Tahir Yaqub (Petitioner) VS Federation of Pakistan & Ors (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI li Before:- Mr. Justice Ahmed Ali M. Shaikh, C.J.

Mr. Justice Mohammed Karim Khan Agha, J Peti No, and ndfie of D with co unsel, 1. C.P. No.D-2025 ot 2Oi.T Syed Ali Raza V Federation oI Pakistan & another.

S-yed Ali Raza S/o Syed Hashim Raza (petitioner No.l), through Mr. Haider Waheed, Advocate.

2.C.P. No. D-3274 ot 2017. Dr. Mirza Abrar Baig V The State through Director ceneral (Sindh) NAB.

Dr. Mirza Abrar Baig S/o Mirza Irshq Baig (petitioner No.2), through Syed Mahmood AIam Rizvi, Advocate.

3, C.P. No. D-2O95 ol2017 Zubair Ahmed V Federation ol Pal<istan & others.

Zubair Ahmed S/o Muhammad tjaz (petitioner No.3) through Mr. Muhammad Azam Chughtaj, Advocate.

4.C.P. No. D-3318 of2017 Imrar Ghani V The State through Director General (Sindh) NAB.

Imran Ghani S/o Syed Usman Ghani (petitioner No.4). through Sl.ed Mahmood Alam Rizvi, Advocate.

5.C.P. No. D-2832 of 2017 Kausar Iqba.l Malik V Chairmar) NAB & others.

Kausar Iqbal Malik S/o Mehboob Khan {petitioner No.S) llrrough Mr..Shal]ab Sarki, Ad vocate.

6.C.P. No. D-2158 of 2017 Qamar Hussain V pal<istan through Secretary Ministry of lnterior & another. Qamar Hussain S/o Sajjad Hussain (petitioner No.6) lhrough Mr. Ali Almani, Advocate.

7.C.P. No. D-2366 ol2017 Tahir Yaqub V Federation ot Pal<istan & others.

Tahir Yaqub S/o Ch. Muhammad Yaqub (petitioner No.7) through Mr. JalIar Raza, Advocate.

) 8. C.P. No. D 2759 o{ 2Ol7 Muhammad Imran Butt V Chc ir nran NAB & othcrs MLrhamma'd Imran Butt S/o Allauddin (petitioner No.8) through Mr. Azeem Farooqui, Advocate.

9.C.P. No. D 3461 ol 2017 Muhammad Waseem l(han V Clrairman NAB & othcrs Muhalrrmad Waseem Khan S/o Sana Muhammad Khan (petitioner N6.9) lhrough Mr. Chulam M. Dars, Advocale.

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Counsel for the Respond.ents.

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Mr.Yasir Siddiq, Special Prosecutor, NAB.

Dates of Hearing 29.O8 2Ol7, 3O-Oa-2O17, t9 O9-2O17

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20.o9 201.7 and.22.09.2Ol7

Date of Order: 27-O9-2017

ORDER I

Mohammed Karlm Nhan Aqha. J. Through these petitions, il

petitioners 1,3.5 to 9 (Syed Ali Raza, Zubajr Ahmed, Kausar Iqbal Malik, Qamar Hussain, Tahir Yaqub, Muhammad lmran Butt and Muhammad Waseem Khan) seek bail before arrest which was earlier granted to them through various orders of this court whereas pelitioners 2 and 4lDr. Mirza ALrar BaJg and Imrar] Ghani) seek bail after at'rest in National Accountability Bureau (NAB) Reference No.13 of 2017 which was [iled against them all by NAB for acts of corruprion under i the National Accountability Ordinance 1999 (NAO).

2.Tl-re charge against the above named pctitioners as il ll enumerated in Reference No.13 of 2017 arc that the investigatiDn revealed that accused No.1, Ali Raza Ex President oI National Bank of Pakistan {NBP/the bank}, misused his authority in connivance with other accused persons, so as to gain benefits and / or lavour for him or to other persons and also willfully failed to exercise his authority to prevent the grant of undue favour to the other accusecl persons. He, being Bank President, misused his authority and issued certain orders whereby granted undue concessions and /or benefits and also failcd to exercise his authority to t, I

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prevent the grant or rendition of undue benefits and /or favours, in connivarce with other accused persons consequentthereto a loss of approx US$185 million had been caused to NBP during years 2OU,-2O12,

3.As regards the allegations against petitioner/accused revealed that Mirza Abrar Baig, the then SEVP. Croup Chief, HR Group (abetted with accused No. i , Ali Raza and knowingly failed to exercise his authority to prevent the commission of offences of misappropriaLion of lunds1. sheer violation of rules/laws of NBP and failed to repatriate i

the accused No.2, Zubair Ahmed from Baltrain who was I posted thete for almost l8 years and in that way abetted the I commission of offence wirh accused No.l, 2, lO and 11

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persons causing loss to the National Exchequer. I

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4.The invesligation revealed that petitioner/accused i Zubair Ahmed tHe then SEVP /Regional Chief Executive (now Retired), misused his authority ard sanctioncd loans through the branches of Bargladesh (Central Bank) and NBP's own policies wirh malafide intention to cause misappropriation of lhe funds of the National Exchequer.

5.According to the investigation the allegation against the petitioner /accused Imra.n Ghani, are that he being lncharge overseas Desk of NBP was responsible for overall aJfairs of the Overseas HR related matters. He misused his authority and initiated the proposal for awarding accused No.11. Q.S. .

M. Jehanzeb special assignment lvithout mentioning lhe fact of violatron of overseas policy in the case of overstay of Q. S. M. l;,'

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Jehanzeb in Bangladesh Ope.ation' He also deliberately failed to mention thc fact about accused No'11, Q S M Jehanzeb .

which he had done in Bangladcsh Operation which led thc banli to book loss of billions of rupees over the period oI time' Actually in u:rl]brella oi Special Assignment he accommodated accused No.1l Q S.M Jehanzeb to stay in Bqggtedssh and retire from there afte[ attaining his suPerannuation retirement i.e. 11.11.2010 without repatriating back Lo Pakistan to avoid any departmental action l

6.As per contents of reference the charge against

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petitioner/ accused Kausar lqbal Malik, by not exercising his lawful authority, abetted to give undue beneflts/concessions to accused No.2, Zubair Ahmed by not exercising / misusing of his authority in the matter at relevant time'

7.\he petitioner/ accused Qamal' Hussain, the then EVP' Head HRD, recommended proposals to give post-retircment benefits / concession to accused No 2, Zubair Ahmed by not exercising / misusing of his authority in the matter at relevant time.

B. lt is alleged in the relerence that the petitioner/accused Tahir Yaqub, Ex-EVP / then group chief (OC CMG / OBC) during pcriod of May, 2OO4 to December 2OO8 and January 2009 was.looking after the Overseas por olio of the Bank bur inclucling operalion ol Balrgladcsh as pcr rules arrd laws' he willfully failed to exercise his authority in this regard He

also kr\owingly and cleliberalelv "xer' ised tll' PouPr\ rrt'l vested in him and exceeded from his mandate with malafide I.t" .

