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Petitioner: Raja MUHAMMAD ZARAT KHAN and another VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title:Raja MUHAMMAD ZARAT KHAN and another vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLD 2007 Karachi 597 Result: Order accordingly Judgment JUDGMENT RAHMAT HUSSAIN JAFFERI, J:---This judgment will dispose of C.Ps. Nos. D-1008 & 1092 of 2007 as common questions of facts and law are involved. 2. On 9-5-2007 the petitioner Muhammad Zarat Khan filed the petition bearing No,1008/2007 with the following prayers:- "it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:-- (a) declare that grant of physical remand of the petitioner by the respondent No,3 to NAB authorities is void ab initio and of no legal effect; (b) declare that remanding of the petitioner to judicial custody by respondent No,3 is without jurisdiction, without lawful authority and of no legal effect; (c) declare that the subsequent ground of arrest served upon the petitioner on 2nd May 2007 are subsequently void, illegal and without lawful effect; (d) restrain the respondent No,2 or any person acting for and on behalf of the respondents from taking any action against the petitioner pursuant to or in terms of any law that applies to or confer power on the respondents or any one of them without due process of law; (e) order for release of the petitioner from judicial custody in respect of warrant of arrest issued on 26-12-2006; (1) grant any such relief to which the petitioner may be entitled or which may be warranted in the circumstances of the case; (g) grant compensation for illegal detention; and (h) grant-costs of the petition."
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3. The facts of the case are that on 21-11-2006 the Chairman NAB formed opinion on receipt of certain information that the petitioner, Chairman of M/s. Bawan Shah Group of Companies, CBR officials and others were, prima facie, involved in the commission of offences under the provisions of National Accountability Bureau Ordinance, 1999 (herein after referred to as the 'Ordinance'), therefore, it was found necessary and appropriate to initiate the proceedings against them. Hence, the matter was referred for inquiry under the provisions of section 18(c) of the Ordinance. The inquiry was entrusted to Inquiry.. Officer Raza Khan. During the pendency of inquiry on 29-12-2006 the Chairman NAB issued warrant for the arrest of the petitioner. The petitioner was already in custody but was hospitalized, therefore, on 25-1-2007 with the permission of the Court of Special Judge, Customs and Taxation, Karachi, under whose remand the petitioner was in custody and hospitalized, the Investigating Officer arrested the petitioner. On 26-1-2007 the petitioner was produced before the Administrative Judge, Accountability Court for obtaining physical remand which was granted. The Investigating Officer could not complete the investigation within the period of 90 days but was periodically producing the petitioner before the Administrative Judge, Accountability Court for grant of physical remand which was being granted. After completion of 90 days the petitioner was remanded to judicial custody but no Reference was filed till filing of the petition, therefore, the petitioner has filed the present petition. 4. Brief facts of the C.P. No,D-1092/2007 are that on 20-2-2007, the Chairman NAB issued warrant of arrest of petitioner Muhammad Hanif, who as co-accused with the petitioner Raja Muhammad Zarat Khan of C.P. No,D-1008/2007. On the same date he was arrested. On 21-2-2007, he was produced before the Administrative Judge, Accountability Court, who remanded him to police custody up to 7-3-2007. After completion of remand period, he was produced before the said Judge who again remanded him to police custody. This process continued till 23-4-2007, when he was remanded to judicial custody. It is alleged that the petitioner was forced to make application to enter into plea bargain and he submitted such application on 10-3-2007; that the NAB Authorities are trying to register more cases, therefore, he has prayed for the quashment of the investigation. 5. We have heard the advocates for the petitioners and DPGA for NAB. 6. Mr. Raja Qureshi, the learned advocate for the petitioner has stated that the Investigating Officer was required to arrest the petitioner after collection of some evidence involving the petitioner in the crime but no evidence was collected before the warrant was issued, therefore, the arrest of the petitioner was illegal. He has further stated that during the period of remand the Investigating Officer could not collect the evidence against the petitioner; that the copies of case diaries were not supplied to the Court which is the requirement of law; that the Administrative Judge, Accountability Court without looking into the evidence collected against the petitioner granted remand mechanically, therefore, the remand orders passed by the Judge are illegal; that the Reference has not been filed within a reasonable time after start of the investigation and after 'completion of 90 days of police remand, therefore, the detention of the petitioner is illegal. Mr. Ali Ahmed Junejo, Advocate for the petitioner Muhammad Hanif has adopted the arguments of Mr. Raja Qureshi. 