' 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 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 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 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."
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 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 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, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs; be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer in charge of the Police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such ordex for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, , be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(5) Where the officer in charge of a police station forwards .a report under subsection (I), he shall along with the report produce the witnesses in the case, except the public servants and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
19. It will be noticed that the heading of section 173, is in conflict with the provisions of the Ordinance, therefore, the words of heading "report of police officer" are required to be changed with the words "Reference of Chairman NAB or any officer of the NAB duly authorized". In subsection
(1) for the words "under this Chapter" are required to be substituted with the words "under NAB Ordinance, 1999" and for the words "without unnecessary delay" are required to be changed with the words "expeditiously as may be practical and feasible" as mentioned in section 18(f) of the Ordinance. In subsection (1)(a) for the designation "Magistrate" the words "Accountability Court", for the words "police report", "Reference", for the, word "Report", "Reference" are required to be substituted. After the words "the nature of the information" appearing in subsection (1)(a) after putting comma (,) the words. "the substance of offence or offences as the case may be" [section 24(b) . Of the Ordinance] are required to be added. In subsection (1)(b) the words, "in such manner as may be prescribed by the Provincial Government," are required to be omitted and after the words "action taken by him" the words "the officer of appropriate Government from where Reference was received" [section 18(b)(i)] are required to be added.
20. In the proviso to subsection (1) time of 14 days is provided to complete the investigation but no time is fixed for completing the inquiry or investigation as is clear from section 18(f) of the Ordinance. Previously a time period of 75 days was fixed for such purpose but the provision was amended and the inquiry or investigation is to be completed expeditiously as may be practical and feasible. The word `expeditiously' referred to in section 18(1) clearly demonstrates the intention of the legislature that inquiry or investigation is required to be completed in speed within shortest possible time depending upon the facts and circumstances of each case. The legislature does not intend that inquiry or investigation should be kept pending for unlimited period but it is to be completed within a reasonable period depending upon the' facts and circumstances of each case.
The legislature has specifically expressed its intention that it should be completed with speed.
However, the legislature has fixed a period of 90 days for detaining an accused in NAB custody during the pendency of inquiry or investigation. It appears 90 days' period is a reasonable period where inquiry or investigation should normally be completed. This normally inquiry or investigation should be completed within a period of 90 days. In case the inquiry or investigation is not completed within 90 days from the date of initiation of proceedings as provided under section 18(e), then the entire material be placed before the Administrative Judge or Accountability Court, as the case may be, with interim Reference, who, after examining the same, can extend the time for completing the inquiry or investigation from time to time but such time should not exceed 15 days at a time and for every subsequent time the Judge or Court shall record reasons in writing.
Therefore, necessary changes are required to be made in the proviso and by deleting the words which are not applicable.
21. Subsection (2) of section 173 of the Code is not applicable, therefore, the same is required to be omitted. In subsection (3) for the word "report" the word "Reference" and for the word "Magistrate" the words "Accountability Court" are required to be substituted. In subsection (4) for the word "report" the word "Reference" is required to be substituted and the comma (,) and words "on application," are required to be deleted in view of section 24(b) of the Ordinance. The proviso to section 4 is not applicable, therefore, it is required to be deleted. In subsection (5) for the words "officer in charge of a police station" the words "the Chairman NAB or any officer of the NAB duly authorized"; for the word "report" whenever appearing the word "Reference"; for the word "Magistrate" the words "Administrative Judge or Accountability Court" are required to be substituted.