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for restructuring of classified loans and waiver of loans in Balgladesh. He, with common int€ntion and abetment, caused a loss to the National Exchequer, ,l

9.Allegation against petitioner / accused Muhanimad Imran Butt, being Regional Chief (RCE) (Acting) and having full information of Bangladesh debacle. He misused his alrthoritv and failed to take any notice that an amount of approximately BDL 2.4 Billion was sanctioned to various parties including Cotton Corporalion Group in the branches of Bangladesh Operations without observing the rules and regulation of the Bank of Bangladesh (Central Banki and Bank's own policies. Many serious lapses were reported to him as Acting RCE but he failed to take any concrete action to safe guard the bank's interest. He failed to stop accused Muhammad Wasim Khan from sanctioning loans beyond his powers but in some instances he jointly with accused No'8, Waseem Khan approved loars beyond his discretionary powers and without obtaining approPriate security to saf6.4 guard the baJrk's interest. This act on his part caused further loss of BDT 3.200 Billion to the bank as bad loan Hence he committed olfence of misuse ot authority as Actrng REC, NBP' Bahrain.

10.During the course of investigation, it was revealed that the petitioner/accused Muhammad wasim Khan, being Manager-, Gulshan Branch, Bangladesh failed to carryout his r-sp.,rrsibrjrtJ ru kcep (omprehensive chFck and balan'e rn the brrurch rather he became instrumenl-al and acted to v-.

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benefit the.defaulted parties. As General Manager (Acting) and in connivance with accused No.9, Muhammad Imran Butt, he sanctioned large number ol L/Cs to Cotton Corporation It Croup beyond his discretionary power, and without observing rules and regulations of bank's policy and procedure, This caused further loss to the barlk for about BDT, 3.200 Biuion Hence he committed offence of misuse of authority as Acting cM, NBP Bangladesh.

t 1. We shall firstly dea.l with the petitions seeking pre arrest bail as the considerations for the grant of pre arrest bail are differenl from those in cases conceming post al rest bail Pre arrest bail petitions.

12.Learned counsel fot petitioner No.l (Syed AIi Raza) contended that the petitioner NoL was a very seasoned and prominerl banker who had received many awards and medals on account of his service to the banking industry and therefore, could not even think of misusing his authority. i

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13.At the outset he submitted that the reference filed

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t against petitioner No.1 lacked jurisdiction under the NAO i

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since this was in effect a case which fell under S.31 (D) NAO and since no permission had been obtained from the Governor oI the State Bank of Pakistan (SBP) which was a I l i rnandatory requirement under S.31 (D) NAO which involves

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imprudent loans which this reference in eIfect revolves I cround NAB had no jurrsdr.llon lu file the refernnce Lv'rr otherwise he contended that petitioner No.1 had absolutely

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no lmowledge of the two main allegations in the reference. Namely (a) that he had misused his authority/failed to exercise his authority which led to a colossal loss,to the bank and (b) he had no knowledge of the illegal extensions given to any employee of the bank in either Bangladesh or Bahrain or that any such person had ever caused any loss to the bark through illegal activities. According to him petitioner No.1 had not breached the policy regarding overseas postings since he was not aware for how long arly employee was posted abroad and he had never received such reports from [he Human Resources Department. Even otherwise being the President of the Bank he had the power and the authority to act at any time to relax the policy of non-extension in time of persons posted abroad which as per bank policy was a maximum of five years. He could relax such policy because as President he had complete discretion to do so. He further contended that pelitioner No.I had no idea that any losses were being caused in the banks Bangladesh operations as such reports had l never been brought to his attention. So far as he was I concerned the barrk was making huge profits as per its accounts'which he received ard considered and it was not his role to micro manage a.ll operations of the bank which could l l be left to other senior members of the bank under whose i

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supervision such matters fell and as such his pre arrest bail I

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shoutd be confirmed. In support of his contentioris he placed relrance on the following authorities Sarfraz Ahmed v. Chairman, NAB (2016 P Ct. L J 79), Mohae-ud-Dln v. State (2015 P Cr. L J 6211, Xalb-e-All v. Chalrman, NAB

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rtt 9f (20I1 P Cr. L J 565), Khalilullah Jarr Sarhandi v. Chairman, NAB (20.08 p Cr. L J 967), Hassan Jameel Ansari v. National Accountability Bur€au (NAB) (2012 yLR 2809) Inamut Haque v, The State (2OOO yLR 289), Naseen Abdut Sattar v, Federation ofpakistan (pLD 2013 Sindh 3S7), Mansur-ul_ Haque v. Government of paklstan (pLD 2008 Supreme Court 166), Muzammil Niazl v. State (pLD 2OO3 ](arachi 526), Tartq Javed Afridl v. State (pLD 2OO2 Lahote 233), M.

Anwar Salfullah Khaa v. State (pLD 2OO2 Lahore 4SB), Kaloodi Ilrternational (pvt.) Ltd, v. Federation of pakistan (PLD 2001 Karachi 311), Imtiaz Ahmed v. State (pLD 1997 Supreme. Court 545), Wahid Bakhsh Baloch v. State (20i4 SCMR 985), The State v. Idrees chauri (2008 SCMR l t lB), Chaudhry Shujat Hussain v, State (199S

SCMR 1249),

14.Turnlng to the case of pefitioner No.3 Zubair Ahmed, Learned counsel for the petitioner contended like petitioner No.1 that this case fell under S.3l (D) and NAB had no jurisdiction as it was a case of loan default and no permission oI the Governor of the SBp had been tal<en to r initiate any inquiry under S.31 (D); that there was absoluteiy no evidence against him; that he had no control over NBp operations however when he lteard of irregularrties /illegalities in the Bangladesh operations he opened an inquiry into the matter and thus was trying to, soive the problern bl ex"rcising his authority: thar hc a61y 631.

administrative powers up to his grade which was SEVp; that he reported directly to the president and not Head Office: that he czrused no loss; that the majn accused was accused No.I l

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1a QSM Jehanzeb who was an absconder and thus he had no liability arrd tlrus his pre arrest bail should be confirmed; he did not raise the plea oI malafrdes t1

15.Turnitrg to the case of petlttouer No.8 Mohammcd Imran who succeeded Zubair Ahmed as Regional Acting Chief. Learned counsel for the petitioner contended that he was compleiely innocent of any wrong doing. He made no loals; sanctioned no loals; that he did not sign any documents; that he received no benefrt and when he heard of the irregularities/illegalities in the Bargladesh operations through the whistle blowing process he took action Yide letter O7-O7-2012 which was all he was required to do His role was confined to monitoring irregularities and nothing else He claimed tlat the malalides of NAB was evident from the fact that he had been exonerated by an internal inquiry report alrd yet Munawar Gopat who had not been exonerated and who should have been an accused was a Pw and as such based on'the above considerations he was entitled to the confirmation of his pre arrest bail. In support of his contention he placed reliance on Fayyaz Ahmed V Statc (SCMR 1628) and Maqbool Ahmed Shalkh V The State

,,2014 YLR 26441.

