2015 Y L R 868
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ
MUDASSAR ZAFAR and others ---Petitioners
Versus
The STATE through D.G. NAB ---Respondent
Constitutional Petitions Nos.340 to 348, 366 to 369, 444, 477 to 481 and 516 of 2014, decided on
11th September, 2014.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S.25(a) ---Constitution of Pakistan, Art.199--- Constitutional petition ---Voluntary return of
benefits ---Offer by National Acco untability Bureau--- Inquiry into commission of offence was
initiated against accused and they were offered by National Accountability Bureau to enter into
voluntary return of the benefits or to face investigation---Validity ---Notices issued by National
Accountability Bureau under S.25 of National Accountability Ordinance, 1999, were without any
lawful justification and legal authority ---National Accountability Bureau rather than probing to
the veracity of allegation and determining liability of any of the a ccused towards alleged
embezzlement of national exchequer, was acting in haphazard manner and to avoid thorough
probe, adopted short cut method by offering voluntary return to petitioners ---National
Accountability Bureau was not supposed to facilitate anyone under the garb of voluntary return
before determining his liability.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S.24---Constitution of Pakistan, Art.199--- Constitutional petition ---Arrest of accused ---
Procedure ---For causing arres t of any person, mandate of law has to be necessarily followed and
without adopting requisite procedure, arrests or detentions would be illegal, without lawful
authority and unconstitutional ---National Accountability Bureau authorities are bound by
mandate of law and cannot transgress their lawful authority ---Before causing arrest of accused or
anyone else the procedure laid down has to be followed in letter and spirit ---No arrest can take
place without adhering to mandate of law.
Raja Muhammad Zarat Kh an v. Federation of Pakistan PLD 2007 Kar. 597 rel.
(c) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 18, 19 & 25(a) ---Constitution of Pakistan, Art.199---Constitutional petition --Voluntary
return of benefits, offer of ---Initiation of inquiry ---National Accountability Bureau initiated
inquiry against petitioners and offered them to enter into voluntary return of the benefits or to
face investigation ---Validity ---No clog could be put upon any person under S.19 of National
Accountability Ordinance, 1999, in respect of any matter/inquiry/ investigation, irrespective of
the fact that either any such matter was pending before National Accountability Bureau or they
intended to initiate any such proceeding ---Voluntary return option was prerogative of person
concerned and National Accountability Bureau could not compel anybody to enter into voluntary
return option--- In case anyone intended to enter or avail voluntary return option with his/ her free
will, then National Accountability Bureau would be bound first to determine his/her liability and
thereafter to proceed ahead strictly in accordance with law ---Petition was dismissed accordingly.
Syed Iqbal Shah for Petitioners (in Constitutional Petitions Nos. 340 to 348 and 366 to
369 of 2014).
Syed Abuzar Haider and Ameer Zaman Jogizai, Senior Prosecutors NAB for Respondent
(in Constitutional Petitions Nos. 340 to 348 and 366 to 369 of 2014).
Muhammad Qahir Shah for Petitioners (in Cons titutional Petitions Nos. 477 to 481 of
2014).
Syed Abuzar Haider and Ameer Zaman Jogizai, Senior Prosecutors NAB for Respondent
(in Constitutional Petitions Nos. 477 to 481 of 2014).
Adnan Kasi for Petitioners (in Constitutional Petitions Nos. 444 a nd 516 of 2014).
Syed Abuzar Haider and Ameer Zaman Jogizai, Senior Prosecutors NAB for Respondent
(in Constitutional Petitions Nos. 444 and 516 of 2014).
Date of hearing: 4th September, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Throug h this common
judgment we intend to dispose of the aforesaid constitutional petitions, as common question of
law and facts are involved in these cases.
