MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner facing trial in Accountability Court No,V, Karachi, seeks quashment of proceedings initiated on Reference No,7 of 2001 at the instance of Chairman, National Accountability Bureau.
2. The facts as stated in the revision application are that the applicant Hakim Ali Zardari, Ex-M.N.A., is alleged to have purchased a palatial house in France during February, 1990. The applicant/accused was elected M.N.A. From Nawabshah constituency in the elections held in 1988 and 1993. It is further alleged by the prosecution that the applicant being holder of public office was required to declare his assets and liabilities under section 78(d), Representation of the People Act, 1976, but he failed to declare abovementioned property to the Election Commission.
3. It is further alleged by the prosecution that in his return of total income filed by the accused/applicant from the years 1974 to .1990 the Agricultural income was declared at Rs,16,15,455 and other income for the 10 years at Rs,12,33,270 which is less than the value of the property purchased by him for Rs,85,00,000. It is further alleged that the applicant failed to declare the half share of his wife in the property abroad in his Wealth Tax Return.
4. It was revealed during the course of investigation that the applicant revised his Wealth Tax Return on 31-2-1996 declaring the value of the above property in France at Rs,85,00,000. According to prosecution it was violative of section 15 of the Wealth Tax Act, 1963, which provided for filing revised return before the assessm ent is made. It is further alleged by the prosecution that the applicant failed to declare the foreign property in 1993 before the Election Commission in compliance of the Ordinance No,XVI of 1993 read with Representation of the People Act, 1976. After the investigation/inquiry, the Chairman NAB made the reference to the Accountability Court, praying that the applicant/accused may be tried under section 9(v) read with section 10 of the National Accountability Bureau Ordinance, 1999.
5. During the pendency of the trial, the applicant submitted an application under section 265-K, Cr.P.C. On 3-12-2001 praying that he may be acquitted as he has not committed any offence. It was stated in the application that two earlier applications under section 265-K, Cr.P.C. Were dismissed for the reason that by that time evidence was not recorded. The application under section 265-K, Cr.P.C. Giving rise to the present revision was submitted after the prosecution closed its side, after examining all the witnesses. The main contention before the trial Court was that the applicant purchased the property in question from the F.E.B.C. And, therefore, the applicant enjoyed complete immunity from disclosing the source with the result that the allegation of corruption and purchasing of the property beyond the known and declared sources of income cannot be established. It was contended before the trial Court that even if entire prosecution story was believed no case was made out under section 9(v) of the NAB Ordinance, 1999.
6. The learned trial Court observed that the only question for consideration was whether or not the accused purchased the property in question and if so, whether the consideration amount paid was out of his legal sources. The learned trial Court observed that it cannot be decided on an application under section 265-K, Cr.P.C. And the completion of trial was necessary.
7. The learned trial Court in addition to the observation that the question can be decided through a final judgment, observed that the questions pertaining to immunity claimed was alleged in earlier application under section 265-K, Cr.P.C. And the plea was rejected vide order, dated 20th June, 2001.
8. The learned trial Court further observed that the plea that the property was purchased out of encashment of F.E.B.C. And at the time of purchase of the property it was not an offence and that the provisions contained in the NAB Ordinance, 1999 creating new offences were violative of the provisions contained in the Constitution, were the subject-matter ofvarious petitions filed before the Hon'ble Supreme Court. The contentions were repelled by the Hon'ble Supreme Court.
9. The learned trial Court further observed that in its earlier order, dated 24th June, 2001, reliance was placed on the judgment of Sindh High Court in H.C.A. No,281 of 2000.
10. The learned trial Court observed that the learned counsel for the accused has placed reliance on the judgment in the case of Hudabiya Engineering (Pvt.) Ltd. v. Pakistan PLD 1998 Lahore 90, but it is subject to the decision of Hon'ble Supreme Court of Pakistan in the case popularly known as NAB case and therefore, the holders of F.E.B.C. Shall enjoy protection subject to the decision of Hon'ble Supreme Court.
