This I.C.A assails paragraph 7 of judgment dated 17.01.2006, passed by a learned Judge in Chamber, which is reproduced below:-- "Therefore, In the circumstances of the case Respondent No, 15 is directed that the application of the petitioner Annex:" B appended at page 41 addressed to the Director General FIA be sent to the Respondent No, 16, who may look into the contents of the application and if a case is made out against the respondents, he shall proceed to register a case and thereafter depute any person to investigate the same in accordance with law."
2. Facts necessary giving rise to the I.C.A are that Respondent No, 1 submitted an application against the petitioner for registration of a case, in Police Station Sihala, Islamabad against the petitioner and others for alleged fraudulent transfer of land measuring 8 kanals 13 Marlas, located in Mauza Sihala, Islamabad. Another application was submitted against the respondent/Tahir Mehmood and his other relations for alleged collusion with the petitioner and his nephews. On the basis of the allegations made in these two petitions, a case vide FIR No, 117 was registered on 11.6.2005. Matter was investigated and a report was submitted under, Section 173 Cr.P.C. The I.O. concluded that petitioner was posted as Patwari in year 1987 and, thus, has no concern with the alleged fraudulent transaction. The report for discharge was submitted to the Area Magistrate, which was not finalized on account of an injunctive order issued by this Court in I.C.A.
3. Prior to the registration of case, learned Assistant Commissioner, exercising powers of District Collector, Islamabad, concluded that heirs of Boota Khan were co-sharers in the property alongwith Respondent No, 1/complainant. They had sold the land in excess to their shares calling for review.
4. Respondent No, 1, preferred an appeal against the aforementioned order before the Commissioner Revenue, Islamabad. He then filed a Constitution Petition Bearing No, 203 of 2005, before the Lahore High Court Rawalpindi Bench, Rawalpindi. Learned Judge in Chamber accepted the petition by recording his observation in Para 7 of judgment ibid.
5. Learned counsel raised the following contentions:--
(i) Firstly the order directing transmission of copy of the application to the Director NAB was not called for, as a criminal case on same allegations stood registered; (ii)Secondly, that second FIR on same allegations is not legally competent; and (iii)Thirdly, that under NAB Ordinance, it is the Chairman NAB, who can issue directions for investigations and not the High Court.
6. On the other hand, Respondent No, 1, present in person, addressed arguments himself and elected not to engage a counsel.
7. Mr. Tanveer-ul-Islam Khan Advocate, representing NAB, argued that. NAB has not acted on the basis of direction issued in Paragraph 7 of the impugned Judgment. He stated that no application was sent to the NAB authorities by Respondent No, 15 as directed in Paragraph 7, rather they undertook the investigation in the matter on an application received from-other channels.
8. Learned Federal counsel also supported the contentions of Mr. Tanveer-ul-Islam Khan.
10.Heard. Record perused.
11.On candid admission of Mr. Tanveer-ul-Islam Khan that proceedings were initiated against the petitioner, not with reference to observations recorded in Paragraph 7, but on applications received from different channels made the matter easier. The direction of the Court was not given effect at all.
12. A case on the same very allegation against the petitioner was, already, registered with Police Station Sihala. Second FIR was not competent. Even, otherwise, when no application of Respondent No, 1 was sent to D.G, NAB and NAB assumed the jurisdiction on its own, brings us to the conclusion that the impugned paragraph of judgment dated 17.01.2006, lost its efficacy.
13.A discharge report has been submitted before Ms. Nadia lIkram Malik, learned Area Magistrate, who shall proceed to dispose it of I in accordance with law.
14.As to the pendency of proceedings before NAB is concerned, it is suffice to reproduce observation of D.B of Sindh High Court in Rauf Bakhsh Kadri Versus the State (2003 M LD 777), wherein, it is laid down that qualification mentioned in clause (ix) will also have to be read in the other clauses of S.9 (a) of the NAB Ordinance, in other words the discretion of the Chairman NAB or an Officer authorized by him to file a Reference before the Accountability Court is not absolute or arbitrary. Such Reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of the pre- bargaining with the accused would be in the national interest. In absence of such satisfaction, case could only be tried, under the ordinary law. In Saleem Raza and 31 others Versus the State PLD 2007 Karachi 139 following observation was made:-- "Thus under Section 18(g) of the NAB Ordinance, two conditions are to be satisfied first, that there is sufficient material to justify filing of reference, and, second, the Chairman NAB or the officer authorized by him decides that it would be proper and just to file the reference, then only matter shall be referred to the Accountability Court. So far as, the second condition of taking decision by the Chairman NAB or an officer authorized by him is concerned, there are no guidelines as postulated by the Hon'ble Supreme Court in Waris Meah's case referred to above. We do not find any guidelines, for exercising jurisdiction by the Chairman NAB or an officer duly authorized by him, in Section 18(g) of the NAB Ordinance, as contended by the learned D.A.G, and consequently we hold that following dictum laid down by the Hon'ble Supreme Court in the Waris Meah's case is fully applicable.
"There is also an unfettered choice to pursue the offence in any one of three different modes which very greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view, arbitrary to a greater or less degree. The Act, as it is framed, makes provisions for discrimination between the persons falling, qua its term, in the same class and it does so in such manner as to render it impossible for the Courts to determine, in particular case, where it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution. "In our view such a law has the effect of doing indirectly i.e by leaving the discrimination within the unguided and unfettered discretion of statutory authority, what it could not do directly i,e, to treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purpose of the law, the Act is therefore, in our opinion, in relation to its discriminatory provisions inconsistent with the declaration of equal protection in Article, 5(1) of the Constitution.
15. In view of above discussion, we are not inclined to uphold the judgment of the learned Judge in Chamber and order accordingly. We also direct Chairman NAB to re-examine the case of the petitioner, in as much as second FIR could not be registered and if so, to firstly satisfy himself with the above two conditions before proceeding further with the Reference.