Mrs. ROSHAN and others vs THE STATE
The applicants, who were directors of a private limited company, sought pre-arrest bail in connection with a reference filed by the National Accountability Bureau alleging wilful default in repaying financial facilities obtained from a bank. The core legal question was whether the High Court possessed the jurisdiction to grant bail under the National Accountability Bureau Ordinance, 1999, given the statutory language regarding the bar on bail. The court noted that while Section 9(b) of the Ordinance initially barred courts from granting bail, subsequent legislative amendments and the Supreme Court's observations in Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607) clarified the legislative intent. Specifically, the omission of the phrase "including the High Court" from Section 9(b) via Ordinance No. XXXV of 2001 indicated a legislative intent to restore the High Court's jurisdiction. Consequently, the court held that it retained the authority to grant bail in cases arising under the Ordinance. The application was allowed, and the pre-arrest bail previously granted was confirmed, acknowledging the applicants' status as non-functioning directors and the concession by the prosecution.
- Does the High Court have jurisdiction to grant bail in cases arising under the National Accountability Bureau Ordinance, 1999?
- What is the legal effect of omitting the phrase 'including the High Court' from Section 9(b) of the National Accountability Bureau Ordinance, 1999?
- Section 9(b), National Accountability Bureau Ordinance 1999
- Section 497, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 426, Code of Criminal Procedure 1898
- Section 491, Code of Criminal Procedure 1898
- National Accountability Bureau (Amendment) Ordinance 2000
- Ordinance No. XXXV of 2001
ORDER
1. The applicants are Directors of Messrs Kaloodi International (Pvt.) Limited and Abdullah Kaloodi is its managing Director. Three of the applicants are sisters of Abdullah Kaloodi and fourth is his wife.
2. The National Accountability Bureau has filed a reference, being Reference No,37 of 2001, before an Accountability Court against present applicants with Abdullah Kaloodi and Abdul Shakoor Ismail Kaloodi for their failure to abide by their commitments and the agreements executed with Mehran Bank Limited, now merged with National Bank of Pakistan, and for not paying back outstanding dues, constituting the offence of wilful default. The present applicants, therefore, filed this application for pre-arrest bail.
3. ' Interim pre-arrest bail was granted to them on 10-9-2001, subject to surety in the sum of Rs,500,000 each and P.R. Bonds in the like amount. On 20-9-2001, the bail was confirmed on the same terms and conditions through short order.
4. The applicants claim that they are non-functioning directors of the Company that obtained financial facilities from the Bank and they have no part to play in the actual business of the Company or in utilization of the funds of the Company. In view of this fact, and that the applicants are women, Mr. Anwar Tariq learned counsel appearing for the National Accountability Bureau conceded to the grant of bail to the applicants, but he pointed out that, as the law on the subject stands now, no Court has powers to grant bail and "no Court" includes this Court also. Thus, the factual aspect relevant for grant of bail needs no further reasoning, but the point of jurisdiction needs examination.
5. ' Section 9(b) of National Accountability Bureau Ordinance, 1999, was, originally, as under:- "9(b). All other offences under this Ordinance shall be non-bailable, and notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the codes, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
6. Through National Accountability Bureau (Amendment) Ordinance, 2000 (Ordinance IV of 2000), sections 426 and 491 of Cr.P.C. Were added and words "including the High Court", were also added after the words "No Court". After the judgment of the Supreme Court in the case of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), the Ordinance was again amended through Ordinance No,XXXV of 2001 and the words "including the High Court" were omitted from section 9(b) of the Ordinance. Thus, the subsection reverted to the original form with respect to description of the Court.
7. ' Section 9(b) of the N.A.B. Ordinance, 1999, in its original form, provided that no Court had powers to grant bail. The legislators considered that the term "no Court" did not include High Court and, therefore, they expressly barred the jurisdiction of High Court by inserting the words "including High Court". The Supreme Court in the case of Khan Asfand Yar Wali v. Federation of Pakistan, observed that the jurisdiction of High Court should not be barred in respect of grant of bail in these cases and, therefore, the legislators again omitted the words "including the High Court" from section 9(b) of the N.A.B. Ordinance, 1999. Thus, it is clear that the intention of the legislators for omitting these words was to give jurisdiction to High Court, although it has not been reflected in the law by appropriate and meticulous drafting. The High Court has, therefore, jurisdiction to grant bail.
8. ' These are the reasons for the short order passed on 20-9-2001.
9. Pre-arrest .