2. The succinct facts giving rise to these petitions are that the petitioners are present/Ex -
employees of the Irrigation Department Government of Balochistan. The Executive Engineer Pat
Feeder Canal Division at Dera Murad Jamali invited tenders for restoration of flood damages
2012 with caption of Flood Emergency Work for closing the breaches on both sides
(embankments) of main Pat Feeder Canal. The petitioners being Officers/Officials of the
Irrigation Department were somehow remained involved in the tendering process and were
assigned supervision/surveillance of the proposed works. The details of work ass igned to them
are as follows: --
In Constitutional Petitions Nos.340, 342 of 2014 the petitioners were assigned the work
to supervise the construction work from embankment of Jhatpat and Mohabbatpur Balan and
Bari Distributaries. In Constitutional Petition No. 341 of 2014 the petitioner was assigned with
the work to supervise the construction of embankments from Naseer, Judhair and Temple
Distributaries. In Constitutional Petitions Nos. 343, 344 of 2014 the petitioners were assigned the
work to supervise the construction of Rd- 0 to Rd- 45 embankment of Uch Canal, Rd- 45 to Rd-
172 embankment of Manuthi Canal and Rd- 0 to Rd- 75 embankment of Uch link head to tail. In
Constitutional Petition No. 345 of 2014 the petitioner (Sub- Divisional Officer) was assigned th e
work to supervise the construction of embankments from Rd- 418 to Rd- 490. In Constitutional
Petition No.346 of 2014 the petitioner was assigned the work to supervise the construction of
embankments from Rd- 342 to 418. In Constitutional Petition No. 347 of 2014 the petitioner was
assigned the work to supervise the construction of embankments from Rd- 0 to Rd- 342. In
Constitutional Petition No. 348 of 2014 the petitioner was assigned the work to supervise the
construction of embankments from Rupa, Umrani and Magsi Distributaries. In Constitutional
Petitions Nos. 366, 367, 368, of 2014 the petitioners were not assigned any specific work but
were deputed as "work Munshi". In Constitutional Petitions Nos. 477, 478, 479 of 2014 the
petitioners who being Sub- Engine ers at the relevant time were assigned the work to look after
the work after issuance of work orders. In Constitutional Petition No. 502 of 2014 the petitioner
is an Ex -Project of the Patt Feeder Extension Project, Irrigation Department Balochistan and is
currently confined in the District Jail Quetta.
In pursuance of the report submitted by Chief Minister's Inspection Team ("CMIT"), it
was revealed that initial project cost was 700.125 million for restoration of flood damages and
rehabilitation of canal system and at initial stage tentatively about 56 million losses were
deducted. On approval of inquiry, the main accused Shafi Muhammad Mengal the then
Executive Engineer Pat Feeder Canal was arrested. In terms of the inquiry proceedings, the
notices under Section 19 of the National Accountability Ordinance, 1999 ("NAO") were served
upon the petitioners, which read as follows: --
"Subject: - Call Up Notice under section 9 of NAO -1999- Inquiry Against Project
Director of Extension of Pat Feeder Canal Project and Others. ( Case No. 6494- A)
(1) This Bureau is conducting investigation against Project Director of Extension of Pat
Feed er Canal Project for the allegation of corruption and corrupt practices.
(2) Whereas, subject investigation has revealed that you are in possession of
information/evidence whatso- ever, which relates to the commission of said offence.
(3) In view, there of you are hereby called upon to appear on 12- 5-2014 at 10:00 a.m. hrs at
NAB Balochistan Complex, Shahrah- e-Gulistan Quetta Cantt. before Investigation Officer to
record your plea.
(4) You are advised that failing to comply with this notice, may entail penal consequences as
provided in S. 2 of the schedule of NAO 1999."
Sd/-
Investigation Officer
(Muhammad Umer Hayat)
Thereafter, Voluntary Return ("VR") notices within the meaning of Article 25(a) of the
NAO were served upon the petitioners. The rece ipt of VR notices gave rise to filing of these
petitions, substance whereof is reproduced herein below:
"Subject: Voluntary Return Option
(1) The proceedings under the provision of National Accountability Ordinance 1999 and
schedule thereto have been initiated against you and the case is at inquiry stage. Legally, you
have an opportunity at this stage to voluntarily come forward and offer to return the gains and
assets acquired by you within the meaning of section 25(a) NAO. This option shall not be
available after the authorization of investigation.
(2) You are hereby informed that in case you want to avail the opportunity of VR, you are
free to apply on the enclosed format within 10 days after the delivery of this letter.
Sd/-
Dy Dir (Coord)
(Syed Irfan Ali)"
3. The learned counsel for the petitioners mainly contended that under the garb of VR
option, the NAB authorities, threatened the petitioners for undue harassment and humiliation.
They contended that notices are motivated with malice an d malafides, the NAB authorities
intended to arrest the petitioners for misconceived reasons and without any justification. The
learned counsel added that after receipt of notices under section 19 NAO the petitioners appeared
and they furnished the requisi te information, while the relevant record was already impounded
by the NAB authorities. They maintained that no occasion was available to the NAB authorities
for issuing VR notices to the petitioners as neither the alleged embezzled amount has been
disclos ed to the petitioners nor their liability was determined so far. The learned counsel prayed
that the intended arrest of the petitioners be declared as illegal, without lawful authority and in
order to avoid any undue harassment and humiliation at the hands of the NAB authorities the
petitioners may be admitted to pre -arrest bail.
