1. Constitutional Petition No,D-1897 of 2000 MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Shorn of unnecessary details, the relevant facts are that petitioner No,1, is a company registered under the Companies Ordinance, as a private limited company. Respondent No,4, Messrs National Bank of Pakistan, is wholly owned, managed and controlled by the Federal Government through Ministry of Finance and their banking activities are supervised by the State Bank of Pakistan, in accordance with the Banking Companies Ordinance, 1962 and the State Bank of Pakistan Act, 1956. The petitioners Nos.3, 4, 5 and 7 are Managing Director and Directors respectively of petitioner No, 1 . The petitioner No,2, is stated to be neither a Director nor a share-holder of petitioner No,1 and petitioner No,6, is wife of petitioner No,3 and daughter-in-law of petitioner No,2. In November, 1993, the respondent No,4, raised demands and according to petitioners it was discovered on verification that the demand was illegal and the respondent No,4, National Bank of Pakistan, had not adjusted the amount of margins deposited with them. The petitioner No,1, therefore, demanded the said adjustment through various letters which was refused. The bank raised further demand which according to petitioners was in violation of Prudential Regulation No,XVII, dated 18th February, 1992 framed in that behalf by the State Bank of Pakistan. The petitioner No,1, therefore, claimed accounts and on refusal filed Suit No,372 of 1994, in the High Court of Sindh, for rendition of accounts and recovery of Rs,85,072,652 and US 90,000, which suit is still pending in the High Court.
2. Messrs Mehran Bank Limited filed a complaint with the Director F.I.A., Islamabad on 29-6-1994, alleging that the goods which were specified to be the stock under hypothecation of Messrs Mehran Bank Limited, were in fact pledged with Habib Bank Limited, and as such Directors of the company committed offence punishable under sections 471/ 109/408/409, read with section 34,.P.P.C. The petitioners Nos.2 and 3 were arrested but were subsequently released on bail. The case was challaned before the Special Court Banking, in which evidence has been partly recorded. In the meantime Mehran Bank Limited was merged with the National Bank of Pakistan and the bank filed a suit under the banking jurisdiction of the High Court in the year 1997, which was registered as Suit No,47 of 1998. The High Court granted leave to defend the suit by order dated 26- 9-1998. The petitioner No,2, was arrested between the night of 12/13 November, 1999. On 16-11-1999 National Accountability Ordinance, 1999 (hereinafter referred to as NAB Ordinance) was promulgated. He was informed that he was arrested under the NAB Ordinance, 1999. His name appeared in the newspapers alongwith other persons as Bank Defaulter. Subsequently a reference was sent to the Accountability Court No,1, Sindh Karachi on 10-7-2000. It was not entertained on that date on account of certain legal objections raised by the Registrar of the Court. The Special Prosecutor, reported compliance on 21-7-2000 and the Accountability Court, issued N.B.Ws: against the petitioners Nos.2 to 7. It is stated in the Memo. Of petition, that the. Advocate for petitioners came to know that the said reference was filed without the authority of Governor State Bank of Pakistan as required under section 31-D of the NAB Ordinance, which was inserted in the said Ordinance on 5- 7-2000 by Ordinance No,XXIV of 2000. The advocate for the petitioners filed an application under section 25-A, read with section 31-D of the NAB Ordinance, on 26-7-2000. Notice was issued to the Special Prosecutor. The trial Court did not issue any fresh process against the petitioners except for production order in respect of petitioner No,2, who was already in custody in another case. The above application was argued and was disposed of on 31-10-2000, whereby option was given to the NAB Authorities, either to withdraw the reference and present the same after obtaining the sanction of the Governor, State Bank of Pakistan or in, the alternative to produce the order of the Governor, State Bank of Pakistan. The Special Prosecutor produced an order dated 10-11-2000, by the Governor State Bank of Pakistan, addressed to Chairman NAB, directing him to proceed with and conduct the trial of the accused persons in the case of State v. Abdul Shakoor Kaloodi and 5 others. ' The said order reads as follows:-- STATE BANK OF PAKISTAN DR. ISHRAT HUSAIN Karachi Governor November 10, 2000. Reference under section 31-D of NAB Ordinance, 1999 --- Abdul Shakoor Kalodi and others Dear Gen. Maqbool, You are hereby directed to please proceed with and conduct the trial of the accused persons in the case filed State v. Abdul Shakoor Kalodi and 5 others (Reference No,37 of 2000) pending before the Accountability Court, Karachi Sindh, in accordance with the provisions of the NAB Ordinance.
3. Yours Sincerely (Sd.)
4. (ISHRAT HUSSAIN) Lt.-Gen.Khalid Maybool, Chairman. National Accountability Bureau, Chief Executive Secretariat, Islamabad.
