P L D 2020 Balochistan 10
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General, NAB, Islamabad ---Petitioner
Versus
ABDUL HAKEEM, GENERAL MANAGER EXPORT, PSO, KARACHI
and 3 others ---Respondents
Constitutional Petition No.457 of 2019, decided on 3rd October, 2019.
(a) Criminal trial ---
----Re -investigation--- Discharge of accused ---Prerequisites ---No provision of law existed
preventing an investigating agency from conducting reinvestigation or even multi -
investigations after discharging an accused in earlier investigation--- Such is subject to
condition that investigator has discovered some new evidence connecting accused with commission of offence which were not in his knowle dge during earlier investigation---If
investigating agency intends to reinvestigate case, right course is to seek permission form Magistrate or a Court which passed for closure for earlier investigation.
(b) National Accountability Ordinance (XVIII of 199 9)---
----S.18(c) ---Seventeen years old case--- Reinvestigation---"Investigation by National
Accountability Bureau (NAB) and "Police investigation" ---Distinction ---National
Accountability Bureau was aggrieved of order passed by Accountability Court denying reinvestigation of the case ---Lot of difference existed between manner and procedure of
investigation conducted by police and NAB as latter had more resources and time to collect all possible evidence--- Presumption after closure of earlier investigation, w as that accused
was granted clean chit ---If in same case, reinvestigation was requested by NAB authorities, it
had to approach Accountability Court concerned and must show that some new and
important evidence was collected connecting accused with commissio n of offence which for
reason, could not be collected at time of earlier investigation ---Accountability Court was not
to blindly follow opinion of investigator and upon its satisfaction could order reinvestigation by assigning reasons ---Accused persons, in the present case, were facing inquiry and
investigation for a long period and inquiry started in year 2002---In between period, accused persons were called many times during inquiry as well as during investigation---Investigation/case was closed on reques t of Chairman NAB by Trial Court, even when Trial
Court noticed accused persons at time of filing application for investigation/reopening of case, same were received unserved to extent of some accused persons as some of them reportedly had died---High Cour t declined to allow reinvestigation as accused persons had
suffered for last 17 years for no fault on their part ---Investigation agency could not be
allowed to make mockery of law and keep sword of proceedings/prosecution hanging over heads of accused per sons for any further period---Constitutional petition was dismissed in
circumstances.
Aftab Ahmed v. Hassan Arshad PLD 1987 SC 13; Mirdad Khan v. Zahir Shah 2000
PCr.LJ 1739 and Bahadur Khan v. Muhammad Azam and others 2006 SCMR 373 rel.
Jaffar Raza, Sp ecial Prosecutor NAB for Petitioner.
Nemo for Respondents.
Date of hearing: 20th August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The fact of the case are that an inquiry/investigation
was sanctioned against the respondents by the Chairman NAB in the year 2002 and after a
detailed investigation, there was no evidence against the respondents, as such, an application
on behalf of the Chairman NAB was filed before the Accountability Court -II, Quetta, to
get permission for closure of the investigation. The application was allowed by means of
order dated 03.09.2005, in result whereof the investigation stood closed.
2. Subsequently, the NAB Balochistan filed an application before the Accountability
Court -II, Quetta, ("the trial Court") in the month of June , 2009 for re -investigation of the
matter. The application was allowed by the Court on 19.06.2009, whereby the NAB Balochistan was permitted for re -investigation.
3. The respondents filed Constitution Petition No.579 of 2009 before this Court, the said
petition was partly allowed and the order dated 19.06.2009 passed by trial Court was set
aside on 07.06.2016 with the following observations: -
"Thus, in view of above, the petitions are partly allowed. The order dated 19.06.2009 passed by the Accountability Court -II, Quetta, is set aside and the application for re -
investigation so filed by the NAB shall be deemed to be pending before it, which shall decide the application, strictly in accordance with law and on its own merits, after providing opportunities of hearing to the parties. This is an old matter, therefore, the
Accountability Court shall decide the application at the earliest within a period of 90 days".
4. The learned trial Court after hearing arguments of the parties, dismissed the
application of the petitioner for reopening of the investigation on 07.03.2019, hence this petition.
5. We have heard the learned counsel for the parties and gone through the ava ilable
record. There is no provision of law, preventing an investigating agency from conducting re -
investigation or even multi -investigations, after discharging an accused in the earlier
investigation, but subject to the condition that the investigator has discovered some new
evidence, connecting the accused with the commission of the offence, which were not in his knowledge during the earlier investigation. Thus, if the investigating agency intends to reinvestigate the case, the right course is to seek per mission from the Magistrate or a Court,
which passed order for closure of earlier investigation.
6. It has further been noticed that when report under Section 173 Cr.P.C., is forwarded
to Magistrate for taking cognizance of the offence, the Magistrate can direct the Officer Incharge of the Police Station to make further investigation keeping in view the provision of subsection (2) of Section 173, Cr.P.C. From the plain reading of above section, it becomes clear that even after submission of report under subsection (2) of Section 173, Cr.P.C, police has a right to further investigation but not fresh investigation or re -investigation. Although,
under special circumstances re- investigation can be permitted after submission of report
under Section 173, Cr.P.C., and during the trial before the learned trial Court but findings of such investigation are just an opinion of the police and Court has to decide the case after recording evidence of the parties.
