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SUPREME COURT OF AZAD JAMMU AND KASHMIR
[Appellate Jurisdiction]
PRESENT:
Mohammad Azam Khan, C.J.
Ch. Muhammad Ibrahim Zia, J.
Raja Saeed Akram Khan, J.
1. Criminal Appeal No.47 of 2013
(Filed on 21.12.2013)
Ehtesab Bureau through Chairman Ehtesab Bureau.
……APPELLANT
VERSUS
1. Abid Hussain s/o Munawar Khan r/o Mandhar
Tehsil & District Kahuta.
2. National Bank of Pakistan having its Regional
Office at Muzaffarabad.
3. State through Advocate-General.
4. Mr. Azhar Saleem Babar, Judge Banks
(Offences) Special Court AJ&K, Muzaffarabad.
……. RESPONDENTS
[On appeal from the judgment of the High Court
dated 18.04.2012 in Reference No.48-A/2012]
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FOR THE APPELLANT: Mr. Khalid Mehmood,
Chief Prosecutor, along with Zaffar Iqbal Azad, Deputy Chief Prosecutor, Ehtesab Bureau.
FOR THE RESPONDENTS: M/S Sadaqat Hussain
Raja and Syed Shahid Bahar, Advocates.
2. Criminal Appeal No.53 of 2012
(Filed on 05.07.2012)
1. National Bank of Pakistan, Human Rights Group,
I.I. Chundrigarh Road, Karachi.
2. National Bank of Pakistan, Head Office, Karachi, through its President, I.I. Chundrigarh Road,
Karachi.
3. Central Unit of Fraud and Forgery, National Bank
of Pakistan, I.I. Chundrigarh Road, Head Office,
Karachi.
4. Regional Head, National Bank of Pakistan,
Regional Headquarters, Mirpur.
5. General Manager, HR, NBP Regional Office,
Mirpur.
6. General Manager Operation, NBP Regional
Office, Mirpur.
7. General Manager, Credit NBP Regional Office, Mirpur.
8. Compliance Officer, NBP Regional Office, Mirpur.
9. Imran Saeed, NBP Special Audit Incharge, Audit
Office, Islamabad.
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10. Manager National Bank of Pakistan, Qamrooti
Supply District Kotli, (through Regional Head,
National Bank of Pakistan, Regional
Headquarters, Mirpur.
……APPELLANTS
VERSUS
1. Muhammad Shabbir s/o Muhammad Arif, r/o
Maryal, Tehsil and District Kotli, Cash Officer,
NBP Dadyal, Chhattro, District Mirpur.
2. Ch. Muhammad Imtiaz s/o Ch. Muhammad
Hafiz, r/o Samrore, Tehsil and District Kotli, Ex-
employee NBP Sarhota Branch, District Kotli.
3. Ehtesab Bureau, Azad Jammu & Kashmir
through Chief Prosecutor, Mirpur, (Mian
Muhammad Town).
4. The State.
……. RESPONDENTS
[On appeal from the judgment of the High Court
dated 12.05.2012 in Criminal Revision Petition No.16/2012]
FOR THE APPELLANTS: Mr. Abdul Majeed Malick,
Advocate.
FOR THE RESPONDENTS: Mr. Khalid Rasheed Ch.,
Advocate, Mir Khalid
Mehmood, C.P. and
Mr. Muzaffar Ali Zaffar, Additional Advocate-
General.
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3. Criminal Appeal No.54 of 2012
(Filed 05.07.2012)
Ehtesab Bureau Azad Jammu & Kashmir through Chairman Ehtesab Bureau, Bankhurma, Mirpur.
……APPELLANT
VERSUS
1. Muhammad Shabir s/o Muhammad Arif, Ex-
Manager, NBP, District Kotli.
2. Ch. Muhammad Imtiaz s/o Ch. Muhammad
Hafeez r/o Samrore Tehsil & District Kotli, Ex-
Manager NBP Sarhota Branch, District Kotli.
……. RESPONDENTS
[On appeal from the judgment of the High Court
dated 12.05.2012 in Criminal Revision Petition No.16/2012]
FOR THE APPELLANT: Mir Khalid Mehmood,
Chief Prosecutor, Ehtesab Bureau.
FOR THE RESPONDENTS: Mr. Khalid Rasheed Ch., Advocate.
