1. ' RAHMAT HUSSAIN JAFFERI, J.--- The petitioner, who was serving as Principal Appraiser Grade-16 in Karachi Custom Department, has filed the petition for quashment of investigation initiated by the NAB Authorities against him in respect of acquiring assets disproportionate to the known sources of his income. It is alleged that in the month of July, 2001 the NAB authorities initiated inquiry against him on an anonymous complaint on the above allegation. The petitioner furnished the details of his properties and assets to the concerned Investigating Officer along with documentary proof of transaction and his sources of income. It was informed to the Investigating Officer that all the properties and assets were duly declared in the wealth/Income Tax Returns and Annual Declaration of Assets filed with the Department, the copies of which were also supplied. On 20-6- 2002 Inspector Nafees Ahmed Siddiqui was authorized as Investigating Officer to investigate the case, who after due investigation recommended that the case be closed. On 1-6-2004 the matter was authorized to be re-investigated by Inspector Haroon. Rashid Luthani, Investigating Officer, I & M Wing, NAB Authorities, but the investigation was kept in abeyance. Again on 3-6-2005 Inspector Abu Baker Bhatti was authorized to re-investigate the case. The petitioner submitted all the required documents before him. On 16-6-2005 the petitioner was arrested and subjected to harassm ent and unusual treatment, therefore, he filed Constitutional Petition No,776 of 2005 for grant of bail before this Court. On 12-7-2005 the Court granted him bail and thereafter, he was appearing before the Accountability Court regularly. In the meantime, one Bostan Ali acting as front man of the then Director Investigation, NAB Sindh contacted_him for payment of illegal gratification of Rs,8 Millions so as to harsh-up the case of the petitioner, but the petitioner did not accept his offer. The matter was reported to the Chairman NAB, who instead of taking any action against the Director Investigation, namely, Muhammad Musaddiq Abbasi, simply transferred him.
2. After the grant of bail the petitioner was appearing before the Accountability Court for a period of two years without any prosecution of the NAB authorities as no reference was filed. Ultimately, on 14-5-2007 the Administrative Judge, Accountability Court dispensed with the attendance of the petitioner with observation that the petitioner could not be made to attend the Court purposelessly. It is further alleged that the investigation reports were subjected to legal scrutiny where it was opined that the case was not fit for trial, therefore, the same might be dropped. As the petitioner's attendance was dispensed with by the Court, therefore, the respondent No,2 was annoyed and wanted to put him under torture and prolong the disposal of the investigation, as he did not want to see the petitioner moving freely, therefore, he was directed to appear before the respondent No,3 Aslam Pervaiz Abro, Investigating Officer of the case. The petitioner appeared before him and again submitted all the documents which were already submitted to the previous Investigating Officers. The, petitioner also replied the notice issued by the Investigation Officer, as the respondent No,3 had started reinvestigation of the case afresh, which was already ordered to be closed. Therefore, the petitioner has stated that the investigation in the case was conducted with mala fide intention in order to harass and humiliate him, which is violative of Articles 4, 9 and 14 of the Constitution.
3. ' The respondents were served. The comments were filed through respondent No,3, in which the respondent No,3 admitted the entire facts of inquiry and investigation and further added that re- investigation was authorized by the competent authority in the matter, which is still continuing. He has reinvestigated the matter and collected sufficient material against the petitioner, therefore, he has prayed for the dismissal of the petition.
4. ' We have heard the Advocate for the, petitioner, D.P.G.A. For NAB and perused the record of this case very carefully. They have reiterated the same facts as disclosed above.
5. ' The learned Advocate for the petitioner has further argued that there should be some limit of investigation and the petitioner cannot be made subject to agony of investigation for an undefined period which has affected his dignity, honour and caused mental and physical torture, therefore, the investigation may be quashed.
6. ' Before we enter into the factual aspect of the case, it is to be seen whether under the constitutional jurisdiction of the Court the investigation can be quashed before filing the reference.