7. An investigation in police cases is normally conducted by a police officer with limited
resources, who is bound to complete the investigation within fourteen days as provided by Section 173 of Cr.P.C. whereas under the NAB Ordinance, before starting an investigation, an initial inquiry is conducted and if some ma terial comes on the record, an investigation is
sanctioned by the Chairman NAB. Such investigation is being conducted by a team of qualified investigators, who have sufficient time at their disposal for finalization of the
investigation. If the police inte nds to close an investigation, it seeks permission of the
Magistrate, which after satisfaction, agrees with the I.O. and passes an order for discharge of
an accused. In case if the NAB authorities want closure of an investigation, they request the Special Judge, Accountability Court, who is qualified to be a Judge of the High Court and
normally is a senior Sessions Judge, who upon his satisfaction, orders closure of the
investigation.
8. There is a lot of difference between the manner and procedure of inves tigation
conducted by the police and the NAB. The latter has more resources and time to collect all
the possible evidence, therefore, after closure of earlier investigation, it is presumed that the accused has been granted a clean chit. But if in the same case, re- investigation is requested
by the NAB authorities, it shall approach the Accountability concerned and must show that some new and important evidence has been collected, connecting the accused with the commission of the offence, which for the reason, cannot be collected at the time of the earlier investigation. The Special Judge, Accountability Court would not be expected to blindly follow the opinion of the investigator. The Court upon satisfaction, can order re -investigation
by assigning reasons i n this behalf. We rely upon the cases of Aftab Ahmed v. Hassan
Arshad and Mirdad Khan v. Zahir Shah respectively (PLD 1987 Supreme Court 13) and (2000 PCr.LJ 1739).
9. The system of re -investigation was disapproved by Hon'ble Supreme Court of
Pakistan in j udgment reported as Bahadur Khan v. Muhammad Azam and others (2006
SCMR 373) wherein it has observed as under: --
"(c) Criminal Procedure Code (V of 1898).
---Ss.156 & 173--- Reinvestigation ---System of reinvestigation is a recent innovation
which is alw ays taken up at the instance of influential people for obtaining favourable
reports, which in no way assists the Courts in coming to a correct conclusion, rather
they create more complications in the way of administration of justice ---Such system
of reinve stigation and successive investigations, therefore, was disapproved".
10. Subsection (a) of Section 16 of National Accountability Bureau Ordinance, 1999
provides that an accused shall be prosecuted for an offence under this Ordinance in the Court and the c ase shall be heard from day to day and shall be disposed of within 30 days. The
investigation and inquiry was sanctioned against the respondents by the Chairman NAB in the year 2002 for re -investigation and thereafter reopening of case after 17 years would be
contrary to the scheme of aforesaid law.
11. The criminal justice system requires that a person accused of a crime is brought to
justice as speedily as possible, so if he is found guilty he is punished and if he is found to be innocent he is discharged and/or acquitted. The maxim that justice delayed is justice denied
comes true when a criminal trial or case remains pending indefinitely for no reason whatsoever. A procrastinated trial not only adversely affects the prosecution case but may also seriousl y hamper the defence.
12. In the case in hand, an investigation was conducted on the basis of allegation against,
the respondents and during course of investigation, the investigation team of NAB has taken all relevant record/documents into his possession from concerned department through recovery memos and recorded statements of witnesses and thereafter on the basis of collected evidence prepared final investigation report and recommended/concluded that there was no incriminating material against the respo ndents which involved the respondents. It also
reveals from the record that thereafter on the approval of Chairman NAB an application for
closure of investigation was filed before the trial Court in 2005 and said application was
accepted on 03.09.2005 by t rial Court with observations "that no prima facie case is made
out against the respondents and investigation was ordered to be stopped for the reason that there is no further prosecution".
13. It is also reflect from the record that on the same set of allegations four inquiries were
initiated against the respondents by the Customs Department and respondents were charge
sheeted and statement of allegation was served upon them but no effective proceedings were
initiated against them. The respondents have been exonerated of the four administrative
inquiries.
14. The petitioner (NAB authority) filed application for re -investigation/reopening of the
Reference against the respondents on the basis of alleged new evidence which were collected subsequently, on perusa l of the so- called new evidence/additional which were mentioned in
para- 5 in the application filed by the NAB authorities for reopening of the investigation are
not in fact additional evidence/new evidence for the reasons that the alleged documents have already been examined by the NAB/FBR during multiple inquires conducted by NAB and
Custom Department.
15. It is clear from the above facts that the respondents have not been dealt with in
according with law. The respondents are facing inquiry and investigati on for a long period as
inquiry started in the year 2002. In between the period the respondents were called many times during inquiry as well as during investigation. In spite of the fact that the investigation/case was close on the request of Chairman NAB by the trial Court, and even
when the trial Court noticed the respondents at the time of filing application for reinvestigation/reopening of the case the same were received unserved to the extent of some respondents, as some of the respondents were report edly died. In such circumstances, the
respondents have suffered agony of inquiry and investigation for the last 17 years for no fault
on their part, therefore, the investigation agency cannot be allowed to make mockery of law and keep the sword of proceedi ngs/prosecution hanging over the head of respondents for any
further period, as such, the petition filed by the petitioner is hereby dismissed.
MH/128/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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