1. ' MRS. QAISER IQBAL, J.---The petitioner has resorted to invoke the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan for seeking quashment of the proceedings being conducted by the NAB Authorities.
2. ' The petitioner has resorted to seek quashment of the pending inquiry being conducted by the NAB authorities. The petitioner is an officer in BS-19 in Customs presently posted on deputation as the Director-General Excise and Taxation, Government of Sindh, Karachi since February, 2006. The petitioner was earlier posted as Commissioner SESSI on deputation from Federal Government. On the basis of anonymous complaint received by NAB Sindh during his posting as Commissioner SESSI he was involved in accumulation of assets beyond his known source of income, the inquiry was conducted in the matter, so much so that the petitioner was summoned in the office of the NAB, all the required documents including explanation with regard to the source of income, tax return, declaration in his department and reconciliation for foreign travel were furnished.
3. ' After the inquiry was conducted the Investigating Officer has twice recommended for the closure of the proceedings as nothing incriminating could be found against the petitioner. At one stage Director General NAB had ordered for the closure of the case in one of his meetings later petitioner received a letter for appearance before the NAB - authorities after a detailed meeting the petitioner was again directed to file documents, in compliance thereof all information was furnished including the details of the house owned by the petitioner's sister-in-law.
4. ' It is averred that the NAB authorities through letter, dated 6-5-2008 informed the petitioner that the probe against him was converted into inquiry and called upon to report to Rehan Mubarak Investigating Officer of the case.
5. ' While the NAB Authorities conducted the inquiry after procuring information from different sources in respect of the charges of corruption and corrupt practices accumulation of assets and living beyond means, letters, dated 30-4-2008, 12-5-2008 were addressed to the authorities by the NAB as well as the letters were written to Customs Department and Karachi Gymkhana.
6. ' Learned counsel for the petitioner in support of the petition has contended as under:--
(a) the entire proceedings launched by the NAB authorities were based upon mala fides and constituted a colourable exercise of power and hence were liable to be quashed under Article 199 of the Constitution. In this regard reliance has been placed on judgment of the Division Bench of this Court in Muhammad Irshad Khan v. Chairman, NAB, (2007 PCr.LJ 1957) which has been upheld by the apex Court in Chairman, NAB v. Muhammad Irshad Khan (2008 SCM R 1012);
(b) according to the learned counsel of the petitioner in matters pertaining to assets being disproportionate to the known sources of income, under section 9(a)(v) of the NAB Ordinance, 1999 only a reasonable explanation is to be offered by the accused, whereas in the present case the petitioner in filing his tax returns, annual declarations of assets so also reconciliation has been able to tally the entire souring to the hilt. Till date the NAB has not come up with one single specific objection to any transaction in the tax returns/documents pertaining to the petitioner and his wife;
(c) the entire proceedings are nothing but a fishing proving expedition, which is not permissible in law. On this score alone the entire proceedings are liable to be annulled;
(d) reference is invited by the learned counsel for the petitioner to a letter of NAB (Islamabad) bearing 1(312)/S-I/IM-2/2006, dated 23-5-2007 addressed to NAB, Sindh wherein the decision in the 38th EBM, dated 21-2-2007 has been communicated whereby it has been mandated that in future the enquiries and investigations can only proceed on specific allegations. It was also deprecated in his letter that the use of general terms such as "corruption, corrupt practices, cheating the public at large etc." should be avoided. Interestingly in this letter it has been observed that despite the above policy decision having been taken by the NAB (Islamabad), the NAB Sindh is still continuing with the practice of authorizing "open-ended inquiries and investigations on general terms". Thus directions are issued in this letter to authorize/investigate only on specific allegations;
(e) reference is also invited by the learned counsel for the petitioner to the guidelines given by the NAB, Islamabad through a letter bearing No.1 Re-structuring Team/2006/NAB, dated 17-4-2006 whereby the "NAB's Operational Methodology" has been communicated. As per para 80 of the "NAB's Operational Methodology" the time frame prescribed for complaint verification is 8 weeks at the expiry of which the complaint should either be converted into an enquiry report or recommended for closure by the EBM. According to the learned counsel the said guidelines have been mercilessly violated with the result that the entire proceedings have become coram non judice and barred by limitation:
(t) The petitioner has moved C.M.A.No.5665 of 2008 in the present petition wherein directions have been sought for the NAB authorities to produce in Court the complete file, data and proceedings including all the documents and minutes/ proceedings of the Executive Board Meeting EBM) in respect of the petitioner. According to the learned counsel vide order, dated 19-6-2008 the learned ADPG of NAB was directed to file comments to such application. Since no such comments have been filed and the NAB authorities have failed to produce, an adverse inference is sought to be invited against them.