22. After necessary adaptation and changes the section 173, Cr.P.C. Will read as under:- "173. Reference of Chairman NAB or any officer of the NAB duly authorized.--(1) Every investigation under NAB Ordinance, 1999 shall be completed, expeditiously as may be practical and feasible, and, as soon as it is completed, the Chairman NAB or any officer of the NAB duly authorized, through the Prosecutor General or DPGA,
(a) forward to an Accountability Court empowered to take cognizance of the offence on a reference, a reference setting forth the names of the parties, the nature of the information, the substance of offence or offences, as the case may be, 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, the action taken by him to the officer of appropriate Government from where reference was received or 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 expeditiously or as may be practicable and feasible from the date of forming opinion of initiation of proceedings as provided Under section 18(c), the Chairman NAB or any officer of the NAB duly authorized forward to the Accountability Court through the PGA NAB or DPGA NAB, an interim Reference L stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim reference, unless, for reasons to be recorded; the Court decides that the trial should not so commence.
(2) Omitted (not applicable).
(3) Whenever it appears from a Reference forwarded under this section that the accused has been released on his bond, the Accountability Court shall make such order for the discharge of such bond or otherwise as it thinks fit.
(4) A copy of any Reference forwarded under this section shall be furnished to the accused before the commencement of the inquiry or trial.
[Proviso omitted].
(5) Where the Chairman NAB or any officer of the NAB duly authorized forwards a Reference under subsection (1), he shall, along with the Reference produce the witnesses in the case, except the public servants and the Accountability Court shall bind such witnesses for appearance before it or some other Court on the date fixed for trial."
23. Thus the Chairman NAB or any officer of the NAB duly authorized is required to comply with the provisions of sections 169, 170 and 173 of the Code with necessary changes as mentioned above.
24. It is pointed out that it is the direction of law that the accused should be forwarded to custody at the time of filing Reference if the Chairman NAB or any officer of the NAB duly authorized violates such direction then he is exposing himself to the provisions of section 166, P.P.C. Which provides that disobedience of direction of law is an offence.
25. Furthermore, the scheme of the NAB Ordinance is that the cases should be disposed of expeditiously within a period of 30 days. By not complying with the above provisions of law the spirit of the law is being frustrated, therefore, in order to implement the spirit of NAB Ordinance the Chairman NAB or any officer of the NAB duly authorized should strictly comply with the provisions of sections 169, 170 and 173 of the Code with above mentioned necessary changes read with sections/other provisions of the Ordinance.
26. Now, we will consider the powers of arrest of Chairman NAB or any officer of the NAB duly authorized by him during pendency of inquiry or investigation.
27. Before we discuss such powers it is pointed out that the legislature has made all the offences under the Ordinance as non-bailable and no Court has been given powers to release the accused on bail by invoking any provision of the Code or any other law for the time being in force as provided under section 9(b) of the Ordinance that reads as under:-- "9(b). All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
28. When any offence is made non-bailable, then the accused is required to be arrested on fulfilment of certain conditions of law. However, he can be released from custody under the order of the competent Court. From the, above provisions the legislature in clear, unambiguous terms and words, has expressed its intention that the person or persons involved in the offences of the Ordinance should be arrested, of course on fulfilment of conditions of arrest, and should remain in custody till final disposal of the case. Further, even the appellate Court's powers to suspend the sentence under section 426 of the Code have been curtailed rather snatched so that the convict should remain in jail till final disposal of appeal. The basic principle of interpretation of statute is that the intention of the legislature is required to be implemented in letter and spirit by the Courts and all authorities. Nevertheless, the Ordinance is a sub-constitutional statute which cannot override the Constitution but it is subservient to it, therefore, it cannot curtail the constitutional powers of Court or any authority. Thus this Court being the constitutional Court in exercise of its constitutional powers under Article 199 of the Constitution, entertain the bail pleas of aggrieved persons.
29. Keeping in view the above basic principles and intention of the legislature we have examined the relevant provisions of law and found that the Chairman NAB or any other specified persons have been given powers to arrest a person or persons involved in the offence of the Ordinance.
Such powers are available in the provisions of sections 18 and 24 of the Ordinance and 54 of the Code. The relevant provisions of above sections are as under:-- Section 18(b), (c), (d) & (e) of the Ordinance:
18. Cognizance of offences:
(b) A reference under this Ordinance shall be 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.