Date of hearing: 22.04.2014.
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JUDGMENT:
Raja Saeed Akram Khan, .J.– As
common question of law; whether the Ehtesab
Bureau has jurisdiction to investigate into and try
the offences relating to the Banks, is involved in
all the three appeals, therefore, these are being
disposed off through instant consolidated
judgment.
2. The facts involved in appeal No.47 of
2013, titled Ehtesab Bureau vs. Abid Hussain and
others are that a case under sections 467, 468,
419, 420, 471, 109, APC read with section 5(2) of
Prevention of corruption Act (PCA) was registered
against respondent No.1 and another FIR under
sections 406, 409, APC read with section 5(2)
PCA was also registered against the accused, Abid
Hussain. The accused-respondent filed application
for grant of pre-arrest bail before Banks
(offences) Special Court, however, declined to
confirm the pre-arrest bail granted to the
6
accused, Abid Hussain. After arrest of the
accused, during the course of investigation by the
Police, the Ehtesab Bureau demanded the custody
of the accused for investigation. The
controversy; whether the local Police in whose
Jurisdiction the alleged offence of embezzlement
is committed, is competent to investigate into the
matter or the Ehtesab Bureau, was brought
before Banks (offences) Special Court. Upon this,
a reference by the Banks (Offences) Special Court
was sent to the High Court to seek guidance on
the legal proposition; whether the Ehtesab
Bureau has jurisdiction to investigate and try the
offences relating to Banks’ offences or; whether a
local police is competent to investigate into the
matter in whose Jurisdiction the offence is
committed. A full bench of the High Court vide
impugned judgment dated 18.04.2012, has
declared that the Ehtesab Bureau has no
jurisdiction to investigate into and try the
7
offences relating to the Banks, except the banks
functioning under the administrative control of
the Azad Jammu & Kashmir Government or
Council. Against the said judgment the instant
appeal by leave of the Court has been filed.
3. The facts involved in appeals No. 53 &
54 of 2013 titled National Bank of Pakistan &
others vs. Muhammad Shabbir & others and
Ehtesab Bureau vs. Muhammad Shabbir & others,
respectfully are that a case under sections 109,
409, 419, 420, 467, 468, 471, APC read with
sections 10, 11 of the Ehtesab Bureau Act,
section 5(2) of Prevention of Corruption Act and
section 4 of Misdemeanors Act, 1948 was got
registered against the accused-respondents,
Muhammad Shabbir and Ch. Muhammad Imtiaz
by the Ehtesab Bureau of Azad Jammu &
Kashmir. After being arrested, the accused-
respondents moved applications for pre-arrest
bail, in the Ehtesab Court No.2, which were
8
dismissed on 13th April, 2012. The accused
respondents filed a revision petition before the
Azad Jammu & Kashmir High Court. The learned
Chief Justice of the High Court accepted the
revision petition on the ground that in the case
titled Abid Hussain vs. the State, decided on 18th
April, 2012, a full bench of the High Court, has
already declared that the Ehtesab Bureau has no
jurisdictional competence to investigate into the
matter or take cognizance of the offences relating
to Banks. The High Court directed to release the
accused-respondents on bail to approach the
proper Court. Against the said judgment the
titled appeals by leave of the Court have been
filed.
4. Mir Khalid Mehmood, Chief Prosecutor,
Ehtesab Bureau, submitted that the matter in
relation to the jurisdiction of the Ehtesab Bureau
and Ehtesab Court has been decided in the
previous round of litigation through the judgment
9
dated 23rd February, 2012, delivered in appeal
titled Muhammad Shabbir and another vs.
Ehtesab Bureau and others by the Hon’ble Court.
It has been observed in the referred case that
relating to the offences falling under Schedules-I
& II of the Ehtesab Bureau Act, the Banks
(offences) Special Court has no jurisdiction to
entertain the matter. It is only the Ehtesab Court
which has jurisdiction in the matter. The learned
Chief Prosecutor forcefully argued that under
section 40 of Ehtesab Bureau Act, only an appeal
lies against an order passed by the Ehtesab
Court. No revision petition lies in the High Court
against the orders passed in the bail applications.