11. The learned trial Court held that "the prosecution has already produced its entire evidence and its side of evidence stands closed. Such evidence requires to be rebutted by the accused under section 20(c) of NAB Ordinance and the allegations to be disproved, demands that accused has to prove his sources of income as to how and by which means he had acquired Foreign Exchange Bearer Certificates, by encashment whereof the accused allegedly got the U.S. Dollars in his name".
12. Being dissatisfied with this order dated 27-2-2002, the applicant preferred this revision application.
13. Pre-admission notice was issued to the respondents. We have heard Mr. M. Yousuf Leghari, learned counsel for the applicant and Mr. Anwar Tariq, Advocate, D.P.G.A., NAB for the respondents.
14. Mr. Yousuf Leghari, learned counsel for the applicant stated that he will not address any argument on fact and shall confine his contention on the point of law only. With the consent of learned Advocates for the parties, we heard the revision application at length and disposed of the same at the Katcha Peshi stage. The application was dismissed by a short order after hearing the learned Advocates for the parties on 19-3-2002 and following are the detailed reasons.
15. Mr. Yousuf Leghari, learned counsel for the applicant has submitted that P.W. No,4, Predy Rustamjee Sathena, Head of Operation Deutsche Bank, has stated that on verification of record he found that on 29-3-1990 Foreign Exchange Bearer Certificates worth rupees Seventeen million and two hundred thousand were got encashed, and thereafter draft for U.S. Dollars' worth 795968.32 was got issued in the name of Mr. Hakim Ali Zardari. So also Foreign Exchange Bearer Certificates worth Rs,1,78,000 were got encashed and thereby demand draft for U.S. Dollars' worth 8222.05 was got issued in the name of Mr. Hakim Ali Zardari (London). No encashment certificate was issued pertaining to the said Foreign Exchange Bearer Certificates, as the same were got utilized for issuance of demand draft towards the U.S. Dollars and that encashment certificate could only be issued if amount in Pakistani currency would have been received by the persons against Foreign Exchange Bearer Certificates. He has further submitted that this witness has conceded in cross- examination that under the rules framed by State Bank, the Commercial Banks were not competent to make any inquiry about the source of acquiring Foreign Exchange Bearer Certificates.
16. He has further contended that under the Foreign Exchange Bearer Certificates Rules, 1985 framed by the Federal Government in exercise of powers under section 28 of the Public Debt Act, 1944 (XVIII of 1944), it is provided in rule 4 as follows: "These certificates may be purchased by foreigners and Pakistanis without limit, against payment in foreign exchange from any office of issue. No question shall be asked regarding source of fund." He has further submitted that the Foreign Exchange Bearer Certificates, issued under the Foreign Exchange Bearer Certificates Rules, 1985, enjoyed exemption from payment of Wealth Tax and the assets acquired from Foreign Exchange Bearer Certificates were not required to be included in the net wealth of the assessee.
17. He has further submitted that protection is available to the applicant under section 5 of the Protection of Economic Reforms Act, 1992, which reads as follows:-- "5. Immunities to foreign currency accounts.--(1) All citizens of Pakistan resident in Pakistan or outside Pakistan who hold foreign currency accounts in Pakistan, and all other persons who hold such accounts, shall continue to enjoy immunity against any enquiry from the Income Tax Department or, any other Taxation Authority as to the source of financing of the foreign currency accounts.
(2) The balances in the foreign currency accounts and income therefrom shall continue to remain exempted from the levy of wealth tax and income-tax and compulsory deduction of Zakat at source.
(3) The banks shall maintain complete secrecy in respect of transactions in the foreign currency accounts.
(4) The State Bank of Pakistan or other banks shall not impose any restrictions on deposits in and withdrawals from the foreign currency accounts and restrictions, if any, shall stand withdrawn forthwith."
