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Petitioner: ARSHAD KHAN VS Respondent: The CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU NAB JUDGMENT
Court Name: Peshawar High Court Judge(s): Waqar Ahmad Seth, Rooh-ul-Amin Khan Title:ARSHAD KHAN vs The CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU NAB
JUDGMENT
Reported As: 2017 YLR 1111 Result: Petition allowed Judgment JUDGMENT ' WAQAR AHMAD SETH, J.--- Through this single judgment we propose to decide the instant writ petition as well as connected Writ Petitions bearing Nos. 144, 164, 690, 1897, 2280, 2281, 2369, 2651, 2736, 2833, 2889 and 2979-P of 2016, as common question of law and fact are involved therein. 2. Facts, relevant for the disposal of this writ petition are that, respondents/NAB authorities initiated an inquiry regarding corruption and corrupt practices related to award of compensation/payment to affectees/IDPs of Mohmand Agency by the officers/officials of FDMA and accordingly petitioner was arrested on 2.4.2015, on the allegation that being Director General FATA, Disaster Management Authority, you facilitate the withdrawal of funds on fake and bogus record/documents and found involved with other accused persons in corruption and corrupt practices by embezzling public money which was meant for compensation to affectees, affected during military operation in Mohmand Agency and thereby failed to exercise your authority to prevent the loss to National Exchequer through fake/bogus record. After arrest, petitioner was produced before Judge Accountability for physical remand, which was obtained and on 23.4.2015, was remanded to judicial lockup. Thereafter he invoked the jurisdiction of this Court under Article 199; however, his plea for bail was regretted; then approached the apex Court where too met the same fate however, NAB authorities were directed to conclude the trial within three months. On 13.8.2015 another ground of arrest against him was issued on the allegations that being Director General FATA, Disaster Management Authority, knowingly misused your authority with mala fide intention and connivance of others prepared fake survey forms for fake/ineligible affectees under "Housing Uniform Assistance Subsidy Project", in Bajour Agency and approved payment list containing fake
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forms in order to embezzle public money, thereby caused huge loss to the public exchequer; hence was arrested and after codal formalities obtained physical remand. 3. Felt aggrieved petitioner had filed the instant writ petition, which was heard and allowed as prayed for on 10.12.2015, but the said judgment was impugned before the apex Court by NAB authorities, which came up for hearing on 19.5.2016 and the case was remanded to this Court for decision afresh in accordance with law including maintainability of the writ petition, hence the petition in hand. Writ Petition No,144-P of 2015. ' Petitioner, who was posted as Divisional Accounts Officer in Pak PWD Batkhela with effect from 16.11.2009 to 21.9.2011 was arrested by NAB authorities in inquiry conducted in respect of NA-30 and after codal formalities sent to judicial lockup; whereafter he moved for bail before this Court in W.P. No, 3411-P of 2015 which was accepted and allowed on 19.11.2015 and was accordingly released on bail, but again preferred the petition in hand with the plea that respondents/NAB authorities are bent upon to arrest him in other so-called inquiries of the same period of different constituencies, which is illegal and unlawful. Writ Petition No, 164-P/2016. ' The petitioner of instant case is the Assistant Executive Engineer (Acting Charge) in Pakistan Public Works Department (Pak PWD) Batkhela Division and was arrested on 19.8.2014 on the allegation that you being SDO Pak PWD Batkhela, approved and execute ghost schemes worth of millions of rupees by preparing and signing bogus bills/entries in measurement book (MB) which caused colossal loss to the public exchequer. After arrested, petitioner interrogated and after investigation sent to judicial lockup. Petitioner submitted petitions for bail before this Court as well as apex Court, which were dismissed, however reference No,3 of 2015 before trial Court is pending trial. On 7.1.2016, another warrant of arrest against the petitioner was issued on the allegations that more than 100 schemes were shown to be executed as per record, wherein grave illegalities and ghost schemes were identified during the course of investigation and you being Assistant Engineer, passed bills amounting to millions of rupees on the basis of fictitious measurement causing huge loss to the government exchequer, which as per assertion of petitioner is illegal and unlawful, hence the instant writ petition. Writ Petitions Nos. 2369 and 2280-P/2016. ' The petitioners of these w it petitions aggrieved from the letter No, 556- 63/F&P/DC(M) dated 30.5.2016, whereby they were directed to accompany the NAB authorities during field visit of developmental schemes in NA-21 District Mansehra/Torghar, which as per their assertion is illegal and unlawful on the ground that NAB authorities have already after inquiry have investigated the schemes i,e, 181 schemes out of 567, wherein petitioners were arrested, however, after due course of law they succeeded in obtaining bail and to this effect reference No, 5 of 2016 has been filed against them, hence the writ petition. Writ Petition No,2281-P of 2016. ' Petitioner being District Coordination Officer/Administrative Head, Mansehra, has supervised/executed construction work under Prime Minister Directives, upon which NAB started inquiry which was converted into investigation and accordingly petitioner being Head/authority was arrested and later on was released on bail by apex Court on 11.4.2016, however is aggrieved from other inquiries initiated by the NAB in the said constituencies/District, has filed the instant writ petition. Writ Petition Nos. 1897, 2651, 2736 and 2979-P of 2016. ' Petitioners Muhammad Asif, Muhammad Iftikharullah Qureshi, Abdul Wahab and Faridon, Executive Engineers, Assistant Executive Engineer and Sub-Engineer, Pak PWD, respectively, have filed the instant writ petition with the prayer that to declare the subsequent inquiries conducted by the NAB authorities against them in one and same period, as illegal, unlawful and against the settled principle of law. Writ Petition No, 2833-P/2016.