(c) Where the Chairman NAB, or an officer of the NAB duly authorized by .Him, is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against any person he shall refer the matter for inquiry or investigation.
(d) The responsibility, for inquiry into and 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 or authority is required to do so by the Chairman NAB or by an officer of the NAB duly authorised by him.
(e) The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purposes 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 authorised by the Chairman NAB.
Section 24(a), (b) & (c) of the Ordinance.
24. Arrest.--
(a) the Chairman NAB shall have the power, at any stage of the inquiry or investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.
(b) If the Chairman NAB, or an officer of the NAB duly authorized by him, decides to refer the case to Court such reference shall contain the substance of the offence or offences as the case may be, alleged to have been committed by the accused and a copy of such reference shall be forwarded to the Registrar of the Court to which the case has been sent to try the accused, and another copy shall be delivered to the accused.
(c) The provisions of subsection (a) shall also apply to cases, which have already been referred to the Court.
Section 54 of the Code.
54. When police may arrest without warrant.--(1) Any police officer may, without an order from a Magistrate and without a warrant, arrest--- ' first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; ' secondly, any person having in his possession without lawful excuse the burden of proving which excuse shall lie on such person, any implement of housebreaking; ' thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government; ' fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; ' fifthly, any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts escape, from lawful custody; ' sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan; ' seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan, which, if committed in Pakistan, would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan; ' eighthly, any released convict committing a breach of any rule made under section 565, subsection (3); ' ninthly, any person for whose arrest a requisition had been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the other officer who issued the requisition.
30. A bare reading of section 18(b), (c), (d) and (e) of the Ordinance reveals the scheme of the Ordinance. It provides that after the receipt of information of the commission of the offence through any source as mentioned in clause (b) if the Chairman NAB or any officer of the NAB duly authorized by him forms opinion to initiate proceedings against any person, then he is required and duty bound to refer the matter for inquiry or investigation. The sole responsibility to conduct such inquiry or investigation rests upon the NAB authority. However, the Chairman NAB or any officer of the NAB duly authorized can refer it to any other agency or authority for doing the needful.
In conducting such inquiry or investigation, the Chairman NAB, member of any other agency or authority or officer or servant of NAB are required and R authorized to exercise all the powers of arrest, which are exercised by an officer-in-charge of a Police Station under the. Code. Under the provisions of section 54 of the Code any police officer can make arrest without order from Magistrate and without a warrant of arrest. Thus such officer of NAB or authorized officer can make arrest without the order of Accountability Court and without warrant of arrest. Nevertheless, except the Chairman NAB such powers of officers of other agency or authority or officers or servants of NAB have been curtailed as they cannot make such arrest without the permission of the Chairman NAB or any officer of the NAB duly authorized by the Chairman NAB. 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.
31. As regards the powers of the Chairman NAB, after receipt of information through any source as provided under section 18(b), the Chairman NAB, finds sufficient material in such information, he can arrest the accused person without the order of Accountability Court or warrant of arrest.
However, if he finds no sufficient material but merely a suspects that the person is involved then he can defer the arrest of such person. Nevertheless, after collecting sufficient material he shall make arrest within the scope of section 54 of the Code.
32 The legislature might have visualized that if for any reason, the Investigating Officer did not approach the Chairman NAB to grant him permission to arrest the accused, would it mean that the accused should move freely in spite of the fact that sufficient material was collected against him justifying his arrest, the legislature has taken care of it by giving new and additional power to the Chairman NAB in the shape of section 24 to get the accused arrested. Under section 24(a) of the Ordinance, if the Chairman NAB finds that during the inquiry or investigation an accused has not been arrested then he has been given power to issue direction that the accused shall be arrested.
