ORDER SHEET
IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal Miscellaneous
Application No.30 of 2013
ORDER WITH THE SIGNATURE OF THE JUDGE
Present: Sajjad Ali Shah, J.
Naimatullah Phulpoto, J
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1) For
Katcha Peshi
2) For
hearing of M. A. No.581/2013
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24.04.2013
Mr. Amer Raza Naqvi, Advocate for Applicant
Mr. Noor Muhammad Dayo, A.D.P.G., NAB.
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NAIMATULLAH PHULPOTO, J. --- By
this order we would decide the instant Criminal Miscellaneous Application filed
on behalf of applicants Muhammad Akram Khan and Yaqoob Khan under section 561-A
Cr.PC against the order dated 24.12.2012 passed by the learned Accountability
Court No.I Sindh at Karachi in Reference No.02/2012.
2. Brief facts leading to filing of instant
application are that both the accused along with absconding accused Ameerzada
Khan Kohati have been booked to face the trial in present Reference under
section 18(g) of the National Accountability Ordinance, 1999. The absconding
accused Ameerzada Khan Kohati initially was posted as Project Director, Malir
Development Authority and subsequently he was appointed as Director General,
M.D.A. and during the course of his posting as project director as well as
D.G., M.D.A. he misused the powers vested in him and got the landed properties
as well as the money deposited in various bank accounts as such initially an
inquiry was authorized against him on source report on the allegations of
misuse of powers and authority and accumulation of the properties beyond known
source of his income. During the course of inquiry/investigation the absconding
accused Ameerzada Khan Kohati filed a Constitutional Petition No.D-169/2009 in
this Court, challenging investigation against him. On 16.08.2011 investigation
officer was ordered to submit investigation report within two days and the
matter was adjourned to 19.08.2011 and the I.O. submitted investigation report
within 2 days as per direction. The petition was finally disposed of by this
Court on 21.03.2012 with direction to the NAB authorities not to arrest the
accused unless the Reference is filed subject however to his furnishing solvent
surety in the sum of Rs.200,000/- and P.R. bond to the
satisfaction of the Nazir of this Court with further directions to the NAB
authorities to supply a copy of the Reference to Ameerzada Khan Kohati and his
counsel. The reference was then submitted before the Accountability Court wherein
the accused Ameerzada Khan Kohati was not shown as arrested because of the
order of this Court dated 21.03.2012. After receipt of Reference, both the
present accused appeared after their enlargement on bail before arrest by this
Court and accused Ameerzada Khan Kohati remained absent from the proceedings
and the NBWs for his arrest were repeatedly issued which were returned
unexecuted as he has left the country.
3. Both accused filed application under
section 265-K Cr.PC for their acquittal, which was dismissed by the trial Court
vide its order dated 24.12.2012.
4. Mr. Amer Raza Naqvi, learned advocate for
the applicants mainly contended that investigation in the present reference was
directed in the year 2010 but at that time Chairman NAB was not in the office. There
is inherent defect in reference. According to the learned advocate for the
applicants that on this ground applicants/accused are entitled for acquittal.
It is further contended that applicants/accused are doing business of money
changing and there is no direct evidence against the present applicants/accused
to connect with absconding accused Ameerzada Khan Kohati. It is further
contended that during investigation no incriminating material was collected
against applicants/accused. No efforts were made to ascertain the source of
income of the applicants/accused. There is no probability of conviction of
applicants/accused in any offence. In support of his contentions he has relied
upon the case reported as PLD 2001 SC 607 Khan Asfand Yar Wali and
others versus Federation of Pakistan through Cabinet Division, Islamabad and
others.
5. Mr. Dayo submitted that inquiry was
authorized in 2005 against the applicants/accused when
Let. Gen. (Retd.) Shahid Aziz was holding the office of Chairman NAB.
Sufficient incriminating material was collected during the inquiry and with the
approval of the Chairman NAB reference has been filed before the Accountability
Court. Irregularity, if any, has not caused any prejudice to the accused
persons and it would not vitiate the trial. Mr. Dayo has further contended that
reference has been filed by the Chairman, NAB in respect of accumulation of
assets beyond the known source of income and the Accountability Court has
rightly taken the cognizance on the reference. He has further submitted that
acquittal of co-accused was in another reference regarding misuse of authority.
Lastly, it is submitted that there is every probability of conviction of the
applicants/accused in this case and trial Court has rightly dismissed the
application under section 256-K Cr.PC. In support of his contentions he had
relied upon the case reported as The State through Advocate General Sindh
versus Bashir and others PLD 1997 SC 408.
