Iqbal Z. Ahmed (Petitioner) VS NAB and Ors (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI I

Before Mr. Justice Naimatullah Phulpoto.

Mr. Justice Mohammed Karim Khan Agha

Petltlon No, and name o fo etitioner alo fto wl th counsel' 1. C.P. No.D- 1982 of 2016 lqbal Z. Ahmed v' NAB, through its Chairman and other.

lqbal Z. Ahmed Slo Zatar Ziauddin Ahmed. (Petitioner No'1) Through Mr. Farooq H. Naek, Advocate.

2.C.P. No. D-6126 of 2Ol7 Sharjeel Inam Memon v' NAB through its Chairman and others.

Sharjeel Inam Memon S/o Inam-ul-Haq Memon (Petitioner No.2) Througtr Mr. Farooq H. Naek, Advocate.

3.C.P. No, D-95 of 2Ol7 Inam Akbar & others v' NAB through its Chairman and others.

1.Iuam Akbar Khan S/o Ghulam Akbar (Petitioner No'3)' 2. Riaz Munir S,/o Fakhar Munir, (Petitioner No'4)' 3. Muhammad Hanif S/o Muhammad Bashir (Petitioner No'5) 4. Asim Amir Khan Sikandar S/o Yaqoob Khan Senior (Petitioner No.6).

ihrough Muhammad Azhar Siddiqui and Mr. Yaseen Azad, Advocates.

4.C.P.No.D- lB21 l2016 Basharat A. Mirza rr' NAB through its Chairman & otl:c is.

Basharat A. Mirza Si o Ghularn Ahned Mirza (Petitioner No.'7), ,

Through ll/s. Muhammad Azhar Siddiqui and Mian Shabir Asmail, Advocates. t

Counsel fo r the Responcients.

lvl/s. Waqrrr Qadeer Dar Prosecutor General NAB, Syed Amjad Ali Shah, Depufy Prosecutor General NAB, Muhammad Altaf, Speciai Prosecutor, NAE and Munsif Jan, Special Prosecutor NAB' N{r. Salman Talibuiclin, A.dditional Attorney General for Pakistan and Mr. Ashiaq Rafiq ,Janjua, Assistant Attorney Cieneral for Paliisr-a:n.

w l)ates of Healinrl: :.1(-].lLl.1z1Oi7anci 13.1\.ilAt7 Date of Or:cler/ILeasorrs: 22..1''!.2.017 OR.DEfi !4AHAU-!IE@ Pel.itioner No'1 (lqb'l Z Ahmed) hirs been arrayed as an accused in Nationai Accountability Bureau (NAB) Reference L9 /2016 in t.-

3l connection v.,ith his alieged acts of corruption under S.g of the Nationa.l Accountability Ordinance 1g9g {NAO) concerning officials of the Government, oflicers of the Oil and Gas Development Corporation Limited (OGDCL), Sui Southern Gas Company (SSGC) and Jamshoro Joint Venture Limited (JJVL) of which he is the CEO u,hich is preceding before the Accountability Courts at Karachi. He is currently on pre arrest bail.

2.Petitioner I'1o.2 Sharjel Inarn Memon is facir-ig corruption charges in NhB relerencc 50l2Oib fileci r-rnder the NAO and he is currently in custod)/ as his pre arr.est bail was recalled by this court vide order dated 25-10-2017. Likewise the cases of petitioner No.5 Ivluhammed Ha-nif and petitioner No.6 Asim Aamir Khan

3.Petitioner lrlo.3 Inam Akbar is also facing corruption charges in NAB reference 50/2016 liled under the NAO however when his pre arrest bail was recailed by order dated 25-1O-2O17 he absconcied. Petitioner llo.4 Riaz Munir who is also facing corrupiioa charges in the aforcsaid reference had his pre arrest biril confirmed by this court vide order dated 25-10-2017. Whilst petitioner No.7 Basha:'at A. Mirza is an accused in tl-re same reference as petitioner No.1 Iqbal Z.Ahmed, as mentioned earlier, and is on pre arrest bail

4.Since all the petitions involve common questions of law we propose to dispose of a1l of the petitions by this one common order.

5.In essence the case of the petitioners is that they attended the inquiries and investigations conducted against them by the NAB rvhen required by NAB and no warrants of arrest were issued against them by the Chairman NAB until he filed the references against them . As such they were entitled to execute a bond for appearance under S.91 Cr.PC before the accountability court especially as the accountability court had no power to arrest them which lay

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within the exclusive domain of the Chairman NAB (even after the filing of the references) and as such the non bailable warrants (NBW's) issued by the accountability courts rvere of no legal effect and should be set aside and the accountabilir.!* courts shouid accept a bond under S.91 Cr.PC for their appearance. '

6.Learned counsel for petitioner No.1 contended that under the NAO the powers of arrest iay solely and exclusively with the Chairman NAB and not the accountability court. In this respect he referred to 5.24 and S.1B of the NAO. According to him if the Chairman had not issued warrants of arrest by the time the reference was filed then at the time of summoning the accused lor trial the accountability court could not issue NBW's against the accused since it had no power of arrest. The accountability court had to resort to S.91 and S.92 Cr.PC to ensure the attendance of the accused especially as S.3 NAO made the NAO a special law with overriding effect and under S.17 NAO when the provisions of the NAO were not inconsistent with the Cr.PC the provisions of the Cr.PC would prevail. Thus since the NAO had not provided a particular mechanism fog'summoning the accused S.91 arrd 92 C:.PC '*,ould be applicable. In addition he submitted that a complaint under S.18 NAO was akin to a complaint filed under S.200 Cr.PC and as such the procedure in summoning an accused by way of 5.204 Cr.PC had to be followed rvhich did not provide for arrest but rather a simple summons whereafter the accused could take bond for appearance under S.91 Cr.PC. In the case of petitioner No.1 he only appiied for prltective and later pre arrest bail after the accountability court had taken cognizance of the offense on O5-03-2016 and issued NBW's against him since he,had been under the impression that under the law he could provide a bond for his appearance under S.9 i as the accountability court had no power to issue NBW's. Thus, due to this illegal act of the accountability court he had been compelled to seek pre arrest bail otherwise he might have

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been arrested. He further submitted that if the accountabiiity court had no power to grant bail then it had no poB'er to issue arrest warrants.