He further argued that the case has been
registered against the accused-respondents under
sections 409, 109, 406, 471, 467, 468, 420, 419,
APC, read with sections 10 and 11 of the Ehtesab
Bureau Act and 5(2), PCA etc. All these offences
are included in the schedules of the Ehtesab
10
Bureau Act, therefore, it is only the Ehtesab
Bureau which has jurisdiction in the matter and
cases cannot be investigated by the ordinary
police and only the Ehtesab Court has jurisdiction
to try such offences. The learned Chief Prosecutor
referred to the preamble schedules and section
3(a) of the Ehtesab Bureau Act, and argued that
under section 3(a), all persons in the Azad
Jammu & Kashmir are amenable to the
jurisdiction of Ehtesab Bureau Act. While
elaborating this argument, the learned Chief
Prosecutor submitted that under section 25 of the
Ehtesab Bureau Act, the Chairman is competent
to order for investigating into the scheduled
offences and no other authority has power to
investigate into such matters. He referred to the
case reported as Muhammad Nazim-ud-Din vs.
Chairman, National Accountability Bureau through
Director General, National Accountability Bureau,
Karachi and 6 others [PLD 2007 Karachi 586]. He
11
also referred to section 17 of the Ehtesab Bureau
Act, and submitted that all persons accused of
scheduled offences or the offences punishable
under section 11 have to be prosecuted by the
Court established under the Ehtesab Bureau Act.
No other Court other than Ehtesab Court has
jurisdiction to hear the included in the Schedules.
The learned Chief Prosecutor referred to and
relied upon the cases reported as Hakam Deen
vs. State & 16 others [2005 SCR 314],
Muhammad Mushtaq & 2 others Muhammad
Arshid & 6 others [2008 SCR 166] and Ch.
Muhammad Arif vs. Azad Govt. & 2 others [2008
SCR 175].
5. Mr. Abdul Majeed Mallick, Advocate, the
learned counsel for the appellants in appeal No.53
of 2012, submitted that under section 42 of the
Azad Jammu & Kashmir Interim Constitution Act,
1974, the judgment of the Supreme Court is
binding on all subordinate Courts including the
12
High Court. This Court has already declared in a
case reported as Muhammad Shabbir and another
v. Ehtesab Bureau and others [2012 YLR 2207]
filed by the respondents that the Ehtesab Bureau
has jurisdiction in the matter and case can be
tried by the Ehtesab Court. The High Court has
committed an error while not following the
referred judgment. He referred to the case
reported as Chairman AJK Council vs. Abdul Latif
and 5 others [1997 SCR 264]. The learned
counsel vehemently argued that the provisions
relating to the offences in respect of Banks
(Special Courts) Ordinance, 1984 are not
applicable in the matter. He referred to the cases
reported as Administrator Municipal Committee &
others vs. Mumtaz Ali and others [2001 SCR 263]
and Azad Govt. and 3 others vs. Genuine rights
Commission AJK and 7 others [1999 SCR 1]. It
was forcefully argued by the learned counsel that
even under section 56 of the offences in respect
13
of Banks (Special Courts) Ordinance, 1984, any
person guilty of such offence shall not be released
on bail.
6. Mr. Khalid Rasheed Chaudhary,
Advocate, counsel for the accused respondents
submitted that the judgment of this Court in
Muhammad Shabbir’s case (supra) is still intact.
It was delivered in the light of the provisions of
Ehtesab Bureau Act, 2001. Act, 2001 was adapted
by the Azad Jammu & Kashmir Council vide Azad
Jammu & Kashmir Ehtesab Bureau (Adaptation
and Extension) Act, 2005. (Adaptation Act, 2005).
Subsection (3) of section 1 of Adaptation Act,
2005 clearly provides that the Act is applicable to
the persons serving in the departments under the
administrative control of AJ&K Council, therefore,
Act, 2001 is not applicable serving in the
departments under the administrative control of
Government of Pakistan. The learned counsel
forcefully argued that the offences in respect of
14
Banks (Special Courts) Ordinance, 1984 is a valid
law and the Courts established under the said
ordinance has the jurisdiction to try the offence,
relating to Banks. No other Court has jurisdiction
to try such offences. The alleged offences have
been committed in respect of Banks, therefore,
only the Banks (offences) Special Court has
jurisdiction to try the case. The learned counsel
further argued that the offences in respect of
Banks (Special Courts) Ordinance, 1984 is a
special law. In presence of said special law, the
Ehtesab Bureau Act is a general law which is not
applicable to the employees serving in the Banks.