The words `shall be arrested' clearly demonstrates the intention of legislature that the accused must be arrested, of course on fulfilment of the conditions of arrest and if the accused is not already arrested under the general powers of arrest as provided under section 18(e) of the Ordinance. However, to issue direction of arrest, the power of the Chairman NAB appears to be discretionary. How a discretionary power can be exercised? It will be discussed in the forthcoming part of the order, for exercise of such power only condition precedent to it is that the accused is not already arrested. If such condition is fulfilled then the Chairman NAB is required to issue such direction. No form of such direction is mentioned in the Ordinance, therefore, such direction can be issued in any form but it should be in writing to the authority or person to comply with the direction.
This additional power has to be exercised by the Chairman NAB only.
33. Under clause (b), if the Chairman NAB decides to send the case to the Court for trial then a copy of the Reference containing substance of the offence or offences is required to be forwarded to the Court through its Registrar and another copy of the Reference is required to be handed to the accused. The word 'deliver' appearing in the clause has been defined in the American Heritage dictionary as "To put into another's possession or power; surrender; hand over; to take to the intended recipient." Thus, for receiving the copy of the reference from the Chairman NAB or an officer of the NAB duly authorized by him, the presence of accused is necessary, if he is present, Reference is to be filed and if there is sufficient material against the accused justifying his arrest, then at this stage also he shall be arrested. This provision further supports that the accused is required to be in custody at the time of filing Reference, hence he is required to be forwarded in custody to the Court.
34. Under clause (c) the Chairman NAB can exercise the power of issuing direction that the accused shall be arrested, if he is not already arrested even after filing the Reference in appropriate cases.
35. The Hon'ble Supreme Court of Pakistan in the case of Asfandyar Wali (supra) has observed in para. 257 at page 929 that the power of arrest conferred under the provisions are part of normal powers conferred upon a police officer under the Code under section 54 thereof.
36. It will be noticed that in section 24(a) the phrase "shall have the power" has been used which appears to have given power to the Chairman NAB of discretionary nature. The said phrase has been interpreted in the book "Principles of statutory Interpretation" by Justice G.P. Singh. The author after relying upon the decisions by the Supreme Court of India in the cases of Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543, Chinnamar Kathiam v. Ayyayoo AIR 1982 SC 137 and Commissioner of Police v. Godhandas Bhaujf AIR 1952 SC 16 interpreted the words `May'; 'It shall be lawful'; 'shall have power' and observed as under:-- "Ordinarily, the words 'May' and 'It shall be lawful' are not words of compulsion. They are enabling words and they only confer capacity, power or authority and imply a discretion. They are both used in a statute to indicate that something nay b done which prior to it could not be done. The use of words' shall have power' also connotes the same idea."
37. It is pointed out that under the powers of arrest the Chairman NAB can deprive the liberty of citizens, therefore, it is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of section 54 of the Code. Further, the conditions prescribed for the exercise of such powers, including procedural requirements must be strictly followed. At the same time the discretion does not mean that the Chairman NAB should conduct himself in a discriminatory manner but he should exercise such powers in a uniform manner keeping in view the facts, circumstances, evidence collected or material placed before him. Thus he should conduct himself justly. Fairly, equitably, for the advancement of the purposes of the Ordinance in accordance with law and in conformity of the provisions of section 24-A of General Clauses Act, 1897. It will be further noticed that the power of arrest, no doubt, apparently, is a discretionary power with the Chairman NAB but at the same time a duty is cast upon him to act in the manner, it is intended to achieve the objective of the Ordinance, intention of the legislature and to advance the cause of justice.
