P L D 2014 Balochistan 109
Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ
ASHFAQUE AHMED and 4 others ---Petitioners
Versus
NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others ---
Respondents
Constitutional Petition No.258 of 2013, decided on 13th November, 2013.
(a) Words and phrases ---
---"Complaint" ---Definition.
(b) National Accountability Bureau Ordinance (XVIII of 1999) ---
----S. 18(a) ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Reference to
Accountability Court ---Initiation of proceedings on the directions of Service Tribunal ---Scope ---
Petitioner/civil servant challenged penalty order passed by the departmental authority before the
Service Tribunal ---Petitioner was found involved in embezzleme nt, therefore the Service
Tribunal referred the matter to National Accountability Bureau for initiation of proceedings ---
National Accountability Bureau, in pursuance of the directions of Service Tribunal, sanctioned
investigation into the matter and finall y submitted a reference against the petitioner before
Accountability Court ---Contention of the petitioner was that cognizance of any offence could
only be taken on a reference made by the Chairman National Accountability Bureau and as such
proceedings init iated on the directions of Service Tribunal were coram non judice ---Validity ---
Anybody or any authority could inform the National Accountability Bureau that a person holding
a public office was involved in an offence punishable, such information could be t ermed as
complaint ---National Accountability Bureau authorities could initiate proceedings against a
person on its own accord, only on coming to know about an offence from any source, including a
reference received from government or upon receipt of a comp laint---Such information could
also be gathered from a judgment or order of Tribunal or Court, forming basis to initiate
proceedings by the Chairman NAB on its own accord ---Reference submitted on the directions of
a Tribunal, did not vitiate the investigat ion or proceedings before the Trial Court ---Constitutional
petition was dismissed.
Muhammad Aslam Chishti and Abdul Rasheed Khokhar for Petitioner.
Muhammad Afzal Jami, Deputy Prosecutor -General ("DPG") along with Ameer Zaman
Joqezai, Special Prosecu tor, NAB.
Date of hearing: 10th September, 2013.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---Background of the case is that a departmental
inquiry was initiated against the petitioners, and subsequently, they were punished by the
competent authority. Being aggrieved, they preferred Service Appeals Nos. 8, 10, 11, 12, 13 and
16 of 2000, before the Balochistan Service Tribunal, Quetta ("the Tribunal"). While deciding the
appeals, the Tribunal, through a common judgment on 21st December, 2000, made the fo llowing
directions: --
"The appellants have not only embezzled the amount, but had also brought a bad name
and ill -repute to the Country, therefore, it is a fit case, to be referred to the Provincial
Accountability Bureau, Quetta.
A copy of this judgm ent be sent to the Provincial Accountability Bureau, Quetta for
information and action.
Announced on:21 -12-2000."
2. Pursuant to the said directions, the National Accountability Bureau ("NAB") sanctioned
an investigation into the matter, and finally s ubmitted a reference against the petitioners before
the Accountability Court -II, Balochistan Quetta, ("the trial Court"). It is, however, to be noted
that in the meanwhile, the petitioners challenged the order of the Tribunal before the Hon'ble
Supreme Cou rt of Pakistan, which set aside the order and remanded the case to the Department
for conducting fresh inquiry, if so desired. The petitioners filed an application under section 265 -
K Cr.P.C. read with section 17(a)(b) and section 18(a) of the National Acc ountability Bureau
Ordinance, 1999, ("the Ordinance"), which was dismissed by the trial Court on 28th March,
2013, hence this petition.
3. The learned counsel for the petitioners stated that according to section 18(a) of the
Ordinance, no cognizance of a ny offence shall be taken, except on a reference made by the
Chairman, NAB, or any officer of the NAB duly authorized by him. He argued that proceedings
under this Ordinance can only be initiated by the Chairman NAB on (i). a reference received
from the ap propriate Government; or, (ii). receipt of a complaint; or (iii). its own accord. The
learned counsel stated that, while submitting the present reference, the NAB authorities did not
follow the prescribed procedure. According to him, there is no provision under section 18(a) of
the Ordinance to initiate proceedings on the directions of the Tribunal, therefore, the reference
submitted by the NAB authorities against the petitioner and the proceedings initiated thereon by
the trial Court are coram non judice, which requires to be quashed.