5. On receipt of the said order, the trial Court issued N.B.Ws.: against the petitioners 3 to 7. It is alleged in this petition that the order of Governor State Bank of Pakistan, dated 10-11-2000, does not satisfy the requirements of section 31-D of the NAB Ordinance. It is alleged that the said order has exposed the mala fide actions taken in union by the Bank, the NAB and its Chairman and the State Bank of Pakistan and its Governor in that the Chairman NAB sent a request for such an order, without apprising him of the full facts of the case believing all the time that the mechanical request would receive a mechanical answer in the affirmative. The Governor, State Bank of Pakistan, without making any inquiries, whatsoever, acted in accordance with a pre-determined line of action. The petitioners being aggrieved with the reference against them to the Accountability Court, have preferred this petition on various grounds including the non-compliance of the provisions contained in section 31-D of the NAB Ordinance and assailing the order of trial Court dated 31-10- 2000, whereby option was given to the Chairman NAB, either to produce the sanction order from Governor State Bank of Pakistan or to withdraw the reference. It is contended that the first option given was not available in law. The petitioners have further assailed various provisions of the NAB Ordinance as ultra vires the Constitution. During the pendency of this petition the Hon'ble Supreme Court of Pakistan, has decided various petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, challenging the vires of the NAB Ordinance. (Khan Asfandyar Wali v. Federation of Pakistan and others PLD 2001 SC 607. In view of authoritative pronouncement by the Hon'ble Supreme Court of Pakistan, the learned counsel for the petitioners has not pressed any other relief except that the proceedings presently pending in the Accountability Court No,1, Sindh, being Reference No,37 of 2000 be quashed and the petitioner No,2, be released forthwith if not required in any other case. Mr. Abdul Hafeez Lakho, learned counsel for the petitioners has submitted that section 31-D, was inserted in the NAB Ordinance, 1999 by Ordinance No,XIV of 2000, dated 5-7-2000 which reads as follows:- "31-D, Inquiry, investigation 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." He has submitted that after the insertion of above section in the NAB Ordinance, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans could be initiated or conducted by the National Accountability Bureau, against any person without reference from the Governor, State Bank of Pakistan. According to the learned counsel, the non- compliance of the mandatory provision has the effect of vitiating every inquiry, investigation or proceedings initiated or conducted by the National Accountability Bureau. The non-compliance with the provisions of section 31-D of the NAB Ordinance is an illegality and not an irregularity, therefore, the Accountability Court fell in error by giving an option to the Chairman National Accountability Bureau, for producing an order of the Governor State Bank of Pakistan, after the reference was already sent to the Accountability Court and the Accountability Court had issued N.B.Ws.: against the petitioners 2 to 7. The learned counsel for the petitioners has further submitted that the Hon'ble Supreme Court of Pakistan, while dealing with the validity of section 5(r) of the NAB Ordinance, which defines willful default added by Ordinance No,IV of 2000, dated 3-2-2000 and has been declared simultaneously as an offence under section 9(8) of the NAB Ordinance, has observed in para. No,219 of the judgment as follows:-- "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 'willful 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 'willful 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 recommendations within 7 days with reasons therein." He has further submitted that in para. 220, the Hon'ble Supreme Court, has observed as follows:-- "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." The Hon'ble Supreme Court, has further observed in para. 227 as follows:-- "It is well-settled that matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure. It is also well-settled principle of interpretation of statutes that only a matter of procedure would be retrospective." In respect of applicability of the directions contained in the judgment of Hon'ble Supreme Court of Pakistan, it has been held in paras.313, 314 and 317 as follows:-- "313. The individual grievances of any of the petitioners are not being examined in these proceedings. Also refer Zafar Ali Shah (supra) vide paragraph No,283 whereof it was observed: 283...On the question of legislative power in relation to Court's declaration of law, the matter stands concluded by judgment of this Court in Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another PLD 1968 SC 101 in the following terms: 'This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its4bwn force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act.' In Zafar Ali Shah's case (supra) a specific direction was given that the Government shall accelerate the process of accountability in a coherent and transparent manner justly fairly equitably and in accordance with law. It was also observed that the order passed therein will not affect the trials conducted and convictions recorded including proceedings for accountability pursuant to various orders made and Orders/laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings may continue subject to this order (emphasis provided). We see. No reason to modify the above order of an eleven-Member Bench of this Court which is even otherwise binding on this Bench.
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.
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." Mr. Abdul Hafeez Lakho, has submitted that the directions of Hon'ble Supreme Court, contained in para. 219 of the judgment to the effect that no prosecution for wilful default should be launched before the expiry of 30 days statutory notice and an additional 7 days notice to be served on the alleged defaulter to satisfy Governor State Bank of Pakistan, that he has not committed any wilful default, is procedural in nature and shall be applicable to the pending proceedings. He has further submitted that the cumulative effect of the provisions contained in section 31-D of the NAB Ordinance and the directions given by the Hon'ble Supreme Court of Pakistan in the case of Khan Afsandyar Wali v. Federation of Pakistan and others PLD 2001 SC 607, is that no inquiry, investigation or proceedings in respect of a wilful default can be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor State Bank of Pakistan, and no prosecution for wilful default can be launched before the expiry of 30 days statutory notice and an additional 7 days notice giving opportunity to the alleged defaulter to satisfy Governor State Bank of Pakistan, that he has not committed any wilful default. It is further incumbent on the Governor State Bank of Pakistan, to record his recommendation within 7 days with reason therein and thereafter the report of the Governor State Bank of Pakistan as to the prima facie guilt or innocence shall be submitted before the Accountability Court for its final decision. Mr. Lakho, has urged that for want of compliance with the requirements of law which are the conditions precedent for initiation of proceedings before the Accountability Court in respect of wilful default, the proceedings pending before the Accountability Court are illegal and void and are required to be quashed. On the other hand the learned Advocates for the respondents have submitted