7.In support of his contentions he placed reliance on Reham Dad v. Syed Mazhar Hussain Shah (20 15 SCMR 56)' Messrs Tank Steel and Re-Rolling Mills (Pvt') Ltd' Dera Ismail Khan & Others v' Federation of Pakistan and others (PLD 1996 SC 771, Standard Chartered Bank v' Karachi Electric Supply Corporation Ltd' (PLD 2001 Karacl-ri 344\, Tanveer Hussain v' Divisional Superintendent' Pakistan Railways and 2 others (PLD 2006 SC 249), Muhammad Ijaz v. Nadeem and 3 others (PLD 2006 Lahore 227\, Mazhar Hussain Shah v' The State (1986 P Cr.L.J 2359\, Sarwar and others v' The State (2014 SCMR 1762\ and two unreported judgments of Peshawar High Court passed in Writ Petition No.3506-P of 2015 on 05. 11.2O15 in the case of Prof. Dr' Abdur Rahim Khan and another v, Chairman, NAB and others and Writ Petition No.255-P of 2016 in the case of Masoom Ahmed Awan v' Chairman, NAB and others on 16.02.2076'

8.Learned counsel for petitioners 2,3,4,5,6 and 7 adopted the argurnents of petitioner No' 1 ' In addition they emphasized that the accountability court could only issue sumfiIons for appearance under S.91 and could not issue NBW's. The exclusive power of arrest lay rvith the Chairman NAB throughout the reference proceedings and not the accountability court which hacl no power to issue NBW's'

9.In support of their contentiorls they placed reliance on the following case iaw Zahoor Ahmed Sheikh and others v' Chairman NAB, Islamabad and others (PLD 2OO7 Karachi 243), Maqbool Ahmed Sheikh and others v' The State (2014 YLR 2644), Khan Asfandyar Wali and others v' Federation of Pakistan through Cabinet Division' Islamabad and others (PLD 200 I SC 607), Sardar Ahmed Siyal and others v. NAB through Chairman and 4 others

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(2004 SCMR 265); Tariq Masood v. Director General, NAB

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Latrore and another (PLD 2Ol2 Lahore 287), Luqrnan Ali v. Hazaro and another (20 10 SCMR 611), Sarwar and others v. The State and others (2014 SCMR 1762), Shaukat Rasool v. The State and another (PLD 2009 Lahore 590), Nazeer Ahmed and others v. The State (Cr. Accountability Revision Application No.75 of 2OO2)' State through Chairman NAB v. 'Zahoor Ahmed Sheikh {C.i.vil Appeai No. 1 152 to 1 1 57 of 2OO7), Syea SoUaif Hassan ,v. .Director General , NAB (Sindh) and others (C.P. No.D-2382/2O16\ and Maqbool Ahmed Sheikh v. The State (2014 YLR2644)'

10.Learned PGA contended that S'91 was not applicable to NAB cases as under S.g(b) NAB cases were non bailable and as such it was not possible for an accountability court to grant bail to an accused 1et alone accept a bond for his appearance. He r.vas of the view that the Chairman NAB had power to issue arrest warrants during inquiry and investigation and after the original reference had been filed if the NAB was collecting further material against further accused and intended to file a supplementary reference other wise once the refereqce n'as filed the power of arrest switched to the accountability Court which since the offense was non bailable had to issue NBW's as opposed to taking a bond under S.91, In support of his contentions he placed reliance on Syed Sohail Hassan V DG NAB dated 16-12-20 16 in CPD 2382 l16 an Unreported order of a Divisional Bench of this court, Zia-ur-Rehman Sajid v. Muhammad Aslam and another (2005 P Cr.LJ 1706), Noor Ahmed v. Ghulam Mustafa and another (2OO9 YLR 1414), Muhammad Ashraf v. The State and another (2017 P Cr. LJ 72ll and urrreported order passed by Hon'ble Supreme Court of Pakistan in the case oI Olas Khan V Chairman NAB in Civil Petitions No.1885 and 22]c9 of 2Ot7 dated O4-O8- 20t7 u--

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I 1. Learned. Additional Attorney General for Pakistan 7 adopted the arguments of the PGA. Namely, thar after rhe reference was filed the accountability court had to issue 7 NBW's for the accused and that S.91 Cr.PC was inappiicable in NAB cases.

L2. We have considered the arguments of the parties, pursued the record, considered the relevant law and cases cited at the bar.

General.

13.At the outset we make it clear that S.91 Cr.PC is not applicabie to petitioner's No.2, 5 and 6 Sharjeel Inam Memon, Muhammad Hanif and Asim Aamir Khan since they are in custody following the recalling of their pre arrest bail. Likewise petitioner No.3 lnam Akbar who absconded (and remains an absconder for whom proceedings under S.87 and 88 have been initiated by the accountability court) through his conduct is not entitled to any benefit or relief which may accrue from this order since we have already found that there is prima facie sufficient material on record to connect him to the commission of the offense for Which he has been charged which lead to the recalling of his interim pre arrest bail which order despite being an absconder he has not chalienged before the Hon'ble Qupreme Court. Likewise petitioner No.4 Riaz Munir whose pre arrest bail was confirmed by this court which decision NAB has not challenged and as such he has no need to resort to S.91 Cr.PC. Thus from our perspective the issue at hand may only be applicable to pefitioner No.l Iqbal Z. Ahmed and petitioner No.7 Basharat A. Mirza both of whom are on ad interim pre arrest bail and as such are not in custody and have not absconded.

Liberty of the Individual.

14.At the outset we are of the view that the liberty of the individual is paramount as recognized by the Constitution and in particular Article 9 which is a fundamental right. In u-

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addition in a criminal case the golden principle since time immemoria-l is that the accused is presumed to be innocent 7 until he is proved guilty and as such his liberty should nor be lightly curtained in criminal cases especially because if the accused is acquitted at the end of the trial he cannot get back the time which he has lost in jail nor be compensated for it.