7. The learned DPGA has stated that sufficient material was available with the Investigating Officer warranting the issuance of warrant of the arrest of the petitioner; that during investigation the Investigating Officer had collected evidence which shows the involvement of the petitioner in the case; and that the remand orders passed by the Judge were in accordance with law, therefore, there is no illegality in such orders. In the end, he has stated, that on 7-8-2007 the Reference has been filed against the petitioners, therefore, the petitions have become infructuous. 8. In reply to the arguments, the learned advocates for the petitioners have stated that no doubt the Reference has been filed much after the filing of petitions but that will not absolve the NAB
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authorities to violate the provisions of law; that the petitions have not become infructuous but a finding may be given on the points raised in the petitions which are of public importance and involve in various cases. 9. The scheme of initiation of proceedings under the Ordinance is provided under section 18 of the Ordinance under which the Chairman,. NAB , after receipt of information of commission of offence through any source as mentioned in clause (b) of section 18 of the Ordinance, is required to examine the same and if he forms opinion that it is appropriate to initiate proceedings against any person then he is required to refer the matter for inquiry or investigation as provided under clause (c) of section 18 of the Ordinance. Reference is invited to Ghulam Hussain Baloch v. Chairman, NAB (PLD 2007 Karachi 469). Under clause (e) of section 18 the Chairman and such members, officers or servants of NAB have been given powers for the purpose of inquiry and investigation to arrest any person and those powers are equivalent to all the powers of an officer in-charge of a Police Station under the Code of Criminal Procedure. Except the Chairman, NAB, a restriction has been imposed upon the other officers to arrest a person without permission of the Chairman, NAB or any officer of NAB duly authorized by the Chairman. Under Section 24(a) of the Ordinance the Chairman, NAB has further been authorized, at any stage of inquiry or investigation, to direct the accused to be arrested if he is not already arrested. Thus, there are three stages where a person can be arrested: (1) if after receipt of any information as provided under section 18(b) the Chairman, NAB forms opinion 'that a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that the accused is involved in the case then he can arrest the accused person; (2) the second stage of the arrest is provided under section 18(d) where the Chairman, NAB can make arrest if the conditions mentioned in section 54 are fulfilled or if Investigating Officer requests for permission to arrest the accused person then he can grant such permission; and (3) the third stage is visualized under section 24(a) of the Ordinance under which if the accused is neither arrested by the Chairman, NAB initially nor as provided under section 18(d) then the Chairman, NAB can direct that such accused person be arrested. 10. The powers of arrest to officer in-charge of a Police Station are provided under section 54 of the Code of Criminal Procedure under which a person can be arrested on fulfillment of any one of nine conditions mentioned thereunder. Thus, before making arrest or issuing a warrant to arrest or awarding permission to any Investigating Officer to arrest accused, the Chairman, NAB is required to satisfy himself as to whether there is tangible evidence fulfilling any one of the conditions mentioned in section 54, Cr.P.C. If he forms such opinion on the material placed before him then he can make arrest or permit the Investigating Officer to make arrest, otherwise he cannot do so. 11. It is manifest that initially when the Chairman, NAB had received information about the offence he was unable to form opinion on the material available with him to arrest the accused within the meaning of section 54 of the Cr.P.C. Therefore, he did not arrest the petitioner but ordered to hold inquiry and investigation. Thus first stage had passed and the case entered into second stage of inquiry and investigation. In the second state, the Inquiry Officer or Investigating Officer was required to collect the evidence. If evidence was- such where -inquiry officer or Investigating Officer forms the opinion within the scope of section 54, Cr.P.C. Then he could have requested the Chairman, NAB to permit him to make arrest of the accused. After examining such material, if the Chairman, NAB had formed the required opinion within the meaning of section 54, Cr.P.C., then either he could have arrested the accused himself or permitted the Investigating Officer to arrest the accused. The police diaries are silent about presenting the required material before Chairman, NAB or a request made by Investigating Officer to Chairman, NAB for permitting him to make the arrest. However, the record simply shows that Chairman, NAB had issued warrant of arrest of the petitioner. On what basis such warrant was issued? The record is completely silent.