that initially there was a lacuna in reference made by the National Accountability Bureau under section 18 of the NAB Ordinance and inadvertently the compliance was not made with the provisions contained in section 31-D of the NAB Ordinance requiring reference from Governor State Bank of Pakistan, but subsequently the irregularity was cured after order of the Accountability Court dated 31-10-2000, whereby option was given to the National Accountability Bureau either to withdraw the case and present the same after obtaining sanction of the Governor State Bank of Pakistan or in the alternative to produce order of the Governor State Bank of Pakistan . They have submitted that with the production of order dated 10-11-2000 by the Governor State Bank of Pakistan, the requirement of law was fulfilled and the irregularity was cured. They have further submitted that the directions of Hon'ble Supreme Court for service of 30 days statutory notice and an additional 7 days notice to the alleged defaulter for satisfying Governor State Bank of Pakistan, that he has not committed any wilful default is not applicable to the pending references as it is not retrospective in effect. The learned Advocates for the respondents have submitted that section 5(r) of the NAB Ordinance has been held by the Hon'ble Supreme Court of Pakistan as a valid piece of legislation. The requirements 'of section 31-D, have been met by subsequent production of the sanction order from the Governor State Bank of Pakistan and the directions of Hon'ble Supreme Court, contained in para. 219 of the judgment being prospective in nature are not attracted to the pending proceedings, therefore, no valid reason has been .Assigned for abashment of proceedings before the Accountability Court and consequently the petition is liable to be dismissed with costs. We have carefully considered the contentions raised by the learned advocates for the parties. The first paint for consideration is whether the non-compliance of the requirement contained in section 31-D of the NAB Ordinance, is an illegality rendering the entire proceedings void and vitiated or is an irregularity which stood cured with subsequent production of order by the Governor State Bank of Pakistan. The facts are admitted and there is no dispute that section 31-D NAB Ordinance was inserted by Ordinance No, XXIV of 2000 dated 5-7-2000 and the reference under section 18 of the NAB Ordinance, was made to the Accountability Court on 10-7-2000. The Accountability Court took cognizance on the said reference on 21-7-2000 when N.B.Ws.: were issued against the petitioners 2 to 7. The application on behalf of petitioners under section 25-A read with 31-D of the NAB Ordinance was submitted on 26-7-2000, which was disposed of on 31-10-2000, whereby the Accountability Court gave option to the NAB Authorities either to withdraw the case and present the same after obtaining the sanction of the Governor State Bank of Pakistan or in the alternative to produce the order of the Governor, State Bank of Pakistan. The Governor State Bank of Pakistan passed the order to proceed with and conduct the trial of accused persons in Reference No,37 of 2000, pending before the Accountability Court, on 10-11-2000, which was produced before the Accountability Court by the Special Prosecutor. A similar question came for consideration before the Federal Court of India in the case of Basdeo Agarwalla v. Emperor AIR (32) 1945 FC 16. In this case the appellant was charged with two offences alleged to have been committed on 20th April, 1944, in contravention of the provisions of clauses (9)(a) and (13)(d), Drugs Control Order, 1943. The appellant was convicted on 29th June, 1944 and sentenced to a term of four months rigorous imprisonment. The appellant appealed to the High Court of Judicature at Fort William in Bengal, against the conviction and the sentence was reduced but the conviction was upheld. Certificate under section 205, Government of India Act, 1935, was granted, to consider the absence of sanction of the Provincial Government required under clause
(16) of the Drugs Control Order, 1943, which reads as follows:-- "No prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government..." In compliance with the provisions of clause (16) above, the Provincial Government, made an order sanctioning the prosecution of the appellant by a document, dated 23rd May, 1944. It was argued before the Federal Court that the prosecution was instituted prior to the giving of sanction by the Provincial Government, and therefore, having regard to the very definite provisions of clause (16), the proceedings and conviction must be held to be null and void. On perusal of record it was found that the appellant was produced before Chief Presidency Magistrate on 2nd May, 1944 and the challan was submitted on the same day. The Chief Presidency Magistrate transferred the case, to another Magistrate, who adjourned the case to 16th May, 1944. On 16th May, 1944, it was noted that the sanction had not been received and on 24th May, 1944 a note appeared "sanction filed". Thereafter, the case proceeded and the appellant was convicted on 29th June, 1944. The Federal Court observed that the absence of sanction was given little importance by the Magistrate and the High Court. It was treated as a mere technical objection as prosecution evidence was recorded after the sanction was received. On behalf of prosecution it was argued before the Federal Court, that no doubt, all that had been done in the matter prior to the 24th May, was without jurisdiction, which could be severed from the subsequent proceedings and the latter be regarded as separate and fresh proceedings properly sanctioned. In this matter reference was made to sections 196 and 197, Cr.P.C. And cases decided in connection with such sections. But having regard to the difference in the wordings of the sections in question as compared with the wording of clause (16). Drugs Control Order, 1943, the Federal Court of India held that no material assistance was provided from the cases decided with reference to sections 196 and 197, Cr.P.C. The Federal. Court of India held as follows:- "In our view, the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The clause in question was obviously enacted for the purpose of protecting the citizen, and in order to give the Provincial Government in every case a proper opportunity of considering whether a prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government, if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be an automatic formality and should not so be regarded either by police or officials. There may well be technical offences committed against the provisions of such an Order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient.
6. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started is a very different thing. The fact that a citizen is brought into Court and charged with ah offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undo the harm which may have been done by the initiation of the first stages of a prosecution. Moreover, in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started. In our judgment the words of clause (16) of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, that they should be regarded as completely null and void, and if sanction is subsequently given, that new proceedings should be commenced ab initio.
7. Only so can the protection intended for the citizen be assured. In our judgment the prosecution in this case was clearly instituted without the previous sanction required by clause (16), and it is not possible to sever the proceedings prior to 24th May from those occurring on and after this date.