7. ' In response the NAB authorities have filed para-wise comments to the petition in which it has been denied that the Investigating Officer recommended the closure of the proceedings on that the D-G, NAB, Sindh had ordered the closure of the case in the EBM. It has further been contended that "huge suspicious transactions in the bank accounts of wife and sister-in-law" of the petitioner have been discovered. In the same breath it has been contended that the enquiry was under progress to find out the facts.
8. ' On behalf of the NAB parawise comments have been filed. It was specifically denied that Investigating Officer had recommended the closure of the proceedings or anyone authority from the NAB had ordered for closure of the case against the petitioner. On account of suspicious transaction in the bank accounts of the petitioner's wife and sister-in-law an inquiry was instituted which was converted into investigation. Learned counsel for the NAB has contended as follows:--
(a) that despite the Court order, dated 19-6-2008 the petitioner has not joined the enquiry;
(b) the NAB was under no obligation to provide the documents to this Court which were sought by the petitioner through C.M.A. No. 5665 of 2008;
(c) the enquiry was being conducted in accordance with law. We have heard the learned counsel for the parties, perused the record and the law on the subject.
9. ' Mr. Chaudhry Muhammad Iqbal, the learned counsel for NAB contended that the latter is under no obligation to file the case record and proceedings, in particular the minutes of the EBM, before the Court, is again devoid of any force. No justification is given as to why such documents cannot be presented before the Court of law. Reference in this regard is invited to the judgment to a Division Bench of this Court reported as H.M. Abdullah v. Income Tax Officer (1991 PTD 217). In this case the petitioner has relied upon certain documents, being the international correspondence of the Income Tax Department. An objection was raised to the effect that such internal correspondence was privileged and hence it had to be excluded by the Court. The contention was rejected on the ground that the matter did not pertain to any State secret whereby the affairs of the. State could be put under jeopardy. It was held that no privilege could be attached to such documents and in order to arrive at a just conclusion the Court was well within its power to rely upon such documents. It is not a case that the respondents are not in possession of the documents which have been sought through the C.M.A. No. 5665 of 2008. In response to C.M.A. No.5665 of 2008 no comments of the NAB's counsel that such documents will not be produced by the NAB authorities, apart from being meritless is also contemptuous. In Gulzar v. Sindh Punjab Goods Transport (PLD 1966 Karachi 256), it was held that in case a party fails to produce important relevant record in support of his case, the Court is entitled to raise adverse presumption against such non- production of the document. While the failure of the respondents in this case to produce the documents is sufficient to draw conclusion that the allegations of the petitioner contained in para. 5 (iv) and (v) of the memo. Of the petitioner that the officer had recommended the closure of the case and such a recommendations was also given by the D-G, NAB Sindh in the EGM. However, it is clarified that in a fit case in view of the non-production of the relevant documents the Court will be well justified to draw an adverse inference against the party guilty of non-production of the relevant documents.
10. The legal position is that the High Court under Article 199 of the Constitution can quash enquiries/investigations seem now to be well-settled in view of the judgments relied upon by the learned counsel for the petitioner. In Muhammad Irshad Khan v. Chairman, NAB (2007 PCr.LJ 1957) a Division Bench of this Court has identified the following categories when inquiries/investigations can he quashed in constitutional jurisdiction. These categories are:--
(a) when the investigation is initiated beyond the jurisdiction of the investigating agency;
(b) the investigation is initiated with a mala fide intention;
(c) the investigation is based upon bad faith or tainted with mala fides;
(d) the investigation is result of a colourabe exercise of power;
(e) investigation is not authorized by law;
(f) the investigation is an action taken in fraud of law;
(g) the investigation amounts to an abuse of process of law.
