2015 Y L R 980
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ
NAIMATULLAH KHAN and others ---Petitioners
Versus
The NATIONAL ACCOUNTABILITY BUREAU, BALOCHISTAN through Chairman
and another ---Respondents
Constitutional Petitions Nos.195 and 196 of 2014, decided on 5th January, 2015.
Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---National Accountability Ordinance (XVIII of 1999), S. 9 (a) (vi) ---Constitution of
Pakistan, Art.199---Constitutional petition ---Misuse of authority ---Pre -arrest bail, grant of ---Case
of further inquiry ---Rule of consistency ---Applicability ---Petitioners were members of
departmental selection committee and allegation against them was that they had selected person
of thei r choice bye -passing merits ---Validity ---Co -accused were original beneficiaries who were
admitted to pre -arrest bail ---In view of rule of consistency and that reference had already been
filed against petitioners and other co- accused and documentary evidence was already procured
by investigating officer, which was part of reference filed against petitioners, therefore, sending
petitioners behind the bars would not serve any useful purpose ---When beneficiaries had already
been admitted to pre -arrest bail, exc eptional circumstances existed in favour of petitioners ---Case
of petitioners fell within S. 497(2), Cr.P.C. and benefit thereof was to be extended in their
favour, therefore, per -arrest bail was confirmed ---Petition was allowed in circumstances.
Manso orul Haq v. Government of Pakistan PLD 2008 SC 166 and The State v. Haji
Kabeer Khan PLD 2005 SC 364 rel.
Baz Muhammad Kakar for Petitioners.
Ch. Mumtaz Yousaf, Deputy Prosecutor General, NAB and Amir Zaman Jogezai, Senior
Prosecutor NAB for Responde nts.
Date of hearing: 24th January, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This common judgment shall
dispose of the Constitution Petitions Nos. 195 and 196 of 2014 as common questions of facts and
law are involved in both the petitions.
2. The petitioners in these two connected petitions are government officials and were
serving in the Prosecution Department Government of Balochistan on their respective positions.
The vacant posts of Senior Scale Stenographer BPS -I5, Assistan t BPS -14, Junior Scale
Stenographer BPS -12, Sub- Accountant BS -11, Junior Clerk BPS -7, Daftari BPS -3, Driver BPS -5
and Naib Qasid BPS -1 were announced by the department and applications were invited. The
then Secretary Prosecution Department constituted a D epartmental Selection Committee
("DSC") under the chairmanship of the petitioners Muhammad Musa Tareen (Constitutional
Petition No. 196 of 2014), whereas the petitioners in Constitutional Petition No.195 were
members of the committee. The petitioner Musa T areen was serving as Additional Secretary
(Legal) in the Prosecution Department Government of Balochistan. The petitioners namely
Naimatullah Khan (Deputy Secretary Admin), Muhammad Rasheed (Deputy Secretary Admin)
and Muhammad Saeed Ashfaq (Section Office r Admin) being members of DSC, initiated the
recruitment process. On receiving the applications, tests and interviews were conducted and
finally, the DSC recommended the candidates for appointment against the vacant posts.
3. The facts leading to the ins titution of these constitutional petitions are that the Director
General National Accountability Bureau Balochistan ("NAB") authorized an inquiry against the
officials of the Prosecution Department, into alleged illegal recruitments made by the Selection
Committee under the chairmanship of the principal accused Muhammad Musa Tareen,
Additional Secretary of the Prosecution Department. On receipt of a source report, the Director
General, NAB took cognizance and directed the inquiry against them. On recommenda tion of the
inquiry committee the investigation was authorized. The investigation concluded and on having
found sufficient evidence to the effect that they being holders of public office, committed an
offence of corruption and corrupt practices and for gai ning pecuniary advantage through
dishonest and illegal means; misused their authority and wilfully failed to exercise the authority
to prevent the grant of undue benefits, as provided under section 9(a) (iv) and (vi) of the National
Accountability Ordinanc e, 1999 ("NAO"), therefore, the reference was filed against them.
The petitioners in Constitutional Petition No.195 of 2014 were seriously apprehending
their undue humiliation and arrest, therefore, on filing of the petition, vide this court order dated
31-3-2014 the interim relief was granted to them and the NAB authorities were directed not to
arrest them till further orders, while the petitioner in Constitutional Petition No. 196 of 2014 was
already arrested and vide this court order dated 9 -4-2014 he was admitted to post -arrest ad -
interim bail subject to furnishing surety to the tune of Rs.200,000 with PR of the like amount.
