2017 P Cr. L J 747
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
PERVEZ ZAKI ---Petitioner
Versus
The STATE through National Accountability Bureau, Balochistan, Quetta ---Respondent
C. P. No. 1299 of 2015, decided on 28th November, 2016.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 9(a) & (b)---Constitution of Pakistan, Art. 25---Pre -arrest bail, grant of ---Discrimination ---
Standing Operating Procedure (SOP), non- compliance of ---Petitioner was accused under
Nation al Accountability Ordinance, 1999, who sought his pre -arrest bail on the ground that value
of subject matter of allegation was less than Rs. 100 million and according to their SOP, National
Accountability Bureau could not investigate such matter ---Validity ---Standing Operating
Procedure issued by Chairman NAB was applicable throughout the country ---Discrimination in
treatment to citizens by public authorities could not be allowed to sustain in opposition to law on
the subject as constitutional protection under Art. 25 of the Constitution guaranteed equality of
all citizens ---Reference against petitioner was based on documentary evidence and the same had
already been submitted before the Court ---Investigation against accused was completed and
proceedings had commenced ---Petitioner was no more required for the purpose of investigation--
-Pre-arrest bail was confirmed in circumstances.
Rauf Bakhsh Kadri v. The State 2003 MLD 777; Amjad Hussain v. NAB C.P. No. D -
1210 of 2016; State through Chairman NAB v. Hanif Hyder 2016 SCMR 2031 and Asfandyar
Khan's case PLD 2001 SC 607 rel.
(b) National Accountability Ordinance (XVIII of 1999) ---
----Preamble---Petty offences ---Jurisdiction of National Accountability Bureau---Scope ---Aims
and objects of National Accountabilit y Ordinance, 1999, are to root out corruption in public
departments of high magnitude ---If National Accountability Bureau starts involving itself in
small matters it would deviate from the objective of National Accountability Ordinance, 1999.
(c) National Accountability Ordinance (XVIII of 1999) ---
----S. 16(a) ---Constitution of Pakistan, Art. 10A ---Delay in trial---Effect ---Fair trial has been
guaranteed by Art. 10A of the Constitution--- Inordinate delay in trials has not only eroded public
confidence in judicial system on one hand but it also creates a sense of helplessness, frustration
and anguish amongst them on the other hand---Expeditious and fair trial is by now Fundamental
Right of accused person ---Object of criminal law is to bring accused to justice as speedily as
possible and if he is found guilty, he must be punished and if he is innocent, he should be
acquitted forthwith of the charge.
Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645 rel.
Afrasiab Barakzai for Petitioner along with Petitioner on bail.
Muhammad Ewaz Zehri and Riaz Akhtar Tareen, Special Prosecutors (NAB) for the
State.
Date of hearing: 15th November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---Through this constitutional petition, petitioner Parvez
Zaki son of Zaki Ullah seeks concession of pre -arrest bail in Reference No.09 of 2010 filed by
the National Accountability Bureau (NAB) before the Administrative Judge, Accountability
Court, Quetta ("the trial Court") on 2nd November, 2010.
2. It is case of the prosecution that the petitioner and co -accused: viz, Ishfaq Khalid, while
holding public offices as Senior Accounts Officer and cashier in Revenue office WTR/PTCL,
Quetta during the year 1991 to 1999 were grossly indulged in misusing their positions, hence
resulting corruption and corrupt practices. It is also alleged in the reference that PTCL HQ,
Islamabad from the year 1992 to 1999 allocated an amount of Rs.4,61,52,000/ -for the salaries of
daily wages staff, which was, thereafter, to be distributed by Regional Office to each revenue
office at Balochistan wherein staff of daily wages were deputed and the Senior Accounts Officer
PTCL/WTR, Quetta Ishfaq Khalid received an amount of Rs.2,08,01,000/ - during the year 1992
to 1999, which was transferred in the account of Senior Accounts Office r and, subsequently,
accused Ishfaq Khalid drew this amount in cash with connivance of the petitioner, thus, it has
been proved that the co- accused and the petitioner have embezzled an amount of Rs.1,(sic.)