7. Mr. Sadaqat Hussain Raja, Advocate,
counsel for the respondents in appeal No.47 of
2013, while controverting the arguments
advanced on behalf of the appellant, submitted
that the Ehtesab Bureau has no jurisdiction in the
matter. Only the Banks (offences) Special Court
has jurisdiction to hear the case. He referred to
15
section 4 of the offences in respect of Banks
(Special Courts) Ordinance, 1984 and argued that
it is a special law. The learned counsel submitted
that under section 4 of the offences in respect of
Banks (special Courts) Ordinance, 1984, the
Schedule offences shall exclusively be triable by
the special Courts so constituted under the
provisions of the Ordinance. No Court other than
Banks (offences) Special Court has jurisdiction to
try the said scheduled offences, that is why the
penalty provided in the schedule of the said
ordinance is greater than the one provided under
the ordinary law. The learned counsel also argued
that Abid Hussain’s case was sent to the Banks
(offences) Special Court for decision by the
Hon’ble Court. The learned counsel forcefully
argued that the offences in respect of Banks fall
in the schedule of the offences in respect of Banks
(Special Courts) Ordinance, 1984 and do not fall
in the schedule of Ehtesab Bureau Act, therefore,
16
the Ehtesab Bureau has no jurisdiction to
investigate into the matter and Ehtesab Court
cannot take the cognizance of said offence. The
learned counsel further argued that Entry No.14
under the third Schedule of Azad Jammu &
Kashmir Interim Constitution Act, 1974, deals
with the Banking business and in this regard the
legislative competence falls in the domain of the
Azad Jammu & Kashmir Council. Under section 6
of the Ehtesab Bureau Act, the Chairman was to
be appointed after consultation with the AJ&K
Council. The Azad Jammu & Kashmir Council
adapted the Ehtesab Bureau Act in 2005. Later
on, the law has been amended whereby the
Chairman is appointed by the President of Azad
Jammu and Kashmir but this change has not been
adapted by the Azad Jammu & Kashmir Council,
therefore, the Chairman who is appointed without
consultation of the AJ&K Council has no
17
jurisdiction to order for investigation into the
matters relating to Banks offences.
8. After hearing the learned counsel for the
parties we have gone through the record. The
accused-respondents are bank employees and the
allegations levelled against them are that they
embezzled the huge amount. The version of the
accused-respondents is that they are governed by
the Banking laws, therefore, only the Banks
(offences) Special Court is competent to
adjudicate upon the matter and their cases do not
come under the domain of Ehtesab Courts. The
jurisdiction of Ehtesab Courts was challenged by
the accused-respondents. The High Court through
the impugned judgments declared that the Banks
employees are not amenable to the jurisdiction of
Ehtesab Bureau Act. To resolve the controversy
we have examined the relevant provisions of Azad
Jammu and Kashmir Ehtesab Bureau Act, 2001
(hereinafter to be referred as Act, 2001). At first
18
we have examined the Preamble of the Act 2001,
which reads as under:-
“An Act to provide for the setting up of
an Ehtesab Bureau in the State of Azad
Jammu and Kashmir so as to eradicate
corruption and corrupt practices and
hold accountable all those persons
accused of such practices and matters
ancillary thereto.
Whereas it is expedient and necessary
to provide for effective measures for
the detection, investigation,
prosecution and speedy disposal of
cases involving corruption, corrupt
practices, misuse/abuse of power,
misappropriation of property,
kickbacks, commissions and for
matters connected and ancillary or
incidental thereto;
And whereas there is an emergent
need for the recovery of outstanding
amount from those persons who have
committed default in the repayment of
amounts to banks, financial
19
institutions, Government and other
agencies;
And whereas there is a grave and
urgent need for the recovery of state
money and other assets from those
persons who have misappropriated or
removed such money and assets
through corruption, corrupt practices
and misuse of power and/or authority;
And whereas it is necessary that an
Ehtesab Bureau be set up so as to
achieve the above aims.”