This was emphasized in the recent Supreme Court case of Ziagharn Ashraf V. State (2016 SCMR 1g)

15.Thus, in most cases the concept of baii exists. Generally speaking the rule is bail not jail. The main universal reasons for not granting bail is if there is a genuine concern that the accused wiil abscond (i.e. run away and not face triai), will interlere with witnesses or tamper with evidence otherwise he should be free to consult his lawyers ald prepare his defense without being confined in jail. Other factors also determine whether bail should be granted in this country such as whether or not the case falls within the non prohibitory clause; the heinousness/ seriousness of the offense; whether there is prima facie sufficient materiar to connect the accused to the offense for which he has been charged etc. In a-11 such cases however the law must be strictly followed and applied by the courts

The trichotomy powers.

16.Our constitution is based on the trichotomy of powers shared between the legislature, the executive and the judiciary each of whom has its distinct and separate role to play irr our system of governance and each of which is supposed to act as a check and balance on the other organ s of state operating within its own defined sphere of power as

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provided in the law and the Constitution.

17.Within the trichotomy of powers it is the role of the legislature to make la.ws and the role of the judiciary to interpret those lrtrvs ii sucir interpretation is necessary. It is well settled law thar if a statute has expressly provided for something rvithout alry ambiguit-v then there is no question of

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the courts interpreting the same as the legisiative intent is clear and the Act/Ordinance must be given effect to unless it is deemed to be contrarv to the constitution. The judicia4,'s role of interpretation of the statute only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the constitution and in such cases it is lor the judiciary ro interpret rhar : . f;i... of Iegislation by trying ro ascertain the intent of Parliament in passing that legislation. The Courts have absolutely no authority or power to substitute their views for those intended by the legislature simply because they may disapprove of a particular law and the way in which that law is being applied, In this respect whether it appears harsh in not allcwing a bond under S.91 to be taken as opposed to applying for pre arrest bail in I.JAB cases is completely irrelevant unless it can be anchored on a legal basis.

18.I:r ti-iis respecl rei-erence is maile to the case of Justice Khurshid Auwar Bhinder V Federatiorr of Pakistan (PLD SC 2O1O P.483. Reievant P.492 -4g3 rvtrerebv ir was held as fo llows:

"A :.fundarnental prtrciple of Constitutional construction has always been to give effect to the intentr. of the framers of the organic law and of the peopie' adopting it. Ihe ,pole star in the construbtion of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning the task of interpretation can hardly he said to arise. It is not allowable to interpret what has ruo neeri of interpretation. Such languagp beside declares, without more, the interrtiorr 'bf the law givers and is decisive on it.'The rule drf construction is (to intend the Legislature to .Ilave meant what they have actrrally expressetdt'. It matters not, in such. a case, what the con'sequences may be. Therefore the language statute is unambi gug us and is in accord with enr e, the courts cannot busy them,selves wit sutposed intentionsr however adrnirable ' the same may be because, in that event they wo be travelin g beyond their provinee and legisl al

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I But if the context of the provision itself shou s tha! a the meaning intended u'as somes,hat less than the words plainly seem to mean then the court must interpret that language in accordance u'ith the indication of the intention of the Legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. (bold added) Original Legislative Intention behind the NAO.

19.Initially the law,t rvhich replaced the Ehtesab Act of 1997 which at that time dealt rvith corruption and accountability, was known as the National Accountability Bureau Ordinance 1999 (NABO) and the legislative intent ln that law was made abundantly clear. Namely, that oflenses under the NABO were non bailable by any court.

20.The Constitutionality of the NABO was challenged in the case of Asfandyar Wali Khan V Federation of Pakistan (PLD 2001 SC 609) which in an exhaustive judgment by a larger bench of the Hon'ble Supreme Court spanning around 350 pages covering nearly every aspect of the NABO was examined in terms of its constitutionality.

21.With regard to bail the Honble Supreme Court held as under at P.885;

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"197. it was held in the case oi Za-far Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remain available to their full extent. . notwithstanding anything contained in any legislative instrument enacted by the Chief Executive. "W"hereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under scction 426, 491, 497,498'and 561-A of any oth er provision of the Code of Criminal Proceclure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well

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settled that the Superior Courts have the power to grant bail under Article 199 of the Ordinance, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably." (bold added)

22.Thus, by virtue of Asfandyars case (Supra) bail could be gralted to an accusecl under the NAO only by the superior Courts exercising tireir discretionary constitutional jurisdiction under A.199 of the Constitution. There was no right to bail and even today bail on the statutory ground of delay is not open to an accused in a NAB case as opposed to bail on hardship ground which once again is of a discretionary nature.

23.In the case ol Abdul Aziz Memon V The State(plD 2013 SC 594) when discussing whether only public officiats fell within the purview of the NAO the Supreme Court held as under at P.639 with i'espect to the heinousness of offenses under the NAO.

"This court had eJso found that sucrh provisions of the I\ational Accountabiiit], Ordinance, 1999 were quite justifieci in view of the giavity oi the menace of rampant corruption the said Ordinance was meant to tackle. Dealing with such stringent provisions of the Control of Narcotic Substances Act, 1997 and their interpretation one of us (Asif Saeed. I(han Khoso, J) had observed as a Jucige of the Lahore High Court in the case of Nazir Hussain v. The State (2002 PCr.I) 440) as under:- ,,7 'lhe learneC counsel for the petitioner is quite right in poirrting out that in the case of Ghani-ur-Rehman v. The State 1996 PCT.LJ 347, Muhremna.d Aizai v. The State 1998 PCT.LJ 9.t55 and liaveed Ahmed Khan v. The State i999 PCT.LJ 63 it had been held that if the allegation leveled against an accused person .itrracts the provisions of section 9(b) of the Controi of Narcotic Substances Act, i 997 as weil as the provisions of Article 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penal provisions attracted to the same allegation against an accused person that penal provision is to be apolied wh'ich carried a

lesser punishment or attracts lesser rigours of .the law, i.e. Article 3 and + oi the , Prohibition (Enforcement of H add) Order, 7 1979. However, we have noticed in this context that in all the abovementioned cases the'provisions of section 76 of the Control of Narcotic Substances Act, 1997 had not been brought to the notice of the Honourable Judges deciding those case. Section 76 of the said Act of 1997 provides for giving an overriding effect to the provisions of the Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force. The provisions of section 7 4 of the said Act may also be advantageously referred to in this context. The overriding effect of section 76 of the Act of was clearly noticed and expressly referred to in the case of Khalil-ur-Rehman v. The State 1998 PCT.LJ 1625 for brushing aside al argument that the case of the accused person in that case may be considered to be one under Article 3 and 4 ol the Prohibition (Enforcement of Hadd) Order, 1979 and not to be that under section g of the Control of Narcotic Substances Act 7997, for the purposes of the said accusej person's bail. We respectfully subscribe the view expressed in this regard in this precedent case.

