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Petitioner: ZAHOOR AHMED SHEIKH and others VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Munib Ahmed Khan Title:ZAHOOR AHMED SHEIKH and others vs CHAIRMAN, NATIONAL
ACCOUNTABILITY BUREAU, ISLAMABAD and others Case No.:Constitutional Petitions Nos.D-2234, D-2246, D-2340, D-2344, D-2361 and D-2381 of 2006 Date of Judgment:2007-01-17 Reported As: PLD 2007 Karachi 243 Result: Order accordingly Judgment ORDER ' RAHMAT HUSSAIN JAFFERI, J.---This order will dispose of following preliminary point raised in the above matters:-- "Whether the Chairman NAB is required under the law to forward accused in custody or show him released or absconder in the Reference when it is filed before the Accountability Court." 2. After examining the references filed by the Chairman NAB in the above matters before the Accountability Court it was found that the References were filed without forwarding the accused persons in custody or showing them released or absconders, therefore, necessity arose to formulate the above point. 3. On the above point we have heard Mr. Shafat Nabi Sherwani, DPGA NAB. M/s. Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar, Ghazi Qurban and Iqbal Khurram, Advocates for the petitioners and Mr. M. Anwar Tariq, Mr. I.A. Hashmi and Ms. Ismat Mehdi, Advocates who have assisted the Court as amicus curiae. 4. The learned DPGA, NAB has taken us to the provisions of sections 17, 18 and 24 of the National Accountability Ordinance, 1999 (hereinafter referred to as the `Ordinance') and authority of the Hon'ble Supreme Court of Pakistan reported in the case of Khan Asfandyar 'Wali v. Federation of Pakistan PLD 2001 SC 607 by referring to its paras.257, 275 and 276. His main contentions are that the Chairman NAB has discretionary powers to arrest an accused person during the pendency of inquiry or investigation; that he becomes functus officio, with regard to arrest of the accused after completing the investigation; that it -is not mandatory for the Chairman NAB to forward the
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accused person in custody in non-bailable cases at the time of filing of Reference, therefore, the Chairman NAB has discretionary powers to forward the accused in custody or otherwise. The amicus curiae. M/s. M. Anwar Tariq and I.A. Hashmi are of the view that by virtue of Supreme Court's decision in the case of Khan Asfandayar Wali (supra) mentioned in paras.275 and 276, no doubt the provisions of section 18(g) of the Ordinance are made subject to section 170, Cr.P.C. But no suitable amendments have been made in section 18(g) as directed by Hon'ble Supreme Court of Pakistan and there is conflict between sections 170, Cr.P.C. And 18(g) of the Ordinance, therefore, the provisions of NAB Ordinance would prevail, hence it is not necessary for the Chairman NAB to forward the accused in custody at the time of filing reference. Mr. I.A. Hashmi has further added that the provisions of the NAB Ordinance have overriding effect on any other laws for the time being in force. He has referred to the case Ahmed Siyal v. National Accountability Bureau 2004 SCM R 265. Ms. Ismat Mehdi, after referring to paras 275 and 276 of Khan Asgfandyar Wali's case, submitted that the point has been finally decided by the Hon'ble Supreme Court of Pakistan; that the provisions of section 18(g) of the NAB Ordinance are subject to provisions of section 170, Cr.P.C.; that there is no conflict between both the provisions, therefore, the effect of the said observation has to be given and implemented in letter and spirit. She has further stated that under section 170, Cr.P.C. The accused is required to be produced in custody in non-bailable offence and in bailable offence surety is to be taken to appear before the Court whenever so required by the police. Mr. Muhammad Nawaz Shaikh and other advocates have adopted the arguments of Mr. I.A. Hashmi. 