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' Petitioners of the instant writ petition aggrieved from the actions/acts of respondents/NAB authorities have filed the instant writ petition with the prayer that the so called inquiries/investigations which the NAB authorities are conducting, are based on mala fide, malice as they have revived the inquiries after six years that too; at the behest of respondent No,5 and are repeatedly calling/harassing the petitioners, which is illegal and unlawful. Writ Petition No,690-P of 2016. ' Petitioner of the instant writ petition is aggrieved from the interim reference No,04/2015 and subsequent references if any which the respondents/ NAB intends to file, have filed the instant writ petition with the averments that reference No, 01/2015 and interim reference No,04/2015 arising out of the same facts and pertaining to the period during which petitioner remained Secretary Worker Welfare Board (WWB) therefore, reference No,4/interim reference be considered part and parcel of reference No,1 and both the references be joined together as one reference and a single charge be framed. Writ Petition No, 2889-P/2016. ' Petitioner of the instant writ petition aggrieved from four separate references filed against him by respondents/ NAB authorities and further authorization of fresh inquiry have filed the instant writ petition with the averments that References Nos.03/2015, 11/2015, 03/2016 and 07/2016, arising out of the same facts and pertaining to the period during which the petitioner remained Divisional Accounts Officer, Malakand and if any subsequent references which the respondents intends to file be joined together as one reference and single charge be framed. 4. We have heard learned counsel for the parties and available record gone through. 5. Since, the matter has been remanded by the apex Court for attending to the legal objections raised by the petitioner i,e, National Accountability Bureau including the maintainability of the writ petition, learned DPG was invited to argue the case on the point of maintainability and other legal aspects, but he was not aware regarding legal aspects of the matter on the basis of which the matter has been remanded, and same is the position of learned counsel for the petitioners as they are of the view that at the time of hearing these petitions before the apex Court none of them was present. 6. Learned DPG, while referring to section 173 of the Criminal Procedure Code, 1898 and then reading Chapter-XIX dealing with the form of charges from sections 221 to 240 of the Code, stated that it's the job of the trial Court and a writ cannot be entertained. He also referred to 1973 PCr.LJ 457, PLD 1965 Peshawar-65 and 2000 MLD 1504. As against this, counsel for the petitioners contended that the trial Court is bound by the reference so submitted by the NAB authorities and is not empowered to change or modify the reference. They are of the view that supplementary challan can only authorize the trial court to go for joinder of charges. ' Section-17 of the National Accountability Ordinance, 1999, sub-clause (a) reads as under:-- "Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provision of this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Ordinance." 7. Admittedly, National Accountability Ordinance, 1999 is a special law, promulgated to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practice. One of the main considerations for promulgation of National Accountability Ordinance, 1999, was to recover the amount which accused persons did not pay and misappropriated the amount and assets. Section 3 of the Ordinance, ibid reads, Ordinance to override the other law, "the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force", which clarifies that provision of National Accountability Ordinance, 1999 shall have effect notwithstanding anything contained in any other law for the time being in force and to have overriding effect to the extent of any inconsistency and provisions of the Ordinance,
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and shall prevail over the procedure provided in Criminal Procedure Code, 1898. In this respect reliance is placed on the case of Sardar Ahmad Sial and others v. National Accountability Bureau reported in 2004 SCMR-265 (b) which reads as under:- "---Ss. 3 & 17---Criminal Procedure Code (V of 1898), Preamble---Provisions of National Accountability Ordinance, 1999 shall have effect notwithstanding anything contained in any other law for the time being in force---Provisions of National Accountability Ordinance, 1999 have overriding effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over the procedure provided in Criminal Procedure Code, 1898." 