4. The learned D.P.G., NAB, opposed the contention and stated that though the proceedings
against the petitioners were initiated by the NAB authorities pursuant to the order of the
Tribunal, but there is no provision under t he law to debar the NAB authorities to take action
against a person upon a direction of a Court or a Tribunal. He added that even otherwise, after
coming to know about the commission of the corruption by the petitioners, the present reference
was properly filed. He stated that the investigation, the submission of the reference against the
petitioners and the trial are just and proper, therefore, the same cannot be quashed.
5. We have heard the learned counsel for the petitioner and have gone through the r ecord. It
is a fact that the Chairman NAB sanctioned the investigation against the petitioners after
receiving the copy of the judgment of the Tribunal, and subsequently, found that there are
sufficient materials available on the record, connecting the pet itioners with the commission of
the offence, hence the Reference No. 3 of 2008 was submitted before the trial Court. Section
18(a) of the Ordinance authorizes only the Chairman NAB or an officer of the NAB authorize by
him, to submit a reference in an Acco untability Court against any person involved in the
commission of an offence, falls under the Ordinance. The purpose for assigning such power to
the Chairman NAB is to protect a citizen from malicious and frivolous prosecution and to put a
check upon frequ ent and arbitrary prosecution of a citizen. It is, therefore, abundantly clear that
no one, except the Chairman NAB or an officer authorized by him, is competent to sanction an
investigation, sign and file a reference in a Court of law against any person h olding a public
office at the time of the commission of an offence.
6. Similarly, the mode for submission of a reference has been provided by sub -clause (b) of
section 18 of the Ordinance, wherein a reference shall be initiated on, (i) a reference receiv ed
from the appropriate Government; or, (ii) receipt of a complaint; or (iii) its own accord. It is clear
that if any Government/Semi -Government wants to initiate criminal proceedings under the
Ordinance against any person holding a public office, it may s end a reference to the NAB
authorities in this behalf. Since, no specific form of a reference has been provided in this behalf,
therefore, any written formal document could be considered as a reference. On receipt of such
reference, the NAB authorities the n can initiate proceedings according to the provisions of the
Ordinance. Secondly, the proceedings under this Ordinance may be initiated by the NAB
authorities on receipt of a complaint. The word 'Complaint' has been defined in the Black's Law
Dictionary a s under: --
"A formal charge accusing a person on an offence. Indictment; information."
Similarly, in the Concise Oxford English Dictionary, it is defined as under: --
"an act or the action of complaining.
a reason for dissatisfaction"
Thus, accusing a person is known as a compliant, which may be oral or in writing. Hence,
a 'written Complaint' is just a primary document or an information, forming a basis for settling a
law at motion, therefore, on receiving a complaint, the NAB authorit ies should consider the same
accordingly. It is important to mention here that this clause did not specify as to who will be a
complainant. The intention of the legislature is clear, that anybody or authority can inform the
NAB that a person holding a publ ic office is involved in an offence punishable under the
Ordinance, therefore, such information can be termed as a complaint. Thirdly, the NAB
authorities may initiate proceedings against a person on its own accord. Naturally, he can initiate
a proceedings on its own accord, only on coming to know about an offence from any source,
including a reference received from a Government or upon receipt of a complaint. Such
information may also be gathered from a judgment or order of a Tribunal or Court, forming bas is
to initiate proceedings by the Chairman NAB on its own accord, as provided by sub -clause (ii) of
clause (a) of section 18 of the Ordinance and sub -clause (iii) of clause (a) of section 18 of the
Ordinance. Hence, mentioning of the fact that a reference has been submitted on the directions of
a Tribunal, does not vitiate the investigation or proceedings before the trial Court. The learned
counsel for the petitioners have not been able to point out any illegality, irregularity or
jurisdictional defect in t he investigation as will as in the proceedings before the trial Court,
therefore, we see no reason to interfere in the impugned order.
Thus, in view of what has been stated and discussed hereinabove, the petition is
accordingly dismissed. The trial cour t should proceed with the matter expeditiously in
accordance with law and to decide it as early as possible.
JJK/118/Bal Petition dismissed.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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