IN THE HIGH COURT OF SINDH AT KARACHI
PRESENT: MR. JUSTICE GHULAM SARWAR KORAI, &
MR. JUSTICE SALAHUDDIN PANHWAR
C.P. NO.D-450/2014
Petitioner : Aqeel Karim Dhedhi,
Through: Dr. Farogh Naseem Advocate &
Mr. Murtaza Wahab Advocate.
Respondents : National Accountability Bureau & another,
Through: Mr. Noor Muhammad Dayo, ADPG.
Date of hearing: 10.02.2014.
Date of announcement:
O R D E R
SALAHUDDIN PANHWAR, J. Through instant petition, petitioner has prayed as under:-
i. Declare that the actions of the Respondents are illegal, unlawful and no legal substance.
ii. Quash the Reference dated 23.01.2014 (Annexure E);
iii. Permanently restrain the Respondents No. 1 to 3 from filing the Reference against the Petitioner and further restrain any authority, its agents, cronics or Court from taking any adverse/coercive action in pursuance of the Reference;
iv. Permanently restrain the Respondents No. 1 to 3 from arresting the Petitioner during the pendency of the instant Petition;
v. Direct the Respondent No.4 to remove the Petitioner’s name from the Exit Control List;
vi. Direct the Respondent to conduct themselves strictly in accordance with law and to safeguard the fundamental rights of the Petitioner;
vii. Cancel any approval granted or decisions made in the executive board meeting dated 22.01.2014 in respect of the Petitioner;
viii. Any other relief which this Hon’ble Court deems fit and proper under the circumstances,
2. Succinctly, relevant facts as set out in the instant petition are that petitioner is a responsible, educated and law abiding citizen of Pakistan and a well known public figure within and outside Pakistan. Respondent No.2 (Chairman NAB) is duty bound to act strictly in accordance with law whereas Respondent No.3, being investigating officer of NAB, is also under legal obligation to conduct all investigations within parameters of law. The Petitioner has no nexus with OGRA Scam and was never been part of the decision making process in either OGRA or the Sui Southern Gas Company Limited (SSGCL) but due to affluence of a powerful media group, he has been dragged in the said scandal. The petitioner, being aggrieved by the illegal acts of Respondents, has filed suit bearing No. 108 of 2014 wherein this Court through ad-interim order dated 23.01.2014 has directed respondents to act strictly in accordance with law. The NAB authorities filed reference in that scam on three occasions but always, it was returned by the National Accountability Court No.1, being incomplete and deficient. During investigation conducted by the Sui Southern Gas Company Limited, nowhere it is opined that Petitioner has any connection with this scandal. However, NAB authorities are bent upon to implicate the Petitioner and thus have filed reference against the Petitioner. It is further maintained that investigation report reveals as under:
“During the course of investigation pertaining to share manipulation as result of joint investigation and on account of specific information the experts and senior officers from SECP arrived at a probable suspicious matter between Aqeel Karim Dhedhi & Sind Bank. Since this issue surfaced during the course of investigation of the impact on share price from increase in UFG and it has no direct connect with OGRA Scam or the earlier mentioned UFG issue, therefore, the record/documents collected in the matter of Aqeel Karim Dhedhi and Sind Bank will be checked by SECP being non cognizable for NAB in the instant investigation.”
Despite the fact that both the Respondent No.3 as well as the SECP had not attributed any criminal liability towards the Petitioner, the respondent No.2 while exceeding his powers has added the name of the Petitioner in the Reference, hence this act is patently malfeasance on his part and prima facie unlawful as Section 18 of the NAB Ordinance provides that inquiry/investigation is to be carried out in first instance and thereof a reference is to be made.
4. Since, petition was taken up on 31.01.2014 whereby learned counsel was put on notice to satisfy the maintainability of instant petition. Relevant Para’s No. 2 & 3 of that order is reproduced herewith:
2. Having heard, learned counsel for the Petitioner and after scanning the petition as well as its annexures, it is patent that the petitioner has been arraigned as an accused and his name is available at serial No.12 (The State v. Tauqir Sadiq and others) of the Reference filed before the Administrative Judge Accountability Court Islamabad. Moreover, at page No.691 a certificate issued by the Registrar Accountability Court No.1, Islamabad is annexed which reads as under:-
24th January 2014.