4. The learned Senior Prosecutors NAB submitted a resume of inquiry report and contended
that none of the petitioners were threatened by the NAB authorities and they were called upon to
furnish the relevant information pertaining to pending inquiry. They mentioned that in any case,
NAB will not violate the law and will act strictly in accordance with the scheme of NAO. They
added that the petitioners were called upon to enter into VR in good faith and the offer so made
cannot be termed as mala fides on the part of NAB authorities.
5. We have heard the learned counsel for the petitioners and the learned Senior Prosecutors
NAB and have also gone through the record of the case. Sect ions 19, 24 and 25 NAO are
applicable in these cases, therefore, it would be instructive to reproduce the following relevant
provisions of NAO in order to better understand the controversy:
"19. Power to call for information.
The Chairman NAB [an off icer of the NAB duly authorized by him] may, during the
course of an inquiry or investigation [of an offence under this Ordinance] or any rule or order
made thereunder: -
(a) call for information from any person for the purpose of satisfying himself whether there
has been any contravention of the provisions of this Ordinance or any rule or order made
thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the
inquiry or investigation;
(c) examine any person acquainted with the facts and circumstances of the case;
(d) require any bank or financial institution, notwithstanding anything contained in any other
law for the time being in force, to provide any information relating to any person whosoever,
including copies of entries made in a bank's or a financial institution's books such as ledgers, day
books, cash books and all other books including record of information and transactions saved in
electronic or digital form, and the keepers of such books or records shall be obliged to certify the
copies in accordance with law; and
(e) where there is reasonable suspicion that any person is involved in or is privy to an
offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the
High Court concerned, direct that surveillance of that person may be carried out through such
means as may be necessary in the facts and circumstances of the case and the Chairman NAB,
may in this regard seek the aid and assistance of any Governmental agency and the information
so collected may be used as evidence in the trial under this Ordinance:
25.Voluntary return and plea bargaining.
(a) Notwithstanding anything contained in section 15 or in any other law for the time being
in force, where a holder of public office or any other person, prior to the authorization of
investigation against him, voluntarily comes forward and offers to return the assets or gains
acquired or made by him in the course, or as the consequence, of any offence under this
Ordina nce, the Chairman NAB may accept such offer and after determination of the amount due
from such person and its deposit with the NAB discharge such person from all his liability in
respect of the matter or transaction in issue.
Provided that the matter is not sub judice in any Court of law.
(b) Where at ay time after the authorization of investigation, before or after the
commencement of the trial or during the pendency of an appeal, the accused offers to return to
the NAB the assets or gains acquired o r made by him in the course, or as a consequence, of any
offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into
consideration the facts and circumstances of the case, accept the offer on such terms and
conditions as he m ay consider necessary, and if the accused agrees to return to the NAB the
amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the cases for the
approval of the Court, or as the case may be, the Appellate Court and for the release of the
accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal
government or, as the case may be, a Provincial Government or the concerned bank or financial
institution, company, body corporate, co- operative society, st atutory body, or authority
concerned within one month from the date of such deposit"
The perusal of section 19, NAO clearly manifests that the chairman NAB or an officer of
the NAB duly authorized by him may call upon any person in order to gather the r elevant
information in respect of any contravention of the provision of NAO, therefore, notices under
section 19 NAO issued to the petitioners cannot be termed as illegal or unlawful, however, at this
juncture it is suffice to mention here that the notices issued under section 25, NAO for voluntary
return were without any lawful justification because the language coached in provision supra
stipulates that "the holder of public office or any other person prior to authorization of
investigation against him vo luntarily comes forward and offers to return the assets or gains
acquired or made by him in the course." Thus, the notices issued by the NAB authorities under
Section 25, NAO were without any lawful justification and legal authority. It appears that the
NAB authorities rather than probing into the veracity of allegation and determining the liability
of any of the petitioners towards the alleged embezzlement of national Ex -chequer, were actually
acting in haphazard manner and to avoid thorough probe adopted the short -cut method by
offering VR to the petitioners. The NAB authorities are not supposed to facilitate anyone under
the garb of VR before determining his liability.
