SC ruling defines HCs jurisdiction of bail in NAB cases
Judgment says Article 199 of the Constitution to be applied to prevent miscarriage of justice and abuse of NAB law
Supreme Court of Pakistan. PHOTO: AFP
ISLAMABAD:
The Supreme Court has urged the high courts to exercise jurisdiction under Article 199 of the Constitution in white-collar crime cases only to prevent miscarriage of justice and abuse of the National Accountability Ordinance (NAO), 1999.
The court said in its judgment on an appeal against the grant of bail to an accused in the Rs15 billion scam that powers under Article 199 – which defines the jurisdiction of high courts – should not be used to convert the high court into a court of ordinary criminal jurisdiction.
"The jurisdiction under Article 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999," said the judgment, authored by Justice Amir Hani Muslim.
"Such jurisdiction is not to be exercised as a substitute of power under sections 426,491, 497,489 and 561-A of Code of Criminal Procedure 1898 liberally and indiscriminately converting High Court into wholly court of ordinary criminal jurisdiction," it added.
The case pertained to an accused, Murad Arshad. The Lahore High Court (LHC) on January 18 granted him bail. The National Accountability Bureau (NAB) had challenged the LHC verdict and on Tuesday the apex court cancelled his bail.
The court said that since the promulgation of Ehtisab Act, 1997 and replaced by NAO, 1999, the jurisdiction of trial court – the accountability court – "has been expressly ousted to concede bail", which in turn burdened all the high courts with "load of bail applications" under Article 199 of the Constitution.
"As held in the case of Hema Misra (Supra) jurisdiction under Article 199 of the Constitution has to be exercised with circumspection and caution as extraordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law," said the ruling.
Special NAB Prosecutor Imranul Haq, challenging the LHC verdict, had argued before a three-judge bench, that the NAO was a special law and all offences under it were non-bailable. He added that grant of bail in respect of offences committed under the NAO 1999 was an exception.
The court upheld that NAO 1999 was a special law, enacted with an objective to combat white-collar crime of high magnitude. "It provides for taking effective measures for the detection, investigation, prosecution and expeditious trial of offences as enumerated under section 9 of the NAO…" it said.
"All offences under the NAO, 1999 are made non-bailable notwithstanding general provisions of Code of Criminal Procedure, 1898 viz. Sections 426, 491, 497, 489 and 561-A thereof, which regulate power of Courts to suspend sentence, pass order in the nature of habeas corpus, pre-arrest, post-arrest bail, inherent power of the High Court in furtherance of power under the Code to prevent abuse of process of Court or otherwise to secure ends of justice by virtue of non-obstinate provisions of Section 9(b) of the NAO, 1999," said the ruling.
According to the judgment, the veil of incorporation and circumstances under which it could be lifted depended on facts and circumstances of each case and statutory regime applicable to such facts.
"In many a jurisdiction including Pakistan many a times corporate attire is being abused for covert purposes to fleece innocent public, commit fraud, launder crime money, convert ill-gotten gain and conveniently getting away with it and escape criminal liability etc," the verdict said.
It added that the courts in various jurisdictions adopted a progressive approach under compelling circumstances to scrutinise such legal attire, piercing the veil of incorporation, to identify the real schemers indulged in such acts and seeking refuge behind such cloak and got away unaccountable.
"However, such doctrine is no more treated sacred or revered rule of thumb," the order said, adding that NAO, 1999 gives "NAB authorities power to pierce the veil of incorporation and nail down the real persons under whose dictate and command affairs of errant corporate entity were conducted and to find out who is the actual and real actor and beneficiary of crime committed under the NAO, 1999".
NAB had accused that Murad Arshad and his brother were the directors of Orange Holdings (Pvt) Ltd, which launched subsidised housing scheme essentially for the families of junior commissioned officers (JCOs), non-commissioned officers (NCOs) and the army personnel.
NAB prosecutor had informed the court that the accused lured members of the public to invest Rs15.476 billion, out of which Rs13.2 billion was directly transferred in the bank accounts of their other companies, in which both the brothers were holding controlling and beneficial shares.
