[On appeal from the judgment of the High Court dated in Reference No.48-A/2012]

Transcription

1 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 ) 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 in Reference No.48-A/2012]

2 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 ) 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 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, Exemployee 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 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 4 3. Criminal Appeal No.54 of 2012 (Filed ) 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 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:

5 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 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 , has declared that the Ehtesab Bureau has no jurisdiction to investigate into and try the

7 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 accusedrespondents moved applications for pre-arrest bail, in the Ehtesab Court No.2, which were

8 8 dismissed on 13 th April, 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 18 th 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 9 dated 23 rd 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 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 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 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 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, Act, 2001 was adapted by the Azad Jammu & Kashmir Council vide Azad Jammu & Kashmir Ehtesab Bureau (Adaptation and Extension) Act, (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 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 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 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 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 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 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 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 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 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, 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 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, 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, Secondly; the words holder of the public office are also of

23 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 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 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, In the case in hand, admittedly, the accusedrespondents 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 26 section 3(a) of Act, 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 27 amount of Rs 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 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 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, 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 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 31 National Accountability Ordinance, 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 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, 6 th 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 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 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 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 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, 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 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 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 selfexecutory 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 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 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 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 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 accusedrespondents 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 41 Resultantly, the supra titled appeals are accepted, by setting aside the judgments passed by the High Court on and Mirpur, JUDGE CHIEF JUSTICE JUDGE