After going through the Preamble, it reflects that
the paramount object of enacting the Act,2001 is
only to eradicate the corruption and corrupt
practices and make accountable all those persons
who are accused of such practices; to provide for
effective measures for detection, investigation,
prosecution and speedy disposal of cases
involving corruption, corrupt practices, misuse or
abuse of power or authority, misappropriation of
property, taking of kickbacks, commissions;
20
recovery of State money and other assets from
those persons who have misappropriated or
removed such money or assets through
corruption or corrupt practices. The scope of Act,
2001 is much wider than any other law dealing
with the cases of corruption. It is a special law
and use of the same in oppressive manner must
be tested on the touchstone of fundamental right
of a person as guaranteed under the Constitution.
Misuse of law cannot be overlooked or ignored by
the Courts being custodian of the Constitution.
The Courts are under legal duty to defend,
preserve and enforce the rights of people and
their fundamental constitutional guarantees. The
noble objective as reflected in the Preamble of the
Act, 2001 is to exercise powers to inspire
confidence of the State-Subjects in the public
institutions. The exercise of powers must be
above the board and transparent.
21
After going through the preamble of Act,
2001, it is further reflected that object of this
enactment is the expeditious disposal of cases
involving corruption, corrupt practices, misuse
and abuse of power or authority, misappropriation
of property, taking kickbacks, commissions and
for matters connected therewith and to avoid
procedural delays and technicalities. Thus, the
crux of the above discussion is that the Ehtesab
Bureau is a national institution which has a great
mandate as is highlighted in Preamble of Act,
2001.
9. The next relevant provision which
requires to be examined to resolve the
controversy is section 3 of the Act, 2001 which
speaks as under:-
“3. Application:- It extends to the
whole of Azad Jammu and Kashmir and
shall apply to the following persons
wherever they may be:-
22
(a) all persons in Azad Jammu and
Kashmir;
(b) holders of public office;
(c) all persons who are suspected to have
abetted commission of an offence
triable under this Act; and
(d) all persons who are associates as
defined in section 4.”
From the bare reading of the above said
provision, there is no ambiguity in the language
used in the section as four different categories of
persons come within the domain of Act, 2001.
The words “all persons in Azad Jammu and
Kashmir” by themselves show that apart from any
other person whether holding the public office or
not, a person in the Azad Jammu & Kashmir, if
indulged in the corruption, corrupt practices,
misuse/abuse of power, misappropriation of
property, kickbacks, commissions and for matters
connected and ancillary or incidental thereto, is
liable to be dealt with under Act, 2001. Secondly;
the words “holder of the public office” are also of
23
very much importance. The term “Holder of Public
Office” is defined in section 4 (n), of Act, 2001
the relevant portion of which reads as under:-
“Holder of Public Office” means a
person who’
(i)…………….
(ii)…………...
(iii) is holding, or has held, an office
or post in service of Azad Jammu and
Kashmir, or any post or any service in
connection with the affairs of the State,
or of a local council constituted under
any State law relating to the
constitution of local councils, or in the
management of corporations, banks,
financial institutions, firms, concerns,
undertakings or any other institution or
organization established, controlled or
administered by or under the Council
and the Azad Government of the State
of Jammu and Kashmir, other than a
person who is a member of any of the
armed forces of Pakistan, or for the
time being is subject to any law
24
relating to any of the said forces,
except a person who is, or has been a
member of the said forces and is
holding, or has held, a post or office in
any public corporation, bank financial
institution, undertaking or other
organizations established, controlled or
administered by or under the Azad
Government of the State of Jammu
and Kashmir, or any Board, team, Task
force, authority or any such other body
known by any name setup by the
President, the Government or the
Council, including any post in any
Development Authority or a Transport
Authority. ……..”
