IN THE
HIGH COURT OF SINDH AT KARACHI
C. P. NO.D-427/2013
MR. JUSTICE SALAHUDDIN
PANHWAR
Petitioners : Shahid Ansari & others,
Through:
M/s. Mehmood Alam Rizvi & Obed-ur-Rehman,
advocate.
Respondents : The Chairman, NAB
& others,
Through:
Mr. Noor Muhammad Dayo, A.D.P.G, N.A.B along with Mr.
Mehdi Shah, Assistant I.W.II.
Date of hearing : 12.02.2014.
SALAHUDDIN PANHWAR, J. Through
instant petition, petitioners pray as under:-
(a)
To quash the proceedings pending with the
respondents against the petitioners in lieu of the notices issued to them and
declare the same as illegal, unlawful, having been initiated with malafides and
without jurisdiction and hence of no legal effect and void ab-initio;
(b)
To quash the notices issued by the
respondents calling upon the petitioners to appear before them and declare the
same as illegal, unlawful, having been issued with malafides, without
jurisdiction and hence of no legal effect and void ab-initio;
(c)
To direct the respondents to bring forth
before this Honourable Court all and any evidence / record of any offence
purportedly committed by the petitioners under the National Accountability
Ordinance, 1999;
(d)
To restrain the respondents from calling,
detaining, harassing, arresting and from taking any other coercive action
against the petitioners, their family members and their employees, without the
permission of this Honourable Court;
(e)
To restrain the respondents from issuing,
addressing notices to the clients/customers of Bilal Logistics (Pvt) Ltd, Cargo Logistics (Pvt)
Ltd and M/s. Bilal Associates and/or any other business concerns of the
petitioners;
(f)
To restrain the respondents from
issuing/addressing notices to the banks of the petitioners, Cargo Logistics (Pvt) Ltd, Bilal Logistics (Pvt)
Ltd and M/s. Bilal Associates and/or any other business concerns of the
petitioners;
2.
Succinctly, relevant facts as set out in
the petition are that petitioner No.1 is the Chief Executive of Bilal Logistics
(Pvt) Limited and Director in Cargo Logistics
International (Pvt) Limited. He is also the sole
proprietor of Bilal Associates. The petitioners No.3 and 4 are the Directors of
Bilal Logistics (Pvt) Limited whereas petitioner No.2
is a housewife and petitioner No.5 is student and has no concern with the
family business. Respondents illegally, unlawfully and without any
justification issued notices to the petitioner calling him to appear at the
office of the NAB Sindh to record his plea; no details whatsoever have been disclosed
in those notices with regard to any offence of corruption or corrupt practices
punishable under the provisions of the NAB Ordinance 1999. The petitioner No.1
visited the office of the respondents and on their demand submitted relevant
documents of his business and on coercion of the respondent No.3 filled the
confidential forms supplied by them. Thereafter time and again respondent No.3
was issuing notices of similar nature without disclosing the details of any
crime committed by petitioners. Pursuant to the notices petitioner sent legal
notice whereby raised legal objections against the enquiry and conduct of the
NAB Authorities, in-spite of that they were bent upon to compel the petitioners
to supply the information regarding Cargo Logistics (Pvt)
Limited, Bilal Logistics (Pvt) Limited and M/s. Bilal
Associates (Pvt) Limited. That there is nothing
against the petitioners, even then the enquiry conducted by the NAB Authority
is a clear case of fishing and roving enquiry when it is a matter of record
that petitioner has submitted all the relevant information.
3.
Learned counsel for petitioner while
reiterating the facts as mentioned above, contended that respondents have no
jurisdiction to interfere into the legal business of the petitioners; all notices
on various occasions are without any justification and nowhere had it appeared
that any criminal offence is committed by the petitioners or they have caused
any financial loss to the Public Exchequer. The Enquiry Officer without
authorization has issued notices in order to compel the petitioners for illegal
gratification. The NAB Authorities have only jurisdiction to conduct probe in
the cases which revolve around Public Exchequer and not in any manner they have
right to conduct the enquiry with the private business of the petitioner
thereby all their actions are illegal and beyond the purview of section 9 of
the NAB Ordinance 1999. In support of contentions, he has relied upon cases
reported in Dr. ARSALAN IFTIKHAR versus Malik
RIAZ HUSSAIN (PLD 2012 (SC) page 903 and GHULAM
HUSSAIN BALOCH versus CHIARMAN, NATIONAL ACCOUNTABILITY BUREAU,
ISLAMABAD (PLD 2007 Karachi, page 469).