It was also argued that large number of commercial plots and amenity plots were fraudulently got transferred in favour of Bank of Punjab (BoP) through the help of other co-accused by deceiving BoP and DHA authorities.
The Supreme Court has urged the high courts to exercise jurisdiction under Article 199 of the Constitution in white-collar crime cases only to prevent miscarriage of justice and abuse of the National Accountability Ordinance (NAO), 1999.
The court said in its judgment on an appeal against the grant of bail to an accused in the Rs15 billion scam that powers under Article 199 – which defines the jurisdiction of high courts – should not be used to convert the high court into a court of ordinary criminal jurisdiction.
"The jurisdiction under Article 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999," said the judgment, authored by Justice Amir Hani Muslim.
"Such jurisdiction is not to be exercised as a substitute of power under sections 426,491, 497,489 and 561-A of Code of Criminal Procedure 1898 liberally and indiscriminately converting High Court into wholly court of ordinary criminal jurisdiction," it added.
The case pertained to an accused, Murad Arshad. The Lahore High Court (LHC) on January 18 granted him bail. The National Accountability Bureau (NAB) had challenged the LHC verdict and on Tuesday the apex court cancelled his bail.
The court said that since the promulgation of Ehtisab Act, 1997 and replaced by NAO, 1999, the jurisdiction of trial court – the accountability court – "has been expressly ousted to concede bail", which in turn burdened all the high courts with "load of bail applications" under Article 199 of the Constitution.
"As held in the case of Hema Misra (Supra) jurisdiction under Article 199 of the Constitution has to be exercised with circumspection and caution as extraordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law," said the ruling.
Special NAB Prosecutor Imranul Haq, challenging the LHC verdict, had argued before a three-judge bench, that the NAO was a special law and all offences under it were non-bailable. He added that grant of bail in respect of offences committed under the NAO 1999 was an exception.
The court upheld that NAO 1999 was a special law, enacted with an objective to combat white-collar crime of high magnitude. "It provides for taking effective measures for the detection, investigation, prosecution and expeditious trial of offences as enumerated under section 9 of the NAO…" it said.
"All offences under the NAO, 1999 are made non-bailable notwithstanding general provisions of Code of Criminal Procedure, 1898 viz. Sections 426, 491, 497, 489 and 561-A thereof, which regulate power of Courts to suspend sentence, pass order in the nature of habeas corpus, pre-arrest, post-arrest bail, inherent power of the High Court in furtherance of power under the Code to prevent abuse of process of Court or otherwise to secure ends of justice by virtue of non-obstinate provisions of Section 9(b) of the NAO, 1999," said the ruling.
According to the judgment, the veil of incorporation and circumstances under which it could be lifted depended on facts and circumstances of each case and statutory regime applicable to such facts.
"In many a jurisdiction including Pakistan many a times corporate attire is being abused for covert purposes to fleece innocent public, commit fraud, launder crime money, convert ill-gotten gain and conveniently getting away with it and escape criminal liability etc," the verdict said.
It added that the courts in various jurisdictions adopted a progressive approach under compelling circumstances to scrutinise such legal attire, piercing the veil of incorporation, to identify the real schemers indulged in such acts and seeking refuge behind such cloak and got away unaccountable.
"However, such doctrine is no more treated sacred or revered rule of thumb," the order said, adding that NAO, 1999 gives "NAB authorities power to pierce the veil of incorporation and nail down the real persons under whose dictate and command affairs of errant corporate entity were conducted and to find out who is the actual and real actor and beneficiary of crime committed under the NAO, 1999".
NAB had accused that Murad Arshad and his brother were the directors of Orange Holdings (Pvt) Ltd, which launched subsidised housing scheme essentially for the families of junior commissioned officers (JCOs), non-commissioned officers (NCOs) and the army personnel.
NAB prosecutor had informed the court that the accused lured members of the public to invest Rs15.476 billion, out of which Rs13.2 billion was directly transferred in the bank accounts of their other companies, in which both the brothers were holding controlling and beneficial shares.
It was also argued that large number of commercial plots and amenity plots were fraudulently got transferred in favour of Bank of Punjab (BoP) through the help of other co-accused by deceiving BoP and DHA authorities.