Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Masood Chishti VS Respondent: Chairman, National Accountability Bureau & 4 others
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq Title:Muhammad Masood Chishti vs Chairman, National Accountability Bureau
& 4 others Case No.: W.P. No.1133/2020 Date of Judgment:2021-01-12 Reported As: 2021 IHC 4 Result: N/A Judgment ORDER ATHAR MINALLAH, C.J. Through this consolidated judgment we will decide the titled constitutional petition along with Criminal Appeal No.249/2019, titled 'The National Accountability Bureau, throu gh the Chairman v. Justice (R) Riaz Kiyani' and Criminal Appeal No.248/2019 titled 'The National Accountability Bureau, through the Chairman v . Zaheer ud Din Babar Awan'. 2. The facts and circumstances are peculiar . The initiation of the case appears to have been influenced by proceedings which had been taken up by the august Supreme Court. The record does not show that the apex Court had directed the initiation of an inquiry or investigation. It is a case which probably highlights the concerns of the august Supreme Court observed in the case titled 'Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others' [PLD 2001 SC 607] and the relevant portion is reproduced as follows.- "If decision making level officials responsible for issuing orders, SROs etc. are not protected for performing their official acts in good faith, the public serva nts and all such officers at the level of decision making would be reluctant to take decisions and/or avoid or prolong the same on one pretext or another which would ultimately lead to paralysis of State-machinery . Such a course cannot be countenanced by this Court." 3. The criminal appeals have been preferred by the National Accountability Bureau (hereinafter referred to as the 'Bureau' ) under section 32 of the National Accountability Ordinance, 1999 (hereinafter referred to as the 'Ordinance of 1999' ) assailing separate orders, dated 25-06-2019, whereby two of the accused arrayed in Reference No.18/2018, namely Justice (rtd) Riaz Kiyani and Zaheer-ud-Din Babar Awan, have been acquitted from the charges framed against them. Their petitions under section 265-K of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Cr.P.C.') were accepted. Another accused arraye d in the same reference, namely
---
## Page 2
Muhammad Masood Chishti, had also sought acquittal but his prayer was declined by the learned Accountability Court-II, Islamabad vide order dated 18-03-2020. The said order has been assailed by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republ ic of Pakistan, 1973 (hereinafter referred to as the 'Constitution' ). RELEV ANT F ACTS.- 4. The facts, in chronological order , leading to the filing of Reference No.18/2018, are as follows.- 27-12-2007. The Economic Coordination Council (hereinafter referred to as the 'ECC' ) approved the Nandipur Power Project (hereinafter referred to as the 'Project' ). The ECC also gave approval for the execution of a contract between GENCO-III/PEPCO and Dong Fang Electric Corporation (hereinafter referred to as the 'Corporation' ). The approval was subject to the issuance of guarantees by the Government of Pakistan regarding finance facility of US $ 329 million. The contract was executed between M/s Northern Power Generation Company Ltd. (hereinafter referred to as the 'Company' ) and the Corporation on 28-01-2008. Two consortiums were established for financing the Project i.e. COFACE (Euro 68.967 million) and SINOSURE (US$ 150.151 million), respectively . The draft agreements relating to the financing consortiums were duly vetted by the Ministry of Law, Justice and Parliamentary Affairs (hereinafter referred to as the 'Ministry of Law' ). 03-10-2008. The agreement with COFACE consortium was executed. In the case of the other consortium, one of the lending Banks withdrew its consent and, therefore, an agreement could not be signed. 04-03-2009. The Ministry of Law, in response to a letter , dated 03-03-2009, of the Ministry of Water and Power , advised the latter to proceed by taking appropriate decisions in consultation with the Finance Division. It was observed that the two Ministries were the most appropriate arbiters to get out of the imbroglio/quandary because of the peculiar situation described in the letter . 19-03-2009. After considerable delay , another lending institution consented to join the consortium, namely , SINOSURE and consequently an agreement was executed in Beijing, Republic of China. The executed agreement included some changes to the clauses contained in the draft which had been vetted by the Ministry of Law . 30-03-2009. The executed agreement with SINOSURE was forwarded by the Ministry of Water and Power to the Ministry of Finance and the latter was requested to give its ex-post facto approval. 07-04-2009. The Finance Division vide letter , dated 07-04-2009, sought comments / clearance of the Ministry of Law and the contents thereof are reproduced as follows.- "The undersigned is directed to refer to Law & Justice Division O.M. No.1(297)/08 Law-II dated 4th March, 2009 on the above subject. 2. The observations of Law & Justice Division were taken up by the Ministry of Water & Power / PEPCO with the lenders wh has clarified the position in the table placed at annexed-I. 3. The team of PEPCO visited Beijing on 17 - 19th March, 2009. The Exim Bank of China Sinosure presented final draft agreement which contained the changes to the earlier draft examined by Law & Justice Division. These changes are tabulated in annex-II. The PEPCO' s team has signed the Facility Agreement on 19-3-2009 containing the last momentum changes made by Exim Bank and Sinosure. A copy of Facility Agreement signed by PEPCO is placed at annex-III. 4. The Ministry of Water & Power and PEPCO has requested for ex-post facto approval and issuance of GOP guarantee as per format given in schedule 6 of Buyers Credit Facility Agreement signed by PEPCO on 19-3-2009. 5. It is requested that comments/clearance of Law and Justice Division may please be conveyed to enable Finance Division to proceed further . 17-04-2009.