3. We have heard Mr. Muhammad Afrasiab Barakzai, learned counsel for the petitioner,
M/s Muhammad Ewaz Zehri and Muhammad Riaz Akhter Tareen, learned Special Prosecutors
(NAB) and also perused the available record with their valuable assistance. Learned counsel for
the petitioner contended that it is a c lassic case of mis -exercise of authority and jurisdiction by
the respondent by filing the instant reference against the petitioner. He further submitted that the
petitioner was associated during the course of investigation and reference has already been
submitted before the Court, thus, the petitioner is no more required for the purpose of
investigation and keeping him behind the bars would serve no purpose. While concluding his
arguments, he further submitted that even otherwise, the amount, allegedly, embezzled is too low
to attract the jurisdiction of NAB authorities under the NAB Ordinance 1999.
4. On the contrary, Mr. Muhammad Ewaz Zehri, duly assisted by Muhammad Riaz Tareen,
learned Special Prosecutors, appearing on behalf of the respondent, vehementl y contended that
sufficient documentary evidence is available on record to establish the complicity of the
petitioner with the crime in question. They further submitted that the petitioner remained
absconder for a long time, as such, he is not entitled for extraordinary relief of pre -arrest bail.
5. At the very outset, it may be relevant to state that we have observed in a number of cases
that the NAB authorities had initiated inquiries/investigations in cases of corruption, involving
minor amounts, which has not only engaged the skilled human resources and budget of NAB, but
also overlapping the jurisdiction of Federal Investigating Agency (FIA) and Anti -corruption
Establishment (ACE). The preamble of the NAB Ordinance 1999 would show and suggest to
believe that NAB was initially established to eradicate corruption and recover ill- gotten wealth,
however, subsequently, instead of dealing with large -scale corruption of public officeholders and
others, its officials started investigations/inquiries of small cas es, involving petty amounts. In
such backdrop, the chairman NAB issued Standard Operating Procedure (SOP), determining the
pecuniary jurisdiction and monetary value of the cases, the contents whereof are reproduced
herein below:
"Priority for Cognizance of Cases: The number of complaints received at NAB is way
beyond the capacity of handling. Taking on all the complaints is rather impossible and
can adversely affect the standard and quality of investigation. Therefore, it is impor tant to
sift the complaints according to the handling capacity and protect interest of state largely.
To rule out misuses of discretion and standardize the selection procedure at NAB 's level,
the consideration for cognizance of cases is defined as under:
i. Corruption cases against NAB officers/official/Law Officers/ Experts of NAB.
ii. Cases referred by Hon'ble Supreme Court of Pakistan, High Courts and Public
Accounts Committee (PAC).
iii. Cases of former/sitting legislators of National Assembly, Senate and Provincial
Assemblies (including ministers/advisers etc.) and elected representatives of local bodies,
where amount involved is more than Rs.100 million.
iv. Cases involving interest of members of public at large where the number of
defrauded person ar e more than 50 persons and amount involved is not less than Rs.100
million.
v. Cases against public servants, whether serving or retired, Bankers, Businessmen
and Contractors where amount involved is more than Rs.100 million.
vi. Cases of willful loan defa ult, loss to financial institutions as referred by State
Bank of Pakistan (SBP).
vii. Matters covered under section 31(a) of National Accountability Ordinance, 1999.
viii. Cases of money laundering referred by FMU.
ix. Any other case falling within the pur view of NAB, irrespective of the amount
involved and status of accused person, with prior approval of the Chairman."
6. The question of pecuniary jurisdiction of NAB was considered by a division bench of
Hon'ble High Court of Sindh in the case of "Rauf Bakhsh Kadri v. The State" (2003 MLD 777
Karachi), wherein it was observed:
"30. For the foregoing reasons we are inclined to hold that the qualifications laid down in
clause (ix) will also have to be read in the other clauses of section 9(a). In other words the
discretion of the Chairman, NAB or an officer authorized by him to file a reference
before the Accountability Court is not absolute or arbitrary. Such reference could be filed
only when the Chairman or the Authorized Officer is satisfied that the amoun t involved is
of large magnitude and resort to the facility of pre - bargaining to the accused would be in
the national interest. In the absence of such satisfaction a case could only be triable under
the ordinary law."
