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Petitioner: Hussain Bux Baloch Advocate VS Respondent: National Accountability Bureau and
Court Name: Sindh High Court Judge(s): Omar Sial, Muhammad Hasan (Akber) Title:Hussain Bux Baloch Advocate vs National Accountability Bureau and
JUDGMENT
Reported As: 2025 SHC KHI 1795 Result: Appeal Allowed Judgment
JUDGMENT MUHAMMAD HASAN (AKBER), J.-This is a unique case, perhaps the first of its kind in Pakistan which pertains to initiation of criminal proceedings by an investigating & prosecuting agency, against its own prosecutor/ law officer. The appellant, serving in the National Accountability Bureau ('NAB') as legal consultant/ prosecutor was tried and convicted by the Accountability Court-II Sindh Karachi vide Judgment dated 06.01.2018 in Accountability Reference No.20 of 2015 under section 9(a)(vi) of the National Accountability Ordinance, 1999 ('Ordinance'). He was sentenced to suffer Rigorous Imprisonment for seven (07) years and fine of Rs.28,87,60,000/- under section 11 of the Ordinance and in case of default in payment of fine, to suffer further Rigorous Imprisonment for two (02) years. He was also disqualified for 10 years under section 15 of the Ordinance from seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province; and was also disqualified to obtain any financial facility in the form of loan or advance from any financial institution controlled by the Government for a period of 10 years. The appellant has preferred this appeal against his conviction. 2. Succinct prosecution version is that in compliance of the Order dated 30.01.2011 passed by the Supreme Court of Pakistan in Criminal Petition for Leave to Appeal Nos.230 to 243 of 2011, an Inquiry Board was constituted by NAB for fixing liability upon its officers/ officials who were responsible for causing delay in filing of (a) Criminal petitions for leave to appeal before the Supreme Court, and (b) Criminal Acquittal appeals before the High Court of Sindh at Karachi in the same matters.
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Inquiry was initiated against 11 officials which was upgraded into investigation on 05.03.2012, and the 4th investigation Officer recommended filing of Reference against the appellant as the sole accused. Reference No.20 of 2015 ('the said Reference') was filed before the learned Accountability Court-II Karachi wherein it was alleged that the appellant was appointed by NAB as prosecutor who was appearing in numerous cases before different Accountability Courts and he was present in Court at the time of announcement of Judgments in Reference Nos.12/2003 to 16/2003, 59/2007, 61/2007 and 9/2007 ('the subject References'), but he failed to apply for Certified True Copies ('CTC') of the same except in Reference No.09/2007 wherein he did apply for CTC which shows that he was aware of the decisions but he failed to discharge his duties under mala fide intentions and ulterior motives, which amounted to misuse of authority under section 9(a)(vi) of the Ordinance. After appellant's resignation, another special prosecutor Feroz Mahmood Bhatti applied for CTC on 15-06-2009 after lapse of almost six months from the date of announcement of such Judgments. Accordingly, such acts of the accused extended benefit to those persons who were the accused in the said References which caused a loss of Rs.28,87,60,000/- and 406.26 acres of government land to the state exchequer. 3. Charge was framed on the accused on 07.10.2015 (Exhibit-03) to which he pleaded 'Not Guilty' whereafter trial proceeded wherein four (04) Prosecution Witnesses were examined whereafter the accused also recorded his statement under section 342 Criminal Procedure Code (Cr.PC) denying all allegations against him. The accused also recorded his statement on oath, under section 342(5) Cr.PC, and also produced 08 documents as Exhibits 12/1 to 12/8. The learned Accountability Court convicted and sentenced the accused in the manner as detailed at para 01 ibid against which he has preferred this appeal. 4. Mr. Raj Ali Wahid, learned counsel for the appellant has contended that the appellant was completely innocent; that he was not serving as Prosecutor but was a Legal Consultant; that in most of the cases, the appellant was out of Pakistan when the Orders were announced; there was no evidence available that he was in collusion or connivance with any of the accused persons; that there was no evidence of any monetary gain against the appellant; at worst the allegations in the reference could be considered as negligence but not criminal negligence; that no evidence to establish mens rea was produced against the accused; that the test of 'beyond reasonable doubt' was not met by the prosecution; and the appellant was entitled to be acquitted. Reliance was placed upon 1994 SCMR 2232, PLD 2010 SC 623, PLD 2008 SC 166, 2005 SCMR 648, 2009 SCMR 230, 2022 SCMR 745, 1993 SCMR 2177, 1956 SCR 451, PLD 1998 SCMR 388 and [1994] 2 AER. 5. Syed Meeral Shah, the learned Special Prosecutor NAB vehemently supported the Judgment by contending that the appellant was representing NAB as prosecutor; that he was in complete knowledge of passing of the Orders and was also present in Court as well, but he deliberately and in connivance with the accused persons did not apply for CTC which resulted into huge loss to the state exchequer. Lastly contended that the prosecution has proved its case 'beyond reasonable doubt' and requirements of section 9(a)(vi) of the Ordinance were duly fulfilled. He prayed that the appeal be dismissed. 