The words “an office or post in service of Azad
Jammu and Kashmir, or any post or any service
in connection with the affairs of the State, or of a
local council constituted under any State law
relating to the constitution of local councils, or in
the management of corporations, banks, financial
institutions…” mentioned in the above referred
provision clearly show that the bank employees
25
also come within the domain of Ehtesab Courts, if
they are involved in corruption or corrupt
practices. Whereas, the next category shows that
not only the holder of public office but if any
person who facilitates or abets or induces in the
commission of offence also comes within the
parameters of section 3 of the Act, 2001. In the
case in hand, admittedly, the accused-
respondents are bank employees and allegation
levelled against them is that they are involved in
the embezzlement of huge public money. There is
no ambiguity in our mind that the banks are
national institutions and their employees come
within the purview of ‘holder of public office’. If
for the sake of arguments it is accepted that the
bank employees do not come within the definition
of ‘holder of public office’ as observed by the
learned High Court that the Council has not
adapted the definition of the public office holder,
even then there cases come within the purview of
26
section 3(a) of Act, 2001. As this section clearly
speaks that this law is applicable to ‘all the
persons in Azad Jammu and Kashmir’ irrespective
of the fact that they are holder of public office or
not. Therefore, the argument advanced by the
learned counsel for the respondents that the
Ehtesab Court cannot assume the jurisdiction in
the matters relating to the bank of offences has
no force. Our this view finds support from the
judgment of this Court reported as Muhammad
Shabbir and another v. Ehtesab Bureau and
others [2012 YLR 2207], in which while dealing
with the proposition this Court observed as
under:-
“6. We have heard the learned counsel for
the parties and also analyzed the factual
and legal aspect of the case. Admittedly the
appellants who were employees of the
National Bank of Pakistan and holding the
post of Branch Managers, reportedly being
found involved in embezzlement of a huge
27
amount of Rs.44.89 millions by the Bank
authorities. The embezzlement was
discovered in the audit report and after
holding preliminary inquiry, the Bank
authorities referred the matter to Ehtesab
Bureau for investigation. The appellants
approached the Ehtesab Court for pre
arrest bail and they also filed writ petitions
for restraint of the investigation. The
involvement of the appellants in alleged
acts of misconduct is the subject matter of
investigation and we don’t like to express
our opinion in this regard at this stage. We
are only concerned to the nature of the
allegations. The nature of the allegations
clearly speaks that the Bank authorities
have levelled allegation of fraud, forgery,
embezzlement and criminal breach of trust
against the appellants, which are clearly
criminal penal offences. The learned
counsel for the appellants has mainly relied
on the provision of Ehtesab Bureau Act’s
sections 38 and 39. For true perception,
the referred statutory provisions are
reproduced as following:-
28
“38. Cognizance of a Financial
Offence with Prior Approval of the
State Bank of Pakistan- No court
established under this Act shall take
cognizance of an offence against an
officer or an employee of a bank or
financial institution for writing off,
waiving, restructuring or refinancing
any financial facility, interest or
markup without prior approval of the
State Bank of Pakistan.
39. Inquiry, Investigation or
proceedings in respect of imprudent
bank loans, etc-Notwithstanding any
thing contained in this Act or any
other law for the time being in force,
no inquiry, investigation or
proceedings in respect of imprudent
loans, defaulted loans or reschedule
loans except loans falling under the
Azad Jammu and Kashmir
cooperative Bank (Repayment and
Recovery of Loans), Act, 1987 or a
loan obtained from a cooperative
Bank or cooperative society shall be
initiated or conducted by the
29
Ehtesab Bureau against any person,
company or financial institution
without reference from Governor,
State Bank of Pakistan’.
The bare reading of these statutory
provisions leave no ambiguity that these
deal with the specific matters relating to
performance of bank employees in
relation to their routine bank business,
specifically writing off, waiving,
restructuring or refinancing any financial
facility or interest or markup. In relation
to these specified matters if any
employee is found involved in
commission of any offence, the prior
approval of the State Bank is required to
proceed him against. Whereas, section
39 specifically deals with the matter of
loans relating to Azad Jammu and
Kashmir Cooperative Bank (repayment
and Recovery of Loans) Act, 1987.
According to these statutory provisions
no protection or immunity is extended to
any bank employee in relation to
criminal breach of trust, forgery, fraud
and embezzlement.”
30
Similarly, in another case reported as Syed
Nadeem Hussain Kazmi v. Chairman, National
Accountability Bureau, Islamabad and 3 others
[PLD 2008 Lahore 105], while dealing with the
proposition the learned Lahore High Court
observed as under:-
“7. The main contention of the
learned counsel for the petitioner is
that being an employee of a private
bank, the petitioner is not amenable to
the jurisdiction to the Accountability
Court. It is true that the petitioner is
an employee of a private bank, and
also not a holder of public office, as
noted above, however, we do not
agree with the learned counsel for the
petitioner that petitioner is not
amenable to the jurisdiction of the
Accountability Court.
