2013 P Cr. L J 405
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman ---Petitioner
Versus
NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD through Chairman
and 2 others ---Respondents
Constitutional Petition No.683 of 2012, decided on 22nd October, 2012.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 5(m) & 18(c) ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Holders of
public office ---Inquiry, non -initiation of ---Effect ---Statutory body through its Chairman
assailed conducting of inquiry by National Accountability Bureau against its officers ---
Validity ---Officials of Balochistan Public Service Commission were permanent employees
and as such were in the service of Pakistan, therefore, their service was within the definition
of "a person holding public office" ---National Accountability Bureau was empowered under
National Accountability Ordinance, 1999, to initiate proceedings against any person holding
public office on the charge of corruption, corrupt practices or misuse of authority etc. ---No
one was empowered under National Accountability Ordinance, 1999, to start proceedings
against any person, until and unless inquiry or investigation was sanctioned by competent
authority ---No inquiry was sanctioned into the matter, therefore, raid conducted by
authorities at the office of Commission was illegal and without jurisdiction ---When a thing
was required to be done in a manner, then it should be done accordingly ---Petition was
allowed accordingly.
Barrister Adnan Kasi for Petitioner.
Muhammad Afzal Jami, D.P. -G. NAB along with Salah -ud-Din Mughal, Assistant
Director/Investigation Officer (FCIW) NAB (B) for Respondents.
Date of hearin g: 17th October, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---The officials of National Accountability
Bureau (NAB) Balochistan in supervision of the respondent No.3 on 27th September, 2012
raided the office of the Balochistan Public Service Commission (ca lled hereinafter as "the
Commission") and took into possession the record pertaining to the examination in respect of
different posts. The petitioner being the Chairman of the Commission, feeling aggrieved from
the action of the NAB authorities, filed the present petition.
2. Learned counsel for the petitioner contended that under section 6 of the Balochistan
Public Service Commission Act 1989 (called hereinafter "the Act"), only Governor is
competent to initiate an inquiry against the Chairman and member s of the Commission,
therefore, the NAB has no jurisdiction to initiate proceedings against them. It is further
alleged that, no inquiry was sanctioned by the competent authority at that time, therefore, the
entire proceeding of the raid at the office of t he Commission is illegal. The learned counsel
for the petitioner alleged that the respondent No.3, during the raid, misbehaved and abused
the petitioner and the officials, which act is against the provisions of Article 14 of the
Constitution of I slamic Republic of Pakistan.
3. The learned Deputy Prosecutor -General (DPG), NAB, appeared along with the
respondents and opted not to file the para -wise comments or the counter -affidavit on their
behalf and decided to argue the matter. He opposed the co ntention and stated that the NAB
has got the authority to initiate proceedings against the officials of the Commission, who are
holding a public office, therefore, the proceedings initiated against them are quite
competent. Controverting the arguments of the learned counsel for the petitioner, the
learned Prosecutor produced a letter dated 1st October, 2012, showing that the matter has
been referred for inquiry against the Commission by DG NAB. He further stated that the
respondent No.3 did not abus e the petitioner or the officials, however it was informed that the
officials of the Commission were called for two dates before the institution of the petition.
According to him, the Director (Investigation) NAB (B) is the overall Incharge of the inquiry
and Investigation Cell, who is supervising the inquiry in accordance with law. He made a
statement that though the Chairman and the members of the Commission come within the
definition of "a person holding a public office", but so far, no proceedings have been initiated
against them, therefore, the petition is premature.
4. After arguing the matter, the Court was left to decide the jurisdiction of the NAB
regarding the proceedings against the Chairman, the Members and the officers of the
Commission. The B alochistan Public Service Commission was promulgated in the year 1989
and was suitably amended in the year 2004, and section 6 of the Act provides the procedure
for initiating inquiry against the Chairman and Member of the Commission, which is
reproduced h ereinbelow: --
"6. (1) If the Government is of the opinion that the Chairman or Member, by
reason of physical or mental incapacity, is unable to perform his duties or is guilty of
misconduct, the Government shall appoint a Judge of the High Court of Baloc histan,
to inquire into the matter.
