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]

2

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.

3

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.

4

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.

5

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