of this section, it is manifest that the Courts other than the Supreme Court are covered under the said section, for it has been expressly mentioned in this section that the Courts including the High Court shall have no jurisdiction to grant bail. The omission of the words 'Supreme Court' is significant,, therefore, the jurisdiction of this Court under this section is not barred to grant bail to such persons."
' In view of the aforesaid finding of the Hon'ble Supreme Court, this writ petition is not maintainable.
It is better and appropriate to reproduce section 32(c) to resolve the controversy between the parties: "32 Appeal ' Notwithstanding any other law for the time being in force of this Ordinance, no appeal against any interlocutory order of the 90 (xxx) Court during the proceedings pending before it under this Ordinance, shall lie and appeal shall lie only against the final judgment of the Accountability Court."
' It is settled principle of law that this Court in exercise of its Constitutional jurisdiction is not expected to interfere with interlocutory orders passed by the tribunals particularly in view of the intention of the legislature as expressed in the statute which does not make such orders even appealable under the relevant provisions. In arriving to this conclusion I am fortified by the law laid down by the Hon'ble Supreme Court in the following judgments: ' 1976 SCMR 450 (Mumtaz Hussain Bhutta's case); ' PLD 1978 SC 185 (Mian Manzar Bashir's case) and ' PLD 1987 Lah. 39 (Main Ghulam Dastgir's case).
' In view of what has been discussed above, this writ petition has no merits and the same is dismissed. However, in the interest of justice and fairplay, the impugned order of respondent No,2 is held in abeyance for 15 days from today till 22-6-2001 to enable the petitioner to avail proper remedy under the law before the competent forum.