4. Mr. Baz Muhammad Kakar, Advocate, the learned counsel for the petitioners contended
that the petitioners have falsely been involved by the NAB authorities despite the fact that they
have joined both the inquiry and the investigation and proved their innocence. He maintained
that in the year 2011- 12 seventy two posts were announced by the Prosecution Department but
when the inquiry was initiated by the NAB authorities, only twenty six posts were called in
question. He added that subsequently four out of twenty six candidates were exonerated during
the inquiry and presently including the petitioners twenty two appointees have bee n arrayed as
accused persons in the reference. He also referred to the judgment dated 18 -11-2014 passed in
Constitutional Petitions Nos.99, 608 and 710 of 2014, and contended that the appointees being
original beneficiaries were admitted to pre -arrest bail by this court; therefore, refusing the same
relief to the petitioners would be exceptional and may amount to miscarriage of justice. He
asserted that co -accused persons Kamran Ali and Muhammad Ayub were interviewed when the
Ex-Prosecutor General was a mem ber of the DSC, but the NAB's inquiry and investigation
followed by filing of reference are altogether silent about this aspect. He stated that only those
candidates have been cited as prosecution witnesses, who could not succeed to get their
appointments, therefore, with feeling of hostility against the Department and while carrying the
animus against the appointees, they have become witnesses against them. He further maintained
that the petitioners are law abiding government servants and have performed their duties fairly
and with due diligence. He was of the view that the intended arrest of the petitioner is with mala
fides and no substantial evidence or reasonable grounds are available to the NAB authorities for
their arrest. While, further formulating h is contention the learned counsel stated that the
allegation of misuse of authority against the petitioners is misconstrued. He further contended
that there is no direct or circumstantial evidence of any alleged illegal gain or pecuniary
advantage which is essential component of an offence under section 9(a)(vi) NAO. He urged that
since the reference has already been filed against the petitioners and it is yet to be determined
that the action taken by the petitioners in discharge of their official obligatio n, whether attracts
the penal action under the NAO or otherwise, therefore, the case against the petitioners requires
further probe and no useful purpose will be served to decline them the relief prayed for. While
concluding his arguments he contended that the facts and circumstances of the case and reference
filed against the petitioners seems to be a product of mala fide, malice and undue harassment,
therefore, the petitioners are entitled to be admitted to pre -arrest bail.
5. Ch. Mumtaz Yousuf, learned Deputy Prosecutor General NAB, assisted by Mr. Amir
Zaman Jogizai, learned Senior Prosecutor NAB, has vehemently opposed the contentions and
stated that the petitioners were members of DSC and they were solely responsible for
accommodating their nearest and dearest. He added that the illegalities traced out during the
course of the inquiry and the investigation, fully attract the misuse of authority, which is an
offence falling within the purview of section 9(a)(vi) of NAO. He asserted that though mala fides
have been alleged against the prosecuting agency, but the petitioners have failed to suggest any
ill will or malice against the NAB and there is no evidence of personal animus against the
petitioners. He finally urged that no case for pre - arrest bail i s made out; therefore the petitions
deserve to be dismissed.
6. We have considered the arguments advanced from both sides and carefully perused the
material available on the record. The perusal whereof reveals that the Prosecution Department
announced the vacancies in the department, whereafter the DSC was constituted and the
recommendations for appointments among the applicants were made. After retirement of ex -
Secretary Qazi Abdul Ali, one Mr. Abdur Rehman Buzdar was posted as the Secretary
Prosecution Department, who on assuming the charge, directed the Section Officer to cancel he
appointment orders made by the ex -Secretary, on which he was informed that all the
appointments have been made after complying with all the formalities and with approval of t he
competent authority and the same cannot be cancelled. On 7 -8-2012 the said
incumbent/Secretary forwarded a note to the then Chief Secretary Government of Balochistan
regarding "insubordination/ disobedience". The Chief Secretary directed the Secretary
Prosecution to make a representation to the Chief Minister of Balochistan. On submission of
representation, Mr. Asadur Rehman was holding the charge of the Secretary Prosecution. The
Chief Minister Balochistan being Minister Incharge of the Prosecution Depa rtment, after
discussion and deliberation recorded remarks of "no further action"; thereafter the issue of
appointments was reopened by the NAB authorities on the strength of a source information. The
Secretary concerned on requisition made by the NAB, dir ected to provide the requisite record of
the appointments to the NAB authorities. The NAB, after conducting the inquiry converted the
same into investigation and the members of DSC, the petitioners herein as well as the appointees
were summoned.