8. Under section 9(a), a holder of
public office or any other person, is
said to commit or to have committed
the offence of corruption and corrupt
practices, thus liable to be tried under
31
National Accountability Ordinance,
1999. Under section 10, if a holder of
public office or any other person,
commits an offence of corruption and
corrupt practices shall be punishable.
Under section 18 of the Ordinance,
1999, the Accountability Court takes
cognizance on a reference made by the
Chairman, etc. under section 18(c),
where the Chairman, etc. is of the
opinion that it is, or may, necessary or
appropriate to initiate proceedings
against any person, he shall refer the
matter for inquiry or investigation.
Under section 18(e), the Chairman
NAB etc. shall have powers, for the
purpose of an inquiry or investigation
to arrest any person and shall exercise
all powers of a S.H.O. under the Code.
Under section 18(g) the matter shall be
appraised and the evidence collected
during the investigation and if he
decides that it would be proper and
just to proceed further, he shall refer
the matter to a court. The language of
above mentioned sections of the
32
National Accountability Ordinance,
1999 shows that both, a holder of
public office, or any other person can
be inquired, investigated and tried by
the NAB authorities, and the
Accountability Court, respectively.
According to the learned counsel for
the petitioner, expression ‘any other
person’ cannot be construed separately
as an independent entity or person, it
should be considered treated a person
subordinate or associate of a holder of
public office.
9. We are afraid this interpretation of
section 9(a) cannot be accepted.
Phrase, a holder of public office is
separated from phrase “any other
person” by using word “or”. According
to the Black’s Law Dictionary, 6th Edn.
Page 1095, the word ‘or’ is “disjunctive
particle used to express an alternative
or to give a choice of one aiming two
or more things. The word ‘or’ is used
as function word to indicate an
alternative between different or unlike
things”. Thus, it is clear that a holder
33
of public office is intentionally
separated from any other person,
therefore, not only a holder of public
office is amenable to the jurisdiction to
the National Accountability Ordinance,
any other person, who may not be a
holder of public office, is also amenable
to the jurisdiction of an Accountability
Court…..
12. Therefore, in view of the above
discussion and reasons, we find that
under section 4 and 9 of National
Accountability Ordinance, 1999, a
holder of public office as well as a
private person and a citizen is liable to
be tried by Accountability Court under
the Ordinance. In view of the above,
the impugned order dated 22.8.2007 is
upheld. Thus this writ petition is
dismissed.”
10. It may be observed that section 19 of
Act, 2001 empowers the Chairman to apply to
any Court of law or Tribunal that any case
involving a scheduled offence under this Act
pending before such Court or Tribunal shall be
34
transferred to a Court established under this Act,
then such other Court or Tribunal shall transfer
the said case to any Court established under Act,
2001. Therefore, it can safely be held that section
19 of Act, 2001 opens up with a non-obstante
clause that is, “notwithstanding anything
contained in any other law for the time being in
force, the Chairman Ehtesab Bureau may apply to
any Court of law or Tribunal that any case
involving offences under this Act pending before
such other Court or Tribunal shall be transferred
to a Court established under this Act. As
discussed earlier that in the preamble of Act,
2001, the legislature has shown the clear
intention that the Act, 2001 is being promulgated
to expedite the disposal of the cases involving
corruption, corrupt practices, misuse of power
etc. and the matters connected thereto under the
scheduled of Act, 2001, that’s why under section
19, the provisions have been provided that the
35
cases relating to the scheduled offences of Act,
2001 shall be transferred on the application of the
Chairman Ehtesab Bureau to the Courts
established under Act, 2001 and the Court from
which the pending case relating to the scheduled
offences of Act, 2001 is summoned on the
application cannot refuse to transfer the same.