16.Turnlng to the case of petltloner No'7 Tahtr Yaqub' Learned counsel contended that the petitioner was completelJ' innocent of any wrong doing; that he had nothing to do wittr credit or tlR matters as his role was confined to marketing and as slch it was not his job to have any involvement in ry

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l0 ct credit matters and as such his pre-arrest bail shoulci be confirmed. According to him the malafides o[ NAIJ was in illegally filing this reference under S.31 (D)

17.Turling to the case of petltloner No.9 Mohammed wasim I{han his learned counsel pointed to the NAB inquiry report which found that his liability was NIL and as such he had caused no loss; that more importantly he was the whrstlc blor.ver who originally brought the illegal activities oI the accused banl<er s to light along with the later whistle blowel Munawar Copal and as such he was not involved in any ollense rather he had brought the offense to the attention of the competent authority. It was the function of Imran BLrtt (accused No.g) to take the further steps. With regard to thc specific allegation against him of opening the LC's hc contended that this was not his decision but the decision ol the credit committee which he lollowed in good laith. IJe hacl actually moved the memorandum to the credit committee with a view to resolving some ol the credit issues which were elfecting the bank. He further contended that he had been malaiidely roped into this case by Munawar Gopal who was a PW who had not mentioned his name at all in his original S.161 statement but had 2 years later in an additional S.161 statement mcntioned his role which was a complete after thought ard as such he was entitied to pre arrest bail.

18.Tunring to the caae. of Petitionet No. 6 Qamar Hussaia. Leained counsel for Qamar Hussain contended that he is completely innocent: lhal he is a relatively junior officer l,'

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ll 1z in the NBP'S chain of command in the HR department and the only allegation against the petitioner is that he was one of the balkers who sanctioned the end of service benefits of Zubair Ahmed and he did so after the President of the Bank had issued a non involvement certificate (NIC). According to him the fact that the then President Mr. Iqbal Ashral who had given the NIC had not been arrayed as an accused in this reference showed malaflde on the part of NAB and as there was insuffieient material to connect him to the commission of the gffense his pre arrest bail should be confirmed

19.Learned counsel fot petitlolrer No. 5 Mr Kauset Iqbal Malik argued on the same grounds as petitioner Qamar Hussain in that this was his only involvement in this reference and the main difference between his case and that of Qamar Hussain was that he was a more senior officer and in particular he had only returned to the NBP on 14th Febraury 2ol4 afier 7 years on deputation and since the sairction was given only one month after his return based on the NIC of the then President he could not have been aware of or been a pait of the illegalities in the Bangladesh operations and as such their was insufficient materia-l to connect him to the ollense for which he had been charged and as mentioned by learned counsel for Qamar Hussain there was malafidc on the part of NAB by not including the then President.

20.Learned special prosecutor NAB vehemently opposed tlre .onfirmalion ol pre arrest bail to Pach o, lhe petlLlonnls rvho had applied lor the same. He contended that the \t:

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petitioners were all bank oflicials who held senior positions in the NBP who had breached rules, regulations and laws in connivarlce with each other in order to benclil olhcrs Ly fraudulently sanctioning loans, extending credit with l insullicient security, writing ofI intercst and pfinciple through their misuse oI authority/ faiiure to exerclse authority which caused a l1uge loss to the national exchequer. They had also delibe.ately and malafide through their misuse of authority-/failurc to exercise their authority allowed l completely illegal extensions in overseas service to some of the petitioners in connivance with each other who were actually instrumental in causing such a colossal lose in the NBP'S Bangladesh operations in order to covel up all their illegatities and NAB had more thar sufficient evidencc through S.161 statements and documents to prove beyond a

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re.isonable doubt that all the petitioners were responsible lbt- I the offenses for which they had been charged and as such the pre arrest bail granted to ail the petitioners should be recalled.

21, We have hedrd the parties and have carefully gone through the record and considered the case law cited by tiem. At the outset we are of the view that the authorities cited by the learned counsel for the petitioners are of little, lf any, assistance to them based on tl-re particular lacts alld circum sldnces of t his casc.

22.We would also like to mate it clear that the findings in this ordcr are only based on a tentative assessment o[ the

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material available on record and shall have no bearing on the trial which shall be decided on merits based on the evidence placed before the tria.l court.

23.At the outset, as we have done before in other similar I NAB ca6es, we observe that cases of white collar crime are

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I generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be l viewed in a holistic manner and not in isolation. Tltis is ii because in most cases the offence could not bc committed li ir without the active involvement of all the accused in the chain i

of events which lead to the commission of the offense. ii rl

However, notwithstanding this observation it is settled la\&. I that in cases of bail each of the accused needs in some way to l

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be connected with the alleged offense ald in the case oI non i Uailrble oifenses su(lt cs rltis there are reasonable grounds for believing that the accuscd is connectecl with thc commission oI the offense for which he is chargeci. I

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24.The'curtent case, as with many NAB casesr is more a

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case of a joint criminal enterprise whereby every accused

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plays their role in order to achieve a criminal object all of which they were awaie of and could not have been achieved without the active participation oI all involved.

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25.It is now well settled law that pre arrest bail is an extraordinary relief and is only available in cases where tiere- has been malalide on the part of the complainant or the police. In this regaid reference may be made to the case of RaEa Mohammed Arshad V Muhammad Rattque (pLD 2OO9

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SC 427) which held at P. 431 that the following conditions need to be satisfied before pre arrest bail carl be granted as

set out below:

"9. Even since then, the said interpretationthe so made, the said powers so lound and parameters so p,"""iib"d, have.been re.gularly and iepeatedly comjng up for scrulinv by the Superror I Courts includlng this Court But each time the matter was re-examined, the same was only re- . affirmed. The said concept as it was initially propounded; as it developed and as the. same liurta" toa.y, may be summarized for the benefit of us all as under:--

lat srant of bail before arr"st is an extraordinal y 'Ieliet lo be granted only in exlraordrnarl situations to protect lnnocent persons agalnst victimization through abuse of law for ulterior motives;

Ihl ore-artest ball is not to be used as a 'sutrstitute ot as an alternative for Post- arrest bail;

lcl bail before arrest can not be granted unless the petson seeking it satlsfies the conditions specifled subsection (2) of section 49i of Code of Criminal Procedure i.e ualess he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence allceed aqainsl him and lhat there wcrF In

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lrcf suliiciont grounds warranting lurthcl inquirl into his guilt;

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'musijust this (d)not but in addltion thereto' he also show that his arrest was being

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sought for ulterior motlve, particularly on the-part of the police; to cause irteparable humiiatlon to him atrd to disgrace and dlshonor him;

{el such a pelitloner should furLher "stablrsh rhal he had not done or suffered arrv a'I which would disentitle hiln to a discretionarJ' rJef in equity e.g. he had no pasL criminal record or ihoi t" ttrd not been a lugitive at law; and finallY that;

(0 in the absence of a reasonable and a iustifiable cJuse, a person desiring his '"dmission lo bail before arrest musl in the I first instance approach the Court of lirst lr

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instant i,e. the Court of Session, before petitioning the High Court for the purpose."(bold added)

26.TL.e fequirement of malafide in order to qualify lor pre arrest bail has recently been eirphasized by, the Hontrle Supreme Court in the case of Mukhtar Ahmad v. The state and others (2016 SCMR 2064, relevant page 2066) as under:- "......, This Court has repeatedly declared that the concession ol pre arrest bail cannot be allowed to an accused person unless the court feels satisfied about seriousness of the accused person's assertion regarding his intended arrest being actuated by mala lide on the part of the complainant party or the local Police"

27.Ce.tAin of the petitioners have claimed malafides on account of NAB and the complainant because this case falls under S.31 (D) and no permission of the Covernor of the SBI' was received, that Munawar Gopang should have bcen all accused rather than a PW and that the whole rclcrence was based on a pick and choose basis and that in the case oI petitioners Qamar Hussain and Kauser tqbal Malik since the the11 President had not been included in the reference who had given the NIC to allow the post retirement benefits to Zubair Ahmed this amounted to malalide on the part of NAB.