---
## Page 3
The contents of the aforementioned letter were examined by the Ministry of Law and vide memorandum, dated 17- 04-2009, the following opinion was given.- "The undersigned is directed to refer to the Finance Division' s (External Finance Wing) O.M. No.1(1)EF /07-456, dated 7th April, 2009, on the above mentioned subject and to state that as to the issuance of the ex-post facto approval of this Division is concerned, it is stated that under the Rules of Business, 1973, Law & Justice Division only vets the final draft Agreement form the legal point of view. Therefore, no ex-post facto approval can be given specially when the finality of the Agreement has taken place. 2. However , the draft GOP Guarantee, which was a part of the main transaction document as agreed and entered into between the parties, has been examined. It is observed that it is not as per the standard approved GOP guarantees by this Division. Although, this Division has its reservations on some of the provisions and also that the GOP Guarantee should not be more than three to four pages and the irrelevant material should be deleted, yet as the draft has been agreed between the Parties, accordingly , the referring Ministry may take necessary action. 3. Further , for future course of action, these documents should not be referred as precedence. Standard draft provision should be decided principally , in order to narrow down the scope of disagreements with Lenders and other Parties. It is also suggested that extensive meetings be arranged by referring Ministry in order to develop standard drafts with consultation of Law & Justice Division and other concerned Ministries." It is noted that when the above opinion was given, neither the respondents in the appeals nor the petitioner were holding any public office in the Ministry of Law. They were also not associated with its affairs in any other manner . Justice (rtd) Agha Rafique Ahmed Khan Durrani was then holding the charge of Secretary , Ministry of Law. The latter was not arrayed as an accused. 25-04-2009. The Ministry of Law, vide Office Memorandum dated 25-09-2009, gave its concurrence in relation to the proposals mentioned in the draft summary which was intended to be placed before the ECC. 04-06-2009. Justice (rtd) Riaz Kiyani was posted as Secretary , Ministry of Law and he served in that capacity till 24-12-2009. During his tenure a letter , dated 07-07-2009, written by PEPCO, was forwarded to the Ministry of Law by the Ministry of Water and Power . The letter was examined and Ms Shumaila Mehmood, Consultant (Research) sent her professional opinion to the Secretary , Ministry of Law and it was approved by the latter . The Ministry of Water and Power was informed/advised vide letter , dated 04-09-2009. The Ministry of Law offered its opinion in paragraph 2 of the letter . 25-06-2009. The Finance Division sought the opinion of the Attorney General for Pakistan regarding the dispute resolution mechanism. The opinion was tendered by the latter on 25-06-201 1. 14-06-2010. Muhammad Masood Chishti was appointed as Secretary , Ministry of Law and he served till 21-03-201 1. 09-07-2009. Summary for the ECC. 17-12-2009. Zaheer Ud Din Babar Awan was sworn in as the Minister for Law, Justice and Parliamentary Affairs and he retained the portfolio till 1 1-04-201 1. 2011 petition entertained under Article 184 (3) of the Constitution. Khawaja Mohammad Asif filed a petition before the august Supreme Court alleging that delay in fulfilling obligations by the then Government relating to execution of the Project had caused loss to the exchequer . The petitioner was at that time sitting on the opposition benches in the Majlis-e-Shoora (Parliament). The petition was entertained by the august Supreme Court of Pakistan in exercise of powers conferred under Article 184(3) of the Constitution i.e. Constitutional Petition No.67/201 1 titled 'Khawaja Muhammad Asif v . Federation of Pakistan, and others' . 14-08-201 1.