8. Consequently, as, when the sanction was obtained, no new start was made, the whole proceedings in this case are null and void. The appeal must accordingly be allowed and we direct the case to be remitted to the High Court, and declare that in place of the conviction recorded against the appellant an order shall be made quashing all the proceedings for want of jurisdiction." Prior to the above judgment by Federal Court, a similar issue came for consideration before Lahore High Court in the case of Arjan Singh v. Emperor AIR 1939 Lahore 479, with reference to section 270 of the Government of India Act, 1935. In this case a contractor, Sub-Divisional Officer and Overseer were challaned by police under section 173, Cr.P.0 for commission of offences under sections 420/109, I.P.C. An objection was raised that the proceedings were illegal and without jurisdiction for want of consent of the Governor, for initiation of proceedings against the Government officials as required by. Section 270, Government of India Act, 1935. The objection was overruled. The case was subsequently transferred to another Magistrate and after several dates the Public Prosecutor produced an order by the Home Secretary to Government of Punjab purporting to have been passed by the Governor of the Punjab under section 270(1), Government of India Act. After receiving the consent of Governor, the transferee Magistrate framed fresh charge and the prosecution witnesses were examined de novo. The Magistrate ultimately overruled the objection that the belated consent was invalid and convicted the Government officials. On appeal before the Sessions Judge it was again urged that the proceedings against the appellants were not properly initiated as the Governor's consent had not been obtained beforehand, that the "consent" subsequently obtained was not sufficient. The objection was overruled, inter alia, for the reason that the consent was filed before the case was tried de novo and, therefore, it has not caused any prejudice to the accused persons. A Revision was preferred against the above finding of Sessions Judge which was presented before Abdul Rashid, J. (as his lordship then was subsequently C.J.
9. Pakistan), sitting in Single Bench. The learned Judge in view of the importance of the questions of law involved, referred the case to a Division Bench. The relive questions of law which were framed by the Division Bench and considered by it were as follows:-- "1. Whether 'consent' of the Governor in his discretion was necessary under section 270, Government of India Act, for initiation of criminal proceedings against the petitioners in respect of the offence mentioned in the charge?
2. If so, were the proceedings, started against the petitioners on the police report, dated 9th August, 1937 without such consent having been previously obtained, without jurisdiction and ab initio void, and could not be validated by the subsequent production of the 'consent' (Exh.P.Z.) on 20th April, 1938, before the trial began de novo before Chaudhri Jai Narian Singh." The relevant portion of section 270, Government of India Act, 1935 reads as follows:-- "Section 270, Government of India Act: 270(1). No proceedings, civil or criminal, shall be instituted against any person in respect of any act done, or purporting to be done, in the execution of his duty as a servant of the Crown in India...
10. Before the relevant date, except with the 'consent'... In the case of a person employed in connection with the affairs of a province, of the Governor for that Province in his discretion...
(3) For the purposes of this section the expression 'the relevant date' means, in relation to acts done by persons employed about the affairs of a Province... The commencement of Part III of this Act..." Mr. Muhammad Munir Assistant Advocate-General (as his Lordship Mr. Justice Muhammad Munir, subsequently C.J. Pakistan, was at that time) did not seriously dispute that the consent of the Governor was necessary for the initiation of criminal proceedings against the petitioner. The next question which pertained to the failure of prosecution to file the consent at the time of initiation of the proceedings against the petitioner was decided as follows:-- "The next question for consideration is, what is the effect of the failure of the prosecution to file the 'consent' at the time of the institution of the proceedings against the petitioners. As already stated, proceedings in this case were initiated on 27th May, 1937, when the police report was forwarded to the Magistrate. The 'consent' of the Governor, however, was not given till 4th March, 1938, and it was not actually produced in Court till 20th April, 1938. The provisions of subsection (1) of section 270, the relevant portion of which has been reproduced above, are mandatory and admit of no reservation or exception. It contains a positive prohibition against the institution of civil and criminal proceedings against the persons described in the section in respect of the acts mentioned, without such consent. In other words, the Governor's 'consent' is an essential pre- requisite to the competency of the Court to entertain the Court's jurisdiction, and its absence renders the entire proceedings void. Ab initio. This matter also has been 'put beyond doubt by the decision of Federal Court in Dr. Hori Ram Singh's case cited above, where it was held that the 'consent of the Governor is a condition precedent to the institution of the proceedings against the public servant,' and as in that case the requisite consent had not been given, the proceedings in respect of the charge, for which consent was held necessary, were quashed. The learned Advocate-General, who appeared at a later stage of the arguments, conceded, that in this view of the case, the initiation of the proceedings against the petitioners was illegal and the subsequent production of the 'consent', even though it was before the commencement of the trial de novo, could not validate what was invalid at its inception. The statute contains a positive prohibition against the initiation of proceedings without the prescribed consent, and such an illegality cannot be cured under section 537, Criminal P.C., even when no prejudice has been shown to have been caused: 25 Mad. 61 and 5 Rang 53 at p.57. In this connection, reference may also be made to cases decided by the Courts in India, in which statutory provisions regarding sanction for initiation of proceedings had not been complied with, and it was held that the illegality was not cured by the subsequent grant or production of the sanction: see 42 Mad. 885. AIR 1923 Mad. 338=71 IC 244 at p.266, 9 Born 288 at pp.295, 299, AIR 1927 Nag 202=104 IC 108, 1 Born HCR 107, AIR 1933 Cal 880=145 IC 874, AIR 1934 All 963=152 IC 667 and AIR 1934 Lah. 972=150 IC 693; of also AIR 1936 Lah.