6. We have heard learned counsel for the appellant; the learned law officer; have gone through the record with their able assistance; and considered the relevant laws. The first objection raised against the maintainability of the subject Reference was on the ground that the appellant, being a special prosecutor of NAB, was entitled to Indemnity under section 36 of the Ordinance, 1999, which provides as under: "36. Indemnity.--No suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the or performing any function under this Ordinance or the rules made hereunder for any act or thing which has been done in good faith or intended to be done under this Ordinance or performing any function
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under this Ordinance or the rules made hereunder for any act or thing which has been done in good faith or intended to be done under this Ordinance." 7. The doctrine of indemnity for officials is intended to protect inter alia public servants, government officers and judicial officers from legal liabilities incurred while performing their official duties in good faith. Identical statutory provisions[1] with a slight variation of language are also available in different statutes in Pakistan. A study of precedence on the doctrine of indemnity and immunity evolved within administrative law in Pakistan[2][3][4][5][6] guides us that these statutory provisions for Indemnity/ immunity are intended to empower and enable the authorities and their officials to perform their duties honestly, effectively, responsibly and without fear of vexatious litigation. The provisions also help in promoting good governance and smooth functioning of the state machinery whereby a prima facie presumption of good faith is attached with the official acts conducted in good faith. However, such immunity is not absolute for it does not shield those acts which are done dishonestly, maliciously, illegally or beyond the authority vested by law thereby maintaining a necessary balance between the official protection and the accountability. It is a conditional legal shield for official acts done in good faith, but not a cloak for acts done otherwise, and the prima facie presumption of good faith attached to such official acts is rebuttable subject to material and proof. The criteria of 'good faith' is the linchpin, the catalyst, and the deciding factor, in determining whether the officer is entitled to immunity or otherwise whereas the burden to prove that the act was not done in good faith is on the person who alleges so, subject to proof by the complainant. Applying the principles ibid to the facts of the present case we are of the considered view that the appellant's plea qua the vey maintainability of criminal proceedings by NAB against him appears to be premature since section 36 of the Ordinance does not provide an absolute bar against initiating proceedings against those acts which are not done in good faith, especially when the center of allegations by NAB against the accused is that the alleged acts/ omissions were conducted by him under dishonesty and mala fide intentions. Needless to mention that the success of these proceedings would entirely depend upon the prosecution evidence to establish mens rea which will be appraised in the latter part of this Judgment. 8. The first limb of appellant's second argument was that he was appointed as a 'Legal Consultant' and not as a 'Prosecutor', duties whereof were substantially different and that the accused being a Legal Consultant ('LC') was basis for NAB Sindh and such duty was joined by the appellant on 14.04.2008 (Exhibits 7/1 and 7/2). Title of the appointment letter Exhibit 7/1 reflects that both terms were used therein as "Legal Consultant/ Prosecutor". Secondly, in terms of the Office Order dated 15.04.2008 (Exhibit 7/3), the appellant was posted to perform duty in the Accountability Court No.1 as "Special Prosecutor" which was acted upon by the accused. Thirdly, the Appellant immediately started representing NAB before Accountability Court No.1 Karachi as special prosecutor and not as Legal Consultant. No objections were raised by him in this regard at any stage but on the contrary, he started representing NAB in other Courts as well as prosecutor which fact is repeatedly admitted by the accused himself throughout the trial. Even otherwise a Legal Consultant could not have pleaded on behalf of NAB before Accountability Courts and it is only a special Prosecutor who could do so. Conduct of the appellant therefore further confirms the situation as referred in Exhibits 7/1 to 7/3. Considering the above position, we are unable to agree with appellant's plea, since on one hand he claims that he was not serving as prosecutor while simultaneously he himself admits having regularly represented NAB as prosecutor in multiple courts in numerous cases for many years. To approbate and reprobate (blow hot and cold) is not permissible. We are therefore of the view that the accused was appointed and was working both as 'Legal Consultant/ Prosecutor' and not solely as a Legal Consultant.
