Ch: Muhammad Ashraf (Petitioner) VS Fed. of Pakistan and Ors (Respondent)

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IN THE HIGH COURT OF SiNDH, KARACHI Before: - Mr. Justice Ahmed A1i M. Shaikh, C.J.

Mr. Justice Mohammad Karim Khan Agha, J.

C.P. No.D-7O83 of 2016

Ch. Muhammad Ashraf Advocate High Court V. Federation of Pakistan through Chairman NAB & others.

Ch. Muhammad Ashraf S/o Ghulam Akbar (In person).

Counsel for the Responde4tp Mr. Muhammad Altaf, Special Prosecutor, NAB Date of hearing: 30.11.2017 .

Date of Order: 14.12.2017

ORDER

Mohammad Karim Khan Asha, J: Throu gh this petition, the petitioner has sought a declaration that Section 16 (a) of the National Accountability Ordinance 1999 (NAO) is mandatory in nature as opposed to directory.

2.The brief facts of the case are that the petitioner is nominated accused in consolidated National Accountability Bureau (NAB) Reference No.13/20 15 wherein his role is narrated in the said References for an offence as defined under section 9 (a) and punishable under section 10 NAO ' The main grievance of the petitioner is that his trial has not proceeded on a day to day basis and that his trial has not been concluded within 30 days which is a violation of S'16 (a)

NAO.

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3.The instant matter was initiated on complaint referred by NAB Rawalpindi as massive unauthorized Government amount was found deposited into the accounts of non-local and low profile NGO. The inquiry followed by the 6x investigations under the provisions of NAO was authorized against the Management of Benazir Housing Cell (BHC) and Fiza Social Welfare Orgapization (FSWO) regarding misappropriation of low cost housing funds of District Klrairpur, Larkana, Kashmore, Ghotki, Tharparkar and Sanghar. The petitioner in active connivance with accused persons of FSWO namely Muhammad Raza Khokar and Mst' Rukhsana Abbas illegally deposited the amount of public fund.s into their personal accounts and malafide did not construct the houses of poor persons' Thereafter NAB investigation team accompanied with Director Inspection BHS, Deputy Director Engineer BHC' Engineering team of Pak PWD visited 1497 Houses in 6 Districts and found that majority of the houses were not constructed by the petitioner and FSWO and the constructed houses were found in uninhabitable conditions. Thus the petitioner in active connivance with accused persons of the BHC had committed corruption falling within the ambit of the NAO and hence the consolidated reference was filed against him by the NAB which is now proceeding before the accountability court' The details of said reference are summarized into the following table:- u-"')

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S.No. District Rei:# No of Amount paid Loss (Rs) Established House (Rs)

I i Khairpur l3/201s 520 1.24 ,49 | ,OO8 63,345 ,37 7

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2 Larkana 29 /20 15 318 ao,537 ,920 56,7 20,889 3 Kashmore 30/ 201s 148 35,620,114 33,677,118 a

4 Ghotl<i 39 /2015 1,70 34,93L ,250 32,984,900 iI 5 Thar Parkar 36 12016 200 56,636,850 zo,ooo,ood 6 Sangtrar 37 l2016 i41 29,776,11O t6,897,876 Total

Houses

4.It is further submitted that the petitioner / accused No.6, Choudhary Muhammad Ashraf being the General Secretary of FSWO has made various requests for payments illegaliy on affidavit and submitted the cheques of personal accounts as surety which resulted into heavy loss to the government exchequer. The petitioner / accused No.6 in active connivance with accused persons of BHC and FSWO withdrew amount of beneficiaries in cash and some portion of this amount was also transferred into his personal account as well as in the accounts of accused Muhammad Raza Khokar, accused Mst. Rukhsana Abbas and accused Agha Ghulam Mohi-uddin. The petitioner / accused NO.6 in connivance with accused / officials of BHC and FSWO submitted fictitious completion certificates, although no final payment were made by the BHC neither houses were constructed and completed.

5.It is also submitted that it has been established that the petitioner in active connivance of the BHC and FSWO misappropriated Rs.224,226,1601- in above mentioned 6x

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't\e districts. Thus the accused persons have committed in offence of corruption and corrupt practices as envisage'd Section 9(a) of the NAO, 1999 and scheduled thereto

The said punishable under section 1O of the said Ordinance' No'lli' references are pending before Accountability Court Karachi for ProPer adjudication'

the

6.As mentioned earlier in this order' notwithstanding serious allegations against the petitioner in the a-foresaid

reference, for the purposes of this petition, the consolidated has not been main grievance of the petitioner is that his trial proceeding on a day to day basis nor has it been decided

within 30 days which is a mandatory requirement of S'16 (a)

is unlawful' NAO and as such his trial/continued detention

7.Learned Special Prosecutor NAB has vehemently opposed the submissions raised by the petitioner and

directory stressed that the provisions of S' 16 (a) NAO are only innatureandnotmandatoryandassuchthispetitionbe dismissed.

