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Petitioner: BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman VS Respondent: NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD through Chairman and 2 others
Court Name: Balochistan High Court Judge(s): Jamal Khan Mandokhail, Ghulam Mustafa Mengal Title:BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman vs NATIONAL
ACCOUNTABILITY BUREAU (NAB), ISLAMABAD through Chairman and 2 others Case No.: Constitutional Petition No,683 of 2012 Date of Judgment:2012-10-22 Reported As: 2013 P Cr. L J 405 Result: Order accordingly Judgment ORDER ' JAMAL KHAN MANDOKHAIL, .J.---The officials of National Accountability Bureau (NAB) Balochistan in supervision of the respondent No,3 on 27th September, 2012 raided the office of the Balochistan Public Service Commission (called hereinafter as "the Commission") and took into possession the record pertaining to the examination in respect of different posts. The petitioner being the Chairman of the Commission, feeling aggrieved from the action of the NAB authorities, filed the present petition. 2. Learned counsel for the petitioner contended that under section 6 of the Balochistan Public Service Commission Act 1989 (called hereinafter "the Act"), only Governor is competent to initiate an inquiry against the Chairman and members of the Commission, therefore, the 4 NAB has no jurisdiction to initiate proceedings against them. It is further alleged that, no inquiry was sanctioned by the competent authority at that time, therefore, the entire proceeding of the raid at the office of the Commission is illegal. The learned _counsel for the petitioner alleged that the respondent No,3, during the raid, misbehaved and abused the petitioner and the officials, which act is against the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan. 3. The learned Deputy Prosecutor-General (DPG), NAB, appeared along with the respondents and opted not to file the para-wise comments or the counter-affidavit on their behalf and decided to argue the matter. He opposed the contention and stated that the NAB has got the authority to initiate proceedings against the officials of the Commission, who are holding a public office, therefore, the proceedings initiated against them are quite competent. Controverting the
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arguments of the learned counsel for the petitioner, the learned Prosecutor produced a letter dated 1st October, 2012, showing that the matter has been referred for inquiry against the Commission by DG NAB. He further stated that the respondent No,3 did not abuse the petitioner or the officials, however it was informed that the officials of the Commission were called for two dates before the institution of the petition. According to him, the Director (Investigation) NAB (B) is the overall Incharge of the inquiry and Investigation Cell, who is supervising the inquiry in accordance with law. He made a statement that though the Chairman and the members of the Commission come within the definition of "a person holding a public office", but so far, no proceedings have been initiated against them, therefore, the petition is premature. 4. After arguing the matter, the Court was left) to decide the jurisdiction of the NAB regarding the proceedings against the Chairman, the Members and the officers of the Commission. The Balochistan Public Service Commission was promulgated in the year 1989 and was suitably amended in the year 2004, and section 6 of the Act provides the procedure for initiating inquiry against the Chairman and Member of the Commission, which is reproduced hereinbelow:- "6. (1) If the Government is of the opinion that the Chairman or Member, by reason of physical or mental incapacity, is unable to perform his duties or is guilty of misconduct, the Government shall appoint a Judge of the High Court of Balochistan, to inquire into the matter. (2) If after holding the inquiry, the Judge submits a report that the Chairman or. Member is incapable of performing his duties or is guilty of misconduct, the Government may, notwithstanding the provisions of section 4, recommend to the Governor to remove such Chairman or Member. (*).3 ' Explanation---for the purpose of this subsection, "misconduct" means a conduct prejudicial to the good order or service discipline or contrary to the rules of conduct applicable to Civil Servants of the Province of Balochistan or unbecoming of an officer and gentleman and include any act on the part of the Chairman or a Member, to bring or attempt to bring political or other outside influence directly or indirectly to bear on Government or any Government Officer, in respect of any matter relating to his retention as such Chairman or Member, punishment, retirement of other conditions of his service and include- (i) Conviction for an offence involving moral turpitude; (ii) Active participation in the sectarian, communal or political controversy; ' (iii) Persistent disregard of the regulation relating to conduct of affairs of Commission. (iv) Assuming a style of living beyond his legitimate means. (3) For the purpose of inquiry under this section the Judge have power vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:- (i) enforcing the attendance of any person and examining him on oath; (ii) requiring the discovery of documents; (iii) receiving evidence affidavits; (iv) issuing commission for examination of witnesses or documents." 