1 1. We are conscious that some of the views expressed by us above and some of the interpretations advanced by us vis-i_ vis different provisions of the Control of Narcotic Substances Act, Lg97 rnay appear to some to be somewhat harsh or stringent but we maintain that the same are in consonance with the spirit of the said law, The said law is not an ordinary law as the menace that it purports to curb is not commonplace and the criminals who indulge in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative. It may be true that an individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its while.

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The pprils of coiruption in a society are far gteater than the hazards of narcotics -and, thus, the obsenzations made above in the coritext of the 7 Control of Narcotic Substances Act, lgg7 are attracted with a greater force in the context of the National Accountability Ordinance, 1999.It may not be forgotten that by virtue of section B of the National Accountability Ordinance, Lggg the provisions of the said Ordinance are to have an overriding effect over any other law for the time being in force.,' (b,.llcl added)

24.Crimes of corruption under the NAO are not ordinary crimes. They are crimes against society as a whole. For offenses of corruption charged under the NAO (white collar crirrres) the Honble Supreme court in the recent case of Rai Mohammed Khan V NAB (2017 SCMR p. 1152) has emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx RS 12M in the following terms at p. 1154 para 7;

"Under the principle of law and justice, each bail petition is to be decided on its own merits and the law appiicadle thereto, however, this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field, has become a threatening danger to the State economy, striking on its roots. 'I'he public nroney, alk-rcated for social sector and economic i.vell being of the poor people, is consistenlly embezzled ,/ misappropriated at a large scale and ,,vhy the majority of thi population is deprived of essential daily utilities, li-ke pure drinking water, health care artd education faciiities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arresi this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy, therefore, the Courts shall apply the Anti-Corruption laws somewhat rigidly, once on fact the case is made out, at bail stage, against the accused person, Distinction, however, is to be drawn between the ordinarl, criminal cases and of corruption on the above analysis ancl grounds, while dealing with bail matter to an accLlsed person, chargid for such like crimes and also at the time of conviction,

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once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence.',

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25.Thus, even for the grant ol bail in NAB cases this must be considered on a stringent and rigid plane due to the nature of the crime. The reason for citing these NAB bail cases is to show how stringently the law of bail is applied to NAB cases and thus if the grant of bail is to be construed so strictly and rigidly how can it be expected that it was the intent of the legislature that S.9l could be applicable? It would in our view in effect render the Asfandyar case (Supra) on the ability of the High Courts to grant bail in its constitutional jurisdiction almost redundant (along with section 9(b) NAO) which in itself entitled accused under the NABO for the first time to be granted bail which was against the original intention of the legislature which was in essence found to be uncon stitutional.

Even otherwise turning to the power of arrest.

26.The power of arrest in the NAO is set out in S.18 (e) and s.24 which are set out as under:

S. 18(e| - The Chairman NAB and such members, officers and/or servants of the NAB shall have and exercise, for the purposes of an inquiry and/or investigation the power to arrest any person, and all the powers of an officer-in-charge of a police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of an.v agency, police officer or any other official or agency, as the case may be, is sought by the NAB such official or agency shatl render such assistance provided that no person shall be arrested without the permission of the Chairman or any oflicer duly authorized by the Chairman NAB. (bold added)

Section 24. Arrest- (a)The Chairman NAB shall have the power, at any stage of the inve.stigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.

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(b)If the Chairman, NAB tdecides to refer the case to a v Court, such reference shall contain the substance of the v offence / offences alleged to have been committed by the accused and a copy of such reference shall be forw'arded to the Registra-r of the Court to which the case has been sent to try the accused, and another copy shall be delivered to the accused

@The provisions of sub-section (a) shall also apply to cases, which havg already been referred to the Court.

(dlNotwithstanding anything contained in the code, where the holder of the public oflice or any other person accused of an offence is arrested by NAB under this Ordinance, NAB shall, as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produce him before the court established under this Ordinance within a period of twenty four hours of arrest excluding the time necessary for the j ourney from the place of arrest to the court and such person shall, having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceecling ninety days provided that no accused 1 arrested under this Ordinance shall be released without the written order of the Chairman NAB or the order of the Court (bold added)

(e)Al1 persons presently in custody shali immediately upon coming into force o{ this sub-section, unless previously produced before an Accountability Court, be produced before such court as provided in sub-section (d) and the Order authorizing retention of custody by NAB shall be deemed to relate to the date of arrest' (f)The Chairman, NAB may declare and notify any place as a police station or a sub-jail at his discretion In our view it is quite apparent lrom these sections that after the reference is filed the Chairman NAB becomes functious officio i.e he no longer has the power of arrest except in respect of persons for whom he has already issued an arrest warrant prior to the filing of the reference which remains unexecuted or in respect of persons for whom he is inquiring/ investigating with a view to filing a supplementary reference. As rightly pointed out by learned counsel for petitioner No.1 S.24 O it appears is a provision which ties in with S.33 NAO at the time when proceedings were transferred tl4

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from the Ehtesab Courts to the accountability courts after the 7 promulgation of the NAO. To accept that the Chairman NAB during the course of a trial could arrest an accused person mid way through a trial who had been regularly attending that trial in our view simply does not appeal to reason, logic or common sense and in our view could not have been the intention of the legislature. Once the reference has been filed the trial and its conduct is in the ha4ds of the accountability court.