8. The Accountability Court which is defined in section 5(g), NAB Ordinance, 1999, is empowered to take cognizance of offences under section 18 (a) which reads as under:-- "The Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him." 9. According to section 18-(b) a reference under the Ordinance, 1999 shall be instituted by the National Accountability Bureau, meaning thereby that any reference filed by the Bureau is to be adjudicated/cognizance be taken by the Accountability Court and not otherwise. The reference so filed neither can be modified nor can be altered by the Accountability Court except to frame the charge and then to proceed in accordance with the procedure so provided, therefore, for the purpose of joinder of charges etc. The Accountability Court is tied up. Charge under the law had to be framed by the Court on the basis of the material placed before it and in doing so, the Court was not bound by the report submitted under section 173, Cr.P.C. And the Court can alter or change under section 227, Cr.P.C. If it was so warranted by the circumstances, but all this is possible when there is a supplementary challan under the general law. Here the question is that when a reference is filed, the Court is only competent under the National Accountability Ordinance, 1999 to frame the charge on the said reference and these petitions have been filed by calling in question and interpreting the provision of section 17(d) of the NAB Ordinance, practically requiring the prosecuting agency to submit one reference in respect of all the charges of similar nature, without bifurcating one and the same offence, of a particular period, tenure and cause of action and as such the accountability court cannot do so and it's the constitutional jurisdiction of this Court, to do so. The larger bench of Lahore High Court has held regarding the maintainability and jurisdiction under Article 199 of the Constitution as under:-- "---Ss. 5(o) (r), 9, 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Wilful default --Reference---Person who was neither sponsor nor owner of the defaulting corporate entity; nor exercised any dominative influence in the working of defaulting company and his wife's share in the company was nominal and Creditor Bank had not impleaded him as defaulting party when suit for recovery of loan in the Court of Special Judge Banking filed, was not a person within the terms of S. 5(o) of the National Accountability Bureau Ordinance, 1999 nor a "wilful defaulter" within the ambit of S.5(r) of the said Ordinance--- Proceedings against such person, therefore, were clearly without jurisdiction and of no lawful consequences---Reference to the extent of such person was ordered to be quashed by the High Court under its jurisdiction under Art. 199 of the Constitution in circumstances." 10. Even otherwise interpretation of law comes within the domain of Article 199 and in the instant case the prosecuting agency is not doing what he is required under the law to do. 11. On merits petitioners have called in question the applicability of section 17(d) of National Accountability Ordinance, 1999, alleging that the repeated arrest, detention, investigation and the references so filed are against the spirit of said section, thus are illegal, unlawful, void and baseless. In order to interpret said section of law i,e, 17(d) it would be imperative to read the same carefully which says:-
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"Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences." ' Under line by us to have emphasis. ' Section-234 of the Code of Criminal Procedure 1898 reads as under:-- "Three offences of same kind within one year may be charged together. (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same persons or not he may be charged with and tied at one trial for and number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law; 12. The object and intention of the legislature is very much clear by introducing section 17(d) in the NAB Ordinance, in reference to section 234 of the Code, and section 3 of the NAB Ordinance, 1999 gives the overriding effect over all other laws including the Code and specially section 234. The bare reading of section 17(d) would provide an emphasis that a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences may be charged with and tried at one trial for any number of such offences. The underline portion of the said section is relevant for the present controversy and as such learned DPG was directed to address the Court on the same. 13. We have before us section 234 of the Code of Criminal Procedure which requires for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in cases 234, 235, 236 and 239 of the Code; whereas section 235 of the said Code requires:-- (i). If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. (2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would be itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71. 14. We have before us judgments reported in PLD 2014 Balochistan-33 titled Gen. (Retd.) Syed Pervez Musharraf v. The State, in reference to repeated arrests etc. And the distinct offences defined and explained, the perusal of the same would give the idea in this respect which reads as follow:-- "---Ss. 167, 173 & 497---Bail, grant of---More than one case--- Investigation--- Procedure--- Different criminal cases were registered against accused in different provinces and after his arrest in one case, he applied for bail in other case registered in other province--- Validity--- Accused, under S. 167, Cr.P.C., required in more than one criminal cases, when arrested was deemed to have been arrested in all cases, registered against him---No legal bar existed for interrogating accused with regard to allegation against him in another case; it was rather desirable that when a person required or accused in more than one case or when more than one FIR were registered against him was arrested and remanded to physical custody then he should be interrogated about allegations