18. In, support of his contention he has placed reliance on a Full Bench judgment of the Lahore High Court in the case of Hyudabiya Engineering (Pvt.) Limited v. Pakistan PLD 1998 Lahore 90, wherein it has been held as follows:-- "On proper analysis, the conclusion which follows is that subsection (1) of section 5 bars the Authorities from taking any action against the person on the basis of transactions in the foreign currency accounts."
19. He has pointed out the following findings by the Full Bench of the Lahore High Court in the judgment cited above:-- "31. It is also to be seen that as sections 4 and 5 of the Act, both deal with foreign currency, while interpreting section 5, section 4 of the Act cannot be lost sight of. It provides complete freedom to all citizens of Pakistan and all other persons to bring, hold, sell and take out foreign currency in any form. It specifically provides that no person shall be required to make any foreign currency declared at any stage and also ordains that no one shall be questioned in regard to the same. This clearly brings out the legislative intent that no question can be asked from the person holding any foreign currency in respect of the same. That being so, no inquiry either into the source or the holding of the foreign currency can be initiated or made by any agency especially when non obstante clause in section 3 of the Act provides that the Act shall override all other laws.
32. On consideration of various provisions of the Protection of Economic Reforms Act, 1992, we have reached the conclusion that so far as foreign currency accounts are concerned, the holders thereof, have complete immunity from inquiry and scrutiny and complete secrecy must be maintained in respect of those accounts which cannot be violated by any agency or functionary.
That being so, neither the Income Tax Authorities nor Federal Investigation Agency had any jurisdiction to hold any inquiry in respect of the transactions in the foreign currency accounts nor could the same be made basis of criminal prosecution."
20. The learned counsel for the applicant has submitted that section 3 of the Protection of Economic Reforms Act, 1992, has overriding effect and therefore, the applicant is fully protected.
Section. 3 of the Protection of Economic Reforms Act, 1992, reads as follows:-- "3. Act to override other laws.--The provisions of this Act shall have effect notwithstanding anything contained in the Foreign Exchange, Regulation Act, 1947 (VII of 1947), the Customs Act, 1969 (IV of 1969), the Income Tax Ordinance, 1979 (XXXI of 1979), or any other law for the time being in force."
21. Mr. Yousuf Leghari, learned counsel for the applicant has concluded his arguments contending that the applicant enjoys complete protection from any inquiry under any law in respect of source of acquiring Foreign Exchange Bearer Certificates and the assets created out of Foreign Exchange Bearer Certificates. Consequently, all the authorities are debarred from making any inquiry in respect of the source of acquiring properties from Foreign Exchange Bearer Certificates. According to him, when the source cannot be inquired into the consequence would be that the prosecution cannot establish that the property in question was acquired beyond the known sources of income or from any illegal means or corrupt practices and thus, no offence shall be deemed to have been committed by the applicant, entitling him to be acquitted under section 265-K, Cr.P.C. As there is no probability of the accused being convicted of any offence. He has further submitted that an accused under section 265-K, Cr.P.C. Can be acquitted at any stage of the case: According to learned counsel, the learned trial, Court committed illegality in not acquitting the applicant under section 265-K, Cr.P.C. And, therefore, the impugned order is liable to be set aside, with the direction for acquittal of the applicant.
22. On the other hand, the learned D.P.G.A. Has submitted that the contentions raised by the learned counsel for the applicant are totally uncalled for. He has fully supported the impugned order of the learned trial Court rejecting the application under section 265-K, Cr.P.C. He has submitted that so far section 5 of the Protection of Economic Reforms Act, 1992, is concerned, it only provides immunity against any inquiry from the Income-tax Department or any other taxation authority as to the source of financing of the foreign currency accounts. He has submitted that the immunity is not available for prosecution under the NAB Ordinance, 1999, and likewise the provisions in the F.E.B.C. Rules to the effect that no question shall be asked regarding the source of funds, is also of no help to the applicant because of the provisions contained in sections 2 and 3 of the NAB Ordinance, to the effect that Ordinance shall come into force at once and shall be deemed to have come into force from the 1st day of January, 1985 and that the provisions of the Ordinance, shall have effect notwithstanding, anything contained in any other law for the time being in force.