28.With iegard to NAB failing to get the permission of the Governor of the SBP to authorize the inquiry under S.31 (D) NAO we arl: of the view that this does not amount to maiafide on the part of NAB as this reference has not been charged , under S.31 (D) of the NAO and hence the question of permission or not is irrelevant. This reference has been Vt

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charged under S.9 NAO which deals with misuse of authority and failure to exercise authority in order to benefit others and fraud and criminal breach of trust all of which elements appear to be present in this case as it was in the 20 l0 case of the Barrk of Punjab as will be discussed later which in our view is on similar footing to this case namely illegal loans being sanctioned through the misuse of authority / failure to exercise authority through fraud by bank officials. with regard to this being a pick ar-rd choose exercise by NAB as to who should be an accused and favoring Munawar Gopang by allowing him to be a Pw as opposed to an accused we Iind no substarce to the argument. It appeaJs that to some extent over 60 bank officials were attributed some element of blame l in the Barlk's internal inquiry. The reality is that for a I prosecution to succeed it is not possible for 60 accused to be put in one reference. This is because it may entail 60 different I cross examinations by 60 separate lawyers of each PW What i

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with absence of seniol counsel, accused not turning up, t la\ryers strikes etc the result would be that such a trial would virlually be never ending and would probably end in the l death of most of the accused before judgmcnt was I announced. The trial in effect would be an exercise in futility.

One of the objects and purposes ol the NAO as sel oul in rls i preamble and made specifically clear in S.16 (a) is that trlals I under the.NAO must be expeditious By putting 60 persolls 111 I a reference this ob.ject of the legislation would be defeated l

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Thus. NAB using its experlise. experien.e and proso"u'onai discretion must be ieft to determine who and who does not go I Vt

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into a reference based on who the best evidence is against, who are the major/most senior players in the scam, who il can make as a PW instead of aI accused in order to strengthen or expedite its case or who may be an approver.

Such a process in essence amounts to good case/trial management provided that it is made on bona fide cor-rsidcrations which it appears to be in this case. In our vlew only wheh obvious and blaLant arld potentially malalide omissions from the reference especially in respect of very senior persons whom there is strong evidence against is present may be one of the reasons for a case o[ malafide being made out especially if it appcars that prima Iacie therc is strong tangible material against him. In our view the fact that Munawar Gopang has been made a PW will only shorlell NAB's prosecution and enable it to bring on record compelling evidence in ordel to strengthen the prosecution's case which may not lrave been available otherwise Thus, in this case wc are of the view that only 16 oI the approximately 60 identified in the NBP inquiry report being placed in the reference is not malalide on the part of the NAB based on the lacts and circumstances of this case where it appears that only the most senior, most responsible officers and thus against \-\"holn tl-re best evidence lies have been included in the reference' However , based on that yardstick we do howevel find an elemenl oI malafide in the case of Qamar Ilussain and l(auser Iqbal Nlalik which appears to be an off shoot of the main cztse (the main case concerning connivance and misuse/Iailure to exercise authority in sanctioning loans, write offs, etc in the

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Bangladesh.operatiolls) and where in our view the failure to il include the then President Iqba.l Ashral in the reference has a ii tinge of malalide since these two officera acted on the then ii Presidents NIC's who has not been included in this aspcct of the reference for reasons best known to the NAB

29.Thus, in our view none of the petitioners have been able il li to make out a case of malalide lexcept petitioners Qamar lli Hussain and Kauser lqbal Malik) and thus on this count

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a.lone their pre arrest bail should be recatled' 1l

30.Turtring to the case of petitloner No'l Syed Ali Raza former Presldent of the NBP. At the outset we would make it clear that every man is equal before the law however high or low his position in life may be as provided in ArticlF 25 oI the Constitution and Islamic law as such the fact that petitioner No.1 was President of the baik with many awards and honol's to his name is irrelevant in this case'

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31.We lind no force in the coitention by learned counsel i for the petitioner that this is a case which falls within the I ambit of S..31 (D) NAO which concerns inquiry, investigatior.r of proceedings in respect of imPnrdent bank loans From ir bare reading of the reference it is clear that this case is one which falls under the arnbit of S 9 NAO which primarily rn this case concerns a misuse of authority and failure to exercise authority which led to undue benefit and lavots to

view this others and a loss to the National Exchequer' In our case is similar to the reference which the NAB filed against the Bank of Punjab (BOP) whereby numerous bank officials \2 tir

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through their connivance and deliberate misuqing and failing to exercis€ their'authority had caused a colossal loss to the BOP. As in that case the President, Directors, Senior Officials of the BOP and beneficiaries were all accused in the reference. iA discussion of that cases investigation under S,9 by the NAB and a duty of the Supreme Court to monitor so that such investigations are carried out fairly carl be found in the case of BOP V Haris Steel Industtles (Pvtl Ltd (PLD 2O1O SC 1109) and BOP V Accountablllty Court No.1 (PLD 2014 Lah 92) although this case involved the acceptance of a PB from a BOP accused the case indicates at P,98 Para 2 that the case concerned misuse of authority by the President of the BOP and other senior BOP banking officials in order to favour beneficiaries through their lraud, misuse of authority and failure to exercise authority which nearly brought the bank and its depositors down and fell within S 9 NAO. Thus we lind that petitioner No.1's contention that NAB does not )-rave the jurisdiction to deal with this case of mega corruption undel the NAO to be without substance as based on the particular facts and circumstances of tlle case it Ialls squa.ely within the ambit oI S.9 NAO. With regard to the NAB having the autho.ity to investigate bankers we note that the NAB had received the permission of the SBP as per S. 31(c) of the NAO to proceed against the accused in this relerence ali of whom are bank employees of the NBP and thus there has been no violclion oI the NAO in lhls rcspect.

32.We would also point out that in this case we have taken into account lhat in our view bankers, all of whom are Lt.