5. The Act empowers the Government to initiate an inquiry against the Chairman and the Members of the Commission through a Judge of the High Court. Of course that inquiry is not equivalent to an inquiry or investigation as provided by the Criminal Procedure Code or the NAB Ordinance, but it is a preliminary proceedings before initiating any action against the incumbents, who are holding a constitutional post. It is just to collect the material fact as far as the allegations concerned, and to judge if prima facie case is made out or otherwise? On completion of an inquiry, the Judge of the High court has to submit his report to the Government with recommendation for the-removal and initiation of criminal proceedings against the incumbents. On receipt of the recommendation, the Government shall immediately take action against him/her. It is true that the posts of the Chairman and the Members is a constitutional post, but they don't enjoy any immunity, except the
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adoption of the procedure in accordance with section 6 of the Act before taking any action under any law. The procedure provided by the Act has neither an overriding effect, nor it is inconsistent with any provision of the NAB Ordinance. The Chairman and the Member of the Commission deal in the affairs of the public, therefore, can be proceeded under the NAB Ordinance, but subject to his/their removal in accordance with the Act, or after completion of his/their tenure. 6. The Act says that if the Government is of the opinion, it shall appoint a Judge of the High Court to inquire into the matter. The opinion of the Government could be formed from its own sources or upon any complaint received from any source. There are widespread allegations against the Chairman, the Commission, regarding exams for the different posts holding by the Commission, which is enough information for the Government to initiate inquiry. The NAB has started inquiry into the matter against the officials, therefore, if any material comes on record sufficient to initiate proceedings against the Chairman, the same be submitted to the Government as a complaint for initiating inquiry against the Chairman as provided under the Act. 7. As far as the officials of the Commission are concerned, they are the permanent employees and as such are in the service of Pakistan, therefore, their service comes within the definition of "a person holding public office." The Ordinance empowers the NAB authorities to initiate proceedings against any person holding a public office on the charge of corruption, corrupt practices or misuse of authority etc. There was a need to curb the menace of corruption, corrupt practices and misuse of authority by the holder of a public office, therefore, the NAB Ordinance was promulgated to initiate a proceeding against an officer holding a public office. Under section 18 of the Ordinance, if the Chairman NAB or an officer of the NAB duly authorized by the Chairman is of the opinion that it is necessary and appropriate to initiate proceedings against any person as defined in the Ordinance, he shall refer the matter for inquiry or investigation. The Chairman NAB has already delegated powers to the Director-General NAB Balochistan to refer the matter for inquiry or investigation, if he is of the opinion that it is, or may be, necessary and appropriate against the following holders of a public office; (i) Officer of Grade 20 and below. (ii) Holder of an office or post in connection with the affairs of a legal council. ' Thus in view of above, the DG NAB(B) has referred the matter for inquiry into the scam, of the examination, held in respect of different posts, conducted by the Commission, which is quite competent. Thus, the DG NAB(B) has got the authority to initiate the inquiry only against an officer up to Grade-20. The objection of the learned counsel for the petitioner over the jurisdiction of the NAB authorities in respect of the proceedings against the officials of the Commission is contrary to law, as such, is overruled. 8. The NAB is a national institution, having a great mandate and enjoys respectability and confidence amongst the general public, therefore, the Chairman NAB and the officials must maintain such respect and confidence. To save the institution from destruction and bad reputation, the NAB authorities must take care of it faithfully in the national interest. Sometime any officer or its employee brings a bad name to an institution, and thereby damages its reputation. It is, therefore, expected that the conduct and honesty of the officials of the NAB must be above board and their actions must not be in violation of the Constitution and law. No doubt, the NAB officials are dealing with the persons, involved' in corruption or corrupt practices, who may be convicted by a competent Court of law, but it does not allow anybody to disgrace, abuse or torture them. Article 14 of the Constitution safeguards such right of an individual, which reads as under:-- "14. Inviolability of dignity of man, etc.---(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose extracting evidence."