11. 781=165 IC 61 and 37 Cal 467 at page 490. The only two cases to the contrary, which I have been able to find the reports are 62 Cal. 749 and AIR 1939 Lah.
1. In the first of these rulings it was observed that the failure to produce the sanction under section 197, Criminal Procedure Code was a mere technical defect in the initiation of the proceedings and that such an unsubstantial technicality would not render the proceedings void where no prejudice had in fact been caused by it. In this case, the point was not discussed at any length and no reasons for this conclusion were given. The second ruling is a recent single Bench decision of this Court in AIR 1939 Lah. 1, the authority of which, as regards the interpretation of section 270, Government of India Act, is completely shaken by the recent pronouncement of the Federal Court in Dr. Hori Ram Singh's case. There are certain observations in the judgment at p.3, Col. 2, para. 2 which support the learned Sessions Judge's view, but, if I may say so with all respect, they are too widely worded, and as was admitted by Mr. Monir for the Crown, are not borne out by the authorities with the single exception of the Calcutta case just cited. After a careful consideration of the matter, I have no doubt that non-compliance with the mandatory provisions of section 270, which admit of no implications or exceptions, rendered the institution of the proceedings in this case void, and the subsequent production of the consent' could not validate it." Ultimately Tek Chand, J., held that the petition must succeed on the decision that the proceedings initiated without the consent of the Governor were void and without jurisdiction and this fundamental defect could not be cured by the subsequent grant of the "consent". The petition was accordingly accepted and the entire proceedings were quashed. It was, however, observed that it will be open to the Governor, after considering the facts of the case, to give his "consent" for fresh prosecution in respect of the alleged acts of the petitioners if he should think fit. Mr. Justice Blacker, the other member of the Bench while agreeing with the ultimate finding of Mr. Justice Tek Chand, to the effect that in the absence of previous consent under section 270, Government of India Act, the entire proceedings were liable to be quashed but did not agree that the proceedings were also vitiated by the absence of previous sanction under section 197, Criminal Procedure Code. He held that there was fundamental difference between the two sections, Section 270, created a bar to the "institution" of proceedings, that is to say to the act of a complainant making a complaint or of a police officer making a report as well as to the act of a Magistrate taking cognizance upon such complaint or report. He further observed that, "what is barred by section 197, Cr.P.C., appears to me to be not the making of a complaint or the submitting of a police report but act of a Magistrate in taking cognizance of the offence on such complaint or such report or in any other way." While discussing the implication of sanction under section 197, Cr.P.C. Mr. Justice Blacker, held that, "if a Magistrate has purported to take cognizance of an offence before the necessary sanction is received, it is only what he has done up till that time that is void and cannot be revived. This, however, does not mean that after the sanction has been received he cannot again commence to take valid cognizance. The complaint or police report not being invalidated by the absence of the sanction under this section which is still in legal existence and can form the legal basis for the taking of fresh cognizance under section 190. He observed that in this view all that is to be seen is whether section 537, Cr.P.C. Is applicable to the circumstances of the particular case. Where for instance the sanction has not been received till after some of the evidence has been recorded and the Magistrate does not record that evidence again he would clearly be basing his judgment partly on evidence which has no legal existence as it was taken at a time when he had no jurisdiction to take it. This would clearly amount to a failure of justice and the irregularity would not be cured by section 537. But I agree with my learned brother that failure to obtain previous "consent" to the institution of proceedings within the meaning of section 270 is an illegality which cannot be cured". In order to properly appreciate the view taken by Mr. Justice Blacker, above, it would be appropriate to re-produce section 197, Cr.P.C. Which is as follows:-- "197. Prosecution of Judges and public servants.---(1) When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of them official duty, no Court shall take cognizance of such offence except with the previous sanctions:--
(a) in the case of a person employed in connection with the affairs of the Centre, of the President; and
(b) in the case of a person employed in connection with the affairs of a Province, of Governor of that Province.
(2) Power of president or Governor as to prosecution. The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, any may 'specify the Court before which the trial is to be held." A similar question was considered by the Patna High Court, in the case, of Abdul Mian and others v.
12. The King, AIR 1951 Patna 513. In this case the appellants were prosecuted under section 295-A, I.P.C.
13. For slaughtering a bullock in an open field. The appellants were ultimately convicted under section 298, I.P.C. It was argued before Patna High Court that the prosecution was not sanctioned by the local Government and, therefore, the conviction of the appellants was illegal. The lower appellate Court had held that there was no defect in taking the cognizance as the appellants were ultimately convicted under section 298, I.P.C., upon the same complaint for which no sanction was required. It was held by Ramaswa mi, J. That it was not permissible to look at the ultimate result of the trial in order to examine whether the Magistrate has taken legal cognizance of the case. In this regard reliance was placed on the following judgments:
(1) Ravanappa v. Reddi v. Emperor AIR 1932 Mad. 253; and
(2) Narain Singh v. Emperor AIR 1925 All.
129. It was held that the entire proceedings were wholly illegal from the start for want of sanction of the Provincial Government for the prosecution of the appellants and reliance was placed on the judgment of Privy Council in the case of Gokulch and Dwarkadas v. The King AIR 1948 PC 82, wherein it was observed that sanction to prosecute constitutes a condition precedent to the institution of the prosecution. The giving of the sanction confers jurisdiction on the Court to try the case and where there is no valid sanction there is a defect in the jurisdiction of the Court which can never be cured under section 537, Cr.P.C. Further, reliance was placed on the opinion of Federal Court of India in Basdeo Agarwalla v. The King AIR 1945 FC 16 (supra).