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accused in this reference, have a special fiduciary duty of trust to their depositors and in this case as well the irational exchequer which cannot be taken lightly

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33,'l The pelitioner No,1 has been assigned a specific role in the reference which is set out in para 2 of this order and by ll

his own admission is a seasoned experienced banker of repute whd had served as President of the NBP for ten and half years and as such would have known "the ins and outs" of the bank and all its Policies. With regard to the allegations that he failed to exercise his authority to prevent the illegal activities which were occurrjnB in the Bangladesh operation of NBP which caused a colossal loss to the bank it is clear from the record that he was fully aware of such activities and iitegalities which were causing a colossal loss to the bank and by failing to exercise his authority failed to tal<e any measLlres to rectify the situation. Petitioner No.1 was President of the Balrk and Chairmal of the Boatd of Directors. The audit reports of the bank were placed before him for his consideration in ordinary course as President of the Bar-rk and chairman of the Boaid of Directors and he was in Iull knowledge of the illegalities / irregularities / violation of rules and regulatior]s and adverse comments in connection wjth oljelalions ol tlre NBP Bangladcsh lrcfer S l6l slalem'lrl ul Shaheel Hayat). This case does not concern the net prolit bcing made by the NBP which may have been even greater had the petitioner taken measules to exercise his authoritl t9 prevent losses which were illegally caused by a failure to I exercise 'authority/misuse of authority by him and other co- l/. I

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accused in the reference who were also employees of the NBP atl of whom like petitioner No.I owed a tiduciary duty of ca-re to the banl<, its depositors and tie nationa.l exchequer. In particular in 2OO9 and 2OlO audit report the issue of non performing loans in Bangladesh operations was clearly l

mentioned and was also pointed out in its overall conclusions raising alalming concerns about the Bangladesh operations i on which no effective action was taken. Like wise the audit i report of 2011-12 raised particular concerns about the i operations of the balk in Bangladesh. 25 irregulatities were l noted in the audit report but again no action was taken. a

However despite these all being within the petitioner's knowledge. he failed to exercise his authority and misused his authority in aJlowing the sirualion lo continue. S. l6l Cr.P.C. statement.of Shakeel Hayat also shows the huge irregularities being carried out in the Bangladesh operation of the bank which had also been highlighted in the audit report whrch petitioner No.1 was fully aware. Notwithstanding such knowledge there is no material on record to show that the petitioner No. I in his capacity as Chairman of the Board in his ten and half years as President of NBP ever even held any meeting to discuss the operations of the overseas bral-]ches of the bank. (including in Bangladesh) notwithstanding his knowledge concerning the illegalities being carried out in the Bangladesh Operation which rvas continuing right urder his nose. [n our vlew nol on]y dld pclilioner No. l misrlsP l'i'r aurhoritl/failed lo exercise his authoriry Uut his ina"tionls) prima facie amount to criminal negligence on his part bearing vV

in mind his yast experiince as a Senior Banker, especially as 7 President of the NBP over such a Iong period of time. The document at F 336 headed presidents Note by a NBp internal investigation team is particulady damning of the presidents running of the bank and .goes along way in explaining how this illegjity in Bargladesh was able to flourish under the nose of the President. (See also 5.16l statement of Sved Shahid Hussain Gadezi)

34.With regard to the allegations that he was unaware oI the HR policy on overseas tenure and posting we find such a argument quite incredible bearing in mind that he had been the President of the NBp for over ten arld haJI years. Such lack of knowledge about such important bank policy issues beggars belief. We are the view that he was fully awaie of the non-extension policy but malafidely and deliberately ordered it to be violated in the cases of the accused No.2 Zubair Ahmcd who was Regional Chief Executive NBp based in Bahrain who served overseas lor around lg years and who

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was also responsible for the Bangladesh operations who by l his own admission he met quite regularly. Likewise he allowed accused No.11 SQM Jehanzeb who remained posted in Bangladesh for more than five and was committing a great deal of the illegalities which was causing heary loss to the bank to 'remain posted in Bangladesh lor frivolous and unjustiiied reasons in clear violation of the overseas posting policy. In our view to allow these two officers to remain posted :

oveLseas in violation oI the overseas posting policy was a deliberate attempt by petitioner No.l to shield these officials

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from potential criminal liability and at a minimum from disciplinary proceedings. (see SRP letten dated lo 04-2015 seeking an explanation lrom the NBP President on this issue) I Accused No,1 1 therefore never returned to Pakistan to be held ;!;

accountable for his illegal conduct and retired overseas ard is an absconder in this case. Likewise Zubair Ahmed was continuously extended without reason According to petitioner No.3 Zubair Ahmed who was in regular contact i with petitioner No, 1 and as Regional Chief for the Bangladesh lri ii Operations carried out two inquiries into the Bangladesh l

operations which weie both aborted and again it does not il t

seem betiivable to a reasonable man 'that Zubair Ahmed being an experienced senior banker would not have ll mentioned the substance of these inquiries or the problems lr

which were being faced in the Bangladesh operations to petitioner No.1 who he directly reported to What is more I surprising is that Zubair Ahmed petitioner No 3 aborted both i i

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these inquiries despite knowtng of the wrong doing taking i place in the Bangladesh oPerations by NBP officials posted in Balgladesh within days. We will return again to this aspect of the case when we come to the case of petitioner No 3 Zubair laLtrmed

35, With regard to petitioner No l's contentions that as President of the Bank he had absolute discretion to relax the overseas policy unilaterally we llnd thls argument to 'be t unsustainable keeping in view the oversea's posting policy I

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t The President of the NBP is not a king exercising a royal I l' j prerogative by acting according to his own whims and wishesb

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in running a bank. The bank has a structure with a Board of 7 Directors, a management committee and various sub committees. The policy of non-extension is absolutc and allows relalation in only two situations at the Presidents discretion one of which is age and the other is family and even then subject to the ratification of the HR Sub committee.

{see Overseas posting policy) The reasons for relaxation have not been met in this case (Zubair and Jehanzeb) and no where arre such reasons lor rclaxation specilically lound in writir-rg. Likewise no ratificatior-r by the HR Sub committee has been placed on record. Thus we are of the view tl-rat the petitioner No.1 also misused his authority/ failed to excrcisc l.ris author:ity for malafide reasons in allowing both Zubair Ahmed and Jehartzeb to remain in Bahrain and Bangladesh respectiveiy beyond the non-extension period as provided in the bank's overseas policy on frivolous grounds in order to shield them from potential criminal liability or at a minimum disciplinary proceedings and did not even take any action once against such postings once this came to his attention.

Ever-r otherwise under the ol,ersea's posting policy before an cxtension could be granted both the extendees (Zubair Ahmed and Jehar.rzeb) had to flrst return to Pakistan before thev could be extended wl]ich they failed tq do and thus therc extension was also illegal on this count. Petitioner No.1 did not raise the ground of any malafides on account of the NAB for filing the reference agarllst him, apart fl om it being under S.31 (D) arld being without jurisdiction, and we have not seen any such malafides on behalf of NAB from the record.

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36.As such we find tiat there is sufficient material on record to prima facie connect the petitioner No.l to the offence for which he has been charged. ln addition we are of the view t}lat there is no material to suggest that NAB has acted in a malafide manner against petitioner No.l which is a pre-condition for the grant of pre-arrest bail. As such the pre arrest bail granted to petitioner No.1 is hereby recalled with immediate effect,

37.Turning to the case of Petitioner No.3 Zubalr Ahmed who was regional chief executlve with oversight of the Bangladesh operations when the offense was committed and has been given a specific role in the reference as set out in para 4 ol this order. The contention of petitioner No.3 Zubair

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Ahmed that he had no control over operations in Bang)adesh is completely belied by the office order dated 12 02 2OO2 concerning reorganization of overseas operations which at Para 4 provides as under;

'"REGIONAL CHIEF EXECUTIVE: Regional Chief Executives will exercise business and flnarlcial powers alld administrative powers in accordance with their respective grades. They will be responsible for affalrs of branches and offlqes falling under their jurisdictio! as detailed at annexure "C" and carry full administrative authority over these Branches and offices accordingly. They will have direct administrative rcporling line to the Presidenl.