28.So the question arises as to how the accountability court deals with those persons who have not.been arrested by NAB and who form a part of the reference as an accused.

29.According to the petitioners the answer lies in S.90, 91 and 92 Cr.PC which provide as under:

Section 9O Cr,P.C.: Issue of warrant in lieu of, or in I addition to summens. A Court may, in any case in u,hich it is emporvered by this Code to issue a summons lor the appearance of any person ***** issue, after recording its reasons in writing, a warrant for his arrest,

(a)if, either before the issue of such summons,.or after the issue of the same but before the time lixed for his appearance, the Court sees reason to believe that he h as absconded or rvill not obey [he summons; or

(b)if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his 'reasonable appearing in accordance theres'ith and no excuse is offered for such failure.

91 - Power to take bond for, appearance. When any person ,"r,hose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, wilh or '*'ithout I sureties for his appearance in such Court.

92 - Arrest bybreach of,bond.for appearance. When any person who is bound by any bond taken under this Code to appear before a Court, do.es not so appear, the officer presidirrg in such Court may issue warrant directing that such person be arrested and produced before him. (bold added) t/1

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7 30. The petitioner's contention is that the accountability' court shouid issue a summons to the accused u'ho then on receipt of the summons may attend the court and submit a bond under S.91. If he tails to appear pursuant to the summons under S.9l then the court may take steps against him under S.92 since a complaint under S'18 (b) (ii) NAO can be equated to a complaint under S'200 Cr'PC'

31.In our view where this argument fails is that generally the application of S'91 and S.92 is linked to complaint cases under 5.200, 5.204 and S.2O5 CR'PC or FIR's registered under S.154 Cr.PC which provide as under:

S.2OO - Examination of complainant' 1****' a Magistrate taking cognizance of an offence on complaint sha]l at o.r". the complainant upon oath' and the substance"*a-itre of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate:

Provided as follows:

(a)when the complaint is made in writing nothinga herein contained shall be deemed to require Magistrate to exarnine the complainant before traisferring the case under section 192; 2lor sending it to the Court of Sessionl;

3[(aa)when ihe complaint is rnade in writing nothing herein contained shal1 be deemed to require the examination of a complainant in any case in which the complaint has been rnade by a Court -or by a public servant acting or purporting to act in the discharge of his official duties:l Att ..t * * * *

(c)when the case has been transferred under section iSZ the Magistrate so transferring it has already ^"a the complainant, the Magistrate to whom it is examined so transferred shall not be bound to re-examine the complainant.

S.2O4 - Issue of process. (1) If in the opinion of a [Court] taking "og.rir".,"" of an offence there is sufficiint ground for proceeding, and the case appears to be one ln which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, fit] shall issue his summons for the attendauce of the accused. If the case appears to be one il-i whicl-r according to that column, a warrant should issue in the first instance, [it] may iss'te a warrant, or, if [it] thinks fit, a summons, for causing the accused to be' brought or to appear at a certain time t'1,-

I

3Le 7 before such. [Court] or (if[it] has not jurisdiction [itselfj) some other [Court] having jurisdiction.

(21 Nothing in this section shall be deemed to affect the provisions of section 90.

(3)When by any law for the time being in force any process-fees or other fees are payable, no process shal1 be issued until the fees are paid, if such fees are not paid within a reasonable time, the [Court] may dismiss the complaint. ,

2O5- Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, il he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.

(2)But the Magistrate inquiring into or trying the case may in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbelore provided.

"S. 154. Information in cognizable cases. Every information relating to the commission of a cognizabll offence il given orally to an officer in charge of i police_ station, shall be reduced to writing by him or under his ciirection and be read o.rer to the informant; and every I such information, u,hether gjven in writing or reduced to writing as aforesaid, shali be signed by the person g:ving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the [Provincial Government] may prescribe in this behalf."

32.However in our view a complaint under S.2OO Cr.pC or an FIR filed under S.154 Cr.pC (or even a challan under 5.173 due to the differences between the trial court taking cognizance under S. l9O Cr.pC in ordinary criminal cases and the accountability Court only being able to take cognizance on a reference under S,lg (af NAO| cannot be equated to a reference filed under S. lg (gt of the NAO which is the procedure provided by a special law with overriding effect due to S.3 NAO over other laws and thus we find the cases ll/azhar Hussain Shah (Supra) and Muhammad Ejaz (Supra) to be distinguishable from the present case based upon the particular facts and circumstances of [he case in hand aside lrom the fact that they were both passed by a single Judge of the Lahore High

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3 q*\ 7 Court and at the most are only persuasive authorities and not binding on this Divisional Bench

33.As noted above S.91 Cr.PC is usuaily applied in criminal cases triable by courts of ordinary jurisdiction which in our view are a distinct category of cases the PPC which ,upder may or may not be bailable. Such oidinary criminal cases however have their own procedures under the Cr.PC and are distinct from special laws such as tf," iVRO which has overriding effect over other laws by virtue of S.3 NAO.

34.The cases referred to by the petitioners are by and large complai.nt cases under S.200 Cr.PC andXn our view cannot be equated with cases under the NAO which is a special law which was promulgated to deal with the menace of a particular offense. In this .."p.Ig ,, *. have read the authoritative and scholarly judgment 3n S.91 and bail in the case of Sarwar V State (2014 SCMR 17621 but find that it is I distinguishable from the particular facts and circumstances of the instant case which does not concern complaint cases under S.20O Cr.PC, a FIR or even a challan under 5.173 Cr.PC but the filing of a reference. u.nder a special law with overriding effect in connection with the NAO concerning crimes of the most heinous nature. Likewise the two unreported cases of the Peshawar High Court and Reham Dad's (Supra) which foundations are based on the Sarwar case (Supra).The earlier order of this court in the case of Syed Sohail Hassan V DG NAB dated 16-12-2016 in CPD 2382116 is distinguishable from the present case as that case concerned the interpretation of S.91 in respect of a person who was aJready in custody and had already had his bail r.

applications dismissed by the superior courts whilst in this case only two of the petitioners (Iqbal Z Ahmed and Basharat. A. Mirza ) are on ad interim pre a-rrest bail $et to be confirmed) and are not in custody.