4.
Conversely, learned Special Prosecutor has
contended that this Court has no jurisdiction to interfere in the enquiry
proceedings or investigation as petitioners are involved in tax evasion and
they have caused loss to the Public Exchequer by concealing the real amount and
transferring the amount through Hawala (Hundi). Thus, notices issued by the Authorities to the
petitioners are completely in accordance with law and after authorization by
the competent authority. It is further contended that Honourable Supreme Court
in a popular Suo Moto Case of ISAF has categorically
directed for enquiry and investigation therefore this is not a case where one
can claim that official respondents are causing harassment but fact is that
they are proceeding completely in accordance with law as complaint was received
against their companies regarding involvement of the petitioners in tax evasion
and they are also involved in suspicious transactions while shifting money
outside of country. Through enquiry, it
came on record that petitioners deposited taxes through M/s. Bilal Logistics (Pvt) Limited but their all business dealings are carried
out by M/s. Cargo Logistics (Pvt) Limited as separate
entity, therefore this petition is devoid of merits and is filed at premature
stage in order to avoid the legal process conducted by concerned authorities.
5.
Heard counsel, perused the record.
6.
Before scanning the merits of the case, it
would be relevant to examine the scope of NAB Ordinance, 1999 regarding
enquiry, investigation and submission of report. Thus, it would be relevant and
proper to refer sub-sections of Section 18 of the Ordinance which are as under :-
Sec. 18. Cognizance of offences:-
(a)
………
(b)
A
reference under this Ordinance shall he initiated by the National
Accountability Bureau on-
(i) a reference received from
the appropriate government; or (ii) receipt of a complaint; or
(iii) its own accord.
(c)
………
(d)
The responsibility for inquiry into an
investigation of an offence alleged to have been committed under this ordinance
shall rest on the NAB to the exclusion of any other agency or authority, unless
any such agency of authority is required to do so by the Chairman (NAB) or by
an officer of the NAB duly authorized by him)
(e)
The Chairman NAB and such members,
officers or servants of the NAB shall have and exercise, for the purpose
of an inquiry or investigation the power to arrest any person, and all the
powers of an officer-in-charge of a Police Station under the Code, and
for that purpose may cause the attendance of any person, and when and if the
assistance of any agency, police officer or any other official or agency, as
the case may be, is sought by the NAB such official or agency shall render such
assistance provided that no person shall be arrested without the permission of
the Chairman (NAB) or any officer (of NAB) duly authorized by the Chairman NAB.
The
plain reading of subsection (e) of Section 18 of the Ordinance insists that for
purpose of an inquiry or investigation, the officer so inquiring / investigating
shall have all the powers, as are available with Officer Incharge of a Police
Station under the Code, which are so provided under Chapter XIV of the Criminal
Procedure Code. Needless to add here that Chapter XIV of the Cr.P.C. also includes the Section 160 to 164 which deal
with power to require attendance, recording of statement.
7. Since from the reading of
Section 18(b) of the Ordinance it becomes clear that an inquiry / investigation
could be initiated only by the Chairman or an officer of the NAB, duly
authorized by him, thus the Officer, so authorized for conducting such an
inquiry / investigation, shall enjoy all powers as are available to an officer
incharge of a police station within meaning of the Chapter XIV of the Criminal
Procedure Code.
8. The
provision of Section 19 of the Ordinance speaks about additional power of the
officer, conducting inquiry / investigation, which have been initiated under
the order of the competent person. Since the call up notice (s) have been made
root of the matter, therefore, it would be conducive to reproduce the same:-
‘19. Power to call
for information.--The Chairman NAB [an officer 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 there-under;
A
bare reading of the said provision reveals that if an inquiry or investigation is ordered in respect of offence
punishable under the Ordinance by the
Chairman NAB then during the course of said inquiry
or investigation of such offence any officer duly authorized
by Chairman is competent to call for information from any person for the purpose of satisfying himself whether
there has been any contravention of
provisions of the Ordinance or any rule or order made there-under.