To facilitate mobility for buslness putPoses, RCES are authorized to travel withilr their \ region, (all Cities and States) and Paltistan with pre advise to Head Office. Similarly inter regiohal visit with mutual concurrence and consultation amongst ttre concerned RCES is also authorized in . the same manner. They are also authorized to depute any stafl in their region for official visits in the same manner. It is understood and requlred that RCES will exerclse this authority with Vt

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diligence and specilically for purpose of 7 monitoring branches and business opportunities in other Cities and States. RCES are also authorized to transfer staff within their respective Region and depute any staff within their Region for additional support. Head Office will be informed of such translers accordingly.

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38.It is quite apparent from the above that petitioner Zubair Ahmed had control of the branches in Bangladesh and il was not a 'mere powerless spectator to the wrongs, illegalities and irregularities being coftmitted in such branches. He was a very senior Banker being Regional Head with years of experience behind him, He visited Bangladesh 2l times over a 3 year period and claimed TA/DA of US$69,000 (yet made no report/note of such visit) and as such it was inconceivable that he was unaware of the illegalities being committed in the Bangladesh operations. During oral arguments by his own . admission he started two inquiries in the alleged wrong doing in the Bangladesh brarches where he had even taken away certain powers of the officials who were allegedly committing illegalities but for reasons best known to himself the 2 inquires were aborted and after 3 days the powers were returned to the concemed officials. ln our view this shows that petitioner No.3 Zubair Ahmed was fully aware of the wrong doilrgs/ iilegalitic s in the Bangladesh branch and had the power and authority to prevent it but he did nothing to prcvent it which was a cornplete failur-e to exercise hls alrthority.rnd in fact by aborting the inquiries and handmg back the powers it is apParent that he was a pait of the cover up to deliberately hide the illegalities in the Bangladesh v

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bar]king operations and shield those responsible for liability (Reler Zubair Ahmed's letter dated 16-03-2009 to Jehanzeb taking away his discretionaqr powers aird letter dated 19-03- 2009 restoring those discretionary powers after 3 days onlyJ.

He had the power as indicated in the re organization of overseas operations to transfer the delinquent officials and commence disciplinary proceedings. He also by his own admission reported directly to the President so in our view it is inconceivable that he did not report this matter to the President who he was in regular contact with. If he did not do so this in our view would alnount to a clear failure [o exercise his authority to prevent the losses which later occurred {Reference is made to S. 161 statement ol Khalid Mahmood and his Report).

39.Once this debacle carne to light arld could no longe. be concealed 3 inquiries were authorized by the bank. The I(halid Mahmood Report at P.47 found that petitioner No.3 failed to exercise his authority. See also S.161 sLatement o[ Munar ,ar Hussain Gopang dated 07 -O7 -2075

40.Petitioncr No.3 was also the beneficiarv of the iliegal actions of accused No.5 Mirza Abrar Baig and accused No.1O lmran Gharli who through both there misuse of authority/ Iailure to exercise authority violated the LIR overseas policy by extendir-rg the petitioner's stay dverseas, beyor1d the limit oI5 years a]-ld allowed llim to remain outsidc of Pakislan lor 18 years which can harcily bc seen as c small oversight especially as petitioner No.3 had 3 negative reports l.'t

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t\s against him which was completely in violation of such rules so that he could continue the illegalities in Bangladesh operations unabated and.over up the same. Such illegal extension was also approved by t}le president of the ba]]k without any justification whatsoever and completely in violation of'the non extension policy on overseas postings which we have already found rhat he was aware of and that he had no unilateral powers to relax ar.bitrarily based on his own whims and wishes. As such we find that there ls sufficient material on record to prima lacie connect the petitioner No.3 Zubair Ahmed to the olTense for which he has been charged and accordingly his pre al-rest bail his hereby immediately recalled especially as there has been no malafide on the part oI the NAB.

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41.Tu rlng to the case of petltloner No,8 Mohammed Imran who succeeded Zubah Ahmed as Reglonql Acting Chief Executlve. He has been given a specific role in the

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reference as set out at Para 9 of this order. ln essence the sa.me discussion of material on record applies to him as tt iil does to petitioner No.3 Zubair Ahmed as mentioned above I whose pre arrest bail we have already recalled save that he I Li was uol involved in the extension o[ any one in Bangladesh.

Yes, he was initially a whistleblower but he did absolutely it nothing to follow up on the so ca-lled whistte blowing. Insteid .rl he allowed t*re same iliega.lities to continue right under his ii nose in Barrgladesh for which he was irt charge oI all I I

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branches. (dee Folder (Bl P.2O9-21O setting out hrs Itr rl responsibilities). His arguments concerning nrala-[ides in ;il V rf,

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choosing Munawar Gopang as a PW instead of an accused have a.lready been dealt with earlier in this order- Thus, prima facie we lmd sufficient material on record to connect petitioner No.8 to the offense for which he has been charged and as such his pre arrest bail is hereb'y recalled.

42.Turnlng to the case of Petitloner No.7 Tahtr Yaqub who was then group chlef Overseas Bsnking croup (OBG).

He has bedn given a specific role in the reference which is set out in pala B oI this order. At the time of the offense he was in charge Overseas portfolio of the Bank including operations of Bangladesh. It is correct that his role was primarily marketing and at first sight it is difficult to see how he is involved in this mega scam which largely revolved around loans. However it came to light that he was sent to Bangladesh to perform a special assignment to restructure accounts and waive off interest and extend overdrafts up to a maximuur.of 120 days. See P.301 and 303 of his CP for this special assignment /mandate. This was his specific mar-rdate which is corroborated by S.161 Statement Munawar Hussain Gopang. The material beforc us also reveals that he illegally exceeded his mandate by not only giving further extensions in over dralts and waived off interest but he also waived off priflcipal arnount which was completely illegal arld wcnt i beyond his mandate and directly favored those person who had their principal ambunt waived off or credit period again extended beyond his mandate. Irr this respect the documents .

at P.77 and,-78 oI Folder B confirm thjs illegality. The Gardezi Report at Folder P P.140 relevant P.338 also held him LI w ll

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l0 \\l responsible for all such illegal actions. Although not mentioned in the reference the materia_l on record also shows that he illega.lly gave 30 promotions along with increments which he had no tawful authority to do and was completely otrtside his mandate and shows his tendency to misuse his aulhority. For the reasons discussed above we are of rhe view that prima facie there is sufficient material on record to connect the petioner Ta}!ir yaqub to the offense for which he has been charged and as such his pre arrest bail is recalled with immediate effect. (See S.161 statement of Syed Shahid Hussain Gardezi)

43.Turning to the case of petitioner No.9 Mohammed Wasim Khan. He has been giver a specific role in the reference at Para 10 o[ this order. At the time when the ollense was committed he was Manager, Gulshan Branch, Ballgiadesh where most of the illegalities were taking place. i

He was posted at the branch on 11-12-2010 and became general manager frol:: 23-O2-Ol2 in place oI accuserl Jehanzeb. Instead of exercising his authority to prevent any illegalities being carried out at the branch he continued and allowcd the samc illegal practices to flourish which had bcen l

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carried out by his predecessor Accused No.l1 Jehanzeb knowir]g that such practices were illegal ar-rd ir-r violation of ri the relevant rules and regulations. Aithough Accused No.1i Jehanzeb has absconded for ease of reference his role as set out at Paia 13 in the reference is set out as under to show ttle .onl ir rued illegalilies/irreguial itics;

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"13. That the investigation further revealed that accused No.1 1 Q.S.M. Jehanzeb, EX-VP/then G.M. (Bangladesh), now retired, being responsible for all operational affairs of the Bangladesh but he miserably failed to exercise his authority to prevent the grant and rendition of undue benelits or favours which he could have prevented if he il exercised his authority honestly under the rules / l regulations. He sanctioned loans beyond his discretionary powers and in that way misused his authority so as to gain / render benefit to the parties / borrowers.'