He has submitted that the applicant may not be liable to the levy of Income-tax, Wealth Tax or any other tax but shall still be liable for punishment provided in the NAB Ordinance. He has submitted that under section 9(v) of the NAB Ordinance, it is provided that holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices: "
(v) if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which cannot reasonably account for."
23. He has contended that if sections 2, 3, 9 and 10 are read together, no doubt shall be left in the proposition that because of the overriding effect of the NAB Ordinance, any person who is established to have committed any offence envisaged under the said Ordinance shall be liable to the punishment provided in the said Ordinance,
24. We have carefully considered the contentions raised by the learned Advocates for the parties and in order to appreciate the contentions, it would be appropriate to reproduce the provisions contained in sections 2, 3 and 9 of the NAB Ordinance, which read as follows:--
2. Commencement.--This Ordinance shall come into force at once and shall be deemed to have come into force from the 1st day of January, 1985.
3. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.
9. Corruption and corrupt practices.--(a)A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, -other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or
(v) if he or any of his dependents or benamidars owns, possesses, or has acquired right or tide in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority;
(vii) if he has issued any directive, policy, or any S.R.O. (Statutory Regulatory Order) or any other order which grants or enables any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or (viii)if he commits an offence of willful default; or
(ix) If he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code and thereby dishonestly induces members of the public at large scale to deliver any property including money or valuable security to any person or he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code with regard to any property including money or valuable security entrusted to him by members of the public at large scale.
(b) All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in sections 426, 491, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
(c) Where the Chairman NAB decides to release from custody or detention a holder of a public office or any other person accused of an offence under this Ordinance he shall do so after considering the gravity of the charge against such person and the accruing quantum of loss involved in the offence alleged to have been committed and may impose any reasonable conditions for such release.
(d) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution (corporate body, cooperative society, statutory body or authority concerned) within one month from the date of such deposit.
25. The first and foremost emphasis of Mt. Yousuf Leghari, is that under the Foreign Exchange Bearer Certificates Rules, 1985, it is provided that no question shall be asked regarding source of funds for purchasing Foreign Exchange Bearer Certificates: and that under section 5 of the Protection of Economic Reforms Act, 1992, immunity is available to the Foreign Currency Accounts.
He has submitted that a Full Bench of Lahore High Court has already decided the issue in his favour in the case of Hudabiya Engineering (Pvt.) Limited v. Pakistan (supra).
26. On a careful examination of all these provisions we are unable to agree with the learned counsel for the applicant that the provisions on which reliance has been placed provide complete protection and immunity to the applicant from the operation of NAB Ordinance, 1999. We have reached to this conclusion for the reason that the Foreign Exchange Bearer Certificates Rules, 1985, framed by the Federal Government, under section 28 of the Public Debt Act, 1944, have limited application. They merely deal with the matters pertaining to the issuance of F.E.B.C., the manner and mode of purchasing the Foreign Exchange Bearer Certificates, encashment of the said certificates, the amount which shall be payable on encashment, the currency in which the encashment shall be made the limit on purchase, possession, import or export of the certificates. In addition to these matters certain protections have been provided for the specific purposes and in respect of the authorities stated in the Rules. Rule 4 on which Mr. Leghari, has placed reliance provides that certificate may be purchased by foreigners and Pakistanis without limit, against payment in Foreign Exchange from any office of issue. In this rule it is further provided that no question shall be asked regarding source of funds. It is established principle of the interpretation of statutes that the words, expressions and the provisions take complexion and colour with reference to the context in which they are used and the matters with which the particular provisions deal.