---
## Page 4
The contrasting opinions of the Ministries, relating to completion of the Project, were placed before the Federal Cabinet. Approval was granted regarding sovereign guarantees and the concerned Ministries were advised to resolve their disputes. Pursuant to the said decision, a meeting between officials was held and the longstanding unresolved issues were put to rest. 19-10-201 1. The Ministry of Law issued a legal opinion relating to the Project. 26-10-201 1. The august Supreme Court appointed Justice (rtd) Rehmat Hussain Jaffari, a former judge, as a single member Commission to inquire into the allegations regarding delay and commissioning of the Project. 09-04-2012. The Commission submitted its report and the questions framed were answered as follows.- "Keeping in view the above discussion and findings, the terms of Commission are replied as under . No.1.(a) There is negligence on the part of the executive authorities of the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan which has caused the delay in completion of the projects. (a) Approximate loss of more than 1 13 billion has been caused to the National Exchequer . No.2. The Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan is responsible for causing delay in completion of the documents." 07-11-2012. The august Supreme Court, vide order , dated 07-11-2012, passed in Constitutional Petition No.67/201 1 titled "Khawaja Muhammad Asif v. Federation of Pakistan, and others' directed the counsel who had appeared on behalf of the Ministry of Water and Power to hand over a copy of the Commission' s report to the Secretary and directed the latter to brief the Court regar ding any actions, civil as well as criminal , contemplated to be taken. The Bureau has not placed on record any order whereby the Bureau may have been directed by the apex Court to initiate proceedings 07-06-2013. Khawaja Mohammad Asif, the petitioner before the august Supreme Court, was sworn in as Minister for Water and Power . 07-11-2013. The Ministry of W ater and Power forwarded a copy of the Commission' s report to the Bureau. 04-01-2014. An inquiry was authorized by the Director General of the Bureau. 27-12-2017. The competent authority gave approval for upgrading the inquiry to the stage of investigation. 31-08-2018. The Investigating Officer completed the investigation and submitted the final report. It appears from a plain reading of the report that the Investigating Officer was influenced by proceedings before the august Supreme Court, so much so that portions of the Commission's report were reproduced verbatim. The final report was based on a narration of facts, analysis of the official correspondence and reproduction of portions of the report of the Commission. There was no allegation, even remotely , that the accused had either gained any benefit or had extended undue favour to any person. The calculation of loss was also based on mere presumptions and mostly related to escalation of price. There was no indication of the existence of mens rea. 30-09-2018. The Chairman of the Bureau filed Reference No.18/2018 (hereinafter referred to as the "Reference") wherein it was alleged that offences under the Ordina nce of 1999 were committed. Seven accused were nominated in the Reference including Justice (rtd) Riaz Kiyani, Muhammad Masood Chishti and Zaheer ud Din Babar Awan. However , Justice (rtd) Agha Rafiq Durrani was not arrayed as an accused. There is no mention whatsoever in the reference regarding the grant or rendition of any undue benefit or favour to another person or accused. It is also not
---
## Page 5
alleged that there was misuse of authority by the accused so as to gain benefit or favour for themselves or any other person. 11-03-2019. A charge was framed by the learned Accountability Court-II, Islamabad on 11-03-2019. The charge, as framed, did not appear to fulfill the ingredients of one of the of fences described under section 9 of the Ordinance of 1999. 25-06-2019. Petitions filed by Justice (rtd) Riaz Kiyani and Zaheer Ud Din Babar Awan under section 265-K of the Cr.P.C. were accepted and consequently they were acquitted of the charges framed by the learned court. 18-03-2020. The learned Judge, Accountability Court-II, Islamabad dismissed the petition filed under section 265-K of Cr.P.C by the petitioner i.e. Mohammad Masood Chishti. ARGUMENTS. 