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9. This takes us to the second prong of the appellant's argument that since he was not a prosecutor therefore was not responsible to obtain CTC of the subject Orders. He claims that Exhibit 8/1 the letter dated 26.03.2008 titled: "Instructions for process of cases for appeals" pre-dates his appointment and therefore he had no knowledge of the same. The prosecution also could not produce any evidence to establish service of the same on the accused. Surprisingly and in contrast to his own stand, the accused has himself repeatedly asserted during trial that he did apply for CTC in some References when he was present in Court but could not apply for the same when he was busy in other Courts or was travelling out of Pakistan. In his examination-in-chief he confirmed that: ...... In reference number 23/2009 the state versus Niaz Ali Baloch judgement for passed on 15.04.2009. In all those cases either I was on leave or I have applied for CTCs." The accused also recorded during his evidence on oath that: ...... It is correct to suggest that prosecutor, NAB is responsible for filing application for obtaining CTC and in absence of prosecutor, NAB D.D. Coord. and D.P.G.A. are responsible. My application for obtaining CTC.s are available in the R&Ps and prosecution has not produced any record to show that I had received the cost of CTC. I had filed application for obtaining CTC in all cases when I was present in court, but in some cases I could not apply for CTC because I was out of country." (emphasis supplied) 10. The above statement recorded the appellant clearly reflects that though he may not be having knowledge of Exhibit 8/1 but by his own evidence, conduct and admissions he was regularly applying for CTC in cases wherein he was present in Court and such conduct therefore attracts the maxim "qui approbate non reprobate" (one who approbates cannot reprobate). We have already held in the preceding paragraph that accused was representing NAB in Accountability Courts as special prosecutor, hence in view of his evidence, admission and conduct we are also of the view that he was responsible to apply for CTC of the Orders passed in his presence. As regards consequence of his absence from Pakistan during travel or his absence on a particular day, the same will also be considered during appraisal of evidence in the latter part of this Judgment. 11. The third argument of the appellant was against withdrawal of application under section 9(c) of the Ordinance by the Bureau. Succinct facts in this regard are that based upon directions of the Supreme Court dated 01.01.2011, an Inquiry Board was constituted, and 11 persons were enquired. Consequently, the First Investigation ('1st Investigation') was conducted by Mr. Masood Ahmad but no recommendation from his side for filing of reference against the accused has come on record. The second investigation ('2nd Investigation') was conducted by Senior Investigation Officer Mr. Muhammad Sajid yet again no recommendation from his side for filing of reference against the accused has come on record. The third investigation ('3rd Investigation') was conducted by Mr. Abdul Fateh who clearly recommended in his Investigation Report (Exhibit 12/8) that no cognizable offense under section 9 of the Ordinance was made out and proceedings before Bar Councils may be initiated against the accused and other officials. Based thereon, a thorough and detailed process was adopted within the Bureau under its Standard Operating Procedures ('SOP') resulting in a collective decision within the Bureau to withdraw the investigation and to file application under section 9(c) of the Ordinance (Exhibit 12/7). Consequently, an application under section 9(c) was filed by the Bureau on 07.01.2014 before the Administrative Judge of the Accountability Courts at Sindh Karachi, which remained pending for more than three months without any Order thereon. On 29.04.2014 a STATEMENT was filed by a prosecutor for withdrawal of the said application under section 9(c), which was allowed to be withdrawn by the Court on the same day without recording any reasons and without notice to the accused. After the above withdrawal, Fourth Investigation ('4th Investigation') was conducted by the Bureau which culminated into filing of the Reference against the appellant. Appellant claims that all these acts of withdrawal of application under
