' MUNIR A. SHEIKH, J.---By this common order, we propose to decide Civil Petitions Nos.1630-L and 1662-L of 2000 as questions of law and facts are identical in both of them.
2. Faisal Saleh Hayat, husband of petitioner in C.P. 1630-L of 2000 and Malik Ghulam Muhammad Murtaza Khar, petitioner C.P. 1662-L of 2000 are alleged to have wilfully committed default in the payment of loan obtained by them from the banks as defined in section 5, sub-clause (R) of the National Accountability Bureau Ordinance, 1999 as amended and are being proceeded against under the said Ordinance for the said offence. Both of them have admittedly obtained loans from the nationalized Bank. The Chief Executive of Pakistan in his address to the Nation on electronics media on 17-10-1999 called upon the loanees from the banks to settle their matters with the banks as regards repayment of loans within one month therefrom after which they would be proceeded against in accordance with law, both Faisal Saleh Hayat husband of petitioner in C.P. 1630-L of 2000 and the petitioners in other civil petition approached the bank i.e,, the creditor to settle the matter as to repayment of the said loans. On 16-11-1999 which was the last date for such settlement as announced by the Chief Executive, Faisal Saleh Hayat husband of petitioner in C.P. No,1630-L of 2000 made a settlement for repayment of the loans which were rescheduled on payment of a specified amount as down payment which was to the tune of eight crore rupees. The bank agreed for fresh schedule of payment according to which the remaining amount was payable in monthly instalments of forty lac each. There is no dispute that the payments are being made according to this schedule. In the case of petitioner in C.P. 1662-L of 2000, the rescheduling was made on 12-10- 1998 according to which apart from down payment of a specified amount, the remaining amount was settled to be paid in equal quarterly instalments which is admittedly being adhered to by the said petitioner also.
3. The "wilful default" has been defined in section 5, sub-clause (R) of the Ordinance which is reproduced below:- "[(R) "wilful default" a person is said to commit an offence of wilful default under this Ordinance if he does not pay or return or repay the amount to any bank, financial institution, cooperative society, or a Government department or a statutory body or an authority established or controlled by a Government on the date that it became due according to the laws, rules, regulations, instructions, issued or notified by a bank, including the State Bank of Pakistan, financial institution, cooperative society, Government department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter: ' Provided that it is not wilful default under this Ordinance if the accused was unable to pay return or repay the amount as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government department or a statutory body or an authority established or controlled by Government.]"
' It may be mentioned that this clause was added through National Accountability Bureau (Amendment) Ordinance No,IV of 2000 which promulgated on 3-2-2000. It was further amended on 5-7-2000 through which after the word "pay" occurring for the first time, the following words have been added: "or continues not to pay" and after the word "due", the following words have been added "as per agreement containing the obligation to pay, return or repay or" and for the words and commas "a bank, including the State Bank of Pakistan", the words and commas "the State Bank of Pakistan, or the Bank," have been added. The final definition of "wilful default" after the aforementioned further amendment reads as under:-- ' "'Wilful default' A person is said to commit an offence of wilful default under this Ordinance if he does not pay or continues not to 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 as per the agreement containing the obligation to pay, return or repay or according to the laws, rules, regulations, instructions issued notified by a bank, including the State Bank of Pakistan or the bank, financial institutions cooperative society, Government department, statutory body or an authority established or controlled by a Government, as the case may be, and a period of thirty days has expired thereafter: ' Provided that it is not wilful default under this Ordinance if the accused was unable to pay return or repay the amount as aforesaid on account of any .Wilful breach of agreement or obligation or failure to perform statutory duty on the part of any bank, financial institution, cooperative society or a Government department or a statutory body or any authority established or controlled by Government."
3. The husband of petitioner in C.P.1630-L of 2000 and the petitioner in the ether petition were taken into custody under the said Ordinance. A Constitutional petition was filed by the petitioner in C.P.
No,1630-L of 2000 for the release of her husband Faisal Saleh Hayat and the petitioner in the other petition before the Lahore High Court. Both the petitions were heard by a Bench of five learned Judges of the said Court and through the impugned judgment, dated 14-6-2000 by a majority of four to one, the same have been dismissed, against which leave to appeal has been sought.
4. Learned counsel for the petitioners in both the petitions in support of these petitions, inter alia, maintained:--
(a) That the term "wilful default" was declared to be an offence through Ordinance IV of 2000 which was promulgated with effect from 3-2-2000, as such, firstly any default in the payment of the loan, if committed before coming into force of the said Ordinance could not legally be treated to constitute an offence, for under the Constitution, no person can be punished for an act which was not an offence declared by law, when the same was committed.