“Fresh reference titled as State vs Tauqir Sadiq and other has been filed by Ch.Riaz Ahmed ADPG NAB Headquarters Islamabad on 24th Jan, 2014. The same will be placed before the Hon’ble Judge Accountability Court No.1, Islamabad after completion of scrutiny process.”
3. In view of above, learned counsel for the Petitioner is put on notice to satisfy the maintainability of this petition with regard to the jurisdiction of this Court when it is manifest that reference against the petitioner preferred by NAB authorities, is pending before the Administrative Judge Accountability Court No.1, Islamabad.”
5. Pursuant to that learned counsel for the Petitioner while reiterating the pleadings has contended that allegations against the Petitioner is “insider trading”, which comes within the ambit of Security Exchange Ordinance 1969 whereby show-cause notice by SECP is mandatory but same is not been complied with; this court has got concurrent jurisdiction to adjudicate the merits of the case and quash the proceedings pending before the NAB Court at Islamabad; respondents have departed basic provisions of NAB Ordinance 1999; therefore, whole structure of reference is illegal and thus liable to be quashed; the proviso of Section 9 does not provide the definition of “Insider Trading”, on this count also, the instant matter is out of the purview of NAB authorities. With regard to jurisdiction he has relied upon the case laws reported as ABDUL SHAKOOR KALOODI and another v. FEDERATION OF PAKISTAN and others [PLD 2001 Kar. 311], Messrs AL-IBLAGH LIMITED, LAHORE v. THE COPYRIGHT BOARD, KARACHI and others [1985 SCMR 758], AIJAZ MEHMOOD v. Shaikh MUHAMMAD JAMIL and others [1996 CLC 1027], EHSAN-UL-HAQ v. MUHAMMAD KHAN [2010 CLC 1648], FLYING KRAFT PAPER MILLS (Pvt) Ltd., CHARSADDA v. CENTRAL BOARD OF REVENUE, ISLAMABAD [1997 S.C.M.R. 1874] and Nawabzada MUHAMMAD SHAHABUDDIN v. THE CHAIRMAN, FEDERAL LAND COMMISSION [1996 C L C 539]. Whereas Learned counsel on the plea that show-cause under Security and Exchange Ordinance 1961 was mandatory has relied upon the case of COLLECTOR SAHIWAL AND 2 OTHERS v. MOHAMMAD AKHTAR [1971 SCMR 681] and with regard to the departure from mandatory provisions of NAB authorities has relied upon the case of Messrs KALOODI INTERNATIONAL (PVT.) LTD v. FEDERATION OF PAKISTAN and others reported in PLD 2001 Karachi 311.
6. Conversely, learned Special Prosecutor for NAB while refuting the contentions raised as above has argued that instant matter was investigated by the directions of the Hon’ble apex Court; as a result of that, inquiry was conducted by the NAB authorities Islamabad. Reference is pending before the NAB Court at Islamabad; therefore, this Court has no territorial jurisdiction. In support of his contentions he has relied upon unreported case decided by Hon’ble apex Court in Civil Petition No.1728 of 2013 [Re-Muhammad Ashraf v. Chairman NAB and others]