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section 9(c) by the Bureau; the conduct of the accountability Court; initiation of 4th Investigation; the consequential filing of Reference; and based thereon, his ultimate conviction were all illegal acts on multiple grounds, and which infringed upon of his fundamental rights to a fair trial under the Constitution. This gives rise to the following legal questions: (i) Whether the act of withdrawal of application under section 9(c) of the Ordinance, based upon a STATEMENT on oral instruction and without any reasons was valid? (ii) While dealing with the application under section 9(c) and the STATEMENT and while passing the Order dated 29.04.2014, whether the learned Judge ensured that the process of withdrawing of Section 9(c) application was complied with? and (iii) Whether initiation of 4th Investigation without any fresh incriminating material after NAB's decision to close the investigation, based upon earlier three investigations, was valid? 12. Section 9(c) of the Ordinance 1999 provides that: "9.(c) If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody." 13. To understand the process by which an application under Section 9(c) is approved for Closure/ termination of an investigation within the Bureaue's hierarchy, one needs to look at the procedures and mechanisms followed by NAB as provided in its Standard Operating Procedures ('SOP') which have been duly considered in a number of cases by the Superior Courts[7] and held as applicable throughout the country. For instance, the powers and Responsibilities of an Investigating Officer are provided in Chapter IV 'Investigations' of Volume I from Page 178 in the SOP, which includes guidelines on, "(e). Powers and Responsibilities of Investigation Officer.", "(f). Collection of Evidence." and "(o) completion of Final Investigation." Furthermore, "Form- T (Chapter- Investigation) INVESTIGATION ACTIVITIES FLOW CHART" at page 252 of the Volume-I of the NAB SOP, also provides a detailed Flow-Chart to provide guidelines to Investigators for timely completion of various stages of Investigation. With regards to the process of Closure/ termination of an Investigation, the SOP provides the following 'Parameters for Closure of Investigation' at Chapter 4 page 176 of Volume-I: 'Investigation closure/ Termination Parameters': "1. InvestigationTo standardize the procedure of Investigation following guidelines will be observed by CITs: a. .... b. ...... c. Investigation Closure/ Termination Parameters (1) if there is insufficient material to justify for closure or filing of Reference. (2) If application of the accused for Plea Bargain has been accepted and final discharge of liability takes place. (3) If the accused expires during Investigation. (4) Chairman, DG Regional NAB or any other authorized officer after consideration of evidence seized by NAB and circumstances of the case is prima facie convinced that up gradation of Investigation into Reference is not in the public interest." (emphasis supplied) 14. In addition to above guidelines for Investigators, the SOP also provides guidelines for Regional and Headquarter levels, for Closure/ termination of Investigations at Chapter 4, pages 177, 178 of Volume-I, titled: "d. Investigation Disposal Procedure At Regional Level
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(1) IT will explore all possible sources to collect incriminating evidence during the Investigation. Examination of witnesses, record, accused persons and seizure of record is to be undertaken (2) When the Combined Investigation Team (CIT) concludes the Investigation proceedings then the Team will prepare Investigation report and give clear recommendations. (3) The Case Officer will process for recommendations of Director IW. (4) Director IW will give his recommendations keeping in view the merit of the case and process through DPGA. (5) DPGA will assign the case to Special Prosecutor / Legal Consultant (6) The Legal Consultant will give his recommendations on case file after thoroughly analyzing the findings of the Investigation report and available evidence. He will process the case with his recommendations on case file to DPGA. (7) DPGA will give his recommendations on case file after examining all the aspects of the case. (8) Case will be discussed in the next Regional Board meeting. (9) In case the Investigation has been upgraded, the Reference is to be signed by the DG Regional Bureau. (10) In case of closure, the closure letter to be signed by DG Regional Bureau. (11) If as per delegation of powers, the case falls within the jurisdiction of HQ, the case shall be forwarded to HQ. At Head Quarters Level (1) The concerned Desk Officer shall analyze the case and forward his recommendations to Director Monitoring. The Director shall give his recommendation on the case file and forward to DG (Ops) for his perusal. (2) DG (Ops) after examining the case will solicit the legal opinion through