IN THE HIGH COURT OF SINDH AT KARACHI
C. P. NO.D-427/2013
MR. JUSTICE SALAHUDDIN PANHWAR
Petitioners : Shahid Ansari & others,
Through: M/s. Mehmood Alam Rizvi & Obed-ur-Rehman, advocate.
Respondents : The Chairman, NAB & others,
Through: Mr. Noor Muhammad Dayo, A.D.P.G, N.A.B along with Mr. Mehdi Shah, Assistant I.W.II.
Date of hearing : 12.02.2014.
SALAHUDDIN PANHWAR, J. Through instant petition, petitioners pray as under:-
(a) To quash the proceedings pending with the respondents against the petitioners in lieu of the notices issued to them and declare the same as illegal, unlawful, having been initiated with malafides and without jurisdiction and hence of no legal effect and void ab-initio;
(b) To quash the notices issued by the respondents calling upon the petitioners to appear before them and declare the same as illegal, unlawful, having been issued with malafides, without jurisdiction and hence of no legal effect and void ab-initio;
(c) To direct the respondents to bring forth before this Honourable Court all and any evidence / record of any offence purportedly committed by the petitioners under the National Accountability Ordinance, 1999;
(d) To restrain the respondents from calling, detaining, harassing, arresting and from taking any other coercive action against the petitioners, their family members and their employees, without the permission of this Honourable Court;
(e) To restrain the respondents from issuing, addressing notices to the clients/customers of Bilal Logistics (Pvt) Ltd, Cargo Logistics (Pvt) Ltd and M/s. Bilal Associates and/or any other business concerns of the petitioners;
(f) To restrain the respondents from issuing/addressing notices to the banks of the petitioners, Cargo Logistics (Pvt) Ltd, Bilal Logistics (Pvt) Ltd and M/s. Bilal Associates and/or any other business concerns of the petitioners;
2. Succinctly, relevant facts as set out in the petition are that petitioner No.1 is the Chief Executive of Bilal Logistics (Pvt) Limited and Director in Cargo Logistics International (Pvt) Limited. He is also the sole proprietor of Bilal Associates. The petitioners No.3 and 4 are the Directors of Bilal Logistics (Pvt) Limited whereas petitioner No.2 is a housewife and petitioner No.5 is student and has no concern with the family business. Respondents illegally, unlawfully and without any justification issued notices to the petitioner calling him to appear at the office of the NAB Sindh to record his plea; no details whatsoever have been disclosed in those notices with regard to any offence of corruption or corrupt practices punishable under the provisions of the NAB Ordinance 1999. The petitioner No.1 visited the office of the respondents and on their demand submitted relevant documents of his business and on coercion of the respondent No.3 filled the confidential forms supplied by them. Thereafter time and again respondent No.3 was issuing notices of similar nature without disclosing the details of any crime committed by petitioners. Pursuant to the notices petitioner sent legal notice whereby raised legal objections against the enquiry and conduct of the NAB Authorities, in-spite of that they were bent upon to compel the petitioners to supply the information regarding Cargo Logistics (Pvt) Limited, Bilal Logistics (Pvt) Limited and M/s. Bilal Associates (Pvt) Limited. That there is nothing against the petitioners, even then the enquiry conducted by the NAB Authority is a clear case of fishing and roving enquiry when it is a matter of record that petitioner has submitted all the relevant information.
3. Learned counsel for petitioner while reiterating the facts as mentioned above, contended that respondents have no jurisdiction to interfere into the legal business of the petitioners; all notices on various occasions are without any justification and nowhere had it appeared that any criminal offence is committed by the petitioners or they have caused any financial loss to the Public Exchequer. The Enquiry Officer without authorization has issued notices in order to compel the petitioners for illegal gratification. The NAB Authorities have only jurisdiction to conduct probe in the cases which revolve around Public Exchequer and not in any manner they have right to conduct the enquiry with the private business of the petitioner thereby all their actions are illegal and beyond the purview of section 9 of the NAB Ordinance 1999. In support of contentions, he has relied upon cases reported in Dr. ARSALAN IFTIKHAR versus Malik RIAZ HUSSAIN (PLD 2012 (SC) page 903 and GHULAM HUSSAIN BALOCH versus CHIARMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD (PLD 2007 Karachi, page 469).