Thus, the provisions in rule 4, that no question shall be asked regarding source of funds, pertains to the office of issue of the Foreign Exchange Bearer Certificates Rules. It means that wherever, any person purchases any Foreign Exchange Bearer Certificates from any office of issue such office of issue shall not question the purchaser regarding the source of funds. Certain other protections are also contained in the Rules. Under rule 11, the profit earned on these certificates is not liable to income-tax or compulsory deduction of Zakat in Pakistan nor is to be taken into account for the purpose of determining rate of income-tax on total income. It is further provided in rule 13 that where any certificates are encashed in Pakistani rupees, the office of issue concerned will give the holder a certificate in the form as prescribed in the Rules and in case any amount is covered by such certificate no question will be asked by Taxation Authorities regarding source of funds. Thus, it is abundantly clear that under the Foreign Exchange Bearer Certificates Rules, the profit earned on such certificates enjoys immunity from payment of income-tax and compulsory deduction of Zakat. Moreover, it is not to be taken into account for determining the rate of tax on total income. If certificates are en cashed in Pakistani rupees and the encashment certificate is issued then to the extent of amount in Pakistani rupees by conversion of Foreign Exchange Bearer Certificates the Taxation Authorities shall not ask any question regarding source of funds. The effect of this protection is that in case of an amount representing encashment certificate it shall enjoy immunity from being subjected to tax under section 13 of the Income Tax Ordinance, as income from undisclosed sources. Here, we would like to point out that the applicant is not in possession of encashment certificate as clarified by P.W.4, Freedy Rustamjee Sethena. The statement of this witness recorded by the trial Court has been produced by the learned counsel for the applicant/accused alongwith revision application as Annexure 'C/4'. Here, we would like to further point out that in spite of certain protections to the holders of Foreign Exchange Bearer Certificates from the probe and inquiry by the taxation authorities and immunity from levy of tax on the profit earned on these certificates it was not found sufficient by the Legislature to provide complete protection from levy of income-tax and wealth tax, with the result that specific provisions have been made in Part IV of the IInd Schedule to the Income Tax Ordinance, 1979, under the caption "exemption from specific provisions". The Second Schedule of the Income Tax Ordinance, is in pursuance of section 14 of the Income Tax Ordinance, 1979 and it is provided in Part IV of the Second Schedule, that the income or classes of income persons or classes of persons enumerated therein shall be exempted from the operation of such provisions of the Ordinance, subject to such conditions and to the extent as are specified thereunder. Clause (VI) was inserted in Part IV by Notification No,S.R.O. 654(0/85, July 1st, 1985 with the framing of Foreign Exchange Bearer Certificates Rules. Clause (VI) reads as follows: "(VI) The provisions of section 13, Chapter XI or Chapter XII shall not apply in respect of any amount invested in the acquisition of Foreign Exchange Bearer Certificates issued under the Foreign Exchange Bearer Certificates Rules, 1985."
Clause (VI-D) was inserted in the year 1998 vide Notification sS.R.O. 516(1)/98, dated June 5, 1998, which reads as follows:-- (VI-D) The provisions of section 13 or 65 or Chapter XI or Chapter XII shall not apply in respect of rupees withdrawn or assets created out of such withdrawal in rupees from private foreign currency accounts, or encashment of Foreign Exchange Bearer Certificates, U.S. Dollar Bearer Certificates and Foreign Currency Bearer Certificates provided that the conversion from foreign currency or encashment of certificates takes place before the first day of September, 1998."
It was substituted by another Notification S.R.O. No,871(I)/98, dated l August 5, 1998, which reads as follows: (VI-D) The provisions of section 13 or section 65 or Chapter XI and Chapter XII shall not apply in respect of rupees withdrawn or assets created out of such withdrawal in rupees from private foreign currency accounts, or encashment of Foreign Exchange Bearer Certificates, U.S. Dollar Bearer Certificates and Foreign Currency Bearer Certificates."