(b) Even if the case of the petitioners is examined in the light of the "wilful default" as defined in section 5 (R) as amended, the same does not fall within its mischief, for long before 3-2-2000, the banks concerned had rescheduled the loans of the petitioners and there is no allegation that there was any default as regards schedule of payments settled by the banks with the petitioners. Since in the matter of rescheduling of loans, the banks are governed and regulated by the rules and regulations issued by the State Bank of Pakistan and there being no allegation that rescheduling made by the bank in the case of the petitioners were violative of any such rules and regulations, therefore, the payments made by them accordingly shall be deemed to be the payments to be made in accordance with the laws, rules, regulations and instructions issued or notified by a bank including the State Bank of Pakistan as provided in the unamended definition of "wilful default", as such, on this account too, both the cases do not attract the said definition.
(c) That according to further amendments made on 5-7-2000 cases of payments of loans as per terms of agreement between the bank and the debtor have also been excluded from the provision of the said definition of "wilful default", for there is no allegation that the petitioners have committed any default in respect of schedule of payments agreed between the bank and the debtors settled through the rescheduling of the loans.
(d) That at has been officially declared as a policy that a committee shall be constituted by the State Bank of Pakistan including a nominee Chartered Accountant of the debtor, independent Chartered Accountants etc., which would on the application of the debtor examine the case as to whether a case of "wilful default" was made out which also establishes that each case has to be re-examined in order to determine whether it was a case of "wilful default" or not.
(e) That "wilful default" was made a continuing offence through the addition of words "continue not to pay" through amendment made on 5-7-2000, therefore, the said clause is not attracted to the cases of the two debtors/petitioners, for the said offence to become continuing offence in their cases would be only if they committed default in the payment of loans according to the fresh schedule settled between the bank and them after 5-7-2000 on the same principle that no act when it was committed could be dealt with as an offence subsequently if the same was not an offence when it was committed.
5. Ithawaj a Saeed-uz-Zafar, learned Deputy Attorney-General submitted that this law was made with the object of recovering the loans. The expression as per agreement, containing the obligation to pay, return on repay added through amendment on 5-7-2000 has reference to the original agreement of loan and not the agreement of rescheduling, therefore, no benefit can accrue to both the debtors/petitioners in these cases, for according to the original agreement of loan and the scheudle of payment settled therein, they had committed a default. He also referred to section 25-A Clause (g) ibid which authorises the NAB to treat an agreement between the bank and the customer/debtor as to schedule of payment not in the public interest or otherwise which in the case of both the debtors has been considered to be not in the public interest for a very long period through rescheduling has been given to them for repayment of the loans as the schedule of payment settled permits them about ten years to clear the loan.
6. Learned counsel for the petitioners on the other hand in answer to these contentions submitted that the petitioners have been discriminated, for in the case of other loanees, rescheduling permitting them to pay the loan with a period up to 14 years has not been objected to on the ground of being, against public interest.
7. We have examined the law with the assistance of learned counsel for both the parties and find that no doubt this law has been promulgated with the object of recovering the loans of the banks.
It is the first time in the country that a serious effort has been made to bring the economy of the country on the track by making effective provisions for the recovery of loans. The question, however, remains whether the case of individual falls within the mischief of the term "wilful default" as provided in this Ordinance which requires examination.
8. The contentions raised on behalf of the learned counsel for the petitioners in the facts and circumstances of the cases of these debtors/loanees as to interpretation of the relevant provisions of the Ordinance as amended are questions of law of public importance therefore, leave is granted in both the cases to consider the same.
9. In both the petitions, a prayer has been made for interim relief as to the release of Faisal Saleh Hayat husband of petitioner in C.P. 1630-L of 2000 and the petitioner in the other petition. Learned Deputy Attorney-General has opposed the request and pointed out that jurisdiction of the Courts to grant bail in such mattes are expressly barred by virtue of section 9(b) of NAB Ordinance.
Section 9(b) on which reliance has been placed is as follows:- , "9(b). All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections [426, 491] 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court (including the High Court) shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
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.
10. Both the debtors are admittedly behind the bar for the last more than six months. It has yet to be determined whether their cases fall within the mischief of the term "wilful default" as defined according to the amended clause (R) of section 5 of the Ordinance. According to the declaration made by the Government, a body constituted under the supervision of the State Bank of Pakistan is to re-examine the cases of default of loans, therefore, we are satisfied that in this case both the debtors are entitled to grant of bail, for there is no allegation that they had not adhered to the schedule of payment settled between them and the banks as discussed above as per arrangements of rescheduling. On the question of amount of bail bond, learned Deputy Attorney- General submitted that it should not be less than rupees one crore in each case. Petitioner in C.P.1662-L of 2000 and Faisal Saleh Hayat husband of petitioner in C.P. 1630-L of 2000 are hereby allowed bail in the sum of rupees one crore each with one surety each in the like amount to the satisfaction of Assistant Registrar of this Court. It is, however, made clear that if any default is committed in the payment of the instalments as settled between the bank and the petitioner through rescheduling, the State shall be at liberty to move an application for cancellation of bail which shall be considered on its own merits.
' The interim order, dated 5-7-2000 shall continue till the disposal of the appeals. The appeals shall be fixed immediately after the reopening of the Court after summer vacations on a date to be fixed by Hon'ble the Chief Justice.