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9. In view of the constitutional provision, no authority is above the law and even one must remain within the domain of the provisions of the Constitution and the law. Through this petition, the violation of the fundamental rights of the petitioner and the officials of the Commission by the respondent No,3 has been complained, therefore, it is necessary to dilate upon this aspect as well. This petition contains certain allegations against the respondent No,3 supported by an affidavit of the Chairman of the Commission. The learned DPG NAB appeared on behalf of the respondents, opted not to file the counter affidavit or the rejoinder to the petition. By not doing so, the allegation levelled against the respondents remained unrebutted. It is a fact that the documents produced by the DPG NAB shows that the inquiry into the matter was sanctioned on 1st October, 2012, but the letter No,FCIW/NAB(B)/2012/320 dated 27th September, 2012, shows that the respondent No,3 had visited the office of the Commission and got into possession the record. It is a settled principle of law that when a thing is required to be done in a manner, then it should be done accordingly. Under the Ordinance, no one is empowered to start proceedings against any person, until and unless an inquiry or investigation is sanctioned by the competent authority. Admittedly, on 27th September, 2012, no inquiry was sanctioned into the matter, therefore, the raid conducted by the respondent No,3 in the office of the Commission was illegal and without jurisdiction. While taking the record into possession, no legal formality was fulfilled. On the first date of hearing before this Court, the respondent No,3 admitted that after the raid, he called two officials of the Commission for two consecutive dates, but he did not record their statements for the purpose of getting information necessary for the inquiry. He was unable to answer that under which law and authority, he was competent to call the officials, to which the respondent No,3 remained answerless. It shows that either the respondent No,3 with mens rea, illegally detained the officials of the Commission for two days or he is not acquainted with the manner and procedure, in which an inquiry or an investigation should be conducted. Keeping in view the unrebutted contents of the petition, there is no reason to disbelieve the allegations levelled by the petitioners against the respondent No,3. 10. It is pertinent to mention here that the respondent No,3, while appearing before this Court, was charged and he was interrupting the arguments of the learned DPG. The Court twice directed him to keep quiet and remain calm, but he was anxious to address the Court. His conduct was contemptuous, however, for the smooth hearing of the case, he was expelled from the Court room. Over the behaviour of the respondent No,3, the DPG and the Director (Investigation) NAB (B) tendered apology and assured that he would be disassociated from the matter, which was subsequently done and this restrained us from initiating the contempt of the Court proceedings against him. On the last date of hearing, the learned counsel for the petitioner placed on record another letter issued by the respondent No,3 to the officials of the Commission for their appearance, despite the fact that he did not remain associated in any manner with the inquiry. The DPG NAB and the newly posted Investigating Officer were asked as to how the letter was issued by the respondent No,3, they could not justify his action. The manner in which the respondent No,3 is acting, shows his personal interest into the matter, for the reasons best known to him. The conduct of the officer will not only damage the valued reputation of the NAB Balochistan, but may also damage the high profile inquiry initiated in the affairs of the Commission. Under such circumstances, the respondent No,3 is not a fit person to be assigned any inquiry or investigation. The competent authority may assign him a desk job, preferably at the NAB Headquarter with no frequent contact with public. 11. Thus, in view of what has been stated and discussed hereinabove, the petition is partly accepted. The inquiry initiated by the DG NAB on 1st October, 2012 in the scam of the Commission is permissible under the law against the officials of the Commission upto Grade-20. The people of Balochistan expect fair and transparent inquiry into the matter, therefore, the DG NAB should