7. The question was examined by the Honourable Supreme Court of Pakistan in the case of Shahnaz Begum v. Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677, it was observed as under:--- "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of. The Investigating Agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
8. ' Again the same point was considered in the case of Anwar Ahmad Khan v. The State 1996 SCM R 24, at page 36, it has been observed as under:- "It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims ' In the case of Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCM R 2008, at page 2012 it has been observed as under:- "It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution."
9. ' In another case of Muhammad Latif, A.S.-I., Police Station Sadar, Sheikhupura v. Sharifan Bihi 1998 SCM R 666, at page 667 it has been held as under:- "The apprehensions expressed on behalf of the petitioner are unfounded. It is true that it is not appropriate for the High Court to start a parallel enquiry at investigation stage. Here, the impugned order passed by the High Court for investigation of the case by a gazetted Police Officer did not amount to interference with the investigation. The High Court in exercise of its Constitutional jurisdiction was right in issuing the aforesaid directions in order to ensure justice and fairplay, in view of the subsequent statement made by the D.S.P. That a false case was registered against the detenu Amjad with ulterior motive. In the case of Anwar Ahmad Khan v. The State 1996. SCMR 24, this Court observed that Investigating Authorities do not have entire and total authority of running investigation according to their whims and the High Court, in exercise of its Constitutional jurisdiction was competent to pass appropriate orders where investigation was mala fide or without jurisdiction. It could also direct the concerned Authorities to finalize their reports within reasonable time, when a cognizable case under investigation is under its judicial scrutiny."
10. ' Similar view was also expressed in the case of Choudhary Shah Muhammad, Inspector v. Mst .
11. Ramzan Bibi NLR 1998 Criminal 204 SC.
12. Thus, the consensus of the Honourable Supreme Court of Pakistan from the year 1971 and onward is that the High Court 'has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims, therefore, if the investigation is launched malafidcly or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.
13. ' Now the question arises as to what is "mala fide". The word has been interpreted by the Honourable Supreme Court of Pakistan in the case of The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151, at page 170, it has been defined as under:--- "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also maia fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been, motivated by any one of the considerations mentioned above."
14. It is clear' from the above definition that if the investigation is launched in bad faith out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by the law under which the action is taken or action taken in fraud of the law then it comes within the scope of mala fide. The fraud of the law or colourable exercise of powers amounts to .Abuse of the process of law.
15. ' In view of the above position, the investigation can be corrected and necessary orders can be passed if the aggrieved party alleges and proves one or other of the following conditions:-
(1) Investigation initiated beyond the jurisdiction of Investigating Agency;
(2) Investigation initiated with mala fide intention:
(i) in bad faith out of personal motives either to hurt the person against whom the action is taken or to benefit oneself.
(ii) in colourable exercise of powers;
(iii) not authorized by the law under which the action is taken;
(iv) Action taken in fraud of the law, and
(v) Abuse of the process of law.