11. ' In the above precedent case the enquiry proceedings had commenced on account of an anonymous complaint, while the petitioner in that case had also submitted a reasonable explanation of his assets. Despite the same the enquiry/investigation had continued for six years in which four Investigating Officer were of the view that the accused was guilty of offences covered by the NAB Ordinance. On these facts the enquiry/investigation proceedings were found to be based upon mala fides, colourable exercise of power and against the fundamental rights guaranteed under the Constitution, while quashing the came. The said judgment of this Court was upheld by the Supreme Court in the Chairman, NAB v. Muhammad Irshad Khan 2008 SCM R 1012.
12. ' Much of the emphasis has been laid on the following authorities in connection with the proposition propounded for quashment of proceedings based upon mala fides and without jurisdiction under Article 199 of the Constitution enumerated as under:--
(a) Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh (PLD 1971 SC 677),
(b) Anwar Ahmed Khan v. The State (1996 SCM R 24),
(c) Raja Rustam Ali Khan v. Muhammad Hanif (1997 SCM R 2008),
(d) Muhammad Latif A.S.-I. v. Sharefan Bibi (1998 SCM R 666) and
(e) Chaudhry Shah Muhammad v. Ramzan Bibi NLR 1998 Criminal 2004 (SC) (sic).
13. ' The law developed in the Indian jurisdiction is on the same footings as have been ruled by the Court of highest hierarchy in judicial system in our country. In this context reliance is placed on the following case-law:--
(a) Approving Nawsam S's pronouncement in Chidambram v. Shahmugham AIR 1938 Madras 129, Lord Porter in Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18 observed as follows: "No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation."
14. ' The Privy Council in the above judgment clearly suggested that if the case fell under the above exception the High Court under section 561-A, Cr.P.C. Could interfere with the investigation;
(b) very importantly, in S.N. Sharma AIR 1970 SC 786 it has been held that an aggrieved person can always seek a remedy by applying of issue of a writ of mandamus where the power of investigation has been exercised by the police on mala fides;
(c) in State of West Bengal v. Swapan Kumar AIR 1982 SC 949 the Supreme Court of India held that where on the available material no cognizable offence was disclosed, the High Court under the writ jurisdiction was justified in quashing the investigation;
(d) in State of Haryana v. Ch. Bhajan Laj AIR 1992 SC 604 the Indian Supreme Court held that in the following case the High Court under Article 226 of the Indian Constitution (Equivalent to Article 199 of the Pakistani Constitution) or under section 485 of the India, Cr.P.C. (equivalent of section 561-A of the Pakistani Cr.P.C.) could quash the F.I.R. Or investigation:- "(1) Where the allegation made in the First Information Report of the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. Do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of, the Code.
(3) Where the uncontroverted allegations made in the F.I.R. Or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. Do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code.
(5) Where the allegations made in the F.I.R. Or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a Criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concern Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(e) relying upon the seventh category expounded in State of Haryana v. Ch. Bhajan Lal (supra) i.e. Mala fides, the Indian Supreme Court in State of Orissa v. Ganesh Chandra Jew AIR 2004 SC 2179 quashed the proceedings;
(f) in Ram Babu Singh v. Addl. Director General of Police 1993 Cr. LJ 1253 (Allahabad) F.I.R. And all further investigations were quashed when the case against the accused was found to be against the record and ostensible facts;
(g) in Napra AIR 1976 AP 219 it was held that abusing the process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive; or when successive complaints are filed with the obvious intention of harassment and not to prosecute him (see Bir Singh AIR 1952 Allahabad 610); or when a complaint is filed against the accused on the same facts after an acquittal (see Muhammad Hussain AIR 1936 Calcutta 224 and Chamanlal AIR 1943 Lahore 304); or when the facts are so preposterous that the further prolongation of the prosecution would amount to harassment and abuse of process (see Nandram AIR 1947 Allahabade 348 and Parameshwara AIR 1966 Karnataka 264);
(h) In Sharda PD AIR 1977 SC 1754 and A Younus Juanj 1979 Cr.LJ 770 (Karnatka) it was held that where the allegations set out in the complaint or charge sheet do not constitute any offence, the High Court can quash the order taking cognizance of the offence.