Subsection-19(b)
(b) require any person to produce
or deliver any document or thing useful or relevant to the inquiry or
investigation;
9. The
above subsection empowers the authorized Officer to require any person to
produce or deliver any useful and relevant document. Since the usefulness or
relevancy are terms which cannot be explained or understood without a proper
reference, therefore, whenever, a notice is required to be given under this
section it would require the authorized officer to mention the document (s) or
reference through which one could infer about documents to be produced as
provided in sub-section 19(c) which is reproduced as under :-
Subsection-19(c)
(c) examine any person
acquainted with the facts and circumstances of the case;
10. Thus, it is manifest that above
subsection empowers the authorized Officer to examine any person acquainted
with the facts and circumstances of the case. ‘Any person’ includes
witnesses or an accused even. We are in complete agreement and knowledge of the
legal position that one cannot be compelled to answer a question which can
expose him to criminal charge and that one cannot be forced to be a witness
which is so evident from the section 161 of the Code and Article 13 (2) of the
Constitution, which, both being material, are reproduced hereunder:-
Sec. 161. Examination of witness by police.—(1) Any police-officer making an investigation under this
Chapter or any Police Officer not below such rank as the Provincial government
may, by general or special order, prescribe in this behalf, acting on the
requisition of such officer may examine orally any person suppose
to be acquainted with the facts and circumstances of the case.
(2) such person shall be
bound to answer all questions relating to such case put to him by such officer,
other than questions the answers to which would have a tendency to expose him
to a criminal charge or to a penalty or forfeiture;
Article 13. No person—
(a)
……………………..
(b)
shall, when accused
of an offence, be compelled to be a witness against himself;
However, the Criminal Administration of justice demands
that version of the accused should also come on record during the course of the
investigation, therefore, above referred article and provision shall not
justify the Investigating Officer for non-examination of the accused nor shall
disentitle him (investigating Officer) from asking a question which he feels
necessary for proper interrogation. This is the object because of which the
word ‘examination’ has been used with deliberation under this chapter.
Thus during the course of investigation the examination of a witness or accused
should be in a question-form because a witness or accused can competently
choose not to give answer to a question likely to expose him to any criminal
charge. However, whenever a notice is issued under this section the person, so
required to be examined such notice should contain a reference to facts about
which the examination is required.
11. Keeping
in view above touchstone, let’s examine whether call up notices impugned in
this petition, prima facie serves its purpose or otherwise. For which it would
be relevant to reproduce the same which is as follows:
“Subject:Call
up Notice to the Accused u/s 19 read with 27 of NAO, 1999 inquiry against Bilal
Logistics (Pvt) Ltd and Cargo Logistic (Pvt) Ltd
M/s.
Bilal Logistics (Pvt) Ltd and Cargo Logistic (Pvt) Ltd are prima facie involved in commission of schedule
offences of corruption and corrupt practices punishable under the provisions of
National Accountability Ordinance 1999.
Whereas, during the course of
inquiry, it has revealed that you are holding useful evidence and information regarding
registered / licensed with customs i.e. Bilal Logistics (Pvt)
Ltd and Cargo Logistic (Pvt) Ltd are transporting
goods through Afghan Transit Trade, US Military NATO/ISAF containers.
In view, thereof, you are hereby
called upon to appear on 5 November 2012 at 1030 hrs
at NAB Sindh, Barrack 36, Pak Secretariat Opposite Passport Office Saddar Karachi before Mr. Agha Jameel,
Assistant Director (Investigation) to record you plea, along with original and
a set of certified copies of relevant record.”
Perusal of the above
notice and the underlined portion of the notice reflects that matter (inquiry
being conducted) so also a reference as to for what purpose the examination and
production of document (s) are necessary, is evident, therefore, call-up notice
(s) cannot be said to be entirely illegal.