5. The learned counsels who have appeared on behalf of Muhammad Masood Chishti and the respondents in the appeals have contended that; the impugned order , dated 18-03-2020, is against the facts and law; the impugned order suffers from misreading and non-reading; the petitioner has an unblemished professional record as a practicing lawyer; a plain reading of the Reference as well as the investigation report unambiguously shows that no offence was made out to proceed against the petitioner; two other co accused were acquitted and the role of Muhammad Masood Chishti was not distinguishable; Muhammad Masood Chishti and Justice (rtd) Riaz Kiyani had merely reiterated the stance taken by the Ministry of Law vide letter , dated 17-04-2009; the professional opinion was contained in the letter dated 17-04-2009 and neither were the then Secretary , Ministry of Law nor the Minister holding the portfolio questioned or arrayed as accused; the Commission appointed by the august Supreme Court did not, even remotely , suggest an offence having been committed under the Ordinance of 1999; the proceedings before the august Supreme Court were initiated on the basis of the petition filed by a political leader who was then sitting on the opposition benches; the Bureau did not inquire or investigate the matter and it is obvious from the investigation report that the investigating officer was solely influenced by the report of the Commission; the necessary ingredients of the offence under section 9(a)(vi) nor item 5 of the Schedule of the Ordinance of 1999 exist and, therefore, the accused would be unnecessarily subjected to the travail s of a trial; the acquittals in the case of the two accused vide separate orders, dated 25-06-2009, are neither perverse nor does any ground exist requiring interference by this Court; there is nothing on record to even remotely indicate mens rea; actus reus is also nonexistent; it is an admitted position that no personal gain was obtained by the petitioner and the respondents in the criminal appeals; reliance has been placed on the cases of 'Mansur ul Haque v. Government of Pakistan' [PLD 2008 SC 166], 'The State v. M. Idrees Ghauri and others' [2008 SCMR 1118], 'Anwarul Haq Qureshi v. National Accountability Bureau and another ' [2008 SCMR 1135], 'Wahid Bakhsh Baloch v. The State' [2014 SCMR 985], 'Messrs Fauji Cement Company Limited v. Government of Pakistan through Secretary Customs, Board of Revenue, Islamabad and others' [2014 SCMR 994], 'Muhammad Saeed Mehdi v. The State and 2 others' [2002 SCMR 282], 'Muzammil Niazi and others v. The State' [PLD 2003 Karachi 526], 'Muhammad Iqbal v. The State and others' [2017 PCr.LJ 674], 'Mukhteyar Alam v. The State through Additional Advocate-General and 4 others' [2017 PCr.LJ 684], 'Dr Mujahid Kamran v. Chairman National Accountability Bureau (NAB) and others' [2019 PCr.LJ 34], 'Aamir Shamas v. The State and another ' [2019 PCr.LJ 41]. 6. The learned Deputy Prosecutor General Accountability has argued that; while acquitting the two accused the learned Accountability Court excluded from consideration the gravity of the offence; the petitions filed under section 265-K of the Cr.P.C. could not have been allowed without the recording of evidence; the evidence recorded was also misread; the impugned acquittals are shocking and perverse and, therefore, liable to be set aside; the learned court had rightly dismissed the petition filed by Muhammad Masood Chishti; sufficient material was brought on record and, therefore, without conclusion of trial some of the accused could not have been acquitted; it is not essential for attracting the offence under section 9(a)(vi) that an accused may have benefitted himself; extending undue benefit to another person is sufficient; the powers were misused by the accused; reliance is placed on the
---
## Page 6
cases of 'Suo Motu Case No.18 of 2010: Suo motu action regarding violation of Public Procurement Rules, 2004 in procurement of billions of rupees of exchequer case by National Insurance Co. Ltd.' [2014 SCMR 585], 'Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau and another ' [2011 MLD 313], 'The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman' [2005 SCMR 1544 ], 'Malik Din v . Chairman National Accountability Bureau and another ' [2019 SCMR 372 ]. 7. The learned counsels for the respondents in the appeals, the petitioner in the constitutional petition and the Additional Prosecutor General of the Bureau have been heard and the record perused with their able assistance. Our Opinion. 8. The case in hand is exceptional in nature. It's extraordinary nature stems from the fact that the accused were not alleged of being involved in corruption because it was not the case of the Bureau that either they had gained any favor or benefit for themselves or may have extended the same to others. The Bureau had not initiated the proceedings but rather a reference under section 18 of the Ordinance of 1999 was received from the Ministry of Water and Power . The reference appears to have been based on documents which were submitted before the august Supreme Court during the proceedings relating to Constitutional Petitio n No.67/201 1 titled "Khawaja Muhammad Asif v. Federation of Pakis tan. The apex Court had not referred the matter to the Bureau. The latter , however , has heavily relied on the order dated 07-11-2012 in support of its stance that the apex