6. Learned Judge, Accountability Court No.I,
Karachi by order dated 24.12.2012 dismissed an
application under section 265-K Cr.PC for the following reasons:
“According
to section 18(c) of the Ordinance 1999 the Chairman NAB or an officer of NAB
duly authorized by him, is of the opinion, that it is, or may be necessary and
appropriate to initiate the proceedings against any person, he shall refer the
matter for inquiry or investigation. It is, therefore, evidence that by virtue
of section 18(c), supra, the Chairman NAB has ample powers to direct to conduct
inquiry or investigation. In case the inquiry is concluded the orders for
further investigation may be passed on the basis of inquiry report. It is,
therefore, clear as per record of the present case that the inquiry was
initiated against the absconding accused in the year 2005 and there is no
evidence available on record to show that in those days when the inquiry was
orders to be conducted against all the accused, Chairman NAB not available
which fact also requires recording of evidence by this Court. Even in my humble
opinion the case law relied upon by the learned counsel for the accused does
not speak the total exoneration of the accused, in case, if the investigation
was unauthorizedly conducted against the alleged accused. In case, if there
appears any illegality or abnormality in the authorization of inquiry or
investigation, the same may be cured and inquiry may be relegated from the
stage when such illegality cropped up by reauthorization of authority by the
Chairman. The arguments advanced by the learned counsel, therefore, seem not to
be reasonable so as to acquit them from the whole charge. Admittedly both the
accused became orphan in their childhood and were residing with their sister
Rehana Khatoon the wife of the main absconding accused Ameerzada Khan Kohati
since their childhood. Admittedly they both are doing very famous business of
money exchange and it is yet to be ascertained as to how they acquired
sufficient money to run the business of money change. The statement of the bank
accounts, collected during the course of inquiry, shows the transactions in
dollars in their accounts which also require evidence. The case reported in
2002 MLD 480, supra, at this stage is not relevant because it is not being
considered that whole credit in the account of the accused are taken into
consideration of their conviction.
In view of the aforestated
circumstances, I am of the opinion that no case for acquittal u/s 265-K Cr.PC
at this stage has been made out by the accused and discrepancy, if any, does
not permit to exonerate them from the allegations contained in Reference
against them at this stage without recording the evidence. The application has,
therefore, no merit and the same is hereby dismissed”.
7. After hearing the learned counsel for the
parties we have perused the relevant record.
8. Under section 18(c) of the National
Accountability Ordinance, 1999 the Chairman NAB or an officer of the NAB, duly
authorized by him, has power to initiate proceedings against any person, he
shall refer the matter for inquiry or investigation. It is, therefore, clear
from the record that inquiry was initiated against the applicants/accused in
the year 2005 when office of the Chairman NAB was held by Lt. Gen. (Retd.)
Shahid Aziz. Applicants/accused have failed to bring any
material on record to show that said enquiry was unauthorized. Accountability
Court has taken cognizance of offence. Trial Court has observed that both the applicants/accused
became orphan in their childhood and were residing with their sister Rehana
Khatoon wife of absconding accused
Ameerzada Khan Kohati since their childhood and both are doing business of
Money Exchange and it is yet to be determined at trial as
to how they acquired such huge money to run the business
of Money Exchange. The statements of the bank accounts collected
during the course of inquiry indicate the transaction in
dollars in their accounts. Trial Court has rightly observed that no case for
acquittal under section 265-K
Cr.PC has been made out. Usually a criminal case should be allowed to be
decided on merits after recording of the prosecution evidence, statement of
accused under section 342, Cr.PC, recording of statement of accused under
section 340(2), Cr.PC and provisions of section 249-A, section 265-K and section
561-A of the Cr.P.C. should not normally be pressed into action, reliance is
placed upon the case of the State versus Raja Abdul Rehman (2005
SCMR 1544), wherein the Honourable Supreme Court of Pakistan has
observed as under:
“This Court in the cases of Bashir Ahmad v. Zafar ul Islam PLD 2004 SC
298 and Muhammad Sharif v. The State and another
PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an
application under section 249-A, Cr.PC or such allied or similar provisions of
law, namely, section 265-K Cr.PC and observed that usually a criminal case
should be allowed to be disposed of on merits after recording of the
prosecution evidence, statement of the accused under section 342 Cr.PC,
recording of statement of accused under section 340(2), Cr.PC if so desired by
the accused persons and hearing the arguments of the counsel of the parties and
that the provisions of Section 249, section 265-K and section 561-A of the
Cr.PC should not normally be pressed into action for decision of fate of a
criminal case.”
9. During investigation sufficient
incriminating material has been collected against the applicants/accused to
connect them in this reference. Opportunity may be afforded to prosecution to
produce evidence before trial Court. At this stage, no finding can be recorded
that there is no probability of conviction of the accused in any offence
because it is primary duty of trial Court to appreciate the evidence at trial.
Order of the trial Court did not suffer from any material irregularity and
requires no interference of this Court. Instant criminal miscellaneous
application is without merit and the same is dismissed, with direction to the
trial Court to decide the reference expeditiously.
10. Needless to mention that observations made
herein above in the order are tentative in nature and trial Court shall not be influenced
while deciding the case on merits.
JUDGE
JUDGE
Gulsher/PA