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personally supervise it and if needed, he may depute a competent and an honest investigator, so as to enable the Court to bring the culprits to justice. Order accordingly. 20 3 P Cr. L I 412 [Lahore] Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ MUHAMMAD GHALIB and others---Appellants versus The STATE and others---Respondents Criminal Appeal No,79, Criminal Revision No,112 and Murder Reference No,299 of 2004, heard on 18th October, 2010. (a) Penal Code (XLV of 1860)- ----Ss. 302(b)/324/34/337-Fiii)/337-D---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, ,ghayr-jaifah-mutalahimah, jaifah--- Appreciation of evidence---Incident reported to police promptly---Motive for occurrence established---Enmity between parties admitted--- Medical evidence corroborating ocular account---Defence plea not believable--- Effect--- Accused persons while armed with weapons allegedly ambushed the deceased persons and the injured witness---Motive for the occurrence was strained and, tense relations between the parties spanning over a period of 4 to 5 years---Although complainant was brother of the deceased persons and injured witness was also related to the deceased, but their evidence could not simply be discarded due to their relationship--- Matter was reported to the police within two hours--- Enmity between the parties stood admitted and prosecution had successfully proved the motive for the occurrence---Presence of injured witness at the place of occurrence could not be questioned and he had perfectly corroborated his stance before the police, as contained in his statement under 5.161, Cr.P.C.---Medical evidence provided corroboration to the witnesses of the ocular account as both the deceased persons and the injured witness had received multiple sharp edged injuries---Duration of injuries, time elapsed between injuries and death, and between death and post-mortem examination were all in line with the ocular account furnished by complainant and injured witness---Medical officers were subjected to detailed cross-examination but no infirmity was found in their statements---Regarding recovery of weapons at instance of accused persons, report of Chemical Examiner revealed that weapons were stained with blood and scrapings thereof sent to Serologist had been found to be of human origin---Weapons recovered from accused persons and scrapings thereof, had been received in sealed parcels by the relevant Laboratories---Defence did not suggest that weapons were sent to the relevant Laboratories after having been tampered with in any manner---One of the accused took the defence plea that deceased and injured witness while armed launched an attack on his house and attacked his wife and mother-inlaw---Said accused claimed that he alone managed to club and stab the deceased and injured witness in self-defence, however such a defence plea seemed unnatural and preposterous as said accused could not show even a single scratch on his person nor on the person of his wife or mother-in-law, who even otherwise were not taken into custody by the police nor examined by a medical officer/doctor-Appeal was dismissed in circumstances and conviction and sentences recorded by Trial Court were confirmed. [pp. 420, 422, 423, 424, 425, 426, 427, 428, 429] A, B, C, D, E, F, G, I, J, K, L, M, N, 0, P & Q Anwar Shameem and another v. The State 2010 SCM R 1791 rel. (b) Criminal trial-- ----Post-mortem examination, evidentiary value of--- Non-existence of pictorial diagrams/sketches- Effect--- Non-existence of sketches did not undermine the intrinsic value of post-mortem examination reports nor could such reports be thrown away due to such an omission. [p. 424] H Muhammad Tanvir Ch. And Sayeda B.H. Shah for Appellants. Ch. Abdul Aziz for Respondents. Muhammad Nazeer Abbasi, Standing Counsel.
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Date of hearing: 18th October, 2010. JUDGMENT ' SHAHID HAMEED DAR, J.---The appellants Muhammad Ghalib, Nasir Mahmood, Muhammad Hanif and Waheed Ahmad have been convicted by the learned Additional Sessions Judge, Islamabad for the charge of murder of Liaqat and Shaukat deceased and attempting on the life of Wajid Abbasi, (P.W.9). The appellants were sentenced as under:-- Muhammad Ghalib and Waheed Ahmad. Under section 302(b)/34, P.P.C. ' Death on two counts to the each appellant, with order to pay Rs,1,00,000 each, as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., in default thereof to undergo six months' S.I. Each. ' Under section 324/34, P.P.C. 10 years' R.I to the each appellant, with fine of Rs,50,000 each, in default thereof to undergo three months' S.I each. ' Muhammad Ghalib appellant was also convicted under section 337F(iii), P.P.C. And sentenced to three years' R.I. With payment of Rs,5,000 as Daman. Nasir Mahmood and Muhammad Hanif appellants. ' Under section 302(b)/34, P.P.C. ' Life imprisonment on two counts each with order to pay Rs,50,000 each as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., and in default thereof to undergo three months' imprisonment each. ' Under section 324/34, P.P.C. 10 years' R.I. Each with fine of Rs,25,000 each, and in default thereof to undergo imprisonment for three months' S.I. Each. ' Muhammad Hanif appellant was also convicted under section 337-D, P.P.C. And sentenced to 10 years' R.I. With payment of Rs,1,00,000 as Arsh, being 1/3rd of Diyat amount. ' All the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C. ' Through the same judgment the co-accused of the appellants namely, Arshad, Azhar, Sajid and Talib were acquitted of the charge. 