4. Conversely, learned Special Prosecutor has contended that this Court has no jurisdiction to interfere in the enquiry proceedings or investigation as petitioners are involved in tax evasion and they have caused loss to the Public Exchequer by concealing the real amount and transferring the amount through Hawala (Hundi). Thus, notices issued by the Authorities to the petitioners are completely in accordance with law and after authorization by the competent authority. It is further contended that Honourable Supreme Court in a popular Suo Moto Case of ISAF has categorically directed for enquiry and investigation therefore this is not a case where one can claim that official respondents are causing harassment but fact is that they are proceeding completely in accordance with law as complaint was received against their companies regarding involvement of the petitioners in tax evasion and they are also involved in suspicious transactions while shifting money outside of country. Through enquiry, it came on record that petitioners deposited taxes through M/s. Bilal Logistics (Pvt) Limited but their all business dealings are carried out by M/s. Cargo Logistics (Pvt) Limited as separate entity, therefore this petition is devoid of merits and is filed at premature stage in order to avoid the legal process conducted by concerned authorities.
5. Heard counsel, perused the record.
6. Before scanning the merits of the case, it would be relevant to examine the scope of NAB Ordinance, 1999 regarding enquiry, investigation and submission of report. Thus, it would be relevant and proper to refer sub-sections of Section 18 of the Ordinance which are as under :-
Sec. 18. Cognizance of offences:-
(b) A reference under this Ordinance shall he initiated by the National Accountability Bureau on-
(i) a reference received from the appropriate government; or (ii) receipt of a complaint; or
(iii) its own accord.
(d) The responsibility for inquiry into an investigation of an offence alleged to have been committed under this ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency of authority is required to do so by the Chairman (NAB) or by an officer of the NAB duly authorized by him)
(e) The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purpose of an inquiry or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, police officer or any other official or agency, as the case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman (NAB) or any officer (of NAB) duly authorized by the Chairman NAB.
The plain reading of subsection (e) of Section 18 of the Ordinance insists that for purpose of an inquiry or investigation, the officer so inquiring / investigating shall have all the powers, as are available with Officer Incharge of a Police Station under the Code, which are so provided under Chapter XIV of the Criminal Procedure Code. Needless to add here that Chapter XIV of the Cr.P.C. also includes the Section 160 to 164 which deal with power to require attendance, recording of statement.
7. Since from the reading of Section 18(b) of the Ordinance it becomes clear that an inquiry / investigation could be initiated only by the Chairman or an officer of the NAB, duly authorized by him, thus the Officer, so authorized for conducting such an inquiry / investigation, shall enjoy all powers as are available to an officer incharge of a police station within meaning of the Chapter XIV of the Criminal Procedure Code.
8. The provision of Section 19 of the Ordinance speaks about additional power of the officer, conducting inquiry / investigation, which have been initiated under the order of the competent person. Since the call up notice (s) have been made root of the matter, therefore, it would be conducive to reproduce the same:-
‘19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made there-under;
A bare reading of the said provision reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence any officer duly authorized by Chairman is competent to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made there-under.
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;
9. The above subsection empowers the authorized Officer to require any person to produce or deliver any useful and relevant document. Since the usefulness or relevancy are terms which cannot be explained or understood without a proper reference, therefore, whenever, a notice is required to be given under this section it would require the authorized officer to mention the document (s) or reference through which one could infer about documents to be produced as provided in sub-section 19(c) which is reproduced as under :-
(c) examine any person acquainted with the facts and circumstances of the case;
10. Thus, it is manifest that above subsection empowers the authorized Officer to examine any person acquainted with the facts and circumstances of the case. ‘Any person’ includes witnesses or an accused even. We are in complete agreement and knowledge of the legal position that one cannot be compelled to answer a question which can expose him to criminal charge and that one cannot be forced to be a witness which is so evident from the section 161 of the Code and Article 13 (2) of the Constitution, which, both being material, are reproduced hereunder:-
Sec. 161. Examination of witness by police.—(1) Any police-officer making an investigation under this Chapter or any Police Officer not below such rank as the Provincial government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any person suppose to be acquainted with the facts and circumstances of the case.
(2) such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture;
Article 13. No person—
(b) shall, when accused of an offence, be compelled to be a witness against himself;
However, the Criminal Administration of justice demands that version of the accused should also come on record during the course of the investigation, therefore, above referred article and provision shall not justify the Investigating Officer for non-examination of the accused nor shall disentitle him (investigating Officer) from asking a question which he feels necessary for proper interrogation. This is the object because of which the word ‘examination’ has been used with deliberation under this chapter. Thus during the course of investigation the examination of a witness or accused should be in a question-form because a witness or accused can competently choose not to give answer to a question likely to expose him to any criminal charge. However, whenever a notice is issued under this section the person, so required to be examined such notice should contain a reference to facts about which the examination is required.
11. Keeping in view above touchstone, let’s examine whether call up notices impugned in this petition, prima facie serves its purpose or otherwise. For which it would be relevant to reproduce the same which is as follows:
“Subject:Call up Notice to the Accused u/s 19 read with 27 of NAO, 1999 inquiry against Bilal Logistics (Pvt) Ltd and Cargo Logistic (Pvt) Ltd
M/s. Bilal Logistics (Pvt) Ltd and Cargo Logistic (Pvt) Ltd are prima facie involved in commission of schedule offences of corruption and corrupt practices punishable under the provisions of National Accountability Ordinance 1999.