B. We have heard both parties' perused the material case law on available on record and considered the various the issue at hand.

that we are 9 At the outset we would like to make it clear of law, only determining whether in our vrew' as a matter S. i6 (a) NAO is mandatory or directory in nature

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10.By way of assistance Section 16 (a) NAO is set out as under:

Trial of offenses.

(a)"Notwithstanding anything contained in anl 9!h.er law for the time Ueing in force an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within thirty days'" (bo1d added)

11'Thereislittledoubtthattheoneoftheobjectsofthe I NAO was to promote the speedy disposal of corruption cases' This can be seen through its preamble which provides as under in material Part:

"An Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupi practices and hold accorintable all those persons ac".ls"d of such practices and matters ancillary thereto;

Whereas it is expedient and necessary to provide foreffectivemeasuresforthedetection,investigation' prosecution and speedy disposal of cases involving corruption, .o"rrrlt practices, misuse or abuse of po*..'o. authority,-misappropriation of property' taking Lf ki.kor.cks, commission ana for matters connected and ancillaqz or incidental thereto;(bold added)

12.The preamble is also fortified by S'16 (a) which we hate reproduced earlier coupled with the right to an expeditious trial which in our view is guaranteed under Article 10 (A) of the Constitution.

13.Initially it wouid appear that the Supreme Court took a stringent view on the implementation of 5'16 (a) NAO' For example, in the case of Aga Jahanzeb V NAB (2005 SCMR i 666) the Hon'ble Supreme Court observed as under at

P.7167.

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"When questioned that under the NAB Ordinance trial is to conclude within 3O days. Mr. M.Ibrahim Satti' Advocate Supreme Court submitted that this time period is not mandatory but directory for the time being we would refrain from expressing any opinion as to whether the timeframe is mandatory or directory, but would direct that after submission of challan in this case on 7tl' of May, 2OO3 if the trial does not commence or 'date conclude within 30 days from the said petitioner would automatically become entitled lo the grant of bail subject to his furnishing bail bonds in tl-re sum of Rs five millions with one surety in the like a-rnount to the satisfaction of the trial Court at Lahore."(bold added)

14.In the case of Muhammed Nadeem Anwar V NAB (PLD 2OOB SC P.645) the Hon'ble Supreme Court held as under at

P.649.

"The object of criminal law is to ensure availability of the accused to face trial and not to punish him for offence al1eged1y pending final determination by a competeni Court of law. It is weli settled piinciple tf t^* that grant of bai1. cannot be withh;1d as punishment on accusation of non- bailabie offenie against an accused' An accused is entitled to expeditious and inexpensive access to justice, *hi"h includes a right to fair and speedy trial in a transParent manner without any unreasonable delay' This intention has been re-assured in section 16 of the N'A'B' Ordinance laying down criteria for day to day trial and its conclusion within 30 days' But in the instant case such object does not apPear likely to be achieved anywhere in the grant near futui'e and would not constitute a bar for of bail to the petitioners. The truth or otherwise oi lerreled against petitioners ^ would only dete"rmined at the conclusion of trial after be"l-r..g"" by ^ i"f.i"g into consideration the evidence adduced the both ihe parties. it was held by this Court in ."." "i Aga -lehanzeb v N A B' &not others (2005 iCrrnn ioolol that if trial of case is concluded of challan' *ufri" 30 days from date of submission entitled to accused u'ou1d arutomatically become grant of bail" (bold added)

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1 5. However notwithstanding such an initia-1 stringent stance we have not come across any supreme court authority

whereby the Supreme Court has ordered the acquittal ol an

accusedonaccountofthetrialnotproceedingonadayto

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So when is a provision of law mandatory and when is it

directota?