27. Likewise in Part 1 of IInd Schedule to the Wealth Tax Act, 1963, under section 5 of the said Act, a specific provision was made to the effect that wealth tax shall not be payable by an assessee in respect of the assets in the form of Foreign Exchange Bearer Certificates, issued under the Foreign Exchange Bearer Certificates Rules, 1985.
28. The above provisions made by the Legislature are indicative of the fact that mere provision in rule 4 of the Foreign Exchange Bearer Certificates Rules, 1985, to the effect that the office of issue shall not ask any question regarding source of funds or that the amount covered by encashment Certificate held on conversion of F.E.B.C. Into Pakistani rupees shall be immune from questioning by Taxation Authorities regarding source of funds, were not found sufficient per se to provide complete protection/immunity even from applicability of special provisions contained in the Income Tax Ordinance, 1979 and the Wealth Tax Act, 1963. Thus, the question of enjoying any protection in respect of criminal prosecution under the NAB Ordinance with reference to Foreign Exchange Bearer Certificates Rules, does not arise. The liability to pay income-tax and wealth tax is primarily a liability of civil nature and when the Foreign Exchange Bearer Certificates Rules, 1985 were not found sufficient by the Legislature itself to provide complete immunity from the civil liabilities, the question of enjoying complete immunity/protection from a criminal liability does not arise at all.
29. At this stage, we would further like to make a very pertinent observation. The Foreign Exchange Bearer Certificates Rules, 1985 have been framed by the Federal Government under section 28 of the Public Debt Act, 1944. Thus, it is in the nature of subordinate legislation in exercise of delegated authority. Any subordinate legislation in pursuance of delegated authority shall be confined to the purposes for which the authority is delegated by the Legislature and for the purpose of the Act under which the delegated authority is exercised. It is provided in section 28 of the Public Debt Act, 1944, that the Government may make rules to carry out the purposes of the said Act. The purpose of enacting the Public Debt Act, 1944, is given in the Act itself, which is to consolidate and amend the law relating to Government securities and the management of the Public Debt. The rules framed under section 28 shall always be confined to the purposes of the Act and shall not extend to anything not covered under the purposes of the Public Debt Act, 1944. This is the reason for which the protections deemed necessary from the levy of taxes were enacted In the Income Tax Ordinance, 1979 and Wealth Tax Act, 1963, which have been referred to, in the earlier part of this judgment.
30. Another aspect is also equally important. Any provision contained in subordinate legislation shall not override the provisions contained in the main Act/Ordinance enacted by the Legislature itself. If there is any conflict in the rules framed under delegated legislation and the statute enacted by the Legislature itself, then the subordinate legislation has to give way to the statute law.
Although there is no provision in the F.E.B.C. Rules, 1985 to the effect that it will override any other law, but even if there would have been any such provision it would not have the effect of overriding the provisions contained in the NAB Ordinance, 1999.
31. Now, we come to section 5 of the Protection of Economic Reforms Act, 1992. This section has already been reproduced in earlier part of this judgment and we need not to repeat the same.
