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In the Islamabad High Court, Islamabad (Judicial Department)

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In the Islamabad High Court, Islamabad (Judicial Department) Form No: HCJD/C-121 ORDER SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT) W.P. No.1133/2020 Muhammad Masood Chishti Versus Chairman, National Accountability Bureau & 4 others Petitioner / : Mr Muhammad Amjad Pervaiz, Advocate. Respondents in Mr Tariq Mehmood Jehangiri, Advocate. appeals by Mr Muhammad Ramzan Chaudhry, Advocate. Chaudhry Haseeb Ahmed, Advocate. Mr Muhammad Ahsan Bhoon, Advocate. Mr Azam Nazir Tarar, Advocate. National : Mr Jehanzeb Khan Bharwana, Addl. Prosecutor General. Accountability Mr Imran ul Haq Khan, Deputy Prosecutor General. Bureau by Barrister Rizwan Ahmed, Special Prosecutor. Syed Jalal Hussain , Special Prosecutor. Mr Yasir Saleem Rana, Special Prosecutor. Ms Asma Chaudhry, Deputy Director/Investigating Officer. Date of Hearing : 05-10-2020 ATHAR MINALLAH, C.J.- Through this consolidated judgment we will decide the titled constitutional petition along with Criminal Appeal No.249/2019, titled ‘The National Accountability Bureau, through the Chairman v. Justice (R) Riaz Kiyani’ and Criminal Appeal No.248/2019 titled ‘The National Accountability Bureau, through the Chairman v. Zaheer ud Din Babar Awan’. 2. The facts and circumstances are peculiar. The initiation of the case appears to have been influenced by proceedings which had been taken up by the august Supreme Court. The record does not Page : 2 W.P. No. 1133/2020 show that the apex Court had directed the initiation of an inquiry or investigation. It is a case which probably highlights the concerns of the august Supreme Court observed in the case titled ‘Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others’ [PLD 2001 SC 607] and the relevant portion is reproduced as follows.- "If decision making level officials responsible for issuing orders, SROs etc. are not protected for performing their official acts in good faith, the public servants and all such officers at the level of decision making would be reluctant to take decisions and/or avoid or prolong the same on one pretext or another which would ultimately lead to paralysis of State-machinery. Such a course cannot be countenanced by this Court." 3. The criminal appeals have been preferred by the National Accountability Bureau (hereinafter referred to as the ‘Bureau’) under section 32 of the National Accountability Ordinance, 1999 (hereinafter referred to as the ‘Ordinance of 1999’) assailing separate orders, dated 25-06-2019, whereby two of the accused arrayed in Reference No.18/2018, namely Justice (rtd) Riaz Kiyani and Zaheer-ud-Din Babar Awan, have been acquitted from the charges framed against them. Their petitions under section 265-K of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘Cr.P.C.’) were accepted. Another accused arrayed in the same reference, namely Muhammad Masood Chishti, had also sought acquittal but his prayer was declined by the learned Accountability Court-II, Islamabad vide order dated 18-03-2020. The said order has been assailed by invoking Page : 3 W.P. No. 1133/2020 the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the ‘Constitution’). RELEVANT FACTS.- 4. The facts, in chronological order, leading to the filing of Reference No.18/2018, are as follows.- 27-12-2007. The Economic Coordination Council (hereinafter referred to as the ‘ECC’) approved the Nandipur Power Project (hereinafter referred to as the ‘Project’). The ECC also gave approval for the execution of a contract between GENCO-III/PEPCO and Dong Fang Electric Corporation (hereinafter referred to as the ‘Corporation’). The approval was subject to the issuance of guarantees by the Government of Pakistan regarding finance facility of US $ 329 million. The contract was executed between M/s Northern Power Generation Company Ltd. (hereinafter referred to as the ‘Company’) and the Corporation on 28-01- 2008. Two consortiums were established for financing the Project i.e. COFACE (Euro 68.967 million) and SINOSURE (US$ 150.151 million), respectively. The draft agreements relating to the financing consortiums were duly vetted by the Ministry of Law, Justice and Parliamentary Affairs (hereinafter referred to as the ‘Ministry of Law’). Page : 4 W.P. No. 1133/2020 03-10-2008. The agreement with COFACE consortium was executed. In the case of the other consortium, one of the lending Banks withdrew its consent and, therefore, an agreement could not be signed. 04-03-2009. The Ministry of Law, in response to a letter, dated 03-03-2009, of the Ministry of Water and Power, advised the latter to proceed by taking appropriate decisions in consultation with the Finance Division. It was observed that the two Ministries were the most appropriate arbiters to get out of the imbroglio/quandary because of the peculiar situation described in the letter. 