17.The use of the word "shall" does not automatically make the provision mandatory as was pointed out in the case of

Jamshed Hassan Butt V MCB Bank Ltd (2015 CLD relevant 1896) which in essence held that there was no

universal principle in determining whether a provision was

below in mandatory in nature or hard and fast rule as set out the following terms:

"It is correct that the word a'shallt and 'may' are interchangeable when used in provision of law' It is also coirect that the word 'shall' when used in a statute is not mandatory as a rule of thumb; but no as to universal rule can Ue taid down to determine in whether a provision is directory or mandatory on its nature. Every enactment has to be construed own merit in itre light of the general object intended io U. secured ty tfrat legislation' Thus' while .on"trrirg the provision of an enactment the entire schemeoftheenactment,thenatureofprovisionir-l We are of questior-r should be taken into consideration' i'tr. .o.r"ia"."a opinion that the basic purpose of Financiai Institutions (Recovery of Finances) t O.Jlrl^i.", 200 1 is to provicle speedy measures for "rr..ti.,g recovery ol'outstanding Ioans and [inances"' Store V 10 Likewise in the case of Messrs Wazir Khan banking UBL (2015 CLD l72g at P'1736) which was another recovery case it was held as under:

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"lt is a settled principle of law that one of the essential features of the mandatory provision is not merely use of u,ord "shall" which may be used merely to sti.ess importance of compliance of a particular requirement. Ordinarily where consequences of failure to corytply I with the direction or requirement of statute are not .Y stated, the direction is treated as directory and not mandatory. In the case reported in Citibank N.A. v. Judge, Banking Court-lV and 2 others [(20 11 CLC 1 7 1)(Lahore)l the recovery suit of the bank was dismissed being incompetent simply on the ground that the plaint was not accompanled by the Power of Attorney but the learned Division Bench of this Court noted that though requirement of law was to file plaint along with the Power of Attorney but section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 20 11 had not provided that if a copy of the Power of Attorney is not filed along with the plaint, the plaint would be dismissed." (bold added)

19.As mentioned above what very often may be decisive in I determining whether a provision is mandatory is if a consequence/ sanction is used after the word "shall" i.e' unless something is done within a given period the following consequences will follow. For example, if S' 16 (a) provided the express wording that, 'unless S.16 (a) was complied with the accused would be automatically granted bail" (despite the offense under the NAO being non bailable) or "unless S' l6 (a) was not complied with the accused would be automatically acquitted of the charge

20.However no such express consequences/ sanctions have been provided by the legislature in the event that S'16 (a) is not complied with which in our view tilts the balance in favour of S. 1 6 (a) being directory in nature rather than mandatory despite the words "shall" being used'

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21 . In the recent CASC of Collector of Sales Tax t Gujranwalla V Messrs Super Asia Mohammed Din and

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Sons (20 17 SCMR 1427) despite it being a tax matter the Hon ble Supreme Court delved ' deeply into the issue of

whether a provision was mandatory or directory and held as under at P.1437

"The ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the i legislative intent. While the use of the word 'shall' is t ol th" sole factor which determines the mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent' Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is thq object and purpose of the statute and the provision in question. It is the duty of the Court to garner the real intent of th e legislature as expressed in the law itself. Reference m ay be made to the cases of Saed Zi aHa ider Rizvi a nd others u. Dep utu Commiss ioner of Wealth Tax. Lahore and others QOl1 SCMR 420), In Re, Presidential Election, 7974 IAIR 1974 SC 16 82 ). Lqchmi Narain u. (Jnion of India IAIR 1976 SC 714) and Dinesh Chandra Pand eu u, Hi qh Court of Ma dhua Pardesh a.nd another [(2 o10) , r scc 500il." (bold added)

22.Now if we consider how heinous the Supreme Court has deemed offenses under the NAO to be could it be the intent of the legislature to have made S'16 (a) mandatory whereby its non compliance would lead to automatic bail or acquittal? For example in the case of Abdul Aziz Memon V The State (PLD 20 13 SC 594) when discussing whether onty public officials L fel1 within the purview of the NAO the Supreme Court held as under at P.639 with respect to the heinousness of offen'ses under the NAO.

"This court had also found that such provisions of the National Accountability Ordinance, 1999 were quite justified in view of the gravity of the menace of rampant

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corruption the sajd Ordinance was meant to tac{<le' Dealing with such stringent provisions of the Control of Narcotic Substalces Act, tgSZ and their interpretation one of us (Asif Saeed. Khan Khoso, J) had observed as a Judge of the Lahore High Court in the case of Nazir Husiain v. The State (2002 PCr.l) 440) as undec- "7 The learned counsel for the petitioner is quite right in pointing out that in the case of ) ihani-ur-Rehman v. The State 1996 PCr'LJ 347, Muhammad Afzal v' The State 1998 PCT.LJ 955 and Naveed Ahmed Khan v. The State 1999 PCT.LJ 63 it had been held that if the aliegation leveled against an accused person attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997 as well as the provisions of Article 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penai provisions attracted to the same allegation against an accused person that penal piovision is to be applied which carried a iesser punishment or attracts lesser rigours of the law, i.e. Article 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, we have noticed in this cor-rtext that in al1 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 Judgis deciding those cases. 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 fotce. The provisions of section 74 of the said Act may also be advantageously relerred to in this context' The overriding effect of section 76 of the Act of 1997 was clearly noticed and expressly referred to in the case of Khalil-ur-Rehman v. The State 1998 PCr'1J 1625 for bnishing aside an argument that the case ofi the :be accused pei"on in that case maY considered to be one under Article 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and not to be that under section 9 of the Control of Narcotic Substances Act, 1997, for the purposes of the said accused person's bail. We respectfully subscribe the ,ri.r" expressed in this regard in this precedent case.