35.The contention that a reference under the NAO is the equivatent of a complaint under Cr.PC in our view is

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misconceived. Just as the procedure of a complaint under the Cr.PC S.2OO onwards has it orvn mechanism of dealing rvith the same the NAO has a distinct (and different to 3'200 Cr.PC) scheme of inquiry, investigation and liling of a reference under the NAO which is provided in S'18 NAO whereby a complaint (S.18 (b)) may be received to get the inquiry ball rolling just like an FIR may be lodged to get a criminal investigation rolling' After the complaint is lodged with NAB a complaint verification stage is under taken to see if prima facie the complaint is genuine, if found to be so the Chairman NAB may authorize an inquiry (S' iB (c), (d) and (e)) andifaftertheinquirytheChairmanissatisfiedthatthereis a prima facie case he may upgrade the inquiry into an investigation which may be converted into a reference which is filed before al accountabitity court once the Chairman is satisfied that the requirements of S.18 (g) have been made out and the accountability court then takes cognizance of the same under S.18(a) and cannot add any other accused on its own motion (unlike ordinary criminal cases which allow the trial court to do so under S.190 Cr'PC)' The procedure for a complaint under S.2OO CR.PC, in our view, is entirely different and very often the accused may be summoned via S.9 1 Cr.PC as he is completely unaware of any allegations levelled against him. In a NAB case before a reference is filed the accused is fully aware of the allegations against him as he would have received a call up notice at the stage of inquiry informing him what the inquiry was about, his statement would have been recorded and the documents which he produced (if any) would have been considered' He would have had no doubt that he was under investigation for an offense under the NAO. Which also in our view covers the cases cited by the petitioner whereby it is contended that the accountability court cannot arrest the accused without notice to him once the reference is filed. This is because due to the steps taken by NAB before fiiing the feference involving the accused as alluded to above the accused was on lull notice that he was under investigation and ran the risk of being t.,t

arrested at any time by NAB and thus he could have opred for seeking pre arrest bail.

36.Reverting back once agarn S.90 and 204 Cr'PC in the case of Nazir Ahmed V The State (1990 MLD 2084) it was held that even in complaint cases undlr 5'200 Cr'PC there was nothing to prevent a trial court i$suing a NBW under S.90 in the first instance if it deemed it appropriate in the following terms at P.2OB4 Para 7 onwards which reads as under:

"7. The other grievance, learned counselnon- for applicants ventilates is about the issuance of Ualtabte warrants by learned Additional Sessions Judge against applicants and others. He has contended that sJction S0 Ct.p.C., requires a Court to record its reasons in writing before doing so. This argument, however, is effectively answered by the language of section 2O4, Cr.P.C., which I have reproduced above' According to the forth column of Second Schedule to the Code of Criminal Procedure, 1898' in a case under section 3O2, P.P.C., a warrant should issue in the first instance, although in such cases also the Court, if it thinks, fit, may issue a summons to an accused. The issuance of warrant "in the lirst instance" where according to fourth column of Second Schedule of the Code of .Criminal Procedure, 1898, a summons should isfue is undoubtedly illegal. The case of A.K. Khalid v. Khan Ghulam Qadlr Khan, reported in PLD Lt962 La}nore 411, in is relevant authority on this poi{t' flowewer, the present case falling under sobtion 3O2, P'P'C' a warrant could issue against the.accused.

B. Section 90, Cr'P.C. emporiers the Courts to rssue a warrant only in cases in which it is empowered to issue summons. It was, therefore,' considered necessary to record reasons before issuing a warrant in such cases. It was in this context that In Re: Karuthan Ambalam and another, reported in A I R 196 1 Madras 1063, it was held that where a warrant purports to be I issued under section 90, Cr.P.C', it is a necessary -l\4agistrate lor the exercise of the preliminary power by the that reasons should be given in writing and failure to do so vitiates the warrant' However, in latter cases reported as Mahar Singh and others v' Emperor (A I R 192O Allahabad' 245121 and The Government of Assam v. Sahebulla and others (A I R L924 Caloutta 1), the issuance of warrant without reasons was not found as illegal. In the latter citation a Full Bench of Calcutta High Court held

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that the words "After re cording his reasons in writing" in section 90, Cr,P.C. are not imperative but directory.

9.The difference between mandatory and directory provisions is one of effect only. According to Bindra's Interpretation of Statutes, the real question in all such cases is whether a thing has been ordered by the legislature to be done? What is the consequence if it is not done? The general rule is, that an absolute enactment be obeyed or fulfilled substantially. From a plain reading of section 9O, Cr.P.C., it will appear that the requirement of 'recording reasons in writing' is only directory. (bold added)

37.If we also consider the CNSA, as briefly referred to above, due to the gravity of offenses under that Act which are also crimes against society S.51 provides as under concerning baii

"S.51. No bail to be granted in respect of certain I offences.---(1) Notwithstanding anything contained in sections 496 and 497 of the Crilnina-l Procedure Code, 1898 (V of 1898), bail sha1l .not be granted to an accused person charged with qi, offence under this Act or under any other liw relqtinffio narcotics where the offence is punishable with deathll.