Reliance can be placed on a case reported as
Sardar Ahmed Siyal and others v. National
Accountability Bureau through Chairman and 4
others [2004 SCMR 265] wherein it has been
observed as under:-
“6. We have examined the
provisions of clause (a) of section 16-A
of the Ordinance reproduced
hereinabove, which clearly tends to
shows that notwithstanding anything
contained in any other law for the time
being in force, the Chairman, National
Accountability Bureau may apply to
any Court of law or Tribunal for
transfer of the case involving a
36
scheduled offence pending before such
Court or Tribunal and, on receipt of
such application, such Court or
Tribunal shall transfer the said case to
any Court established under the
Ordinance. It would appear that the
object of the special law is to expedite
the disposal of cases involving
corruption, corrupt practices, misuse of
power, misappropriation of property
and matter connected thereto under
the Ordinance and to avoid procedural
delays and technicalities. The language
of the provision unequivocally reflects
the intention of the legislature that the
provision is self-contained and self-
executory leaving no option for the
Court before whom cases involving
scheduled offences are pending but to
transfer the same. It is rather
imperative to accede to such request
unless it can be shown to the
satisfaction of the Court that the
offence against it can be shown to the
satisfaction of the Court that the
offence against the accused does not
37
fall amongst the offences included in
the Schedule. On no other ground can
a Court turn down a request for
transfer of a pending case to
Accountability Court on an application
made by the Chairman, National
Accountability Bureau under the
Ordinance. This being the position in
law, and the object of the Legislature,
we are not impressed by the
submission that the transferor Court in
all fairness and reasonableness ought
to have given notice of transfer to the
petitioners. It may, however, be
observed that it is not the requirement
of law under the Ordinance that such
order can be passed only after notice
to the accused. Intention of the
Legislature is rather patently clear and
certain from the non obstanate clause
at the commencement of the provision.
In fact the provision has the overriding
effect over general law.”
As the accused-respondents have been charged
with under the offences enumerated in schedule-
38
I and II of the Act, 2001 therefore, they are
securely fall within the jurisdiction of the Ehtesab
Bureau. The arguments that the employees of
Banks are not holder of public office, therefore,
they are not amenable to the jurisdiction of Act,
2001, advanced by the learned counsel for the
accused-respondents, is not convincing in nature.
In Muhammad Shabbir’s case (supra) [2012 YLR
2207] while dealing with the proposition this
Court has observed that:-
“Thus keeping in view the nature of
alleged criminal act of the appellants,
prima-facie the allegations levelled
against them fall within the offence
enumerated in schedule I and II of the
Ehtesab Bureau Act, therefore, the
juxtaposition appreciation and analysis
of the statutory provision makes it
clear that any person whether he is a
public office holder or not involved in
commission of any of the scheduled
offences of Ehtesab Bureau Act, can be
39
investigated or inquired into by the
Ehtesab bureau.”
11. After going through the relevant provisions
of law and the case law referred to hereinabove, we
are unanimous on the point that the bank employees
who are involved in the corruption, corrupt practices
and misuse of authority are amenable to the
jurisdiction of Act, 2001 and can safely be tried by
the Ehtesab Courts which have been specifically
established to eradicate corruption and corrupt
practices. Moreover, it has also been observed in the
preceding para that the scope of Act, 2001 is much
wider than any other law which deals with the cases
of corruption and even a private person who is found
to be involved in such like practice with the
connivance of the persons of all the categories
mentioned in section 3 of Act, 2001 can also be tried
under this Act. Therefore, the findings recorded by
the learned High Court in this regard are not
sustainable in the eye of law as the same have been
40
recorded against the principle laid by this Court in
Muhammad Shabbir’s case (supra) [2012 YLR 2207].
12. In view of the findings and reasons
discussed hereinabove, after perusal of the relevant
statutory provisions, the case law referred to by the
learned Chief Prosecutor and the learned counsel for
the parties and on the strength of Muhammad
Shabbir’s case (supra) [2012 YLR 2207], we are
unanimous on the point that the accused-
respondents being the Bank Employees securely fall
in the term ‘any person’ and are liable to be
investigated and inquired into by the Ehtesab
Bureau, Azad Jammu and Kashmir and prosecuted
and tried by the Ehtesab Court. Therefore, we are
not convinced with the findings recorded by the
learned High Court, while accepting the Criminal
Revisions filed by the accused-respondents and
disposing off the reference sent by the Judge, Banks
(offences) Special Court, AJK, Muzaffarabad.
41
Resultantly, the supra titled appeals are
accepted, by setting aside the judgments passed
by the High Court on 18.4.2012 and 12.5.2012.
Mirpur,
2.9.2014 JUDGE CHIEF JUSTICE JUDGE