3$. From the plain reading of section 24(a) of the Ordinance and 54 of the Code an impression would be gathered that the police officer or the Chairman NAB is under an obligation and duty bound to arrest a person if he is involved in a non-bailable offence subject to the condition that the requirements of section 54 are fulfilled. Nevertheless, if the Chairman NAB merely suspects of involvement of an accused he can keep it as secret and if there is no risk of absconding the accused, the Chairman NAB may defer making the arrest until the investigation is sufficiently completed but if any interference with the liberty of the accused person is necessary to prevent him from absconding and the facts justify arrest, the Chairman NAB shall arrest him. The police officer has also such powers to defer the arrest of a person merely on suspicion but can arrest him if there is apprehension of his abscondence. Such powers are available to a police officer under Rule 26.2 Chapter XVI, Volume III of Police Rules, 1934. It will be noticed that arrest can be deferred in the case where the competent authority merely suspects without any tangible evidence against the accused. But once some evidence is collected and suspicion turns into reasonable ground then the concerned officer is required and duty bound to arrest the accused as the law puts obligation upon him to do so by making the offence non-bailable.
39. The Hon'ble Supreme Court of Pakistan in the case of Abu Bakar Siddique v. Collector of Customs 2006 SCM R 705 while dealing with the discretionary powers of public functionaries and interpreting the word 'may' at page 715 observed as under:-- "It is fundamental principle that an authority enjoying the discretionary powers, exercises the same without any guideline but at the same time such authority must not exercise the discretion in an arbitrary and capricious manner. It may not be obligatory for the concerned authority to exercise the discretion in a particular manner but exercise of such power in an unreasonable manner, is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of the superior Courts. It is well-settled that word 'may' is discretionary and an enabling word and unless the subject-matter shows that the exercise of power given by the provision using the word 'may' was intended to be imperative for the person to whom the power is given, it might not put him under an obligation to necessarily exercise such power but if it is capable of being construed as referring to statutory duty, it will not be entirely for such person to exercise or not to exercise the power given to him under the law. The use of word 'May' in the statute in the plain meanings, is to give discretion to the public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorized to discharge their functions in their option in a positive sense, the word 'may' used in the provision would be suggestive of conveying, the intention of legislature of imposing an obligation. The word 'may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning `must' if the discretionary power is conferred upon a public authority with an obligation under the law. The word 'may' is X not always used in the statute with the intention and purpose to give uncontrolled powers to an authority rather oftenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus, the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended."
40. In the case of Official Liquidator v. Dharti Dhan AIR 1977 SC 740 at page 745 it has been observed:-- "If the condition in which the power is to be exercised in particular cases are also specified by the statute then, on the fulfilment of these conditions, the power conferred becomes annexed with a duty to exercise it in that manner."
41. In the case of Hirday Narain v. I. T. Officer, Bareilly AIR 1971 SC 33 at page 36, it has been observed:-- "Where a power is reposed with a public officer for the purpose of being used for the benefit of persons specially pointed out with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised."
42 In the case of Julius v. Lord Bishop of Oxford, (1874-80) All ER Rep.43(HL), p.47 Lord Cairns observed as under:- "There may be something in the nature of the thing empowered to be done, something is that object for which it is to be done, something in the conditions under which it is to be done, same thing in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."
43. It follows that when permissive words are employed by the legislature to confer a power on a Court or authority to be exercised in the circumstances pointed out by the statute, it becomes the duty of the Court or authority to exercise that power on proof of those circumstances. Thus, if the Chairman NAB or any officer of NAB duly authorized forms opinion on proof of circumstances mentioned in any clause of section 54 of the Code it becomes his duty to arrest the accused.
44. After considering the material available on the record we are of the considered view that the Chairman NAB is required to forward the accused in custody to the Accountability Court at the time of filing Reference or if the accused is released under section 169 of the Code or absconded then such facts should also be mentioned in the Reference so that the Accountability Court may exercise powers provided under section 173(3) of the Code as directed by the Hon'ble Supreme Court of Pakistan in the case of Habib (supra).
45. The References that have already been filed in which the accused persons have not been forwarded in custody or shown released or absconded at the time of filing Reference, the trial Court shall take appropriate steps to procure their attendance as per law.
46. Copy of the order be sent to Chairman NAB, Administrative Judge Accountability Court, Karachi and all the Accountability Courts in Sindh for compliance.