14. After a very careful consideration of the contentions raised before us and giving anxious consideration to the provisions contained in section 31-D of NAB Ordinance, we are of the considered opinion that the initiation of proceedings against the petitioners without reference from the Governor State Bank of Pakistan, amounted to an illegality which rendered the entire proceedings to be null and void. The initiation of proceedings and taking of cognizance by the Court stood vitiated for such illegality. It was not an irregularity which could be cured under section 537, Cr.P.C. The reason being that if there is 'any defect 'in' the course of proceedings it can be subsequently cured but if there is any defect 'to' the proceedings it goes to the very root of jurisdiction. Any defect in jurisdiction is always an illegality which renders the entire subsequent acts on the basis of defective jurisdiction to be null and void. At this juncture, we would like to clarify two other situations. First, if there is any defect, or irregularity during the course of investigation or inquiry but the Court taking cognizance is competent in law to take the cognizance and has taken the cognizance competently and validly, then any defect or irregularity in the course of investigation or inquiry shall not have the effect of vitiating the proceedings in Court, trial and the decision.' We would like to emphasize that it should always be kept in view that the taking of cognizance by the trial Court does not suffer from any jurisdictional error or illegality. Secondly, if there is any bar in law on taking cognizance by the court prior to any sanction by the competent authority specified in law, but there is no bar on conducting investigation by the Investigating Authority or making any inquiry by the Inquiry Officer or filing of any complaint by a complainant then the initiation of investigation/inquiry and submission of Police Report/challan before a Court or filing of a complaint shall be permissible but the Court shall not take cognizance, meaning thereby, that it shall not take any notice of the said police report/challan/complaint until and unless the required sanction is produced.
15. Mr. Justice Blacker of the Lahore High Court, has dilated on this distinction in the judgment reported as AIR 1939 Lahore 479 (supra). A comparison of the provisions contained in section 197, Cr.P.C. And section 270 of the Government of India Act, 1935, makes' the distinction obvious. A perusal of section 197, Cr.P.C. (supra) shows that the legislature has provided that no Court shall take cognizance of such offence except with the previous sanction of the President or the Governor, as the case may be Similar provisions are contained in sections 195, 196 and 196-A, Cr.P.C. Which place bar on taking of cognizance by the Court unless the complaint is made by the competent authority or the sanction as the case may be, is accorded. However, no bar is contained in these sections on initiation of investigation/inquiry or proceedings and launching/initiation of prosecution. On the other hand it was specifically provided in section 270(1) of the Government of India Act, 1935 that no proceedings, civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as the servant of Crown in India except with the consent of the Governor of the Province in his discretion where he is employed in connection with the affairs of the Province. Thus, the bar contained in section 270 of the Government of India Act, was not only to the taking of cognizance by the Court but to the very institution of any civil or criminal proceedings. Likewise it was provided in clause (16) of the Drugs Control Order, 1943 that no prosecution for any contravention of the provisions of the said order shall be instituted without the previous sanction of the Provincial Government.
16. Now coming to the provisions contained in section 31-D of the NAB Ordinance, we find that it starts with the non abs ante clause which means that it shall have the overriding effect on any other provision contained to the contrary in the NAB Ordinance or any other law for the time being in force. It specifically provides that 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. In order to provide protection to the pending cases a proviso was added to the effect that the 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 conducted without reference from the Governor State Bank of Pakistan. This proviso was necessary to keep the pending cases intact because otherwise all the cases pending before the Accountability Court pertaining to the willful default and ancillary matters would have been rendered vitiated and void, as the provision contained in section 31-D is on one hand procedural and on the other hand mandatory. It is always permissible under the principles of interpretation of statutes to discover the intention of legislature by comparing various provisions of the same Statute or of the different statutes of same nature. When we compare, the provisions contained in section 31-D of the NAB Ordinance with the provisions contained in section 18(a), (b), (c) and (g), we find a marked distinction in the two provisions. Section 18(a), (b), (c) and (g) read as follows:-- "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 National Accountability Bureau duly authorised by him).
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on:--
(i) a reference received from the (Omitted) appropriate Government; or
(ii) receipt of a complaint; or
(iii) its own accord.
(c) Where the Chairman National Accountability Bureau, or an officer of the National Accountability Bureau 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).
(g) The Chairman National Accountability Bureau, (or by an officer of the National Accountability Bureau duly authorised by him) shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further, he shall refer the matter to an Accountability Court."
17. A perusal of the above section shows that under clause (a) a fetter has been placed on taking of cognizance of any offence by the Accountability Court under the Ordinance, except on a reference made by the Chairman National Accountability Bureau, or an officer of the National Accountability Bureau, duly authorised by him. Clause (b) empowers the National Accountability Bureau, for initiating reference on reference received from the appropriate Government or receipt of a complaint or on its own accord. The clause (c) enjoins upon the Chairman National Accountability Bureau or an officer of National Accountability Bureau duly authorised by him to form an opinion of it is necessary and appropriate to initiate proceedings against any person and if so then only he shall refer the matter for inquiry or investigation. Under clause (g) the Chairman National Accountability Bureau or any officer of the National Accountability Bureau authorised by him is required to appraise the material and the evidence placed before him during the inquiry and the investigation, and then if he decides that it would be proper and just to proceed further, he shall refer the matter to an Accountability Court. Now we will revert to 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-abstante clause which has overriding effect on any other provisions contained in the Ordinance on 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 willful default and it would be appropriate to refer the matter to the Accountability Court, have 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 rescheduled loans shall he 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 willful defaults shall be initiated or conducted by the National Accountability Bureau, or not. The expression proceedings used in section 31-D, is very wide in its import and includes the initiation of proceedings and references by the National Accountability Bureau before the Accountability Court.