(2) If after holding the inquiry, the Judge submits a report that the Chairman or
Member is incapable of performing his duties or is guilty of misconduct, the
Government may, notwithstanding the provisions of section 4 , recommend to the
Governor to remove such Chairman or Member. (*).3
Explanation ---for the purpose of this subsection, "misconduct" means a conduct
prejudicial to the good order or service discipline or contrary to the rules of conduct
applicable to Civ il Servants of the Province of Balochistan or unbecoming of an officer and
gentleman and include any act on the part of the Chairman or a Member, to bring or attempt
to bring political or other outside influence directly or indirectly to bear on Government or
any Government Officer, in respect of any matter relating to his retention as such
Chairman or Member, punishment, retirement of other conditions of his service and include -
(i) Conviction for an offence involving moral turpitude;
(ii) Active participation in the sectarian, communal or political controversy;
(iii) Persistent disregard of the regulation relating to conduct of affairs of
Commission.
(iv) Assuming a style of living beyond his legitimate means.
(3) For the purpose of inqui ry under this section the Judge have power vested in a
Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the
following matters, namely: -
(i) enforcing the attendance of any person and examining him on oath;
(ii) requiri ng the discovery of documents;
(iii) receiving evidence affidavits;
(iv) issuing commission for examination of witnesses or documents."
5. The Act empowers the Government to initiate an inquiry against the Chairman and
the Members of the Commission t hrough a Judge of the High Court. Of course that inquiry is
not equivalent to an inquiry or investigation as provided by the Criminal Procedure Code or
the NAB Ordinance, but it is a preliminary proceedings before initiating any action against
the incumben ts, who are holding a constitutional post. It is just to collect the material fact as
far as the allegations concerned, and to judge if prima facie case is made out or otherwise?
On completion of an inquiry, the Judge of the High court has to submit his re port to the
Government with recommendation for the -removal and initiation of criminal proceedings
against the incumbents. On receipt of the recommendation, the Government shall
immediately take action against him/her. It is true that the posts of the Chair man and the
Members is a constitutional post, but they don't enjoy any immunity, except the adoption of
the procedure in accordance with section 6 of the Act before taking any action under any law.
The procedure provided by the Act has neither an overridin g effect, nor it is inconsistent with
any provision of the NAB Ordinance. The Chairman and the Member of the Commission
deal in the affairs of the public, therefore, can be proceeded under the NAB Ordinance, but
subject to his/their removal in accordance w ith the Act, or after completion of his/their
tenure.
6. The Act says that if the Government is of the opinion, it shall appoint a Judge of the
High Court to inquire into the matter. The opinion of the Government could be formed from
its own sources or u pon any complaint received from any source. There are widespread
allegations against the Chairman, the Commission, regarding exams for the different posts
holding by the Commission, which is enough information for the Government to initiate
inquiry. The NA B has started inquiry into the matter against the officials, therefore, if any
material comes on record sufficient to initiate proceedings against the Chairman, the same be
submitted to the Government as a complaint for initiating inquiry against the Chair man as
provided under the Act.
7. As far as the officials of the Commission are concerned, they are the permanent
employees and as such are in the service of Pakistan, therefore, their service comes within the
definition of "a person holding public offic e." The Ordinance empowers the NAB authorities
to initiate proceedings against any person holding a public office on the charge of corruption,
corrupt practices or misuse of authority etc. There was a need to curb the menace of
corruption, corrupt practice s and misuse of authority by the holder of a public office,
therefore, the NAB Ordinance was promulgated to initiate a proceeding against an officer
holding a public office. Under section 18 of the Ordinance, if the Chairman NAB or an
officer of the NAB du ly authorized by the Chairman is of the opinion that it is necessary and
appropriate to initiate proceedings against any person as defined in the Ordinance, he shall
refer the matter for inquiry or investigation. The Chairman NAB has already delegated
powe rs to the Director -General NAB Balochistan to refer the matter for inquiry or
investigation, if he is of the opinion that it is, or may be, necessary and appropriate
against the following holders of a public office;
(i) Officer of Gra de 20 and below.
(ii) Holder of an office or post in connection with the affairs of a legal council.
Thus, in view of above, the DG NAB(B) has referred the matter for inquiry into the
scam, of the examination, held in respect of different posts, condu cted by the Commission,
which is quite competent. Thus, the DG NAB(B) has got the authority to initiate the inquiry
only against an officer up to Grade -20. The objection of the learned counsel for the petitioner
over the jurisdiction of the NAB authorities in respect of the proceedings against the officials
of the Commission is contrary to law, as such, is overruled.
8. The NAB is a national institution, having a great mandate and enjoys respectability
and confidence amongst the general public, therefore, the Chairman NAB and the officials
must maintain such respect and confidence. To save the institution from destruction and bad
reputation, the NAB authorities must take care of it faithfully in the national interest.