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12. This Bench in the case of Zahoor Ahmed Sheikh v. Chairman, NAB (PLD 2007 Karachi 243) thoroughly examined the above question and in paragraph 30, at page 271 observed as under:-- "30. It follows that if any other , officer, except Chairman, NAB, during the course of inquiry or investigation after collecting material forms opinion that the accused is to be arrested, then such officer shall produce the material before the Chairman, NAB to seek permission to arrest the accused. The Chairman, NAB after perusing the material collected by the inquiry or Investigating Officer forms the opinion within the scope of first clause of section 54 of the Code, he shall grant such permission so as to implement the intention of the legislature. If he cannot form such opinion then he shall defer to grant such permission till sufficient material is collected. No form of such permission is provided under the Ordinance, therefore, the, Chairman, NAB, may grant such permission in any form but it should be in writing. After receipt of such permission the concerned officer can make arrest." 13. It is pointed out that this judgment was challenged before the Hon'ble Supreme Court of Pakistan while granting leave to appeal the Hon'ble Supreme Court of Pakistan suspended the operation of paragraph 44 only of the judgment vide unreported judgment dated 2-3-2007 passed in Civil Petitions Nos.167 to 172 of 2007. Above observation is made in paragraph 30, which is completely different from the paragraph 44, as such, it is operative till set aside by the Hon'ble Supreme Court of Pakistan. 14. In the present case the inquiry was ordered to be initiated on 21-11-2006. It appears that on 23- 11-2006 the Investigating Officer started the investigation as clear from the case diary of the police papers. A perusal of the case diaries reveals that only on four dates the Investigating Officer conducted the investigation. The said dates are 23-11-2006, 30-11-2006, 19-12-2006 and 20-12- 2006. The said diaries are as under:-- "Case Diary No,1 Inquiry Auth. No, 8/SIT-3/SOW/NAB/06 Authorized by: Cn. NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 23-11-2006 Proceedings: On NAB vide letter No,8/SIT-3/SOW/NAB/06 dated 21-11-2006 ordered to initiate inquiry proceedings against Raja Muhammad Zarat Khan M/s. Bawan Shah Group of Companies and others and accordingly authorized Dy. Cu. NAB, Maj. Gen. Muhammad Siddique to refer the matter for inquiry within the meaning of section 18(c) NAO 1999. In the light of on authorization, Maj. Gen. Muhammad Siddiqui, Dy. Cn NAB vide letter No, 8/SIT- 3/SOW/NAB/06, dated 22-11-2006 directed the undersigned to conduct inquiry and Lt... Col. Abdul Mateen Khan, Addl. Dir SIT-3, SOW, NAB HQ was made case officer of the inquiry. In the light of above authorization, formal inquiry was initated NAB(S) was directed to provide all relevant record of the case available in NAB(S). Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer
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Case Diary No,2 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 30-11-2006 Proceedings: On 30-11-2006, Cn CBR was requested to provide all relevant record of the case collected by Dir. General Custom Intelligence and Investigation and Collectorate of Sales Tax, Karachi. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,3 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 19-12-2006 Proceedings: On 19-12-2006, Administrators Industrial Area Karachi, Pakistan EmployeesCoop. Housing Society Karachi, Defence Housing Authority Karachi and Military Estate Officer Karachi were informed about the ongoing inquiry against Raja Muhammad Zarat Khan and others and requested not to transfer by any means whatsoever or create a charge on any property owned by the accused. In addition, D.G. FCIW was requested to freeze all bank accounts and lockers in the name of following Individuals/companies:- a. Raja Muhammad Zarat Khan b. Muhammad Raza c. M/s. Bawan Shah Group of Companies. d. M/s. Bawan Shah Corporation e. M/s. Bawan Shah Trading Co. f. M/s. Alliance Leather (Pvt.) Limited. g. M/s. Early Morning Textile Mills. h. M/s. Latest Fashion Stitching Factory. i. M/s. B.S. Enterprises j. M/s. Business International. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,4 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06