7. Heard counsel, perused the record and case law as cited.
8. Regarding territorial jurisdiction learned counsel has referred the case of Nawabzada MUHAMMAD SHAHABUDDIN (supra), wherein Petitioner was resident of North‑West Frontier Province and his property was also situated in that Province. Chairman, Federal Land Commission, whose office was functioning at Rawalpindi, passed an order adverse to petitioner's declaration. Petitioner challenged such order before Lahore High Court at Lahore in Constitutional jurisdiction, and it was held in para 11, that:
11. Having dealt with the preliminary objection, we, now, turn to the remaining contentions .of the parties. As regards the second argument, it is to be noted that the alienees/affectees were not given any notice by the Commission. The learned Deputy Attorney‑General, despite his best effort, was not able to show any material regarding issuance of notice to alienees/transferees. The perusal of the order clearly confirms that the effectees were not at all provided an opportunity of hearing. This being the position, we are in no manner of doubt that alienees/affectees were necessary parties and order passed by the Chairman, Federal Land Commission in their absence, was wholly without jurisdiction. The same cannot be, therefore, sustained and is declared to have been passed without any lawful authority and of no lawful consequences (See Munir Ahmed v. Chairman, Federal Land Commission, Pakistan (1994 CLC 20). Another conspicuous feature of the case is that the transactions mentioned in paragraph No.2 entered at Serial Nos. 2 to 10, were in favour of legal heirs. These transfers were obviously immune from scrutiny under para. 7, proviso (iii) of the Regulation. Furthermore, the learned. Chairman, Federal Land Commission did not even take care to examine as to whether the order passed by the Land Commissioner suffered from any jurisdictional or any legal infirmity. The Chairman, Federal Land Commission did exercise his suo motu jurisdiction on whims and conjectural notions. He, under the law was required to first examine the impugned order passed by the Land Commissioner on the yardsticks fully specified in Munir Ahmed's case (supra), Federal Land Commission v. Zarin Qaisha (1984 SCMR 666) and Mst. Tayyib Khanam v. Chairman, F.L.C. (1984 SCMR 1110). The order passed by the learned Chairman, Federal Land Commission clearly does not satisfy the test laid down by the aforenoted enunciations by the Supreme Court and by this Court. Having regard to these circumstances, we find no material whatsoever to support the legality of the order impugned in these petitions. As a result of above discussion, we have therefore, no hesitation in coming to conclusion that the order passed by Chairman, Federal Land Commission, is clearly without jurisdiction and is declared as such.
The case of Messrs AL-IBLAGH LIMITED, LAHORE (supra), relates to the copyrights Act and dispute was between the company and one private respondent about the copyright in respect of series of cassettes containing the lectures and sermon’s delivered by the late Maulana Syed Abul A’la Maudoodi and it was held as under:-
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The rules laid down in the said case would, we think, be applicable also in the circumstances of this case, The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territaory the order would affect such a person, jurisdiction to hear the case. We agree and are of the opinion that both the Lahore High Court as well as the Sind High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law. |
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Case of FLYING KRAFT PAPER MILLS (Pvt) Ltd, CHARSADDA (supra), relates to exemption from sales tax, and in this dictum it was held as under:-
“Since the respondents failed to raise objection as to the territorial jurisdiction of Rawalpindi Bench of the Lahore High Court which was the Court of first instance in this case, and there was no allegation that any prejudice was caused to the respondents by filing the petition before the High Court at Rawalpindi, we are not inclined to allow the respondents to raise the objection as to the territorial jurisdiction of Lahore High Court, Rawalpindi Bench, for the first time before this Court. Apart from it, we find that besides the order of Collector of Customs and Central Excise, in the first petition filed before the High Court at Rawalpindi, the order of C.B.R. which functions at Islamabad, was also questioned. In the writ petition filed after post‑remand proceedings, not only the order of Collector was challenged but relief was also claimed against C.B.R. and as such it could not be argued that in the circumstances, the Rawalpindi Bench of Lahore High Court had no territorial jurisdiction in the matter. We have examined the facts of Sandalbar Enterprises (Pvt.) Ltd. v. C.B.R., (supra), cited by the learned Deputy Attorney‑General and are of the view that the facts of that case were quite distinguishable from the facts of the present case.”
9. Whereas, learned Special Prosecutor NAB has referred un-reported case of Muhammad Ashraf (supra), decided by honourable Supreme Court by order dated 13.11.2013, wherein the facts of the case are that the petitioner was facing trial under National Accountability Ordinance 1999 before the Accountability Court No.1 Lahore. He filed Constitution Petition before the Islamabad High Court, impleading the National Accountability Bureau, the Special Judge Accountability Court No.1, Lahore, The Special Prosecutor General, NAB and others, praying, inter alia, that the Court be directed to dismiss the prosecution case against the petitioner. The High Court dismissed the writ petition, while holding that the matter falls within the territorial jurisdiction of the Lahore High Court where the petitioner is facing trial. Thus the petitioner preferred leave to appeal against such judgment of the Islamabad High Court and Hon’ble apex Court while deciding such petition observed as under:-
“The contention of the learned counsel has no merits. We will refrain from dilating upon the decision of this Court in Criminal Appeals No.140 of 2005 etc. as the High Court had not touched upon the same but dismissed the petitioner’s constitution petition for want of territorial jurisdiction. We tend to agree with the High Court. Once the Chairman of the National Accountability Bureau had filed the Reference and cognizance was taken thereof by the Accountability Court the case there-after falls within the exclusive domain of the Court. The prayer for direction to the Chairman National Accountability Bureau and the Prosecutors could thus not be granted as the case is now under trial before the Accountability Court. The said court falls within the territorial jurisdiction of the Lahore High Court. The High Court under Article 199 of the Constitution can take cognizance of all matters that falls within its territorial jurisdiction and not beyond it. The Islamabad High Court rightly declined to exercise jurisdiction in the matter. The petition is, therefore, dismissed and leave declined.”