(2)In the case of other offenseslpunishable under this Act, bail sha-ll not be normally granted unless the court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount"

38.Likewise, as in cases under the NAO the Supreme Court in recent times has taken a stringent view in granting bail under the CNSA. For example, in the case of Socha Gul V State (2015 SCMR lO77) it was held as under at P. 1OB1 l. "It is pertinent to menti-on here that offences punishable under C.N.S. $ct of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of C.N.S. Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497, Cr.PC for grant of bail to an accused involved in an olfence

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under section 9(c) ol C.N.S' Act of 1997, even on that basis u'e find that an accused charged rvith al offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail mirely on account ol the nature or quantity of ,l.."otic substance, being four kilograms' Firstly, as deeper appreciationj !.aof evidence is not permissible at bail stagqi find secondly, in such iituation, tooking to the itpeculiar features and nature of the offence, the irial Court may depart from the normal standards prescribed in the case of Gu lham Murtaza other legal punishment. Thus, in our oPinion, ratio of judgment in the ca'se of Gulham llurtaza (supra) is not relevant at bai| stage." (Bold added)

39.In cases under the CNSA either bail is granted to the accused under S.51 or it is refused by tl-re trial court' There is no concept of bond being taken under S'91 Cr'PC for the appearance of an accused before the trial court'

40.Likewise under the Anti Terrorism Act 1997, which is r also a special 1aw dealing with heinous crimes, the same is the position as under the CNSA. Namely, there is no concept of taking a bond for appearance of an accused under S.91.Either the accused is grantedba!1 by the trial court or he is not. This is in stark comparison to the NAO which does not even empower the accountabitity court to grant bail by virtue of S.9 (b) NAO since offenses under the NAO are non bailable

41.We must also take into accourit S:, 17 NAO which provides as under:

17.(a) Notwithstanding anything contained in any other 1aw for the time being in force, unless there is -anything inconsistent rvith the provisions ofgfris Ordinance, the provisions of the Code of Criminal,'frocedure, 1898 (Act V of 1989), shall mutatis mutahdis, apply to the proceeciings under this Order.

(b)Subject to sub section (a), the provisions of Chapter iittA"ot the Code shall apply to trials under this Ordinance. i

l,t- ;', ,tJ

@Notwithstanding anything contained in sub-section (a) or sub- section (b) or in any law for the time being in force, the Accountabiiity Court may, lor reasons to be recorded, dispense with any provision of the Code and n follow such procedure as it may deem fit in the circumstances of the case.

(d)Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences.

42.S.17 (a) in effect means that the Cr.PC will apply unless there is any inconsistdncy with the NAO and in case of such inconsistency the NAO will prevail. S.9 (b) of the NAO states as under;

S.9(b) All offences under this Order shall be non-bailable and, notrvithstanding anything contained in sections 426, 491, 497, 49a and 56 1A or any other provision of the Code, or any l. other 1aw for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Order (bold added)

43.5.0p1 *^t the NAO a non bailable offense thus in our view it is inconceivable that in the lace of S.9(b) the accountability court could summon an accused for taking a bond. In our view the only way of calling an accused by the accountability court would be by issuing an NBW which would be in consonance with S.9 (b) NAO and in keeping with the legislative intent behind the NAO.

44.ln the recent unreported order passed by Hon'ble Supreme Court of Pakistan Olas Khan V Chairman NAB in Civil Petitions No.1885 and 2259 of 2017 dated O4'O8- 2Ot7 the supreme court after an exhaustive historical analysis of the grant of bail in NAB cases held as under at Para 10, 11 and 12 u,hich seems to also exclude the taking of a bond under S.91 Cr.PC:

no jurisdiction to "10. AccountabilitY Court has and or pos t-arrest bail, as c rant either Pre-arrest gra nt or otherwise p rovisions of CI.P'C regulat ing p re-arrest and or Post-arrest bail in cases under NAO, 1999 in view of non-ob stinate Provisions of However, plicable.

section 9( b) of NAO, 1999 are ln apan d this Court ts position a s regards High Court extract jurisdiction superlor Courts altog ether different, ectively of the under Artic 1e 199 and 184 resP and grant bail or Con stitutto n, lg7 3 to consider 1999 and not under otherwi se, ln cases under NAO, 1999, which I section 9 (b) and or 17(c) the NAO' nor, made jurisdiction, neither can be taken aw ay legislation' subservient throug h sub-ordinate of the learn ed SPecial Pros ecutor NAB is Contention of jurisdiction correct to the extent that the assumption de bail under by the Pe shawar H 1g h Court to conce SE ction 497 Cr'P'C to the ResPonde nt Sahibzada not available ' Alamgir fin CPLA 2 259 of 2017), al position, such

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However, in view of the stated 1eg

obj ection s retreats merelY of form bereft of any Exercise of jurisdiction bY the High Court to substance ' be set a naught concede b al 1 in instant case cannot was erroneouslY mere'ly be cause such jurisdiction though admittedlY assumed u nder section 497 Cr 'P 'C ' ise was very much jurisdiction to concede bail or otherw rticle 199 of the vested 1n theHigh Court under A su ch assumPtion of Constitution of Pakistan, 1973' and circumstances can given facts and Jurl sdiction in the r Article lg9 of that the alway s be considered unde se ttled P osition in law Consti tution, 1973.lt is now-wrong pro vision of law to merely citing or relYing on of no consequence' assume jurisdiction ove rai is isj provided the Court oth erwl se has urisdiction under the Con stitutton, statue o r anY other P rovision of iaw to instant case. For pass order as has haPPened in the uersu s Mst, Aisha Bib reference one may se e Mst. Sa a Bibi (7982 SCMR 49

of Supreme Court 7777)

under on 497

11.While assuming jurisdiction^Court' ^secti rvas influenced Cr.P.C learned bench of the High of- the^NAo' 1999 and has misconstrueJ "tt'i"'i 17 of Cr'P'C including which makes the ;;';;;" of the orocedure for sessionl it*r- lp"t grrantel^--{f-A provided in the 6;:;:;;r;;;"ur', ""r""' oii'e'wise' itself' s""tt" lZt"l ibid; librated the NAO. lggg il;-ir'' p'f"'a'ral ii'J;"i"otittv c""* pi""Li"t" and technical trapping of Criminal code' giving it authority and at not only to "dispense;;i;;y p:2y"i;:':code' t'4gD^'p''o""d"" o" the same time empowe 'ia it 'iti fotto*- of case" [17(c) ibid;]'

it mau deemed -fit in circumstances -'7ot)o* such procedure as it mag However, freedom 'o