15. There is now ample authority in the Pakistani jurisprudence for the point that all public power should be exercised reasonably, justly, fairly and free from malice (see Amanullah Khan v. Federal GOP PLD 1990 SC 1092 and Chairman RTA v. Pakistan PLD 1991 SC 14). The classical pronouncement in respect of the exercise of discretionary powers is contained in "Administrative Law Text" by Kenneh Culp Davis at P.94, where it has been observed as follows:-- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open polity statements, open rules, open findings, open reasons, open precedents and fair informal procedure.
16. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statement or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
17. ' We have also been able to lay our hands on Discretionary powers" by D.J. Galligan according to which:-- "The general principles that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner." According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers."
18. ' The above excerpts from Kenneth Culp Davis and D.J. Galligan have been cited with approval by our own Supreme Court in Gadoon. Textile Mills v. WAPDA 1997 SCM R 641 and Government of N.- W.F.P. v. Majee Floor and General Mills 1997 SC 1804. Collaterally, in KDA v. Wali Muhammad 1991 SCM R 2434. The Hon'ble Supreme Court of Pakistan has been pleased to observe that a mala fide act being a fraud on the Constitution is completely void.
19. ' It will not be out of place to mention that the law settled in connection with the misuse of powers is hardly different from law setup in Pakistan, it has been held as early as 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown 1904 AC 515. "That there is a condition implied in this as well as in other instruments which creates powers, namely, that the powers shall be used bona fide or the purpose for which they are conferred." It was also observed by Warrington C.J. In Short v. Poole Corporation.1926 C 66 that:- "No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, certainly be held to be inoperative."
20. ' The above observations are cited with approval by the Supreme Court of India in Partap Sindh v.
21. State of Punjab, AIR 1964 SC 72, which is an important case on this subject. In that case the court had set aside the order revoking the leave of the petitioner, placing him under suspension and directing an inquiry into the charges against him on the ground of mala fides alone. It was pointed out that if a functionary is actuated by mala fides it is clear that such action would be vitiated being a colourable exercise of power and would therefore be struck down by the Courts. Though the Attorney-General had in that case hinted that even the mala fide use of power would not enable the Court to set aside the order, that contention was not pursued, perhaps because the same had no merit (see Makhan Singh v. State of Punjab, AIR 1964 SC 381; Anand v. Chief Secretary, AIR 1966 SC 657, Durgadas v. Union of India, AIR 1960 SC 1078; State of Assam v. Bharat Kala Bhandar AIR 1967 SC 1766 and Raja Anand v. State of U.P. AIR 1967 SC 1081 also).
22. Any action amounting to misuse of power, whether taken in good faith or bad faith, is to be reckoned as a mala fide act. In this context it would be useful to note the distinction between misuse of power in good faith and misuse in bad faith. The former arises when an authority exercises its power in breach of law, but acts bonafidely and with best of intentions, while taking into account some extraneous matters, or by ignoring relevant matters. This would render the act or order ultra vires. It would be a case of fraud on a power, vide Pratap Singh (Supra) and Somawanti v. State of Punjab, (AIR 1963 SC 151). The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreacking vengeance of an executive functionary such as a Minister as in Pratap Singh. The former can be regarded as mala fide (or malice) in law and the latter, malice in fact. In the words of Lord Summer in Roberts v. Hapwood, (1925 AC 578):-- "Bona fide here cannot simply mean that they are not making a profit out of their office or acting in it from private spite; nor in bona fide a short way of saying that the council has acted within the ambit of its powers and therefore not contrary to law. It must mean that they are giving their minds to the comprehension and their wills to the discharge of their duty towards that public whose money and local business they administer."
23. ' The views expressed in Pratap Singh's case were cited with approval in Express Newspapers (Pvt.)