Court was satisfied that criminality was involved in the delay on the part of the Ministry of Law and Justice. The petitioner before the august Supreme Court was a political rival of the then elected government. After the general elections, the latter was sworn in as a member of the Federal Cabinet and he was given the portfolio of Minister of Water and Power . It was then that a reference was sent to the Bureau. It is obvious from the record that the case is entirely based on how the case relating to execution of the Project was delayed. The Commission appointed by the august Supreme Court did not give any finding that the officials involved in the processing of the case relating to the Project had committed corruption or that the acts or omissions amounted to corrupt practices. In the opinion of the Commission the officials of the Ministry of Law and Justice were 'negligent'. It was alleged that loss caused to the exchequer was due to refusal on the part of the officials of the Ministry of Law and Justice to fulfill their obligations. In the case of the two accused, the learned Accountability Court, after examining the record, concluded that there was no likelihood of their conviction, while a different opinion was formed in relation to the third accused. The questions that have emerged for our consideration are indeed of paramount importance; whether the respondents in the appeals preferred by the Bureau have been rightly acquitted; if the answer is in the affirmative then whether the learned trial court was justified in refusing to extend the same relief in the case of another accused i.e the petitioner in the constitutional petition; whether the ingredients of the offence were fulfilled and whether , on the basis of the material placed on the record, there was a likelihood of handing down a verdict of conviction; whether , in the facts and circumstances, the learned Accountability Bureau had exercised jurisdiction in accordance with law by sending the reference to the Court. In order to answer these questions it would be beneficial to survey the relevant provisions of the Ordinance of 1999 and the precedent law . The Ordinance of 1999. 9. The Ordinance of 1999 was enacted and duly notified in the official gazette on 16-11-1999. The object of promulgation stated in the preamble was to provide for setting up the Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons who are accused of such practices and matters ancillary thereto. Section 5 defines various expressions but "corruption" and "corrupt practices" have not been defined therein. Section 9 describes various offences relating to corruption and corrupt practices. For the purposes of adjudication of the matter before us, the relevant offences are clauses (vi) and (xii) of section 9(a) besides item 5 of the Schedule of the Ordinance of 1999. The ingredients of the offences will be discussed later. The offence under section 9(a)(xii) is attracted when a person is alleged to have aided, abetted, attempted or has acted in conspiracy with a holder of public office in the commission of offences described under claus es (i) to (vi) of section 9(a). The offence described under item 5 of the Schedule is attracted when the loss is attributed to 'deceit', 'fraud' or 'dishonesty' and such loss has been suffered by one of the entities mentioned therein. Clauses (c) and (d) of section 18 explicitly provides that an inquiry or investigation, as the case may be, is relatable to an offence alleged
---
## Page 7
to have been committed under the Ordinance of 1999. Clause (a) of section 18 provides that the Accountability Court shall not take cognizance of any offence except on a reference made by the Chairman of the Bureau or any other officer duly authorized in this regard. Clause (vi) of section 18 provides that if a complaint is inquired into by the Bureau and it is subsequently found that it was, prima facie, frivolous or had been filed with the intent to malign or defame any person, then it may refer the matter to an Accountability Court. A person filing a frivolous complaint, if found guilty , is exposed to being sentenced to undergo imprisonment for a term which may extend to one year or with a fine or with both. It is evident from the language used in clause (b) of section 24 of the Ordinance of 1999 that the Chairman cannot refer a case to the court in a perfunctory manner and without proper application of mind after examining the material collected during the course of inquiry or investigation. It is the statutory duty of the Chairman to satisfy himself before the filing of a reference before the court that, prima facie, the ingredients of the offence under the Ordinance of 1999 alleged to have been committed are complete. This is implicit in the expression 'such reference shall contain the substance of the offence or…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.