Whereas, during the course of inquiry, it has revealed that you are holding useful evidence and information regarding registered / licensed with customs i.e. Bilal Logistics (Pvt) Ltd and Cargo Logistic (Pvt) Ltd are transporting goods through Afghan Transit Trade, US Military NATO/ISAF containers.
In view, thereof, you are hereby called upon to appear on 5 November 2012 at 1030 hrs at NAB Sindh, Barrack 36, Pak Secretariat Opposite Passport Office Saddar Karachi before Mr. Agha Jameel, Assistant Director (Investigation) to record you plea, along with original and a set of certified copies of relevant record.”
Perusal of the above notice and the underlined portion of the notice reflects that matter (inquiry being conducted) so also a reference as to for what purpose the examination and production of document (s) are necessary, is evident, therefore, call-up notice (s) cannot be said to be entirely illegal.
12. Without prejudice to above, what we would like to make it clear that issuance of notice, even if found to be not within its purpose and object, yet a wrongly issued notice shall not, under any case, justify quashing the root ( an investigation, initiated under section 18(c) of the Ordinance) or be taken as a sword to keep the prosecution out of its right to dig out truth for simple reason that an authorized officer (investigating officer) was negligent of not issuing notice properly. A mere irregularity or even illegality on part of the Investigating Officer in following procedure within meaning of Chapter XIV of the Criminal Procedure Code, shall not cost an offence to go un-attended because an irregularity or illegality in procedure may be cured but not the impacts and effects of an offence if the same is let un-touched despite its being coming to light. The moment an offence is committed the effects thereof starts but a procedural error, irregular and even illegality by Investigating Officer can well be judged by the competent court towards the effects and consequences whereof as held in the case of ‘Ghulam Hussain Baloch Vs Chairman, National Accountability Bureau, Islamabad (PLD 2007 Karachi 469). The last paragraph whereof is reproduced hereunder:-
“We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer from material irregularity and illegality, because they cannot be termed as legal notices within the meaning of section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the Investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers.”
(Underlining is supplied for emphasis)
13. From the above concluding part of the dictum makes it clear that only notice (s) were declared to be illegal and not the investigation, being conducted and carried out, rather competence of authorized officer was reaffirmed while holding that he can issue fresh notice (s) within the observation (s) made in the said judgment. Thus it stands stamped that an investigation shall be required to be disposed of, as provided under the law or relevant statute.
14. In case of Dr. Arsalan Iftikhar, probe carried out by NAB Authorities was challenged; however investigation was not stopped by the Honourable Supreme Court but a commission was constituted to conduct a thorough probe. Relevant paragraph No.28 of dictum is as under :-
“The Commission shall have the following powers and may seek such further orders as may be considered necessary:--
(i) he shall exercise all the powers envisioned in the Supreme Court Rules, 1980 and the powers of Judicial Officers for the purpose of carrying out the objects mentioned hereinabove;
(ii) he shall be free to avail the services of advocates, experts of forensic science, persons with relevant experience, including fiscal laws etc. State functionaries when called upon to do so shall provide necessary assistance to the Commission;
(iii) the Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject;
(iv) the Commission is required to complete this task within a period of thirty days after receipt of the copy of this order.
15. In view of what has been discussed above, we are of the firm view that NAB Authorities cannot be precluded to issue call up notice or conduct an enquiry/investigation because an investigation/ inquiry under this Ordinance shall require to be disposed as provided under section 18(f) and (g) of the Ordinance which reads as under:-
(f) Any inquiry [or] investigation under this Ordinance shall be completed expeditiously as may be practical and feasible.
(g) The Chairman NAB or an officer of the NAB duly authorized by him) shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further, (and there is sufficient material to justify filing of a reference) he shall refer the matter to (a) Court.
Therefore, prayer clause of the petitioners cannot be inclined because it shall result in causing a serious prejudice to the prosecution towards its right in probing into an inquiry / investigation of an offence. However, it would be pertinent to mention that law insists and guarantees that ‘things should be done strictly in the manner as provided under the law’ and one cannot be put to remain under the sword of Damocles on the pretext of inquiry / investigation. Investigation officer is always required to act strictly in accordance with law and procedure because a legal right to investigate / inquire into should not be at the cost of guaranteed fundamental rights of an individual. This could only be achieved if things are done as required by the law and law alone.
16. As discussed above, NAB authorities are hereby directed to conclude the enquiry within meaning of section 18 sub-section (f) and while doing so they shall not cause any harassment and arrest of the petitioners however if tangible evidence is gathered against them, they will be at liberty to proceed in accordance with law.
17. In above terms, instant petition is disposed of.
J U D G E