44.When confronted the petitioner had no explanation as to why he had sarrctioned the concerned letters of credit despite l<nowing lhal the concerned companies were massive defaulters. The main beneflciarles seem to be Cotton Corporation and Wafa enterprises qrhich were ell hesded by one man Mr. zla Ul Haq who the btanch was clearly giving undue favours to. Folder H P,276 the Central Bank of Bangladesh by letter dated O7-O4-2O13 directly pointed out to him violations of rules altd regulations at his btanch which needed to be rectified but the petitioner falled to rectify the situation as pointed out to him'

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45.By another letter to him trom Lhe Centrai Bank of I l Bar-rgladesh dated 10-06-2013 again the Central Bank o1 l Bangladesh pointed out lurther vjolations being committed by his branch which needed to be rectified which specifically concerned the issuance of letters of credit An extract oI the Central bank oI Bangladesh's letter in materid part is set out below; I

i "Para 4. As mentioned aboue, the Branch did not exercise due diligence while oPening the said L/Cs and the Branch also failed to tdke anA elfectiue steps to recouer the dues from the clients agqinst those accepted bills, IdentiJy th.e offcers uho are v

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. responsible 'credit for extending undue and iregular fqcilittes to the clients (lnd t.lke punitiue medsures against tLem'. (itatlcs added)

46.Again petitioner No 9 failed to comply with such directives and instructions and thus the petitioner deliberately misused his authority/failed to exercise his authority despite being on notice ftom even the Centr.ll Bank of Bangladesh to prevent the illegalities and violations of rules and regulations which were being calried out undel his nose and lvas causing a colossal loss to the NBP. It is also interesting to note that a draft fact finding mission by the reputed auditors I{PMG pointed out the violations o[ the rules and regulations at the branch which were being breacl-red. we do not see any malafides on the part of the complainant nor the NAB. The fact that Munawar Hussain Gopang who was also a whistle blower who was chosen to be a prosecution witness in our view is irrelevant sincc, as discussed above, it is sometimes important to the success of a prosecution to l make persons who have key information Pw's as opposed to other accused who have less information or are not prepared to become PW's. In fact the material placed before us on a tentative assessment indicates that the petitioner 9 was doing I everythiDg in his power as brarch marager to continue the illegal practices of Jehalzeb and cover up such practices. See Second S.161 statement of Munawar Hussain Gopang Therefore we are ol the view that there is sufficient material to prima facie connect the petitionel'No.9 Mollammed Waseem, to the offense for which hc has been chargecl and as such his i pre arrest bail is hereby recalled with immediate elfect. t?

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47.Turning to the cqre of PetitioDeis Mr Qamar Hussaln and Mr. Xauser Iqbal Malik respectively we have already found tinges of malalide in their case by the NAB failing to include in the reference the then President of the NBP Mr.Iqbal Ashraf who had given the NIC which the petitioners had acted upon and without which no post retirement service beneiits could have been given to Zubair Ahmed. Furthermore, they had nothing to do with the re hiring of zubair Ahmed which was apparently done so that he could face disciplinary proceedings although it was strongly objected to by the SBP. In our view since there is a tinge ol malalide on the part of NAB; that this seems an off shoot case which has nothing to do with the huge losses sustained by Balgtadesh op€rations through its lending operations; the relatively minor loss to the NBP which can be recovered by the NBP .from Zubair Ahmed and the complete lack of material to show arey connivance with any of the other accused in the major Bangladesh operations scam we hereby confirm the pre arrest bail granted by this court to Qamar

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t Hussain and Kauser lqbal Malik on the same terms and ] i

conditions.

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Post arrest Bail cases. l

48.Since post arrest bail cases require diflerent considerations to pre arrest bail cases we have dealt with them separately. For example, there is no need to show any malafide on the pa-rt of the complainant or the NAB w

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49.'lurning to the cases of petitioner Mirza Abrar Baig who was Group Chief HR arld petitioner tmran Ghani who was Incharge or,.erseas desk for HR NBp at the time when the offense was committed. Both of these cases can be dealt with together since they both in eflect have been charged with illegally extending Zubair Ahmed ard Jehanzeb in overseas posting in violation of the overseas posling policy which had a catastrophic effect of causing further loss to the NBp. According to learned counsel for Mirza Abrar Baig and lmran Ghani there was no malafide on their part in authorizing the extension in service overseas of both Zubair Ahmed in Bahrain and Jehanzeb in Bangladesh as they were acting on the instructions of petitioner No.1 Syed Ali Raza who was President of the bank and they had no knowledge that any wrong doing was being carried out by these individuals and as such they should be admitted to post arrest bail.

50.As noted above we have considered the arguments of learned counsel including those of learned counsel fot- Mr.Mirza and Mr.Ghani seeking post arrest bail and senior prosecutor for NAB who vehemently opposed the grant of post arrest bail to these two petitioners and reviewed the l-elevant record and case law.

51.The key consideration in refusing to grant post airest bail is whether there are reasonable grounds to connect the petitioners to the offense if the ollense falls within the prohibitory clause of 5.497 Cr.PC as in this case in which tq

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case bail must be refused, In this respect reliance is placed on the case of Ta.lq Bashir V State (pLD 1995 SC 34).

52.Both of the petitioners have been given a specilic role in the reference as set out at Para,s 3 and 5 respectively of this order. It needs to be considered that Zubair Ahmed and Jehanzeb were not just any two ordinary employees of the NBP working abroad. Both of these extended employees had a direct nexus in enabling the illegalities in NBp,s Bangladesh operations to be catried out and later attempted to be coverecl up and both petitioners had the ability to prevent such illegalities which they failed to do by a misuse of au rority and lailure to exercise authority. Mr.Jehanzeb was the man olr lhe ground who was committing a number ol'rllegalirres ald Zubail Ahmed was the man at the Regionai office responsible lor monitoring Mr.Jehanzeb in the Bangladesh opcrations who repo.ted directly to the President (petitjoner No.1) by allowing the extensions of both these men the petitioners allowed the illegalities to continue in Bar.rgladesh and be covered up which also gives a direct nexus to the President (petitioner No.1) wl.ro authorized these illegal extensions and shows that lte was in connivaice with Zubair Ahmcd, iris successor and Jehalzeb just as the petitioners Mirza and Ghaui were in connivance with them, including the President in'order to give elfect to the illegalities and cover up of such illegalities in the Bangladesh operations whicll I resulted in a loss of US$185 M to the bank and the national .

exchequer and the depositors.