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Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 20-12-2006 Proceedings: On 20-12-2006, D.G. Gawadar. Development Authority was informed about the ongoing inquiry against Raja Muhammad Zarat Khan and others and requested not to transfer by any means whatsoever or create a charge on any property owned by the accused. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer". 15. A perusal of above diaries reveals firstly that no reason whatsoever has been assigned to issue notice to various departments or call the documents so as to justify his actions, ascertain the mode and direction of inquiry and what compelled the officer to take such steps. It is mandatory and compulsory upon the officer to give reasons as mandated by section 24-A of the General Clauses Act under which every authority and officer who is empowered to pass any order or issue any direction is required to give reasons for passing any order or issuing any direction. Thus the diaries are not maintained in accordance with law, which has adversely affected the process of inquiry or investigation. Secondly, no evidence whatsoever was collected by the Investigating Officer showing involvement of the petitioner, as on the said dates he simply issued letters to various departments for collecting information and informing them about the initiation of inquiry against the petitioner. 16. On 29-12-2006, the Chairman NAB issued warrant for the arrest of the petitioner. There is no diary showing that any material was placed before the Chairman NAB for his perusal and examination enabling him to form opinion within the scope of section 54, Cr. P.C. As such, at the relevant time there was no tangible evidence with the Chairman NAB to issue warrant of arrest of the petitioner. Thus, a warrant in absence of such evidence cannot be termed as a legal warrant issued under the provisions of section 54 of the Code of Criminal Procedure 'nor the Chairman, NAB was justified in doing so in absence of such material. The Constitution gives guarantee to the citizens under Article 9 that they will be dealt with in accordance with law. Such guarantee has been violated in this case. 17. The next diary starts from 29-12-2006.. The petitioner was arrested on 25-1-2007. In between the periods the Investigating Officer conducted investigation on six dates only. The said dates are 29- 12-2006, 11-1-2007, 22-1-2007, 23-1-2007, 24-1-2007 and 25-1-2007. The said diaries are as under:-- "Case Diary No,5 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Inquiry Officer Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 29-12-2006 Proceedings:
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On 29-12-2006, Cn NAB vide letter No,6 (8)/1702/COS-NAB dt. 29-12-2006 issued warrant of arrest of Raja Muhammad Zarat Khan and Muhammad Raza. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer
Case Diary No,6 Inquiry Auth. No, 8/SIT-3/SOW/NAB/06 Authorized by:
Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT- 3),. SOW, NAB HQ Date: 11-1-2007 Proceedings: On 11-1-2007, letters were written to the Managers of different banks to furnish the following information/documents of the subject accused and their Group of companies/suppliers:-- a. CTC of account opening, form of the client along with all relevant documents. b. Bank statement of the account from the date of opening till to date c. Details along with CTC of all instruments issued and received in the account, including cheque books, pay orders, demand drafts, cheques etc. d. Prescribed procedure/rules/regulations/instructions SOP of SBP/ concerned bank with regard to opening & operation of Companies /Firms accounts. e. Any other relevant information/documents with regard to Bank accounts/lockers of M/s. Bawan Shah Group of Companies & its owners. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,7 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3), SOW, NAB HQ Date: 22-1-2007 Proceedings: On 22-1-2007, letters were written to the Managers of different banks to furnish the following information/documents of the subject accused and their Group of companies/suppliers:-- a. CTC of account opening form of the client along with all relevant documents. b. Bank statement of the account from the date of opening till to date c. Details along with CTC of all instruments