18. 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 very proceedings and as such the reference made by the Chairman National Accountability Bureau in this case without reference from the Governor State Bank of Pakistan was illegal and a nullity in law which cannot be cured by subsequent order of the Governor State Bank of Pakistan, directing the Chairman National Accountability Bureau to proceed with and conduct the trial of accused persons in Reference No,37 of 2000. There is another aspect that the provisions contained in section 31-D of the NAB Ordinance fall within the classification of enabling law. The enabling statute, is that kind of legislation which either enables something to be done which was previously forbidden or not distinctly authorised by law or which prescribes the way in which something is to be done. The last category of enabling statutes is that which prescribes or regulates the way in which something is to be done. One of the principles regarding the enabling statutes is that where the legislature has expressly prescribed one or more particular modes of dealing with the matters specified therein then it excludes any other method of doing the acts. Sometimes the enabling acts are directory in nature also. However, if the provision is in the nature of absolute enactment then if anything is neglected or contravened it shall make the entire proceedings invalid and alto her void. There is no hard and fast rule of universal application for determining whether an enabling act is absolute or directory in natures However, mostly enactments expressed in negative and prohibitory language are treated as absolute enactments. The following passage from Crazies on Statute Law Vth Edition, page 243 (7th Edition page 263) has been cited with approval by a Full Bench of Hon'ble Supreme Court, in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 620:-- "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings."
19. A perusal of section 31-D, shows that it is couched in negative language and it has prescribed a particular manner and mode whereby 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 without reference from the Governor State Bank of Pakistan. In the present case the National Accountability Bureau, had already made a reference against the petitioners to the Accountability Court without any reference from the Governor State Bank of Pakistan. This mode/manner of making a reference to the Accountability Court is in clear violation of the prohibitory provisions contained in section 31-D and as such it is void ab initio and cannot be cured by any subsequent order of the Governor State Bank. Section 31-D, prescribes that first a reference is to be received from Governor State Bank of Pakistan and thereafter any inquiry, investigation or proceedings shall be initiated or conducted by the National Accountability Bureau.
20. It does not provide that the National Accountability Bureau shall initiate the proceedings and subsequently obtain the order of Governor State Bank of Pakistan in mechanical manner and as a matter of course. Respectfully following the dictum laid down by the Federal Court of India in the case of Basdeo Agarwalla v. Emperor (Supra), we hold that the reference under section 31-D of the NAB Ordinance by the Governor State Bank of Pakistan to the National Accountability Bureau, must be made before the initiation of any inquiry, investigation, reference or any other proceedings by the National Accountability Bureau. The reference should always precede and should not succeed the initiation of proceeding's etc. As fait accompli. There is a vast difference in making a reference by the Governor State Bank of Pakistan on its own accord after application of mind independently and considering the feasibility of launching a prosecution after appreciating the facts and circumstances of a particular case and passing of an order for continuing a prosecution already initiated in order to fulfill a technicality in a formal manner.
21. Consequent to the above discussion, we have no scintilla of doubt in our mind that the reference made against the petitioners in Reference No,37 of 2000, is violative of the mandatory provisions contained in section 31-D, rendering the very initiation of proceedings and all subsequent acts wholly illegal and void and the illegality is not curable by subsequent order of the Governor State Bank of Pakistan, with the result that the entire proceedings are liable to be quashed.
22. This brings us to the second issue under consideration pertaining to the applicability of conditions prescribed by the Hon'ble Supreme Court in the case of Khan Afsandvar Wali In para. 219 of the above judgment, Hon'ble Supreme Court, while upholding the validity of section 5(r) of the NAB Ordinance, has directed that in order to ensure across-the-board accountability, rules shall be framed under section 34 of the NAB Ordinance which shall on promulgation become part of the Ordinance, including the following rule:-- "(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 'willful 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 recommendations within 7 days with reasons therein."
23. In para. 220 of the judgment, the Hon'ble Supreme Court, has observed that the adoption of the course prescribed in para. 219, 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. It has been further observed by the Hon'ble Supreme Court, that "these instructions were 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 he necessary for doing complete justice in any case or matter pending before it which are enforceable throughout Pakistan". The Hon'ble Supreme Court, has observed in para. 227 of the judgment as follows:- "It is well-settled that matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure. It is also well-settled principle of interpretation of statutes that only a matter of procedure would be retrospective.' In para. 313, the Hon'ble Supreme Court has referred para. 283 of the earlier judgment of Hon'ble Supreme Court in the case of Zafar Ali Shah, wherein it was held that the pending trials or the proceedings may continue subject to the said order. In para. 314, the Hon'ble Supreme Court has held 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."
24. (Emphasis provided by us). In para. 317 of its judgment, the Hon'ble Supreme Court, has directed as follows:-- "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."