7. The same question i.e. pecuniary j urisdiction of the NAB and the potential overlapping
jurisdiction of other agencies involved in the investigation and prosecution of acts of corruption
and the relevant law was again considered by a division bench of Hon'ble High Court of Sindh at
Karachi in the case of "Amjad Hussain v. NAB", (C.P. No.D -1210 of 2016) and it was held:
"40. We agree with such finding and taking into account the above discussion on the
pecuniary jurisdiction of NAB including NAB making the best use of its human
resources, equipment, office space etc and budget limitations we hereby endorse by way
of judicial order the NAB's SOP for dealing with pecuniary jurisdiction which is set out
at para 11 of this order which in our view meets the guidelines already set out by this
Court in Rauf Bakhsh Kadri's case (Supra) as we consider the figure of Rs.100 M to be
significantly large to justify the intervention of the NAB being the premier anti
corruption body in the Country provided that when a case does not fall within the SOP
and is t o be transferred to another agency the reasons for so doing are recorded in writing
by the Chairman NAB. For avoidance of doubt we also endorse (ix) of the SOP which
reads as under:
"Any other case falling within the purview of NAB, irrespective of the amount involved
and status of accused person, with prior approval of the Chairman."
41. This is because there may be cases falling below Rs. 100M which cannot be
prosecuted by any other agency and as such rather than letting the culprit off scott free
he/it s hould be prosecuted by NAB at the discretion of the Chairman. However in cases
below Rs. 100M which can be dealt with by other agencies such as FIA, ACE we would
expect NAB to send such cases to such alternate agencies for prosecution by virtue of
S.18(d) of the NAO which reads as under:
"S.18(d). The responsibility for inquiry into and investigation of an offence alleged to
have been committed under this Ordinance, shall rest on the NAB to the exclusion of any
other agency or authority, unless any agency or authority is required to do so by the
Chairman (NAB) or by an officer of the NAB duly authorized by him."
8. While considering the same question in case of "State through Chairman NAB v. Hanif
Hyder" (2016 SCMR 2031), the Hon'ble Supreme Court of Pakista n observed as under:
"During the hearing of these proceedings, we have noticed that the NAB in exercise of
powers under section 9 of the NAB Ordinance has started taking cognizance of the petty
matters and therefore, notice was issued to the DG NAB to subm it report in regard to the
enquiries and or investigations, which the NAB has undertaken in respect of the amounts
involved less than 100 Million and References, if any, filed which involved amount less
than 100 million. A list has been provided. It is evi dent from the list that prima facie the
enquiries and investigations undertaken by the NAB are not of mega scandals and
apparently petty matters have been enquired into on the complaints. This is not the
wisdom behind legislation of NAB Ordinance. The NAB Ordinance was primarily
legislated to counter mega scandals and book the persons who are involved in mega
scandals of corruption and corrupt practices."
9. When learned Special Prosecutors, appearing on behalf of respondent, were confronted
with such conte ntions, raised on behalf of learned counsel for the petitioner, they contended that
since there are no mega projects in the Province of Balochistan, involving mega scams, as such,
NAB Balochistan has been compelled and left with no option, but to initiate
enquiries/investigations and, secondly, the culprits involved in small cases cannot be let scot -
free. The contention of the Special Prosecutors, apparently, seems to be without any substance
for a number of reasons: firstly, the aforesaid SOP, issued by the Chairman NAB is applicable
throughout the country; secondly, the discrimination in treatment to the citizens by public
authorities cannot be allowed to sustain in opposition to law on the subject as constitutional
protection under Article 25 of the Const itution of Islamic Republic of Pakistan 1973 ("the
Constitution") guarantees the equality of all citizens; thirdly, the contention of Special
Prosecutors regarding non- availability of mega projects and mega scandals in Balochistan too
has no substance, par ticularly when a mega scandal has recently been unearthed by NAB itself,
wherein an amount to the tune of about Rs.600 Million was recovered only from a water tank,
what to say of the additional recoveries of gold ornaments, prize bonds etc.