2. The convicts have filed Criminal Appeal No,79 of 2004 against their conviction/sentence, besides, there is a usual reference under section 374, Cr.P.C. Against Muhammad Ghalib and Waheed Ahmad appellants, for the confirmation of their sentence of death, on two counts, transmitted by the learned trial Court. Rafaqat alias Bagga complainant (P.W.8) has also filed Criminal Revision No,112 of 2004 against Muhammad Hanif, respondent No,1 and Nasir Mahmood, respondent No,2 for enhancement of their sentence to death. This judgment will dispose of the above said appeal, revision and the reference. 3. The appellants along with their acquitted co-accused were tried in the Court of learned Additional Sessions Judge, Islamabad for Committing qatl-e-amd of Shaukat and Liaqat and for attempting on the life of Wajid Abbasi, P.W.9 at 9-00 p.m on 26-7-2002, in the area of Noorpur Shahan, Bari Imam, falling within the jurisdiction of Police Station, Secretariat, District Islamabad. The statement Exh.P.W. Got recorded by Muhammad Rafaqat alias Bagga, complainant (P.W.8.) formed the basis for the registration of formal F.I.R. Exh.PA. 4. The prosecution story, as stated by the complainant in his complaint Exh.P.W. Is that he was not on speaking terms with Ghalib alias Guddi (appellant) for 3/4 years due to a petty quarrel between them; they exchanged hot words in early hours of the day on 26-7-2002 in the bazaar of Bari Imam and the matter was patched up; he was present at the shop of Miskeen, situated in Adda, at about 8-00 p.m, the same day, the accused Ghalib alias Guddi (appellant), armed with chhuri, Talib (since acquitted) armed with danda, Kala (since acquitted) armed with danda, Waheed
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(appellant) armed with hatchet and pistol .30 bore, Sajid (since acquitted) armed with .12 bore gun, Pappu armed with chhuri, Nasir (appellant) armed with chhuri and Azhar (since acquitted) armed with a knuckle duster came there and beat him, the people present at the spot intervened and rescued him; his family members, later on, learnt about the brawl; his brothers Shaukat and Eiaqat (deceased) along with Wajid Abbasi (P.W.9) also reached there, consoled him and intended to lodge a complaint with Aurangzeb, the brother of Ghalib; they all came to the shop of Aurangzeb and complained of the excesses committed by his brothers with the request that he should check their unruly behaviour; thereafter, they moved towards their house, Liaqat, Shaukat and Wajid were ahead of the complainant, who was a little behind; when they reached near the house of Riaz, they were all at once, ambushed by the above named accused at 9-00 p.m.; they pounced upon Shaukat, Liaqat and Wajid and caused them severe injuries by means of their respective weapons; they also made firing and ran away; in the meanwhile, Muhammad Fayyaz P.W. (not produced) and Mahmood alias Mooda P.W. (not produced) and Javed P.W. (not produced) reached their and witnessed the occurrence; the complainant and his companions shifted the injured to Poly Clinic Hospital in a Suzuki Pickup. But Shaukat and Liaqat succumbed to the injuries on the way to the hospital. 5. The complainant (P. W.8) got recorded his statement Exh.P.W. Before Arshad Ali SI, P.W.10 at 11-10 p.m on 26-7-2002 at Poly Clinic Hospital, which was sent to the Police Station, Secretariat, District Islamabad by P.W.10, for registration of formal F.I.R. (Exh.PA), through Mushtaq 5847/C. 6. Arshad Ali SI/I.O., P.W.10, examined the dead bodies of Shaukat Ali and Liaqat deceased and prepared inquest reports Exh.PY, Exh.PX and also drafted applications Exh.PBB and Exh.PCC respectively for. Postmortem examination of both the dead bodies. He prepared injury statement Exh.PZ of the injured Wajid and wrote down a memo of identification Exh.PAA of both the deceased. Thereafter, he reached the place of occurrence, caused its inspection and drafted visual site plan Exh.PDD about it. He took into possession blood-stained earth from two spots vide memo Exh.PH and rendered it into two separate sealed parcels. He returned to the PIMS and shifted the dead bodies of the deceased to DHQ Hospital, Rawalpindi for postmortem examination. He, after the autopsy of the dead bodies, took into possession the last worn blood-stained…
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