25. Extensive citations given by us from the judgment of Hon'ble Supreme Court of Pakistan, establishes without any doubt that the directions given by the Hon'ble Supreme Court, have taken immediate effect and the directions pertaining to the matters relating to procedure are retrospective in effect. After the elaborate and comprehensive directions and observations of the Hon'ble Supreme Court, in the case of Khan Afsandyar Wali, no discussion is required on the applicability of the directions of Hon'ble Supreme Court, to the pending trials/proceedings. The directions contained in para. 314 of the judgment are very specific to the effect that the pending trials/proceedings may continue subject to the order of Hon'ble Supreme Court. Thus, we have no hesitation in holding that the directions of Hon'ble Supreme Court, contained in para. 219 of the judgment are retrospective in effect being procedural in character and are applicable to the reference pending against the petitioners and all other cases pertaining to the wilful default as defined in section 5(r) of the NAB Ordinance.
26. Now the point for consideration is whether the non-compliance of the directions contained in para. 219 of the Hon'ble Supreme Court judgment in the case of Khan Afsandyar Wali, shall have the effect of vitiating the pending proceedings leading to the quashment thereof. Our answer is in negative for the reason that Hon'ble Supreme Court has very clearly directed that the pending trials/proceedings may continue subject to the directions contained in the judgment of the Hon'ble Supreme Court.
27. The next question for consideration is as to how compliance of the directions of Hon'ble Supreme Court can be enforced pertaining to the 30 days statutory notice and an additional 7 days notice to be served on the alleged defaulter to satisfy Governor State Bank of Pakistan that he has not committed any wilful default. We are of the considered opinion that the only pragmatic and practicable solution is that in all such cases the pending proceedings should be kept in abeyance with directions to the concerned authorities to serve a 30 days statutory notice on each alleged wilful defaulter providing opportunity to submit explanation if any or to pay or return or repay the amount to any Bank, financial institution, cooperative society or a Government Department or a statutory body or any authority established or controlled by the Government, the amount due and if the amount due is paid, returned or re-paid within 30 days of the service of statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal from prosecution and release of the accused. If the amount due is not paid with 30 days of the service of 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 an alleged defaulter is able to satisfy the Governor State Bank of Pakistan that he has not committed a wilful default then the recommendations of the Governor State Bank of Pakistan, recorded in writing with reasons therein shall be submitted for final decision of the Accountability Court. If an alleged defaulter fails to pay or return or re-pay the amount due to the Bank, financial institution etc., within the statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor State Bank of Pakistan within additional 7 days period, that he has not committed any wilful default and the Governor State Bank of Pakistan holds the alleged defaulter to have prima facie committed the guilt of wilful default in his recommendations, for the reasons recorded therein, the Accountability Court may re-commence the proceedings from the stage where it was kept in abeyance. This procedure is to be adopted in all those cases where reference was made either before 5th of July, 2000 or in the cases referred to the Accountability Court, after 5th of July, 2000, in accordance with the provisions contained in section 31-D, NAB Ordinance and were pending at the time of announcement of judgment by the Hon'ble Supreme Court of Pakistan, in Khan Afsandyar Wali's case.
28. Consequent to above findings, it is held that Reference No,37 of 2000 assailed in this petition was made in violation of the provisions contained in section 31-D, therefore, the proceedings are liable to be quashed. The said proceedings are quashed accordingly and the petitioners are directed to be released forthwith if not required in any other case. As the proceedings have been quashed, therefore, the directions of Hon'ble Supreme Court, pertaining to the 30 days statutory notice and 7 days additional notice are not applicable in this case. Before parting with this judgment, we would like to observe that it will be open to the relevant authorities to have the matter referred to National Accountability Bureau, for initiation of fresh proceedings in respect of the alleged act of the petitioners strictly in accordance with section 31-D of the Ordinance. The petition is allowed as above. Constitutional Petition No,D-1896 of 2000 MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners have challenged vires of various provisions of the National Accountability Bureau Ordinance, 1999. However, after pronouncement of judgment by the Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others (PLD 2001 SC 607), the learned counsel for the petitioners has not pressed any other objection except that the petitioners are entitled to the benefit of the directions of Honourable Supreme Court in the case of Khan Asfandyar Wali, contained in para.219 of the judgment.
29. The point in issue has been considered in depth and detail in the connected Constitutional Petition No,D-1897 of 2000 at the instance of petitioner and others. For the reasons recorded in the connected petition, the trial Court is directed to keep the proceedings of Reference No,9 of 2000 against the petitioners in abeyance, with directions to the concerned authorities to serve a thirty days' statutory notice on each alleged wilful defaulter providing opportunity to submit explanation if any or to pay or return or re-pay the amount due to the bank, and if the amount due is paid returned or re-paid within 30 days of the service of statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal from prosecution and release of the accused/alleged wilful defaulter. Further, directions be issued by the trial Court that if the amount due is not paid within 30 days of the service of 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 alleged defaulter is able to satisfy the Governor, State Bank of Pakistan, that he has not committed a wilful default then the recommendations of the Governor, State Bank of Pakistan recorded in writing with reasons therein, shall be submitted for final decision of the Accountability Court. If the alleged defaulter fails to pay or return or re-pay the amount due to the Bank, within statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor, State Bank of Pakistan, within additional 7 days' period, that he has not committed any wilful default and the Governor, State Bank of Pakistan holds the alleged defaulter to have prima facie committed the guilt of wilful default in his recommendations for the reasons recorded therein the Accountability Court may re-commence the proceedings from the stage where it was kept in abeyance. In pursuance of the judgment of Honourable Supreme Court of Pakistan in Khan Asfandyar Wali's case, it is directed that Reference No,9 of 2000 which is assailed in this petition shall continue and disposed of subject to the above directions. The petition is allowed to the extent and in the manner as indicated above, with no order as to costs.