6. Now adverting to the other limb of the contention raised by the petitioners, where by they
apprehend their intended arrest by the NAB authorities. The perusal of the petitions and
documents appended thereto, reveal that the NAB authorities started inquiry in respect of Patt
Feeder Canal Project and in terms thereof, notices under section 19 NAO were issued. However,
subsequently, the notice was issued under section 25(a) of NAO, by doing so the concerned
Investigation Officer wrongly portrayed the impression that the next step would be the arrest of
the petitioners. It cannot be ascertain ed from record whether the misconception of law was
intentionally created or the same was based upon misconceived understanding of law relating to
arrest of any person for contravening the provision of NAO 1999. The section 24 NAO would be
applicable, whic h provides the complete procedure and mechanism for arrest, therefore, it would
be instructive to reproduce section 24 NAO, which reads as follows: --
"24. Arrest: - (a) The Chairman NAB shall have the power, at any stage of the inquiry and
investigation under this Ordinance, to direct that the accused, if not already arrested, shall be
arrested.
Provided that no sitting member of Parliament or a Provincial Assembly shall be arrested
without taking into consideration the recommendations of Special Parli amentary Committee on
Ethics or Special Committee of the Provincial Assembly on Ethics referred to in clauses (aa) and
(aaa), respectively, before which the entire material and evidence shall be placed by the
chairman, NAB.]
(aa) The Special Parliamentar y Committee on Ethics referred to in the proviso to clause (a)
above shall consist of a chairman who shall be member of either House of Parliament and eight
members each from the National Assembly and Senate to be selected by the Speaker, National
Assembly and Chairman Senate, respectively, on the recommendations of Leader of the House
and Leader of the Opposition of their respective Houses, with equal representation from both
sides.
(aaa) The Special Committee of the Provincial Assembly on Ethics shall c onsist of a Chairman
and eight members to be selected by the Speaker of the Provincial Assembly on the
recommendation of Leader of the House and Leader of the Opposition, with equal represen -
tation from both sides.
(b) If the Chairman, NAB [, or an offic er of the NAB duly authorized by him], decides to
refer the case to a Court, such reference shall contain the substance of the [offence or offences as
the case may be] alleged to have been committed by the accused and a copy of such reference
shall be forw arded to the Registrar of the Court to which the case has been sent to try the
accused, and another copy shall be delivered to the accused.
(c) The provision of subsection (a) shall also apply to cases, which have already been
referred to the Court.
(d) Notwithstanding anything contained in the Code, where the holder of a public office or
any other person accused of an offence is arrested by NAB under this Ordinance, NAB shall, as
soon as may be, arrested and produce him before the Court within a peri od of 24 hours of arrest
excluding the time necessary for the journey from the place of arrest to the court and such person
shall, having regard to the facts and circumstances of the case, be liable to be detained in the
custody of NAB for the purpose of i nquiry and investigation for a period not exceeding 90 days
and the Court may remand an accused person to custody not exceeding fifteen days at a time and
for every subsequent remand the Court shall record reasons in writing copy of which shall be
sent to the High Court.
(e) All persons presently in custody shall immediately upon coming into force of this
subsection unless previously produced before a Court, be produced before such Court as
provided in subsection (d) and the order authorizing retention of custody by NAB shall be
deemed to relate to the date of arrest;]
(f) The Chairman, NAB may declare and notify any place as a police station or a sub jail at
his discretion."
The perusal of referred to provision of NAO clearly manifests that for causi ng the arrest
of any person the mandate of law shall necessarily be followed and without adopting the
requisite procedures, the arrests or detentions would be illegal, without lawful authority and
unconstitutional. For rendering this view, reference is mad e to the reported judgment of Raja
Muhammad Zarat Khan v. Federation of Pakistan (PLD 2007 Karachi 597), therefore, it would
be advantageous to reproduce the relevant passage from the aforesaid judgment, which reads as
under:
"9. The scheme of initiation of proceedings under the Ordinance is provided under
section 18 of the Ordinance under which the Chairman, NAB, after receipt of information of
commission of offence through any source as mentioned in clause (b) of section 18 of the
Ordinance, is require d to examine the same and if he forms opinion that it is appropriate to
initiate proceedings against any person then he is required to refer the matter for inquiry or
investigation as provided under clause (c) of section 18 of the Ordinance. Reference is i nvited to
Ghulam Hussain Baloch v. Chairman, NAB (PLD 2007 Karachi 469). Under clause (e) of
section 18 the Chairman and such members, officers or servants of NAB have been given powers
for the purpose of inquiry and investigation to arrest any person and those powers are equivalent
to all the powers of an officer in- charge of a Police Station under the Code of Criminal
Procedure. Except the Chairman, NAB, a restriction has been imposed upon the other officers to
arrest a person without permission of the C hairman, NAB or any officer of NAB duly authorized
by the Chairman. Under Section 24(a) of the Ordinance the Chairman, NAB has further been
authorized, at any stage of inquiry or investigation, to direct the accused to be arrested if he is not
already arrested. Thus, there are three stages where a person can be arrested: (1) if after receipt
of any information as provided under section 18(b) the Chairman, NAB forms opinion that a
reasonable complaint has been made or credible information has been received or a reasonable
suspicion exists that the accused is involved in the case then he can arrest the accused person. (2)
the second stage of the arrest is provided under section 18(d) where the Chairman, NAB can
make arrest if the conditions mentioned in section 54 are fulfilled or if Investigating Officer
requests for permission to arrest the accused person then he can grant such permission. And (3)
the third stage is visualized under section 24(a) of the Ordinance under which if the accused is
neither arrested by the Chairman, NAB initially nor as provided under section 18(d) then the
Chairman, NAB can direct that such accused person be arrested.