10. We are con scious of the fact that under clause (ix) of the SOP, which has been endorsed
by way of judicial order, made by the Hon'ble High Court of Sindh in Amjad Hussain's case,
NAB authorities, with prior approval of the Chairman or any officer authorized by him i n this
behalf can take cognizance of any case falling within the purview of the NAB Ordinance,
irrespective of the amount involved and status of accused person. Similarly, under section 16(a)
of the NAB Ordinance, the Chairman can apply to any Court or Tri bunal for transfer of the case
to the Accountability Court. However, this controversy has been set at rest by the superior Courts
by holding that such power on the part of the Chairman is neither absolute nor arbitrary. A
reference could be filed only when the Chairman or the Authorized Officer in this behalf is
satisfied that the amount involved is of large magnitude and resort to the facility of plea -
bargaining to the accused would be in the national interest. In the absence of such
findings/satisfaction, a case could only be triable under the ordinary law. Needless to observe
that the superior Courts have power of judicial review and can examine the legality of the order
passed by the Chairman to see as to whether the reasons given by him have nexus with the
Statute under which it has been passed.
11. On our enquiry, we were informed by the Registrar of this Court that as many as 88 cases
are pending before the Accountability Courts, Quetta and in most of the cases, petty amounts are
involved, which is not only affecting the performance of NAB, but has also overburdened the
Accountability Courts, which are required to proceed with the matters on day to day basis and to
decide the same within a stipulated period of 30 days as envisaged under section 16(a) of the
NAB Ordinance. It may be added that the aims and objects of the NAB Ordinance is to root out
corruption in the public departments of high magnitude. If NAB starts involving itself in small
matters like one in hand, it would deviate from the objective of the NAB Ordinance itself. In
such situation, not, only NAB, which is otherwise the national premiere Institute for eradication
of corruption, but it would also face the criticism of pick and choose.
12. It may be noted that it is mandate of Article 9 of the Constitution that no person shall be
deprived of life or liberty save in accordance with law. Similarly, Article 10A of the Constitution
guarantees an opportunity of fair trial. Inordinate delay in trials has not only eroded the public
confidence in t he judicial System on one hand, but it also created a sense of helplessness,
frustration and anguish amongst them on the other hand. Expeditious and fair trial is by now
fundamental right of an accused person. The object of criminal law is to bring an accused to
justice as speedily as possible and if he is found guilty, he must be punished and if he is
innocent, he shall be acquitted forthwith of the charge. Under section 16 of the NAB Ordinance,
it is clearly provided that: "notwithstanding anything contained in any other law for the time
being 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". The
Hon'ble Supreme Court of Pakistan in the case of "Muhammad Nadeem Anwar v. NAB" (PLD
2008 SC 645), while dilating upon the preamble of the NAB Ordinance as well as Section 16
thereof observed as under:
"National Accountability Ordinance, 1999 was promulgated in order to provide effective
measures for detection, investigation, prosecution and speedy disposal of cases involving
corruption, corrupt practices, misuse and abuse of power or authority, misappropriation
of property, taking kickbacks, commissions and for matters connected and ancil lary or
incidental thereto. Object of National Accountability Ordinance, 1999, in its preamble, is
to provide expeditious trial of scheduled offences within the shortest possible time.
Accused was entitled to expeditious and inexpensive access to justice, which included a
right to fair and speedy trial in transparent manner without any unreasonable delay. Such
intention had been re -assured in section 16 of National Accountability Ordinance, 1999,
laying down criteria for day to day trial and its conclusion within thirty days. Such object
did not appear likely to be achieved anywhere in the near future and would not constitute
a bar for grant of bail to accused. Truth or otherwise of charges levelled against accused
could only be determined at the conclusion of trial after taking into consideration the
evidence adduced by both the parties. Supreme Court converted petition for leave to
appeal into appeal as accused were entitled to grant of bail pending conclusion of trial."