5. We have given due consideration to the arguments, gone through the relevant provisions of law, the authority of the Hon'ble Supreme Court of Pakistan and found that under the criminal administration of justice, and Code of Criminal Procedure (hereinafter referred to as `Code') a criminal case is initiated on filing F.I.R. After registration of the F.I.R. The police officer starts investigation for collecting the evidence. After collecting the evidence and completing the investigation the Investigating Officer, if he finds that there is no sufficient evidence collected against the accused then he has to release the accused as provided under section 169 of the Code. If he finds that there is sufficient evidence against the accused then he is required to submit the report within the meaning of section 170 of the Code. In both the cases the police officer is required to submit a police report or challan as provided under section 173(1)(a) of the Code in the form provided by the Provincial Government containing various columns. The similar point was discussed by the Hon'ble Supreme Court of Pakistan in the case of Habib v. State 1983 SCM R 370. Similar view as that of us was taken and at page 372 it was observed as under:- "The steps to be taken by the Investigating Officer on the completion of the investigation are given in sections 169, 170 and 173, which have to be read together in order to understand their true meaning. The steps prescribed are briefly, as follows:-- `If, on the completion of the investigation the Investigating Officer forms the opinion that sufficient evidence to justify forwarding the accused to Magistrate (for trial) is not forthcoming then, as provided under section 169, Cr.P.C. If the accused is in custody he shall release him on his executing a bond with or without sureties, and direct him to appear, whenever required, before a Magistrate empowered to take cognizance of the offence on a police report.' 8. If, on the other hand, the investigating Officer comes to the conclusion that there is sufficient evidence to send up the accused for trial, he is required'under section 170, Cr.P.C. To forward him, under custody, to a Magistrate empowered to take cognizance upon a report under section 173, Cr.P.C. And to try the accused himself or to send him for trial to the Court of Session. Where, however, an offence made out is a bailable one, he shall take surety from the accused to appear before such Magistrate whenever so required by him. He is also required by subsection (2) of section 170 to send to the Magistrate any weapon or other article relevant to the case and to
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require the complainant and the witnesses to execute bonds to appear before the Magistrate for giving evidence at the trial on the completion of the investigation. Whether he proceeds under section 169 or under section 170, the Investigating Officer is required by section 173, Cr.P.C. To submit a report (known as the 'final report') to the Magistrate having the required power 'in the form prescribed by the Provincial Government.' Giving his conclusions in either case i.e. Whether he has formed the view mentioned in section 169 i.e. That there is no sufficient evidence against the accused or has come to the conclusion mentioned in section 170 as to the guilt of the accused persons. In the later case, he is also required to mention therein, inter alia, the names of the parties, nature of information and the names of the witnesses. Subsection (3) of section 173, Cr.P.C. Provides that:-- ' Whenever it appears from a. Report submitted under this section that the accused had been released on his bond, a Magistrate shall immediately pass an order discharging of such bond, or otherwise as he thinks fit.' ' The subsection prescribes the course that a Magistrate may adopt when a report under section 173, Cr.P.C. Is received by him. When the report shows that the case is covered by section 169, Cr.P.C. i.e. The Investigating Officer has not found sufficient evidence against the accused person and if in custody he has been released on his own bond, the Magistrate may either; (i) accept the report relating to the lack of evidence and discharge the bond executed by the accused or (ii) act 'otherwise as he thinks fit,' that if he may disagree with the police as to lack of evidence against the accused and, notwithstanding the view of the Investigating Officer, summon the accused to be put on trial. In this behalf reference may be made to Falak Sher and another v. The State PLD 1967 SC 425 and Muhammad Arif v. The State 1970 SCM R 178. It may be mentioned here that it is in the exercise of the power under this subsection, permitting him to act 'otherwise as he thinks fit,' that a Magistrate is also empowered on an application by the Investigating Officer to pass an order 'cancelling' a case in which sufficient evidence is not forthcoming against an accused person. If, however, a report under section 173, Cr.P.C. Shows that the Police Officer has taken action under section 170, Cr.P.C. And has forwarded the accused under custody for trial, the Magistrate shall proceed to take cognizance under section 190(3), Cr.P.C. 9. The crux of the