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d.eem fit" does not empower the Accountability Court a or f"t that matter the High Court to assume .tl jurisdiction and or. invoke provisions of Cr'P'C' ;;i;h are sPecilicaliy excluded by virtue of section 9(bl ibid; from apptication in cases triable under NAb, 1999 in ostensible exercise of power under *""ti"n 17(c) ibid; of the NAO, 1999' Such enabling power of tire Accountability Court were conditional iy this Court in the case of Khan Asfqnduar Wali 1il,o zoor sc 607 @926l, "not exercise its discretion by assigning arbitrarily but on sound judicial principles valid realons.," such exeicise of Jiscretion was also held to be "Justiciable in exercise of Constitutional lurisaiction of Superior Court" trxcluding the words iincluding High Court" from Section 9 (b) ibid; as noted above ha"s not brought about aly change on overall of the provision reguiating matters- under the ".h"*" exclusionary provisions of Code of Criminal Procedure mentioned therein including Section 497 and 498 Cr.P.C. regulating pre-arrest and post-arrest'

12.Judgment in the case of Muhammad Saeed Mehdi (2002 scMR 282) wa ,ot .PPr".iated bY the learned bench of the High Co urt in its true PersPective' ln the judgment it was sPe cifically observ,id that lbe "High Court has juisdiction to grint bail in NAB cases under of Article 199 of the Cinstitution" relevant Part tn paragraph 8 of c1 ted judgment is reProduced preceding paragrap h B above and, PerhaPs attentio nof the learned bench was also not drawn to the case sof Ha-ii Ghulam Ali' suPra, (2003 SpMR 597 @602\, Himesh

Khan uersus Na tional Acco untabiLitu Bureau scMR 1092 @ 1095) In view ol the forgoing discusston' conclusion of the lea rned Bench of the Peshawar High Court; as contained in ParagraP hs 12 to 15 of the impugned judgment to the effect that High Court bY virtue of section 17(c) ibid; can imp ort and or exerclse p ower contained in Sections 49 1, 496, 497, 498, 561-A Cr.P.C. is not correct exPositron of law, to such an extent impugned order cannot be sustained"'

45.S.17 (d) NAO also specifically states that the provisions of chapter XXIIA of the code (Cr'PC) will apply to tria-ls under is the NAO.S.91 is found in Chapter VI of the code and S'200 found in chapter XVI of the code and 5'204 is found in Chapter XVII of the code in order to supplement compiaint sections cases under Chapter XVI of the code' None of these aIefoundinChapterXXIIACr.PCasprovidedinS.lT(b)NAo.

46.Thus, we do not find the authorities cited by learned 7 counsel for the petitioners to be of much assistance based on

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the particular facts and circumstances oi this case and the applicable 1aw.

Logic, common sense and appeals to reason' -f rather 47 . Very often we find in considering legal issues concepts and than being overwhelmed by the various legal complexities of a given law or factual situation it sometimes considers the issue helps to clarify matters if one pauses and sense and whether from the point of view of logic' common the conclusion aPPeals to reason' (later the NAO)

48.Having already observed that the NABO was intended by Parliament to be non bailable (and still which successive remalns non baiiabie under s.e(b) NAO not amended and as Parliaments over the last 17 years have position) due to the ,r such are deemed to have accepted the severity of the crime against society of corruption and that the extreme gravity even the superior courts have recognized as worse than of offenses under the NAO regarding them recently emphasized offenses und er the CNSA and have most being crimes that due to the heinous nature of the offense' at the bail stage against society, under the NAO that even does it make they should be dealt with rigidly and strictly sense that a person on ad interim pre arrest bail or not on court when summoned bail at al1 couid saunter up to the trial and simPlY take a bond under S'91? To our minds this sense and reason' If simply does not aPPeaJ to 1ogic, common no matter whether this was the case virtu ally in all crimes, take a bond from the serious or not, the accu sed could simply and 498 Cr'PC court and in effect the provisions of 5'497 likewise the powers to would virtua.Lly be rendered redundant discretionary grant bail by High Courts in their constitutional was specifically jurisdiction under A' i99 in NAB cases which given' to the High Courts by the Supreme Court in NAB is a special t^*rO Asfandyar's case (Supra)' Significantly

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v with overriding effect. S.9 (b) makes all offenses non bailable by the Accountability Court. So if the Accountability Court cannot grant bail and onlv the High Court can in its constitutional discretionary iurisdiction does it make any sense for a court which cannot grant bail in a crime against society simply to take a bond for I -r appearance? This would also seem to be completely against the legislative intent of making NAB cases non bailable as discussed earlier. Again to our minds this seems to defy iogic, common sense and does not appeal to reason.

49.For example, an accused (for whom NAB has not issued a warrant of arrest) is denied pre Arrest bail by the High Court since there is no malafide on the part of NAB and there is prima facie sufficient material to connect him to the offense for which he has been charged and he then runs away from the high court and approaches the Supreme Court for pre arrest bail which also deny him pre arrest bail by upholding the High Courts order and he again runs away could he then saunter along to an accountability Court once the relerence is filed and take a bond under S.91 despite both the high court and the supreme court finding that' there was prima facie sufficient material to connect him to the commission of the offense for which he had been charged? This would again in our view defy 1ogic, common sense and would not appeal to reason.

50.In our view an attempt to ask for executing a bond under S.91 Cr.PC instead of applying for pre arrest bail before the High Court at the time when the reference is filed is a classic example ol the violation of the settlep principle of law that what cannot be done directly through the law cannot be done indirectly through other means. Namely, the taking of a bond under S.9l when the intent of S.9 (b) NAO is that in order to avoid arrest at the time when the reference is filed or even during inquiry and investigation ol the olfense under the NAO the accused must seek pre arrest bail.'

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! Conclusion.

5 i. Thus, for the reasons discussed above as a matter of legal interpretation we no room for an accountability .find court under the NAO and the com{on law to summon an accused other than by way of a NBW once a reference is filed before the accountability court by the NAB under the NAO and S.91 Cr.PC is inapplicable to NAB references filed under the NAO so far as an accused is concerned.

52.The office shall immediately transmit a copy of this order to all Accountabiiity Courts in Sindh for information and compliance.

53.These are the reasons for our short order dated 13-11- 2017 which reads as under:

"Heard counsel for the parties. For reasons to be recorded later on the petitions are dismissed"

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DG :2 ,\\. h 11.