Subsection (1) of section 5 of this Act, provides that all citizens of Pakistan resident in Pakistan or outside Pakistan who hold foreign currency accounts in Pakistan, and all other persons who hold such accounts, shall continue to enjoy immunity against any enquiry from the Income Tax Department or any other taxation authority as to the source of financing of the Foreign Currency Accounts. This provision provides protection to the holder of Foreign Currency Accounts in Pakistan and it has nowhere been pleaded on behalf of applicant that the property in question was acquired by withdrawal of foreign currency from the Foreign Currency Accounts in Pakistan. Mr. Yousuf Leghari, has referred the statement of P.W.4. Freedy R. Sethena who at the relevant time served as head of Customer Services Department in Deutsche Bank, Karachi. He has stated that on 29-3-1990 Foreign Exchange Bearer Certificates worth Rupees seventeen million and two hundred thousand were got encashed and thereafter draft for U.S. Dollars' worth 795968.32 was got issued in the name of H. Ali and F.E.B.C. Worth Rs,17,80,000 were got encashed and Demand Draft for U.S. Dollars 8222.05 was got issued in the name of Mr. H. Ali. The evidence which has been recorded so far, does not show that the applicant was holding any Foreign Currency Accounts in Pakistan, and therefore, the provisions contained in subsection (1) of section 5 of the Protection of Economic Reforms Act, 1992, which provides immunity to the Foreign Currency Accounts is not attracted to the Foreign Exchange BearerCertificates held by the applicant. Moreover, subsection (1) of section 5 of the Protection of Economic Reforms Act, merely provides that the holder of Foreign Currency Accounts, shall 'continue to enjoy immunity against any inquiry from Income-tax Department or any other Taxation Authority as to the source of financing of the Foreign Currency 'Account. The law itself specifically provides that the immunity to the Foreign Currency Accounts was available from Income Tax Department or any other Taxation Authority but does not provide immunity from prosecution for a criminal offence under any law including NAB Ordinance, 1999. In subsection (2) of section 5, it is provided that the balances in the Foreign Currency Accounts and income therefrom shall continue to remain exempted from the levy of wealth tax and income-tax and compulsory deduction of Zakat at source. Subsection (3) provides that the banks shall maintain complete secrecy in respect of transaction in the Foreign Currency Account. The immunity available in section 5 of the Protection of Economic. Reforms Act, 1992, is not available from the applicability or operation of the provisions contained in the NAB Ordinance, 1999.
32. A perusal of the judgment of Lahore High Court in the case of Hudabiya Engineering (Pvt.)
Limited (supra) shows that the facts of the cited case are distinguishable. The facts of the cited case are stated in para. 4 of the judgment, according to which a letter was addressed by Commissioner of Income-tax Lahore, to the Regional Commissioner of Income-tax, Central Region, Lahore stating that on information gathered from reliable sources he had learnt that two benami bank accounts have been opened with M/s. Habib Bank A.G. Zurich Branch, Lahore in a dubious manner to whiten the black money by taking advantage of Dollar Bearer Certificates and certain traveller cheques, to the benefit and advantage' of the appellant and matter may be referred to the Federal Investigation Agency to detect evasion of tax. On the basis of this letter, the matter was referred to Director-General, F.I.A., Islamabad, for necessary action. In this -background it was held by the Full Bench of the Lahore High Court, that subsection (1) of section 5 bars the authorities from taking any action against a person, on the basis of transaction in the Foreign Currency Accounts.
This judgment is, therefore, of no help to the applicant for the reasons that, first, it pertains to the Foreign Currency Accounts and in the present case, the applicant is not shown to be holder of Foreign Currency Accounts and secondly, in the cited case the inquiry was initiated by the Income Tax Department against which protection is provided in subsection (1) of section 5 of the Protection of Economic Reforms Act, 1992. In the present case, no proceedings have been initiated by any Taxation Authority but by the Authorities under the NAB Ordinance, 1999, in respect of a criminal liability. Although, after holding the view that the immunity available under section 5 of the Protection of Economic Reforms Act, 1992, is not availableto the applicant in the present case, the contention that there is overriding provision in section 3 of the Protection of Economic Reforms Act, 1992, is not available to the applicant in the present case, the contention that there is overriding provision in section 3 of the Protection of Economic Reforms Act, 1992, loses its significance, however, we would like to deal with this contention also. It is provided in section 3 of the Protection of Economic Reforms Act, 1992, that the provisions of said Act shall effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969, the Income Tax Ordinance, 1979 or any other law for the time being in force. This overriding provision shall become operative if there is any conflict in the provisions contained in the Protection of Economic Reforms Act, and the provisions contained in the laws enumerated in section 3 or any other law for the time being in force. Nothing has been shown to us pointing out any conflict in the provisions contained in the Protection of Economic Reforms Act, 1992 and the provisions in the NAB Ordinance, 1999.