12. Without prejudice to above,
what we would like to make it clear that issuance of notice, even if found to
be not within its purpose and object, yet a wrongly issued notice shall not,
under any case, justify quashing the root ( an investigation, initiated under
section 18(c) of the Ordinance) or be taken as a sword to keep the prosecution
out of its right to dig out truth for simple reason that an authorized officer
(investigating officer) was negligent of not issuing notice properly. A mere
irregularity or even illegality on part of the Investigating Officer in
following procedure within meaning of Chapter XIV of the Criminal Procedure Code,
shall not cost an offence to go un-attended because an irregularity or
illegality in procedure may be cured but not the impacts and effects of an
offence if the same is let un-touched despite its being coming to light. The
moment an offence is committed the effects thereof starts but a procedural
error, irregular and even illegality by Investigating Officer can well be judged
by the competent court towards the effects and consequences whereof as held in
the case of ‘Ghulam Hussain Baloch
Vs Chairman, National Accountability Bureau,
Islamabad (PLD 2007 Karachi 469). The last paragraph whereof is reproduced
hereunder:-
“We
have examined the notices issued to the petitioners, their children and
relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific
offence has been mentioned in them,
no specific charge against the accused has also been mentioned in them, no required or specified information,
particulars of documents or things,
which were required to be produced before the Investigating Officer have been mentioned, as such, all the
notices suffer from material
irregularity and illegality, because they cannot be termed as legal notices
within the meaning of section 19 of the Ordinance. The learned
DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus,
the said notices are hereby declared as
illegal. If the Investigating Officer wants any information, document, thing or examine any
person then he can issue fresh
notices keeping in view the above observation of this Court in respect
of exercise of such powers.”
(Underlining
is supplied for emphasis)
13. From
the above concluding part of the dictum makes it clear that only notice (s)
were declared to be illegal and not the investigation, being conducted and
carried out, rather competence of authorized officer was reaffirmed
while holding that he can issue fresh notice (s) within the observation (s)
made in the said judgment. Thus it stands stamped that an investigation shall
be required to be disposed of, as provided under the law or relevant statute.
14. In
case of Dr. Arsalan Iftikhar,
probe carried out by NAB Authorities was challenged; however investigation was
not stopped by the Honourable Supreme Court but a commission was constituted to
conduct a thorough probe. Relevant paragraph No.28 of dictum is as under :-
“The Commission
shall have the following powers and may seek such further orders as may be
considered necessary:--
(i) he shall exercise all the powers envisioned in the Supreme
Court Rules, 1980 and the powers of Judicial Officers for the purpose of
carrying out the objects mentioned hereinabove;
(ii) he shall be free to avail the services of advocates, experts
of forensic science, persons with relevant experience, including fiscal laws
etc. State functionaries when called upon to do so shall provide necessary
assistance to the Commission;
(iii) the Commission shall be authorized to collect evidence
within and outside Pakistan according to prevailing laws on the subject;
(iv) the Commission is required to complete this task within a
period of thirty days after receipt of the copy of this order.
15. In
view of what has been discussed above, we are of the firm view that NAB
Authorities cannot be precluded to issue call up notice or conduct an enquiry/investigation
because an investigation/ inquiry under this Ordinance shall require to be
disposed as provided under section 18(f) and (g) of the Ordinance which reads
as under:-
(f)
Any inquiry [or] investigation under this Ordinance shall be completed
expeditiously as may be practical and feasible.
(g) The Chairman NAB or an officer of the NAB
duly authorized by him) shall appraise the material and the evidence placed
before him during the inquiry and the investigation, and if he decides that it
would be proper and just to proceed further, (and there is sufficient material
to justify filing of a reference) he shall refer the matter to (a) Court.
Therefore, prayer clause of the
petitioners cannot be inclined because it shall result in causing a serious
prejudice to the prosecution towards its right in probing into an inquiry /
investigation of an offence. However, it
would be pertinent to mention that law insists and guarantees that ‘things
should be done strictly in the manner as provided under the law’ and one
cannot be put to remain under the sword
of Damocles on the pretext of inquiry / investigation. Investigation
officer is always required to act strictly in accordance with law and procedure
because a legal right to investigate / inquire into should not be at the cost
of guaranteed fundamental rights of an individual. This could only be achieved
if things are done as required by the law and law alone.
16. As
discussed above, NAB authorities are hereby directed to conclude the enquiry
within meaning of section 18 sub-section (f) and while doing so they shall not
cause any harassment and arrest of the petitioners however if tangible evidence
is gathered against them, they will be at liberty to proceed in accordance with
law.
17. In
above terms, instant petition is disposed of.
J U D G E