above-noted provisions, i.e. Sections 169, 170 and 173, is that whatever course the Investigating Officer adopts i.e. Whether he acts under section 169 or under section 170, Cr.P.C. It is incumbent upon him to submit a `final report' under section 173, Cr.P.C. With regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr.P.C. Or under section 190, Cr.P.C. As the case may be." 6. In the NAB case the. Chairman NAB starts proceedings on receipt of a reference from appropriate Government of a complaint or 'on its own accord about the offence under the Ordinance. Then he sends the matter for inquiry or investigation. After completing the investigation the material is to be placed before the Chairman NAB or any officer of the NAB duly authorized who again has to form opinion as to whether the Reference is to be filed or otherwise. -If he forms opinion that Reference is to be filed then he is required to file Reference within the meaning of section 18(g) before the Accountability Court. The Reference is the final opinion of the Chairman NAB or any officer of the NAB duly authorized. Under the Code, a police officer is required to express his final opinion in the shape of report, in the form prescribed by the Provincial Government, which is commonly known as `challan'. As such, the reference filed by the Chairman NAB and challan filed by police are one and same except the form in which they are to be submitted or filed before the competent Court. 7. In view of the decision of the Hon'ble Supreme Court of Pakistan given in the case of Habib (supra) final opinion of competent authority (Reference or challan) can be formed after going
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through the evidence collected during investigation and after deciding as to whether there is sufficient evidence against the accused justifying him to forward him for trial or there is no such evidence against the accused, justifying him to release him. Such decisions have to be expressed in the manner as provided under sections 169 and 170 of the Code and final opinion is to D be expressed in the manner provided under section 173 of the Code by filing Reference or challan, as the case may be, because all three provisions are to be read together. 8. A perusal of the Ordinance reveals that no corresponding provisions as that of sections 169, 170 and 173 of the Code' are available in the Ordinance. Now it is to be seen whether the said provisions can be made applicable in the. Proceedings under the Ordinance. 9. Section 17 of the Ordinance provides that provisions of the Code are applicable in the proceedings under the Ordinance if they are not E inconsistent with the provisions of the Ordinance, 1999, the said section reads as under:-- "17. Provisions of the Code to apply.-- (a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions 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. (b) Subject to subsection (a),' the provisions of Chapter XXIIA of the Code shall apply to trials under this Ordinance. (c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provisions of the Code and follow such procedure as it may deem fit in the circumstances of the case. (d) 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." 10. The investigation of a case is conducted under the Ordinance, therefore, the provisions of Chapter XIV, Part V of the Code are applicable if they are not inconsistent with the provisions of the Ordinance. If any of the provisions of the Code is in conflict with any of the provisions of the NAB Ordinance then the provisions of the NAB Ordinance would prevail otherwise the provisions of the Code would apply with necessary adaptation and changes as in section 17 phrase "mutatis mutandis" is used. Black's Law Dictionary (Sixth Edition) defines the phrase `mutatis mutandis' as under:-- "Mutatis mutandis.--With the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Housman v. Waterhouse , 191 App. Div. 850, 182 N.Y.S. 249. 251." 11. It will be advantageous to reproduce sections 169 & 170, Cr.P.C. To examine whether any of such provisions is in conflict with any provisions of the Ordinance. Section 170 of the Code is reproduced in the case of Asfandyar Wali, which will be referred at later stage therefore, need not to be mentioned here as it will be only repetition of same provision. Section 169 of the Code reads as under:-- "169. Release of accused when evidence deficient.--If, upon an investigation under this Chapter, it appears to the officer in charge of the Police Station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial."