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against him in all cases---Different cases against accused could be investigated under S. 167, Cr.P.C. By keeping him at one place---Once investigation was completed and challan/police report submitted under section 173, Cr.P.C., physical custody of accused had to be forwarded to the jurisdiction of concerned court---Once such custody was acquired by Court concerned it could proceed with the trial and pass all ancillary orders including grant of bail---Concept of considering grant of bail to accused after his arrest by a Court which did not have his physical custody was alien to law---Accused, though arrested in case in question, was not produced in custody /brought before Trial Court or within the territorial jurisdiction of trial Court, therefore, Trial Court had rightly rejected application as being premature---Accused being not in custody within the jurisdiction of High Court, therefore, application was not maintainable---Bail was refused in circumstances. ' Likewise in the case of Mst. Razia Pervez and another v. Senior Superintendent of Police, reported in 1992, PCr.LJ 131, it has been held as under:-- (a) Constitution of Pakistan (1973)--- ----Art. 199---Criminal Procedure Code (V of 1898), Ss.54 & 167- ' Accused was kept in continuous detention for more than fifteen days in police lock-up as a result of his repeated arrest by Station House Officer in more than one cases registered at the same police station .And his successive physical remands given by the Magistrate to police---Such conduct of S.H.O. And Magistrate was unwarranted and not in accordance with law---Magistrate and S.H.O. Both, however, tendered unqualified apology to the High Court with the promise to be careful in future-- State Counsel also gave assurance that police would not apply for further physical remand of the accused in cases already registered against him at the same police station and that he would immediately be sent to judicial lock-up---Proceedings' against the Magistrate and the S.H.O. Were consequently dropped and writ petition was disposed of accordingly. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 54 & 167---Law does not authorize police to arrest an accused required in more than one cases in one case and to wait for his arrest in the other case till the expiry of the period of remand under S.167, Cr.P.C. Or till he is released on bail in the first case--- Such commonly committed mischief not only defeats the object of S.167, Cr.P.C. Of limiting the period of physical detention of an accused person to fifteen days, but is obviously a joke with the powers of the Magistrate in the matters of remand and custody of an accused person. (c) Criminal Procedure Code (V of 1898)--- ----Ss. 54 & 167---Scope and object of Ss.54 & 167, Cr.P.C.--- Person required in more than one cases--- Arrest--- Procedure---Guidelines. No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of his having been concerned in any cognizable offence but power given to the Police Officer under section 54, Cr.P.C. Being an encroachment on the liberty of a citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting to be under this section would be illegal unless the circumstances specified in the various clauses of the section exist. This section does not give free license to a Police Officer to arrest anybody he may like. In order to act under this section, there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. An arrest of a citizen in a reckless disregard of the conditions imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relevant rules. Similarly, section 167, Cr.P.C. Does not visualize successive and repeated arrests of a person required in more than one cases. An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations against him in another
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case. It is rather desirable that when a person required or accused in more than one cases or where more than one FIRs are registered against him is arrested and remanded to physical custody, then he should be interrogated about the allegations against him in all the cases. Instead of acting strictly in accordance with law, the police is following the illegal practice of showing the arrest of the person in one case and on the expiry of remand it again arrests him in another case. It is commonly known that in selected case, police would arrest the accused on his release on bail in the first case. It is nowhere stated in the Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case and he cannot be arrested simultaneously in more than one case. Section 167, Cr.P.C. Simply says that whenever a person is arrested or detained in custody, the Magistrate may authorize his detention in such custody for a term not exceeding fifteen days in the whole. The section does not talk of 'case' it talks of custody only. The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders, is only fifteen days. So, the detention of the accused person required in more than one cases already registered against him, for more than fifteen days would be illegal. It would be quite in accordance with law that when a person required in more than one criminal cases of the same police station is arrested in one case, he shall be deemed to have been arrested in all the cases. After continuous physical custody of the accused with the police, the…
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