Sometime any officer or its employee b rings a bad name to an institution, and thereby
damages its reputation. It is, therefore, expected that the conduct and honesty of the officials
of the NAB must be above board and their actions must not be in violation of the Constitution
and law. No doubt , the NAB officials are dealing with the persons, involved in corruption or
corrupt practices, who may be convicted by a competent Court of law, but it does not allow
anybody to disgrace, abuse or torture them. Article 14 of the Constitution safeguards suc h
right of an individual, which reads as under: --
"14. Inviolability of dignity of man, etc. ---(1) The dignity of man and, subject to law,
the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose extracting evidence."
9. In view of the constitutional provision, no authority is above the law and even one
must remain within the domain of the provisions of the Constitution and the law. Through
this petition, the violation of the fundamental rights of the peti tioner and the officials of the
Commission by the respondent No.3 has been complained, therefore, it is necessary to dilate
upon this aspect as well. This petition contains certain allegations against the respondent
No.3 supported by an affidavit of the Ch airman of the Commission. The learned DPG NAB
appeared on behalf of the respondents, opted not to file the counter affidavit or the
rejoinder to the petition. By not doing so, the allegation levelled against the
respondents remained unr ebutted. It is a fact that the documents produced by the DPG NAB
shows that the inquiry into the matter was sanctioned on 1st October, 2012, but the letter
No.FCIW/NAB(B)/2012/320 dated 27th September, 2012, shows that the respondent No.3
had visited the o ffice of the Commission and got into possession the record. It is a settled
principle of law that when a thing is required to be done in a manner, then it should be done
accordingly. Under the Ordinance, no one is empowered to start proceedings against any
person, until and unless an inquiry or investigation is sanctioned by the competent authority.
Admittedly, on 27th September, 2012, no inquiry was sanctioned into the matter, therefore,
the raid conducted by the respondent No.3 in the office of the Commis sion was illegal and
without jurisdiction. While taking the record into possession, no legal formality was fulfilled.
On the first date of hearing before this Court, the respondent No.3 admitted that after the raid,
he called two officials of the Commissio n for two consecutive dates, but he did not record
their statements for the purpose of getting information necessary for the inquiry. He was
unable to answer that under which law and authority, he was competent to call the officials,
to which the responden t No.3 remained answerless. It shows that either the respondent
No.3 with mens rea, illegally detained the officials of the Commission for two days or he is
not acquainted with the manner and procedure, in which an inquiry or an investigation sh ould
be conducted. Keeping in view the unrebutted contents of the petition, there is no reason to
disbelieve the allegations levelled by the petitioners against the respondent No.3.
10. It is pertinent to mention here that the respondent No.3, while appe aring before this
Court, was charged and he was interrupting the arguments of the learned DPG. The Court
twice directed him to keep quiet and remain calm, but he was anxious to address the Court.
His conduct was contemptuous, however, for the smooth hearin g of the case, he was expelled
from the Court room. Over the behaviour of the respondent No.3, the DPG and the Director
(Investigation) NAB (B) tendered apology and assured that he would be disassociated from
the matter, which was subsequently done and thi s restrained us from initiating the contempt
of the Court proceedings against him. On the last date of hearing, the learned counsel
for the petitioner placed on record another letter issued by the respondent No.3 to the
officials of the C ommission for their appearance, despite the fact that he did not remain
associated in any manner with the inquiry. The DPG NAB and the newly posted Investigating
Officer were asked as to how the letter was issued by the respondent No.3, they could not
justify his action. The manner in which the respondent No.3 is acting, shows his personal
interest into the matter, for the reasons best known to him. The conduct of the officer
will not only damage the valued reputation of the NAB Balochistan, but may also
damage the high profile inquiry initiated in the affairs of the Commission. Under such
circumstances, the respondent No.3 is not a fit person to be assigned any inquiry or
investigation. The competent authority may assign him a d esk job, preferably at the NAB
Headquarter with no frequent contact with public.
11. Thus, in view of what has been stated and discussed hereinabove, the petition is partly
accepted. The inquiry initiated by the DG NAB on 1st October, 2012 in the scam of the
Commission is permissible under the law against the officials of the Commission upto Grade -
20. The people of Balochistan expect fair and transparent inquiry into the matter, therefore,
the DG NAB should personally supervise it and if needed, he may de pute a competent and an
honest investigator, so as to enable the Court to bring the culprits to justice.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,
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