10. The powers of arrest to officer in- charge of a Police Station are provided under
section 54 of the Code of Cr iminal Procedure under which a person can be arrested on
fulfillment of any one of nine conditions mentioned thereunder. Thus, before making arrest or
issuing a warrant to arrest or awarding permission to any Investigating Officer to arrest accused,
the Ch airman, NAB is required to satisfy, himself as to whether there is tangible evidence
fulfilling any one of the conditions mentioned in section 54, Cr.P.C.. If he forms such opinion on
the material placed before him then he can make arrest or permit the Inv estigating Officer to
make arrest, otherwise he cannot do so."
Reference is also made to section 54 of the Criminal Procedure Code, 1898; while the
provisions of NAO are silent to such extent. Section 54, Cr.P.C., reads as under: --
"54. When police m ay arrest without warrant.
(1) Any police -officer may, without an order from a Magistrate and without a warrant arrest;
firstly, any person who has been concerned in any cognizable offence or against whom a
reasonable complaint has been made or credi ble information has been received, or a reasonable
suspicion exists of his having been so concerned;
secondly, any person having in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of house -breaking;
thirdly, any person who has been proclaimed as an offender either under this Code or by
order of the Provincial Government;
fourthly, any person in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of having committed an
offence with reference to such thing;
fifthly, any person who obstructs a police -officer while in the execution of his duty or
who has escaped, or attempts to escape from lawful custody;
sixthly, any person reasonably suspected of being a deserter from the armed forces of
Pakistan;
seventhly, any person who has been concerned in, or against whom a reasonable
complaint has been made or credible information has been received or a reasonab le suspicion
exists of his having been concerned in, any act committed at any place out of Pakistan which, if
committed in Pakistan, would have been punishable as an offence and for which he is, under any
law relating to extradition or otherwise, liable to be apprehended or detained in custody in
Pakistan.
eighthly, any released convict committing a breach of any rule made under section 565,
subsection (3);
ninthly, any person for whose arrest a requisition has been received from another police
office r, provided that the requisition specifies the person to be arrested and the offence or other
cause for which the arrest is to be made and it appears therefrom that the person might lawfully
be arrested without a warrant by the officer who issued the requi sition."
The upshots of the discussion made hereinabove are that so far neither the petitioners
have been arrested nor the warrant of arrest of any of the petitioners has been issued by the
Chairman NAB or any other officer authorized in this behalf.
Moreover, it is suffice to add here that NAB authorities under the Chairmanship of
Chairman NAB are bound by the mandate of law and by no stretch of imagination they can be
allowed to transgress their lawful authority, therefore, before causing the arrest of the petitioners
or anyone else the procedure laid down in the case of Raja Muhammad Zarat Khan v. Federation
of Pakistan (PLD 2007 Karachi 597) shall be followed in letter and spirit. Thus, no arrest shall
take place without adhering to the mandate of law, particularly, without fulfilling the conditions
laid down in the judgment supra.
However, no clog can be put upon the NAB authorities to call upon any person under
section 19 NAO in respect of any matter/inquiry/investigation, irrespective of the f act that either
any such matter is pending before the NAB or they intend to initiate any such proceeding. The
voluntary return option is the prerogative of the person concerned and NAB cannot compel
anybody to enter into VR option. In case, anyone intends to enter or avail the VR option with
his/her freewill, then the NAB authorities would be bound; first to determine his/her liability and
thereafter to proceed ahead strictly in accordance with law.
In view of above observations, these petitions are dism issed being pre -mature and not
maintainable. The ad -interim bail granting orders passed in these petitions are hereby recalled.
MH/11/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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