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issued and received in the account, including cheque books, pay orders, demand drafts, cheques etc. d. Prescribed procedure/rules/regulations/instructions SOP of SBP/concetned bank with regard to opening & operation of Companies/Firms accounts. e. Any other relevant information/documents with regard to Bank accounts/lockers of M/s. Bawan Shah Group of Companies & its owners. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,8 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3),SOW, NAB HQ Date: 23-1-2007 Proceedings: On 23-1-2007, letters were written to the Managers of different banks to furnish the following information/documents of the subject accused and their Group of companies/suppliers:-- a. CTC of account opening form of the client along with all relevant documents. b. Bank statement of the account from the date of opening till to date c. Details along with CTC of all instruments issued and received in the account, including cheque books, pay orders, demand drafts, cheques etc. d. Prescribed procedure/rules/regulations/instructions SOP of SBP/ concerned bank with regard to opening & operation of Companies /Firms accounts. e. Any other relevant information/documents with regard to Bank accounts/lockers of M/s. Bawan Shah Group of Companies & its owners. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,9 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3),SOW, NAB HQ Date: 24-1-2007 Proceedings: During inquiry, it was revealed that accused Raja Muhammad Zarat Khan is under judicial custody of Special Judge (Custom & Taxation), Karachi in Central Jail Karachi. Accordingly, on 24-1-2007 at 5-00 p.m. Visited Central Jail Karachi for execution of warrant of arrest. The Jail authority informed that Raja Muhammad Zarat .Khan is admitted in National Medical Centre (NMC) Karachi. Mr. Abdul Razzaq, Asstt Supdt, Central Jail, Karachi was handed over warrant of arrest of Raja Muhammad
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Zarat Khan. Therefore to execute warrant of arrest, Mr. Abdul Razzaq accompanies the undersigned to National Medical Centre (NMC) Karachi, where the accused was admitted in the hospital. On 24-1-2007 at 6.45 P.M, warrant of arrest was executed to the accused in the hospital. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer Case Diary No,10 Inquiry Auth. No, 8/SIT- 3/SOW/NAB/06 Authorized by: Cn NAB Name of Accused Raja Muhammad Zarat Khan, M/s. Bawan Shah Group of Companies and others Inquiry Officer Raza Khan, Dy. Dir (SIT-3),SOW, NAB HQ Date: 25-1-2007 Proceedings: On 25-1-2007 at 11.00 A.M, an application was moved before the Special Judge (Custom & Taxation) Karachi for permission to get custody of the accused Raja Muhammad Zarat Khan from Jail. After hearing, the Court granted permission. At about 6-30 p.m. Visited Central Jail Karachi and handed over the Court Order to Supdt. Jail for compliance. In the light of Court Order, the Supdt. Jail directed the Incharge Police to hand over custody of the accused to the undersigned. At about 9 P.M. Met the accused in Hospital. He was feeling well. However, the doctors on duty were insisting that the accused is serious and should not be removed from the hospital. In the light of the Court Order, the accused was taken into custody, his search was conducted and search memo. Prepared. Nothing was found. The accused was then shifted to NAB P.S. At about 10- 30 p.m., where his medical checkup was carried out and he was kept under Doctor monitoring. The accused remained stable. Diary for the day is closed. Further progress through next Case Diary. (Sd.) Raza Khan, Inquiry Officer". 18. On all the above dates the diaries reveal firstly that no reasons have been given for taking steps towards progress of inquiry or investigation or on what basis such material was called or account for the action of officer, secondly the only letters were sent to different departments for collection of certain information. No diary shows that any material was received by the officer from any department to which letters were written. Before making arrest the officer did not wait to receive the documents and examined them to form opinion within the meaning…
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