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53.In this respect a look at the Bank's overseas posting policy dated January 2008 is of significarce with provides at Para 5 (b) as under:

"5 (b). The pedod of overseas posting o[ any pak based employee shall be for a maximum period of five years from the date of joining of the Bank's overseas office, which shall rot be extelrdable under any clrcumstances. Promotion of €mployees, overstaying abioad for any reason, sha1l only be considered subject to post repatriation provided they fulfill the eligibility and qualifying critetia as per Promotion Policy applicable at the time".

54.Relaxation is allowed in the following terms under para 6 of the policy as under;

DTSCRETIONARY POWERS OF THE

PRESIDENT

The Piesident NBP, may at his discretion, allow the following relaxation subject to ratification by the Board's Sub-Commlttee on HRM / Board of Directors.

i. AGE: To a maximum extent of five years; ii. FAMILY SIZE: To the extent of lour childrcn.

sd/- sd/- (Qamar Hussain) (Dr. Mirza Abrar Baigl Scnior Vice President (HRP&PW) SEVP/croup Chtef (HRM&AG)

55.It is highly significant that this policy has been prepared by petitioner Mirza and as such he was fully aware of it especially tle non extension aspect and relaxation aspect by the Presidcnt.

56.It appears from the file that petitioners Mirza and Ghaai did attempt to repatriate Mr.Jehanzeb aJter completion of his 5 years then quite inexplicably they by letter dated 16 11 2OO9 on the orders of the competent authority (i.e. the Presidenr/petiLioner No. l) sanctioned a special assignment to Jehanzeb for undertaking a stlldy to explore the avenues of

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enhancing the business in NBp Bangladesh.

Having drafted the oversdas poticy petitioners Mifza and Chani would have been well aware thal an extension was not allowable. Even otherwise the presidentt reasons for allowing.i:he extension (competent authority) through the exercise of his discretion must be given in writing under S.24 General Clauses Act especially as all such exercise of discretion must be exercised reasonably and not arbitrarily or on whimsical grounds. ln this case no. reasons for the exercise of the discretion have been given. Even if the reasons are to consider the environment for better business opportunities these reasons in the case of Jeharzeb are frivolous and arbitrary and do not appeal to reason based on the particular facts and circumsLances of this case and are clearly designed to shield

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hirr from liability and to retire in Baagladesh. The petitioners did not seek a copy of the ratification of this decision lrom the HR Sub conmittee/Board of directors as required by the ruJe and the petitioners blindly acted on the decision ignoring this important pre condition which they were well aware of which Iead to a misuse of autl-ro{ty /failure to exercise authority o1-l their part. Furthermore, before this extension was aliowable Mr.Jehanzeb had to retirn back to palristan first which he lailed to do and the petitioners were both well awar.e of this requirement yet they kept mum for reasons best l<nown to themseives. Most importantly and significantly from our poinl of view neither Mr.Mirza nor Mr.Ghani who signed the special assignment letter brought it to the attention of the competent authorit) thal.such an exrFnsion was illcgal and in compleleL/ t

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violation of the overseas policy and reasons for lelaxation and had no HR sib committee/Board of Directors aPproval for the relaxation. They deliberately and malaiide chose to keep mum. As for the reason given for the extension this is completely spurious ar-rd is a clear attempt by the President in connivarrce \ ilh pe(rlion.rs Mtrza and Chdni 1,, allou Jehanzeb to continue his illega1 activities in Bar-rgladesh ard shield him from alry responsibi)ity. Likewise the complelely illegal extension given to Zubair Ahmed which allowed bolh officers to remain associated with Bangladesh operations lo1 years on end in complete violation of the overseas posting policy which Mirza himself jointly drafted. The aforesaid Ietter is even signed by the President / petitioner No.1, Mirza and Ghani. Like wise a letter on the same subject dated 20 1l

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2o09.Even on his overstay after the expiry of his 3 montlt assignment Mr.Zubair Ahmed despite receiving letters from HR failed to take any action against Jehanzeb and Mirza and Ghani failed to report this issue to the President. By Note dated 15-06 2010 signed by Gl.rani Mr.Jehanzeb was again quite incredibly extended for a further 6 months in violation of the overseas policy despite his up coming retirement/ superannuation which would cause huge problems for the bank if he retired in Bangladesh' Such correspondence when read together in our view clearJy shows that the Presiclent (petitioner No l), Zubair Ahmed (petitioner No.3) ar-rd Mit-za and Ghani were all on board in conniving to allo$' Jehanzeb to retire in Bangladesh so that he could escape any liability for his illegal acts in Bangladesh (Scc b

t9 lz( S. 161 statement oI Syed Shahid Hussain Gardezi and second S.161 statement of Munawar Hussain Gopang dated 04 Ol- 20 t7)

57.It appears from the record that everyone r as on board in this joint criminal enterprise to allow the illegal acts of the Bangladesh operations and to cover up the same from the President, through Zubair Ahmed and down through HR. Had HR through Mirza atd/or Ghani acted in accordance with the HR poticy and the relevant rules a.rld regulations then not only could the massive loss in Bangladesh operations have been mitigated but Mr;iJanzeb and the other officers who were acting illegally cduld have been stopped and brought to book.

) 58. In oui view the actions of Mirza and Ghani in allowing extensions to Zubair Ahmed and Jehanzeb in complete violation of the overseas posting policy amounted to a complete misuse /failure to exercise authority which contributed to the colossal loss in millions of US$ to the NBP.

Notably even on receipt of letter dated O5-11-2010 from Shallid Anwar Khan addressed to petitioner Mirza setting out grave illegalities committed by Jehanzeb in the Bangladcsh operation3 Mirza being aware of the same still does not appear to have taken arly action on it. As such, taking the above ciiscussion intg account, in oul-view there is sulficient material on record to connect both petitioners Mirza Abrar- Baig and Imran Chani to the oflense for which they are charged and as such both the post arrest bail applications of t,

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petitioner Mlrza Abrar Baig ar.rd petitioner lmran Ghani are dismissed.

59, These are the reasons for our short order date.l 22 og 2017 which reads as under:

"Mr. Shah Khawar Advocate completed his arguments in C.P. No.D 3461/2017, so also Mr. Sahibzada Muzaffar Advocate completed his arguments in C.P. No.D-2759 l2Ol7. The learned counsel for the petitioners in other connected constitution petitions have already advanced and concluded their arguments on 29.8.2OI7 , I 30.A.2Ol7, 19.9.2017 and 20.9.2017. We a.lso heirrd learned Special Prosecutor NAB.

For the reasons to be recorded separ'ately, Const. Petitions Nos.D-2O25 /2017, D-2O95/2017, D 236612017, D-2759/2017, De-327412017, D 331A/2017 and D-346112017 stand dismissed, however, Order dated 10.04.2017 and 05.05.2017 passed in Const. Petitions I\o.D-2159/2017 and ' D-2832/2017 respectively, granting ad interim pre-arrest bail to petitioners Qamar Hussain ard Kausar Iqbal Malik, stand confirmed on same terms and condifions".

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