16. ' Keeping in view the above principle of law, we have examined the factual aspect of the case and found that it is an admitted position that in the month of July 2001 the NAB Authorities initiated inquiry against the petitioner on an anonymous complaint in respect of the assets held by him and his family members, which were allegedly disproportionate to his known sources of income. After inquiry, on 20-6-2002 DG NAB authorized Nafees Ahmed Siddiqui, Inspector F.I.A. Karachi to investigate the matter. The record supplied by the NAB authorities reveals the said Investigating Officer had completed the investigation and submitted the report to the competent authority on 16-1-2004. In the said report, he formed the opinion that there was sufficient material to justify filing the reference against the petitioner. The report was sent to the Legal Department for examination and expert's opinion. The Legal Department through Mr. Sardar Aslam Afridi examined the case and submitted the report on 15-4-2004 concluding that the case was weak and not fit for sending it to the Court for trial purpose by disagreeing with the findings of Investigating Officer. It appears that D.G. NAB was not satisfied with the said report, therefore, in the month of June, 2004 D.G. NAB ordered for re-investigation of the case through Haroon Rashid, Investigating Officer. After completing the investigation, he also submitted the report, in which he took the similar view as that of Investigating officer. Nafees Ahmed Siddiqui. The Legal Department did not agree with the findings of Investigating Officer and formed similar opinion as already given on 15-4-2004. It appears that on 3-6-2005 D.G. NAB again referred the matter for reinvestigation to Abu Baker Bhatti, Investigating Officer, who also after investigation submitted the report with similar findings as already given by two Investigating Officers. The papers were again sent to Legal Department for opinion. The Legal Department look the similar view as already taken by not agreeing with the view expressed by the Investigating Officer. The record further shows that on 21- 4-2006 D.G. NAB again referred the matter for reinvestigation to Ghulam Abbas Baloch, Investigating Officer, who after investigation submitted the report by forming the opinion that there was no sufficient evidence, to place the matter before the competent Court of lay,/ for successful prosecution against the accused, therefore, he suggested that the matter might be considered for closure after taking legal output in the matter. It appears that the matter was again referred to legal opinion, who concurrent with the view of the Investigating Officer. It also appears that the D.G.
17. NAB was again not satisfied with the said report, therefore, on 17-7-2004 he again referred the matter for reinvestigation to Aslam Pervaiz Abro, Investigating Officer, respondent No,3, who is now conducting the investigation.
18. ' From the above position, it is clear that various Investigating Officers completed their investigations, submitted their reports, vetted by Legal Department and it was found that the case was not fit for prosecution. This is a case of acquiring assets disproportionate to the known sources of income of the petitioner. In.This type of case, firstly the prosecution is required to prove the sources of income of the petitioner known to the prosecution after thorough investigation, secondly assets owned and possessed by the petitioner or his family members, Benamidar etc., and thirdly, the said assets are disproportionate to the known sources of income. In the present case, the petitioner is a holder of public office, therefore, his main source of income was his salary. Reference is invited to Hakim Ali Zardari v. The State 2007 MLD 90. The petitioner has admitted the ownership of the assets and has furnished explanation for acquiring the said assets and the assets were duly declared in the Wealth/Income Tax Return and Annual Declaration of Assets filed before the department. On the above point, the entire material was collected by the Investigating Officer in the year 2002. The subsequent Investigating Officers after their investigations could not find any other material. The last Investigating Officer, who concluded the investigation, viz. Ghulam Abbas Baloch, also mentioned these facts and formed the opinion that the case was not fit for prosecution.
19. Under the law, if the accused furnishes satisfactory explanation then no offence as defined under section 9(a)(v) of the NAB Ordinance can be made out. Explanation furnished by the petitioner was found to be proper, legal and satisfactory by the Legal Department and last Investigation Officer.
20. The inquiry and investigation is continuing from the year 2001 for the last six years. Now the question arises as to whether the action of the NAB authorities comes within the ambit of mala fide or otherwise? There is no dispute that the NAB Authorities have jurisdiction to enquire or investigate the matter. Now the question arises whether the investigation is continuing with mala fide intention? This fact can be verified from the letters of authorization of the investigation. It is an admitted position that the first Investigating Officer Nafees Ahmed Siddiqui had completed his investigation and submitted his report, which was examined by the Legal Department of the NAB Authorities, but the D.G. NAB ordered for re-investigation through his Letter bearing No,NAB(S)/CO- I(I&M)/2004/86, dated 1-6-2004. The said letter reads as under:-- "(1) Mr. Nafees Ahmed Siddiqui who had been detailed to investigate the subject case has been posted to I&I Wing therefore, you are hereby nominated to act as Investigating Officer in this case.
(2) You are directed to submit your investigation report by 31st July, 2004."
21. ' The ground mentioned in the authorization letter is completely out of record, as in the letter, dated 1-6-2004 re-investigation was ordered on the ground that Nafees Ahmed Siddiqui was posted to I&I Wing, therefore, Haroon Rashid was appointed as Investigating Officer in the case. The ground taken in the letter is belied by the record, as Nafees Ahmed Siddiqui had completed his investigation and submitted his report on 16-1-2004.