(Under lining is provided for emphasis)
10. Besides above , it would be appropriate to refer the case of L.P.G. Association of Pakistan through Chairman Vs. Federation of Pakistan and others reported in 2009 C.L.D. 1498 Lahore, wherein the same controversy regarding territorial jurisdiction of the High Court was resolved while examining, the below detailed plethora of cases:
The case of Sandalbar Enterprises reported in PLD 1997 SC 334, case of Messrs Al-lblagh limited Lahore reported in 1985 SCMR 758, case of Dr Zahoor Ahmed shah reported in 2005 MLD 718, case of Dr Qaiser Rasheed reported in PLD 2006 L 789, case of Messrs Ibrahim Fibers reported in PLD 2009 K 154, case of Abdul Ghafar Lakhani reported in PLD 1986 K 525, case of Amin Textile Mills reported in 1998 SCMR 2389, case of Flying Craft Paper Mills reported in 1997 SCMR 1874, case of Shah Abdul Sattar Lasi reportd in 2006 CLD 18, and other cases reported as PLD 1988 SC 387, 1995 CLC 1027, PLD 1987 SC 334, 1998 PLC(CS)239, PLD 2001 Peshwar, PLD 1976 Peshawar 66, 2000 SCMR 1703,
And the ratio decidendi was observed in para 6, which is reproduced as follows:
“From the judgments cited at the Bar on both the sides, the
Portions whereof have been extensively reproduced, the following ratio is deducible:-
(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country.
(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the “aggrieved party” at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be more so in the cases
where a party is aggrieved or a legislative instrument (including any rules,
etc.) on the ground of it being ultra vires, because the cause to sue against
that law shall accrue to a person at the place where his rights have been
affected. For example, if a law is challenged on the ground that it is
confiscatory in nature, violative of the fundamental rights to property;
profession, association etc. and any curb has been placed upon such a right by
a law enforced at Islamabad, besides there, it can also be challenged within
the jurisdiction of the High Court, where the right is likely to be affected.
In this context, illustrations can be given, that if some duty/tax has been
imposed upon the withdrawal of the amounts by the account holders from their
bank account and the aggrieved party is maintaining the account at Lahore,
though the Act/law has been passed at Islamabad, yet his right being affected
where he maintains the account (Lahore), he also can competently initiate a
writ petition in Lahore besides Islamabad; this shall also be true for the
violation of any right to profession, if being conducted by a person at Lahore,
obviously in the situation, he shall have a right to seek the enforcement of
his right in any of the two High Courts.
(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience.
11. From the above it is evident that mere existence of an office of Federation outside the jurisdiction of the High Court shall not alone be enough to take the issue away from the extra- ordinary jurisdiction of High Court (s) to scrutinize the matter (s) relating to vires of law, statutes, rules and action (s) if the same are going to cause an effect upon the rights of the people, residing within such area because the principle is that an office, law, rule and legislation is always done / established to provide security and safety to the rights, interests and claims of the people for whom such office, law rules and legislation is meant, so at all material times, the law requires such actions, law, rules and legislation to be strictly in accordance with law keeping the rights, interests and claims of the masses at their proper place.
12. In such like situation the aggrieved party shall be well within rights to seek help and constitutional protection towards its / their rights. However, if a particular order or action of an authority is not having its impact upon people at large but is confined to a particular individual, then the jurisdiction to challenge such order or action shall remain with the High Court wherefrom that order or action has been done or taken.
13. Now, we would like to discuss as to whether above principle can help the petitioner to justify maintainability of his petition before this Court whereby he has sought relieves which shall amount interference into a reference, filed / pending before the Administrative Judge Accountability Court, No.1 Islamabad as name of the petitioner stands at Serial No.12 of such reference.