13. It would also not be out of place to mention here that we also have other institutions, like
Anti-Corruption Establishment as well as Federal Investigating Agency, which are not only fully
equipped, but have the capacities on account of their human resources and budgetary resources
can easily deal with such like matters under the Prevention of Corruption Act, 1947 and the
Federal Investigation Agency Act, 1974.
14. It may be added that the provincial bureaucracy, which is already facing the challenges of
capacities due to lack of prop er training and opportunities, has developed a general trend of
refraining from the discharge of their legal authority/duties and the officials at decision -making
level are reluctant of taking concrete steps for the betterment of general public due to pani c
spread among them on account of indulgence of NAB in such petty matters. Such aspect of the
matter was considered by Hon'ble Supreme Court of Pakistan in the well celebrated judgment of
Khan Asfandyar Khan's case, wherein it was observed:
"229. Viewed in the above context, although shifting of burden of proof on an accused in
terms of section 9(a)(vi)(vii) read with section 14(d) may not be bad in law in its present
form, but would certainly be counter -productive in relation to the principle of good
gover nance. If decision -making level officials responsible for issuing orders, SROs
extractor 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 t o 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."
15. In view of the aforementioned discussion, the respondent is di rected to re- examine all the
enquiries/investigations pending before it, in view of the principles laid down, hereinabove. In
case the Chairman or any officer authorized in this behalf is satisfied that the amounts involved
are large enough to justify proc eedings under the NAB Ordinance, they may continue with the
investigations/inquiries, if not so, the cases may be transferred to the appropriate concerned
agencies.
16. So far as the References, already submitted before the Accountability Courts are
concer ned, it may be stated that the vires of certain provisions of the NAB Ordinance 1991 came
up for consideration before the Hon'ble Supreme Court of Pakistan in Khan Asfandyar Khan
Wali's case (PLD 2001 SC 607) and, after declaring section 16- A ultra vires to the Article 4 of
the Constitution, the following directions were issued:
"242. Resultantly, in the matter of transfer of Province or from one Province to another,
as contemplated under section 16A, the prosecutor and the accused must be placed on
equal f ooting. To this extent, section 16A is declared ultra vires the Constitution and
needs to be suitably amended."
17. In view of the aforementioned observations, made by the Hon'ble Supreme Court, sub-
clause (c) was added to section 16 -A, which reads as unde r:
"(c) The accused may also make an application to the Supreme Court for the transfer of a
case from a Court in one Province to a Court in another Province and to the High Court for
transfer of a case from one Court in a Province to another Court in the same Province and the
Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the
case from one Court to another Court, and the case so transferred shall be tried under this
Ordinance without recalling any witness whose evidence may have been recorded."
18. After adding clause (c) in section 16A, the accused has been brought on equal footing and
now he also has a right to ask for transfer of the case on the ground that the offence in question is
not an offence unde r the National Accountability Bureau Ordinance, 1991.
19. Coming back to the prayer of the petitioner for concession of pre -arrest bail, it may be
noted that when the instant constitutional petition was filed, the petitioner was in custody due to
his convi ction under section 31- A of the NAB Ordinance, which was challenged by means of a
separate Criminal (Ehtesab) Appeal No.1 of 2016, wherein the operation of impugned order
dated 16th August, 2011, passed by the Accountability Court -II, Quetta was suspended and the
appellant was ordered to be released on bail under section 31- A of the NAB Ordinance. The
record reveals that in pursuance of the order passed by this Court in the said appeal, the appellant
was reportedly released from custody, which reflects that he was not taken into custody in the
instant Reference. The record further reveals that the Reference is based on documentary
evidence and in this respect, Reference has already been submitted before the Court. Since the
investigation has been completed, Reference has also been filed and the proceedings have been
commenced, as such, the petitioner is no more required for the purpose of investigation.
For the aforesaid reasons, we are inclined to accept this petition and confirm ad interim
order dated 8th March 2016 of this Court, whereby the petitioner was admitted to pre -arrest bail,
subject to furnishing surety bond in the sum of Rs.2,00,000/ - and PR bond of the like amount to
the satisfaction of Additional Registrar of this Court.
MH/1/Bal. Pre-arrest bail confirmed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.