PGA/APGA and concerned Prosecution Desk. Recommendations will be given on case file. (3) The case will be put up in EBM for final decision. (4) All concerned shall initiate required actions on top priority after receipt of minutes of EBM. (S) In case any observations have been raised at any level, every effort shall be made to get the same addressed at the earliest. (6) In case of upgradation the Chairman shall sign the Reference received from Regional Bureau. (emphasis supplied) 15. Lastly, the umbrella guidelines for any important operational or administrative decision-making in the Bureau including the 'Closure of an Investigation' are defined at Chapter 1, page 5, Volume-I of the SOP titled 'NAB's OPERATIONAL METHODOLOGY', in the following words: "a. Executive Board (HQ) ...... 3. Decision making process: In the course of enforcement operations and legal proceedings, all decisions for authorization/ closure of inquiry/ investigation, accepting / rejection of PB/VR application and reference or appeal filing will be taken through consultative process in the Executive Board and Regional Board, prescribed by Chairman NAB and Director General of concerned regions respectively. All matters will be decided through speaking order in terms of section 24-A of General Clauses Act at all stages of operational and administrative activities." (emphasis supplied) 16. In the instant case, the first three Investigations went through the above referred stringent test of the guidelines, procedures, stages and inputs from all relevant experts in the Bureau culminating into clear recommendations to close the investigation. Based thereon, application under section 9(c) dated 07.01.2014 was filed by the Bureau before the Accountability Court. The application was duly signed by the Director General NAB Karachi and the concerned prosecutor. It is pertinent to note that at paragraph 2 of the affidavit with the application, it was clearly stated by the Bureau
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that, "the investigation is being closed since no gain of accused during course of investigation was established." Again, at paragraph 3 of the same affidavit, it was further stated that, "no plausible evidence came on record against the accused therefore the case is recommended for closure." The application remained pending before the learned Judge for more than three months, but no order was passed thereon. On 29.04.2014, a STATEMENT was filed by a prosecutor for withdrawal of the application under section 9(c), in the following terms:
"STATEMENT It is most respectfully submitted as under: That I was verbally directed by the D.D. Coord. Legal and given under Office Note of Deputy Director Coordinator namely Muhmmad Salim Ahmed who was directed by the worthy DG NAB for withdrawal of letter of closure submitted in this Honourable Court on 07.01.2014. This Honourable Court may be pleased to grant this prayer for withdrawal of closure application. The enter Office Note of Deputy Director Coord. is attached herewith for kind appraisal of this Court. The request is made in the interest of justice Sd/- Karachi Senior prosecutor Dated 29.04.2014 M. Arif Khan" 17. Based upon the above STATEMENT, the following Order was passed by the learned Accountability Judge on the same day: "Order In view of STATEMENT filed by learned Sr. Prosecutor NAB, the instant application u/s 9(c) of the Ordinance of NAO, 1999 is dismissed as withdrawn. Sd/- Judge Accountability Court......." 18. As visible from paragraphs 13 to 15 ibid, the provisions of SOP incorporate detailed guidelines and encapsulates modern and robust investigation techniques, scientific formulas, best practices, collective wisdom and application of judicial mind, not only for conducting an Investigation, but also for its Closure. From an accused's perspective, the encouraging aspect to note is that the SOP ensures due care and diligence to safeguard the rights of an accused to a fair investigation and trial, inter alia under Articles 10-A and 25 of the Constitution of Pakistan 1973. The detailed processes referred at paras 13 to 15 supra demonstrate that an application under section 9(c) is not filed in a casual routine manner but a meticulous process is involved wherein complete chain of senior most officers are involved, ranging from the concerned Region and the Headquarters, from the Operations-side to the Prosecution-side including the Regional Director General, the Director General-Operations, the Prosecutor General, the Deputy Chairman and ultimately the Chairman to decide after collective deliberations in the Regional Board Meeting (at Regional level)…
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