14. We feel no hesitation in endorsing that an order / action of an authority cannot be a synonym for the word offence because both have their independent meanings. The offence may take place at a particular point or place but scope of investigation cannot be confined to such place or point alone therefore, normally, the accused is sent up to face his trial before the Court within jurisdiction thereof the offence is committed but since it has been an special enactment which has got its own procedure, therefore, things are required to be taken within such enactment.
15. At this juncture, we would like to reproduce the Section 16(d) of the Ordinance, being material one, which reads as under:-
(d) Notwithstanding anything contained in this section, if in respect of any case relating to an offence triable under this Ordinance, the Chairman NAB, having regard to the facts and circumstances of the case may file a reference before any Court established anywhere in Pakistan, and such Court shall have the jurisdiction to try the same
From above, it becomes clear that it is the prerogative of Chairman NAB that a reference may be filed before any Court established anywhere in Pakistan and such Court shall have the jurisdiction to try such the same.
16. What is patent on record is that a reference has been filed / pending before the Administrative Judge Accountability Court, No.1 Islamabad. Now we would like to respond to the question, involved in the petition that:
Whether a High Court can quash the reference proceedings pending before the Court of another Province?.
17. To properly appreciate the above question, we would like to refer the relevant subsection (s) of Section 16 of the Ordinance which reads as under:-
Section.16—Trial of offences;
(C) Where more Courts than one have been established at a place, the Chief Justice of the High Court of the Province concerned shall designate a Judge of any such Court to be an Administrative Judge and a case triable under the Ordinance shall be filed before the Court of the Administrative Judge who may either try the case himself or, assign it for trial by any other (Court) established at that place at any time prior to the framing of the charge;
18. The Subsection ( c) of Section 16 of the Ordinance leaves nothing ambiguous that ‘Courts’ (under this Ordinance) within one Province shall have their own Administrative Judge who shall be designated by the Chief Justice of that High Court of the Province. This makes the independent character of Courts of each Province(s) clear. The position being so, shall stand further patent if relevant subsection (s) of the Section 16-A are examined, which, for clarity and understanding are reproduced hereunder:-
“16-A Transfer of cases:
(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any court of law or tribunal that any case involving a scheduled offence under this Ordinance pending before such court or tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.
(b) In respect of any case before a Court if the Prosecutor General Accountability or any Special Prosecutor authorised by him in this behalf, having in the interest of justice and for the protection and safety of witness, considers it necessary that such case is transferred for trial, he may apply for the transfer of the case from any Court in one Province to a Court in another Province or from one court in Province to another Court in the same province.
(i) to the Supreme Court of Pakistan in case the transfer is intended from a Court in a Province to a Court in another Province, and
(ii) to the High Court of the Province in case the transfer is intended from one Court in a province to another Court in the same Province
and the Supreme Court or the High Court, as the case may be, if it is in the interest of Justice, transfer the case from one court to another court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded.
(c) The accused may also make an application to the Supreme Court for the transfer of a case from a Court in one Province to a Court in another Province and to the High Court for transfer of a case from one Court in a Province to another Court in the same Province and the Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the case from one Court to another Court, and the case so transferred shall be triad under this Ordinance without recalling any witness whose evidence may have been recorded.”
It is patent that the provisions without any ambiguity confines the jurisdiction of High Court of a Province to the ‘Courts’ established within its jurisdiction and not beyond that. This legal position stands further clear from sub-section (a) of Section 32 of the Ordinance which specifies that:
(a) Any person convicted or the Prosecutor General Accountability, if so directed by (the Chairman) NAB) aggrieved by the final judgment and order of the Court under this Ordinance may within ten days of the final judgment and order of the Court prefer an Appeal to the High Court of the Province where the court is situated)
19. In view of above legal position, if the plea of the petitioner is sustained that this Court can competently quash the proceeding of reference, pending before the Court at Islamabad it shall mean to frustrate the very meaning, purpose and object of the above provision (s) of the Ordinance which limits the administrative or appellate jurisdiction of a High Court of a Province for Courts, established within its jurisdiction only. This view stood stamped by Honourable Supreme Court in above referred unreported Judgment.
20. Accordingly, we find that petition, in hand, is not maintainable on the point of jurisdiction and same is dismissed in limine.
J U D G E
J U D G E
Sajid