11 . We are conscious that some of the views expressed by us above and some of V't

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the interpretations advanced by us vis-i- vis different provisions of the Control of Narcotlc Substances Act, 1997 may appeat' 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 '1 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.

The perils of corru otion in a socie ty are far greater than the hazards of narcotics and, thus, the observations made above in the context of the Control of Narootic S ubstances Act 1997 are attracted with a greater force i n the context of the National Accountabili tv Or dinance, 1999. I t may not be forgotten that by virtue of section 3 of the National Accountability Ordinance, t999 the provisions of the said Ordinance are to have an overriding effect over any other law for the tipe being in force." (bold and underlining added)

23.Crimes of corruption under the NAO are not ordinary crlme s. They are crimes against society as a whole' For offenses of corruption charged under the NAO (white 'c.ollar crimes) the Hon'ble Supreme Court in the recent case of Itai Mohammed Khan V NAB (2017 SCMR P. 1152) f'^" ,< emphasized that the grant of bail in such cases must be construed strictly and rigidly even if, as in that case relerred to above, the amount involved was on the lesser side being only approx RS 12M in the following terms at P'1154 para 7;

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t2 q61 .each "Under the principle of law and justice, bail petition is to be decided on its own merits and the 1aw applicable 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. The public money, allocated for social sector and cconomic rvell being of the poor people, a is consistently ernbezzled / misappropriated at a large scale and why the majority of the population is deprived of essential daily utilities, like 'pure drinking water, hea-lth care and education facilities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arrest 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 ordinary criminal cases and of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the 1 time of conviction, once the case is proved against hirn then, Courts are not supposed to show any rnercy by taking a lenient view in the matter of sentence." (bold added)

24.Thus, even for the grant of 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 this NAB bail case is to show how stringently the law of bail is applied to NAB cases by the supreme court and thus if the grant of bail is to be construed so strictly and rigidly how can it be expected that parliament intended that S. 16 (a) be mandatory in nature and the accused be granted automatic bail or even be acquitted if 5.16 (a) was not complied with? It rvould in our view in eflect render the Asfandyar Wali I(han case (PLD 2OOl SC 6O7) on the ability r7

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of the High Courts to grant bail in their constitutional jurisdiction a-Imost 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 legislaillre which was in essence found to be a

unconstitutional. This is because if S' 16 (a) NAO was mandatory in nature then there would be little, if any, need for an accused to apply for bail as such accused would stand acquitted if his trial was not completed in 30 days' /_) < Once again when we consider mandatory and directory provisions it is worth considering the Control of Narcotic Sub stances (AnalVsts) Rut$ es 2001 wherebY Ruie 4 Provides as under:

4.Dispatch of sample for test or analysis' 1) ( Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled seized, shall be drawn on the spot of "rb!tu.tl."

recovery and dispatched to the officer-in-charge of .r"u.r""i Federal Narcotic Testing Laboratory, depending upon the availability for test facilities' either by insured post or through special messenger duly authorized lor the PurPose.

(2)Samples may be dispatched lor analysis under the .ou.. of a Test Memorandum specified in Form-l at the earliest, buf not later than seventy-two hours of the seizure. The envelope should be sealed and marked "secret Drug Sample/Test Memorandum " (bold added)

26.When determining whether Lhis 72 hour period as provided in Rule a (2) (supra) was mandatory or directory in nature the Hon'ble drp."-. Court in the case of Tariq Mehmood v. The state [elo 2009 SC 39) held such time period to be directory in nature since in effect to hold ither*i"e may lead io the defeat of the purpose of the legislature whlch was to combat the menace and the socia-l evils of the drug trade.