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12. From the perusal of sections 169 and 170 of the Code and provisions of the Ordinance, we find that said provisions are not in conflict with any of the provisions of the Ordinance, therefore, they are applicable in the proceedings under the Ordinance but with necessary adaptation and changes. 13. The provisions of section 18(g) of the NAB Ordinance with reference to section 170 of the Code were subject to interpretation by the Hon'ble Supreme Court of Pakistan in the case of Khan Asfandyar Wali (supra) at page 935 in paras 275 and 276 it has been observed as under:-- "275. The powers vesting in the Chairman NAB to release an accused from custody having regard to the gravity of the charge against him, favour the accused. However, while doing so, he is to record valid reasons in writing. As regards the vesting of powers with the Chairman NAB under section 18(g) to refer or not a case to the Accountability Court after perusal of the material and evidence collected during inquiry or investigation, suffice it to say that this power corresponds to the normal powers vested in all police Officers or Officers of investigating agencies. Reference may be made to section 170, Cr.P.C. Which reads as under; "170. Case to be sent to Magistrate when evidence is sufficient.--(1) If, upon an investigation under this Chapter it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. (2) When the officer in charge of a Police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) Omitted. (4) Rep. By Code of Criminal Procedure (Amendment) Act (II of 1926), S . 2-. (5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report." 276. Clearly, the existence of 'sufficient evidence is a condition precedent for the police acting under section 170, Cr.P.C. And for making .a request to the Magistrate to take cognizance of the offence It is for the Officer in charge of a police station to decide whether there is sufficient evidence to justify the forwarding of the accused to the competent Magistrate. As stated above a corresponding provision is contained in section 18(g) to which no exception can be taken subject to compliance with the procedure laid down in section 170, Cr.P.C. So far as it is applicable. To this extent section 18(g) be suitably amended." 14. From the above authority it is clear that the provisions of section 18(g) have been made subject to compliance with the procedure laid down in section 170 of the Code. The Hon'ble Supreme Court directed that to that extent section 18(g) be suitability amended. It appears that section 18(g) has not been suitably amended so as to make it in consonance under section 170 of the Code. 15. After giving effect to the observations of the Hon'ble Supreme Court in the cases of Habib and Khan Asfandyar Wali it follows that after investigation of the case if the Chairman NAB or any officer of the NAB duly authorized finds that no evidence has been collected against the accused then he is required to release the-accused within the meaning of section 169 of the Code. If he forms such opinion then he is required to submit the reference before the Accountability Court for passing
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appropriate order in view of rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Habib v. State (supra). If the Chairman NAB forms opinion that there is sufficient evidence against the accused then he is also required to file Reference forwarding the accused in custody within the meaning of section 18(g) read with section 170 of the Code. 16. The sections 169 and 170 of the Code with necessary adaptation and changes will read as under:- "169. Release of accused when evidence deficient.--If, upon an investigation under the NAB Ordinance, it appears to the Chairman NAB or any officer of the NAB duly authorized and members of any agency or authority, officer or servant of the NAB making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to Accountability Court, Chairman NAB or any officer of the NAB duly authorized shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct to appear, if and when so required, before Accountability Court empowered to take cognizance of the offence on a Reference and to try the accused or send him for trial. 170. Case sent to Accountability Court when evidence is sufficient.--(1) If, upon an investigation under the NAB Ordinance it appears to the Chairman, NAB or any officer of the NAB duly authorized that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to the Accountability Court empowered to take-cognizance of the offence upon the Reference and to try the accused or send him for trial or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Court on a day fixed and for his attendance from day to day before the Court until otherwise directed. (2) When the Chairman NAB or any officer of the NAB duly authorized forwards an accused person to Accountability Court or takes security for his appearance before such Court under this section, he shall send to such Court any weapon or other article which may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Court as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) Omitted. (4) Repealed by Code of Criminal Procedure (Amendment) Act (II of 1926), section 2. (5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Accountability Court the original with his report." 17. From the above provisions with necessary changes it is the mandate of the law that the Chairman NAB or any officer of the NAB duly authorized is required to forward the accused in custody in a case 'of non-bailable offence. Thus, the said provision is mandatory provision . Furthermore, the word "shall" has been used before the words "foward the accused in custody to the Accountability. Court with the Reference. The word "shall" clearly demonstrates that the public functionaries are required to perform their duties in accordance with law hence no discretion has been given to the Chairman NAB or any officer of, the NAB duly authorized in performance of duties of forwarding the accused in custody to the Accountability Court along with Reference. If the Chairman NAB or any officer of the NAB duly authorized releases any accused person within the meaning of section 169 of the Code then such fact is required to be mentioned in the Reference and if the accused is absconder and the Chairman NAB or any officer of the NAB duly authorized forms such opinion after going through the material placed before him then such fact is also required to be mentioned in the Reference. Furthermore, the Chairman NAB or any officer of the NAB duly authorized may request the Court for trial of absconder within the meaning of section
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31(A) of the Ordinance as the concealing of accused or evading the service, etc. Of non-bailable warrants issued by Chairman NAB is an offence. 18. Now it is to be seen whether any of the provisions of section 173 of the Code is in conflict with any of the provisions of the Ordinance because the provisions of sections 169, 170 and 173 of the Code are to be read together. Section 173 of the Code is as follows:-- "173. Report of police-officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall, through the public prosecutor, (a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted' with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer in charge of the Police Station shall, within three days of the expiration of such period,…
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