7. The perusal of documents appended with the memo of petitions and the report submitted
by the NAB, show that the appointments of one Kamran Ali son of Qazi Abdul Ali as Assistant
BPS-14 and Muhammad Ayub son of Muhammad Musa Tareen gave rise to probe into the
matter and the appointments were treated as misuse of authority, unlawful gain and benefit. The
investigation report of the NAB shows that during the inquiry and the investigation, the
appointees were also summoned. The NAB authorities instead of digging out the truth and to
establish the offence punishable under the provisions of NAO, started re -interviewing the
appointees and on not having found them to be eligible against the said posts, rendered the
opinion and declared few of the appointments as illegal , which culminated into filing of
reference against the petitioners, for committing the offences under Section 9(a)(iv) and (vi) of
NAO.
8. The proposition involved in this case revolves around the controversy that whether any
procedural irregularity att racts the penal provisions punishable under the NAO. This is essential
to draw a distinction between the procedural irregularities and violation of substantial procedure
of law, to determine the question of criminal liability.
This proposition came up f or hearing before the Hon'ble Supreme Court of Pakistan in
Mansoorul Haq v. Government of Pakistan (PLD 2008 SC 166) wherein it is held with clarity
that "essential elements of Mens Rea and intention to commit an offence under Section 9(a)(vi)
of the NAO i s necessary to constitute the offence. The mere procedural irregularity in the case
would not be sufficient to constitute an offence under Section 9(a)(vi) of the Ordinance ibid".
This court dealt with the proposition involving the interpretation as to whether any act
committed by the government official will attract the penal provision of NAO or would be mere
procedural irregularity, whereby the same was considered as a question of further inquiry and
was left for final determination by the trial Court after leading the evidence by the respective
parties, therefore, the petitioner, namely Muhammad Siddiq Rind was admitted to pre -arrest bail
in Constitutional Petition No.256 of 2014 vide judgment dated 17- 9-2014.
9. The co -accused persons, the appointee s being original beneficiaries were admitted to pre -
arrest bail vide this Court's order dated 18- 11-2014, passed in Constitutional Petitions Nos. 99,
608 and 710 of 2014; therefore, keeping in view the rule of consistency and the fact that the
reference has already been filed against the petitioners and other co- accused persons and the
documentary evidence has already been procured by the investigating officer NAB, which is a
part of the reference filed against the petitioners, therefore, sending the petiti oners behind the
bars will not serve any useful purpose. The Hon'ble Supreme Court of Pakistan in another case
relating to the pre -arrest bail under the NAO in the case of The State v. Haji Kabeer Khan (PLD
2005 SC 364) held that "It is to be noted that under the NAB Ordinance there is no provision for
grant of bail before arrest, therefore, this Court while examining the vires of 9(b) of the NAB
Ordinance in the case of Khan Asfandyar Wali (ibid) took view that High Court shall exercise
this power sparingl y in rare and exceptional circumstances for valid reasons to be recorded in
writing. In this behalf reference can also be made to the case of Meeran Bux v. The State (PLJ
1986 (sic) 526 and Murad Khan v. Fazal -e-Subhan and another PLD 1983 SC 82". Therefor e, we
are of the view that when the beneficiaries have already been admitted to pre- arrest bail, the
exceptional circumstances exist in favour of the petitioners in the light of the dictum laid down in
the judgment supra.
10. In view of above discussion, the petitioners' case falls within subsection (2) of section
497 Criminal Procedure Code and benefit thereof is to be extended in their favour. Therefore, we
are inclined to accept these petitions and the petitioners, namely, (1) Naimatullah Khan son of
Muhammad Khan, (2) Muhammad Rasheed son of Latifullah Shah and (3) Muhammad Saeed
Ishfaq son of Mushtaq Ahmed in Constitutional Petition No.195 of 2014, are admitted to pre -
arrest bail, subject to furnishing solvent sureties in sum of Rs.200,000 each with P R bond in the
like amount to the satisfaction of Additional Registrar of this Court. While the order dated 9- 4-
2014 in Constitutional Petition No.196 of 2014, whereby the petitioner Muhammad Musa Tareen
was admitted to ad -interim bail is hereby confirmed s ubject to the surety already furnished.
Needles to observe here that the observations made herein above are tentative in nature,
which shall have no bearings upon merits of the case.
MH/7/Bal Bail allowed.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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