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28.We are further fortified in our finding by the fact that cases under the NAO are non bailable and that the Hon'ble Supreme Court has, so far as we are aware, never granted bait or acquitted an accused under the NAO for non compliance with 5.16 (a) NAO' On the contrary there is a plethora of Supreme Court case law to show that bail will not even be granted on hardship grounds unless there has been a considerable delay in concluding the triai (well beyond 30 days, being many months if not a few years), that the delay is not caused by the accused or his counsel and the completion of the trial is no where in sight in the foreseeable future ln many cases the superior courts have even give directions to complete the trial within a given period whilst rejecting bail e.g. within 3 months which tends to show that the courts do not regard S.16(a) NAO as mandatory but rather directory in nature. Logic, common sense and whether a matter appeals to reason wouid in our view also support this concluqion as hardly any NAB cases are heard on a day to day basis or completed within 30 days and as such in our view it cannot have been the intention of the legislature that in offenses of l{

l5 4to such a hernous and serious nature rnvolvrng corruption that if S.i6 (a) NAO was not gompiied wrth all the accused would be granted bail (in thi'$, non bailable offense)or acquitted which in effect would mean that all the accused tn NAB cases ttnder the NAO would stand acquitted which would completely defeat the ob;ect and purpose of the entire legislatron; namely to bnng the corrupt to Lrook or even render.

such legislatron redundant in practrce

29.In making this finding we would like to emphasize that it in no way detracts from the NAB and the accountabilrty courts obhgatror-r to complete the trial of the accused under the NAO as expedrtrously as possrble and that in approprlate cases of delay bail may be granted.

30.We would also observe that stnce hardly any NAB tnal proceeds on a day to day basrs or is completed wrthin 30 days in order to grve effect' to the rntent and spirit of the NAO whrch specrfically provtdes for expedrtious trrals rt rs incumbent upon the Federal Government to establish sufficient accountability courts in cach provlnce to ensure that such NAB trials are completed wrthin the shortest possible ttme rather than be left to drag on for years on encl, rvhich rs very often the case tn tnais under the NAO, due to a lack of accountabrlity courts and 3udges especrally as statutory bail on the grounds of delay are not avaiiable rn such cases.

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31.We accept that such delay is caused by a number of factors such as the criminal justice system itself whereby 'if

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an absconder is later arrested the charge has to be reframed

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and all the evidence again recorded from scratch which leads to inordinate delay; the prosecution not producing PW:s or -t documents in a timely manner and adding too many accused in the reference and too many PW's and documents which long makes the trial almost unmanageable and unnecessarily of especially as each of the accused will have a separate right cross examination of each PW through a different counsel.(In this respect in some cases under the NAO as many as 5O accused have been placed in the reference and the average appears to be at least 10 to 15) and the defense counsel' seeking adjournments . on account of seniors being busy before superior courts,t counsel on general adjournments' lawyers strikes, illness, deaths in the family' absence of accused etc. However, the accused should not be made to

suffer and rot in jail for years on end due to such short comings/failures which are often not caused by him' Ultimately, it is the obligation of the state as envisaged under the NAO to provide an expeditious trial to the accused

32.As such the Federal Law Secretary is hereby directed to establish within 3 months of the date of this order three

more fully functioning accountability courts in 'Karachi :.il

staff ald complete with office spate, judges, al1 other ancillary necessary equipment so that the back log of accountabiiity casesinSindhcanbereducedandmeaningfuleffortsmade

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not to complete such trials exfieditiously so that accused do Ianguish in jaiis for years on end which was not contemplated under the NAO which provides for speedy trials' ;

33.With regard to the delay in the disposal of r'the ( -1 petitioner's case it would appear from a report received from the trial court dated OQ-I2-2017 that some of the co-accused

including the petitioner have moved a criminal transfer application before this court and since then have deliberately not been proceeding with the reference despite their being

no stay on the proceedings and as such any delay in the

completion of the petitioner's trial lies at the door of the

petitioner and his co-accused' An extract of the afordsaid report is set out below for ease of reference; namely "On 14.06-20 17 counsei for co-accused Officer in agnn ZuUai. misbehaved with the Presiding ti"., .orr,, therefore; on account of his affer contemptuous summer conduct the matter was adjourned thereafter accused persons filed transfer ""."tio. No.50/2017, which i1 n3nain8 before "ppll."t,i"" H'J";UI" High Court of Sindh Karachi' Prior to filing daily' transfer afplication reference were Proceeded but after filing transfer application by accused their s-enior counsel are not appearing in Lourt and their junior counsel intimated on each transfer date of hearing about pendency -of Ippir..ai""' Now ihe matter is fixed onog'12'2ol7"'

34.The office shall immediately transmit a copy of this ordertotheFederalLawSecretary'Governmentof in Pakistan, Islamabad for information and compliance. respect of para 32 of this order' MIT II shall also alter 2

monthsofthedateofthisorderputupacompliancereport with regard to the progress made by the Federal Government

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in estabhshrng the three addttional accountabilrty courts tn Karachr as per para 32 of thrs order'

a- This petrtion staYrds dismissed in the above terms.

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