34. We have already dilated upon the point that the immunity provided in section 5 of the Limitation Act, is not extended to the criminal prosecution under the NAB Ordinance, 1999. At this stage, we would like to refer section 4 of the Protection of Economic Reforms Act, 1992, which gives freedom to all citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall anyone be questioned in regard to the same. In the present case, the prosecution has not questioned the right of applicant to bring foreign exchange within Pakistan or to take away the foreign exchange out of Pakistan and no prosecution has been launched for non-declaration of any foreign currency at any stage. In the present case, the prosecution has been launched under sections 9 and 10 of the NAB Ordinance, for accumulating properties by the applicant disproportionate to his known sources of income which comes within the purview of corruption and corrupt practices as defined in section 9 of the NAB Ordinance, 1999. Even if we assume, for the sake of argument that there is any conflict in the provisions contained in the Protection of Economic Reforms Act, 1992 and Foreign Exchange Bearer Certificates Rules, 1985, on one hand and the provisions contained in the NAB Ordinance, 1999 on the other hand, the provisions contained in the NAB Ordinance, 1999 shall override the provisions contained in the earlier laws. The reason being that, it is provided in section 3 of the NAB Ordinance, that the provisions of the said Ordinance, shall have effect notwithstanding anything contained in any other law for the time being in force. Thus, there are non obstante clauses in both the enactments and the Hon'ble Supreme Court of Pakistan has laid down the principle in the case of M/s. Elahi Cotton Mills Ltd. v. Federation of Pakistan, 1997 PTD 1555, that whenthere are non obstante clauses in two Acts, the later shall prevail. In this case, the Hon'ble.
Supreme Court, was considering the non obstante clause in section 80-D of the Income Tax Ordinance, to the effect that "notwithstanding" anything contained in this Ordinance or any other law forthe time being in force" and it was provided in section 3 of the Protection of Economic Reforms Act, 1992 that "provisions of this Act, shallhave effect notwithstanding anything contained in, or any other law for the time being in force". In para. 54 of the cited judgment Hon'ble Supreme Court held as follows: "In our view, since the provisions of Act XII of 1992 are subsequent in time and as they are contained in a special statute, they shall prevail over the provisions of section 80-D of the Ordinance, which was enacted through Finance Act, 1991, which was an earlier statute and which was part of a general statute."
Admittedly the Protection of Economic Reforms Act, 1992, was enacted in the year 1992 and the NAB Ordinance, under which the applicant is being prosecuted has been promulgated in the year 1999.
35. In view of the dictum laid down by the Hon'ble Supreme Court in the case of Bahl Cotton Mills Ltd. (supra), the provisions contained in the NAB Ordinance, 1999 shall override any provision to the contrary and the provisions of the NAB Ordinance, shall prevail overall other provisions of law for the time being in force on the 16th November, 1999, when the NAB Ordinance, was promulgated.
36. For the foregoing reasons, it is held that the impugned order of the trial Court dismissing the application of the applicant under section 265-K, Cr.P.C. Does not suffer from any illegality, irregularity causing miscarriage of justice or any other infirmity warranting interference by this Court.
37. Before parting with this judgment, we would like to clarify that any finding or observation in this judgment shall not be deemed to be a finding of guilt on the part of the applicant. We have given finding on the point of law only and it shall remain confined to the proposition of law only. If there is any observation on point of fact for the purpose of appreciating the contention of learned counsel for the applicant on the point of law, it should not be taken as any finding directed towards the guilt of the applicant. The trial Court shall decide the question of guilt or otherwise of the applicant on the basis of evidence produced before it and the provisions of law. The trial Court shall decide all the questions of facts and law, raised before it, at the time of final arguments by applying its independent mind and appreciating the evidence on record.
38. With the above note of caution, the revision application stands dismissed.