24. Ltd. v. Union of India (AIR 1986 SC 872). It was stated in para. 1118 of that judgment that a power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is a mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The two grounds of ultra vires and mala fides may often slide into each other and may be inextricably mixed as noted in Pratap Singh's case. So also case might arise when the purposes sought to be achieved are mixed some relevant and some alien to the purpose. This difficulty has been resolved by Courts by finding out the dominant purpose which impelled the action. It would do no good in such a case to say that though the dominant purpose is unlawful, there was another purpose which was lawful (see Pratap Singh; supra). It was pointed out in Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), that Courts had always acted to restrain misuse of statutory power and more readily when improper motives underline it. Exercise of power for collateral purpose was similarly held to be a sufficient reason in ITO v. Seth Brothers (AIR 1970 SC 292), and State of Assam v. Amalgamated Tea Estates (AIR 1979 SC 2072), to strike down the actions; so also the mala fide exercise of power of investigation by police in S.N. Sharma v. Bipin Kumar (AIR 1970 SC 786) (discussed supra) was found sufficient to quash the investigation. It is, however, not necessary as per State of Punjab v. Ramjilal (AIR 1971 SC 1228), to prove that any named officer was responsible for the act where the validity of action taken by a Government is challenged as mala fide, as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fides are enough to dislodge the burden resting on the person who makes the same. Though what is required in this connection is not a proof to the hilt (see Punnalal Binjraj v.
25. Union of India (AIR 1957 SC 397); but the abuse must appear to be reasonably probable (see Barium Chemicals v. Company Law Board (AIR 1967 SC 295). It was held in Pratap Singh that:- "We must, however, demur to the suggestion that mala fide if the sense of improper motive should be established only by direct evidence, that is, that it must be discernible from the order impugned or must be shown from the noting in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts."
26. ' The question as to what is mala fide in the jurisprudence of "power" was answered in State of Punjab v. Gurdial Singh (AIR 1980 SC 319) by observing that "bad faith which invalidates the exercise of power sometimes called colourable exercise of fraud on power and often times overlaps motives, passions and satisfaction" is the attainment of ends beyond the sanctioned purpose of power by stimulation or pretension of gaining a legitimate goal" when the custodian of power is influenced in its exercise by considerations outside those for promotion of which power is vested, the Court calls it a colourable exercise". There, the acquisition of land was for establishing a grain market, a public purpose undoubtedly, but particular land was acquired to give vent to the hostility of a local politician. The acquisition was therefore, held to be a mala fide exercise of power.
27. Bhagwati J in H.D. Vora v. State of Mahafashtra (AIR 1984 SC 866) struck down an order of requisition in respect of a public property when such order did not set out any public purpose nor any material was placed to justify such requisition to be for public purpose.
28. ' On the basis of the law settled in our jurisdiction as well as in other jurisdiction conveniently applied to the facts of the petitioner's case the NAB authorities had launched probe against him about 3, 4 years which was later converted into inquiry commenced upon general in nature allegations contained in anonymous application annexed along with petition. The object of the promulgation of the Ordinance 1999 was with an object to check corruption and corrupt practices of the source of E public office. In the present case petitioner has been furnishing information as and when required by the NAB authorities so much so the declaration of the assets were also furnished as an explanation with the assets in his possession are not disproportionate to his known source of income and he was living beyond his legitimate means. Even in the counter affidavit filed by the NAB authorities no specific allegation has been levelled against the petitioner, in this context reference may be invited to a Division Bench judgment of this Court in Karachi Administration Employees Cooperative Housing Society v. Government or Sindh (SBLR 2004 Sindh 175) and Muhammad Irshad v. Chairman, NAB (2007 PCr.LJ 1975), upheld by Hon'ble Supreme Court in 2008 SCM R 1012, applicable to the facts of the present case with full force. We are of the view that continuations of the inquiry or proceedings by the NAB authorities against the petitioner will be a mala fide exercise of power required to be checked in as enshrined under Article 199 of the Constitution.
29. ' The upshot of the above discussion, that the petition is allowed pending proceedings against the petitioner before the NAB authorities are hereby quashed. The petition was allowed by a short order, dated 7-7-2008. These are the reasons for the same.