19-03-2009. After considerable delay, another lending institution consented to join the consortium, namely, SINOSURE and consequently an agreement was executed in Beijing, Republic of China. The executed agreement included some changes to the clauses contained in the draft which had been vetted by the Ministry of Law. Page : 5 W.P. No. 1133/2020 30-03-2009. The executed agreement with SINOSURE was forwarded by the Ministry of Water and Power to the Ministry of Finance and the latter was requested to give its ex-post facto approval. 07-04-2009. The Finance Division vide letter, dated 07-04-2009, sought comments / clearance of the Ministry of Law and the contents thereof are reproduced as follows.- “The undersigned is directed to refer to Law & Justice Division O.M. No.1(297)/08 Law-II dated 4th March, 2009 on the above subject. 2. The observations of Law & Justice Division were taken up by the Ministry of Water & Power / PEPCO with the lenders wh has clarified the position in the table placed at annexed-I. 3. The team of PEPCO visited Beijing on 17 – 19th March, 2009. The Exim Bank of China Sinosure presented final draft agreement which contained the changes to the earlier draft examined by Law & Justice Division. These changes are tabulated in annex-II. The PEPCO’s team has signed the Facility Agreement on 19-3-2009 containing the last momentum changes made by Exim Bank and Sinosure. A copy of Facility Agreement signed by PEPCO is placed at annex-III. 4. The Ministry of Water & Power and PEPCO has requested for ex-post facto approval and issuance of GOP guarantee as per format given in schedule 6 of Buyers Credit Facility Agreement signed by PEPCO on 19-3-2009. 5. It is requested that comments/clearance of Law and Justice Division may please be conveyed to enable Finance Division to proceed further. Page : 6 W.P. No. 1133/2020 17-04-2009. The contents of the aforementioned letter were examined by the Ministry of Law and vide memorandum, dated 17- 04-2009, the following opinion was given.- “The undersigned is directed to refer to the Finance Division’s (External Finance Wing) O.M. No.1(1)EF ©/07-456, dated 7th April, 2009, on the above mentioned subject and to state that as to the issuance of the ex-post facto approval of this Division is concerned, it is stated that under the Rules of Business, 1973, Law & Justice Division only vets the final draft Agreement form the legal point of view. Therefore, no ex-post facto approval can be given specially when the finality of the Agreement has taken place. 2. However, the draft GOP Guarantee, which was a part of the main transaction document as agreed and entered into between the parties, has been examined. It is observed that it is not as per the standard approved GOP guarantees by this Division. Although, this Division has its reservations on some of the provisions and also that the GOP Guarantee should not be more than three to four pages and the irrelevant material should be deleted, yet as the draft has been agreed between the Parties, accordingly, the referring Ministry may take necessary action. 3. Further, for future course of action, these documents should not be referred as precedence. Standard draft provision should be decided principally, in order to narrow down the scope of disagreements with Lenders and other Parties. It is also suggested that extensive meetings be arranged by referring Ministry in order to develop standard drafts with consultation of Law & Justice Division and other concerned Ministries.” It is noted that when the above opinion was given, neither the respondents in the appeals nor the petitioner were holding any Page : 7 W.P. No. 1133/2020 public office in the Ministry of Law. They were also not associated with its affairs in any other manner. Justice (rtd) Agha Rafique Ahmed Khan Durrani was then holding the charge of Secretary, Ministry of Law. The latter was not arrayed as an accused. 25-04-2009. The Ministry of Law, vide Office Memorandum dated 25-09- 2009, gave its concurrence in relation to the proposals mentioned in the draft summary which was intended to be placed before the ECC. 04-06-2009. Justice (rtd) Riaz Kiyani was posted as Secretary, Ministry of Law and he served in that capacity till 24-12-2009. During his tenure a letter, dated 07-07-2009, written by PEPCO, was forwarded to the Ministry of Law by the Ministry of Water and Power. The letter was examined and Ms Shumaila Mehmood, Consultant (Research) sent her professional opinion to the Secretary, Ministry of Law and it was approved by the latter. The Ministry of Water and Power was informed/advised vide letter, dated 04-09-2009. The Ministry of Law offered its opinion in paragraph 2 of the letter. Page : 8 W.P.
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