22. ' As regards the authorization letter bearing No,NAB(S)/CO- 'V(IW-2)/2005/837, dated 3-6-2005 for reinvestigation of the case, it shows that Abu Bakar Bhatti was appointed as Investigating Officer as Haroon Rashid was transferred to NAB Rawalpindi. The said letter reads as under:--- "Investigating Officer Mr. Haroon Rashid was detailed to investigate the subject case has been transferred to NAB Rawalpindi. You are hereby nominated to act as Investigating Officer in the subject case to conduct further investigation."
23. ' The ground mentioned in the above said letter is not supported by the record, but on the contrary, it has been falsified as the Investigating Officer Haroon Rashid had completed the investigation and submitted his report on 14-9-2005.
24. ' As regards the re-investigation assigned to Ghulam Abbas Baloch through letter, dated 21-4- 2006, it shows no ground for reinvestigation of the case. The said letter reads as under:- "(1) Mr. Muhammad Irshad Khali son of Muhammad Khan is prima facie involved in commission of scheduled offence(s) of corruption and corrupt practices punishable under National Accountability Ordinance, 1999.
(2) You are detailed to further investigate and submit your final investigation report together with the evidence and other material collected by you for the appraisal of the undersigned by 31st May, 2006."
25. ' As regards the investigation assigned to the respondent No,3 Aslam Pervaiz Abro, the D.G. NAB took the ground that Ghulam Abbas Baloch was repatriated to his parent department, therefore, reinvestigation was ordered. The said Letter bearing No,2056/1/IW2/CO-E/T-17/NAB Sindh/2007/951, dated 17-7-2007 reads as under:--- "(1) Due to repatriation of Ghulam Abbas Baloch, Investigating Officer (I.O.) NAB Sindh to F.I.A. You are hereby detailed as Investigating Officer to continue the investigation. Work done by the previous Investigating Officer be taken into account as valid, if not proved otherwise.
(2) You are directed to hold further investigation and submit your investigation report together with the evidence and other material collected by you for the appraisal of the undersigned by 6th August, 2007."
26. ' The record falsifies the ground mentioned in the above letter, as Ghulam Abbas Baloch had completed the investigation and submitted his report on 30-6-2006.
27. ' From the above authorization letters, it is clear that the D.G. NAB in colourable exercise of his jurisdiction had ordered for reinvestigation on the grounds which were out of the record, imaginary, artificial and fictitious with a view apparently to hurt the dignity and reputation of the petitioner.
28. The action of the Director-General NAB in ordering for re-investigation of the case after the opinion of the Legal Department and submitting the reports by the Investigating Officers particularly Ghulam Abbas Baloch is abuse of process of law and the actions taken under the said letters are in fact fraud in the law, therefore, the orders for re-investigation of the case were passed with mala fide intention in order to harass and humiliate the petitioner, which is violative of Articles 4, 9 and 14 of the Constitution of Pakistan. It is also clear from the above facts that the petitioner has not been dealt with in accordance with law. It is pointed out that the petitioner is facing inquiry and investigation for a long period of six years as inquiry started in the year 2001. In between the period the petitioner was arrested in spite of the fact that the Legal Department opined that the case was not fit for prosecution, therefore, the dignity, honour, good reputation, fairname and basic fundamental rights of the petitioner were violated. And the petitioner has suffered agony of inquiry and investigation for the last six years for no fault on his part due to mala fide acts of the respondents. Therefore, the investigation agency cannot be allowed to make mockery of law and keep the sword of proceedings/ prosecution hanging over the head of petitioner for any further period. The proceedings must, therefore, be regarded as oppressive, not calculated to secure the ends of justice and abuse of process of law. Hence, 'the investigation is quashed.
29. ' The petition is allowed in the above terms.