The petitioner has filed this petition on 16-5-2005 with the following prayer:- "(a) Declaring that the purported unwarranted action/proceedings are in flagrant violations of law, and without sanction thus corum non judice and are liable to be declared so.
(b) The respondents No.2 and others may be restrained from achieving their nefarious designs and calling the petitioner at their office in the garb of the authority and colourable exercise of power.
(c) Any other reliefs.
(d) Cost of the petition."
' The petitioner alleged that he started his service career as SDO (Engineering), at Municipal Committee, Nawab Shah, in the year, 1967. Thereafter he remained posted at different places in different cadres and that his promotion to BPS 20 is due as the DPC has already cleared his case.
The petitioner has best record of service and excellent performance of public duties. Unfortunately in October the son of the petitioner who was with his friends while driving one person named Ghulam Rasool Surhani, was found to be murdered. The matter was reported and an F.I.R. Was registered. Thereafter, in order to seek revenge, some influential persons took forcible possession of the house of the son of the petitioner and they were forced to seek shelter from their relatives. The petitioner received telephone calls from the respondent No.2 who directed him to attend his office.
The petitioner attended the office of the respondent No.2 who it is alleged is instrumental in causing hardship to the public at large. The petitioner was ultimately called in office and asked about his assets in his name, and was induced to straightaway enter into some plea-bargain. The respondent No.2 is an official of the respondent No.1, who being the Chairman of the Authority, has the power to initiate inquiry/investigation under the National Accountability ' Ordinance, 1999, and the none else has the power/authority to call for information asked for, and to act at the whims of the officials of NAB. The petitioner apprehends that the purported initiation of action is a series of moves initiated by certain quarters to silence the petitioner over his legal rights, agitated earlier hence the petitioner has preferred this petition.
' The respondents in their parawise comments state that no jurisdiction was vested in Chairman NAB to order for initiating inquiry and investigation against the petitioners for carrying out investigation into Corruption and Corrupt deeds. It is further pleaded that the Chairman NAB was authorized to delegate powers in writing for authorized purpose of his office by an officer of the NAB as he may deem fit and proper. The legal requirement to initiate proceedings against any person contemplated in the preamble of the Ordinance for the purpose of recovery of looted money is the spirit behind the law/Act and the Director-General NAB can be termed as an Officer of the NAB, and the purported action for delegation of his powers was in consonance with law, and that no illegality was committed by the respondent No.4, by holding an inquiry/investigation against the petitioner.
' We have heard Mr. Muhammad Anwar Tariq learned counsel for the petitioner and Mr. Muhammad Ali Waris Lari, learned counsel for NAB and perused the record of the case carefully.
' Learned counsel for the petitioner has argued that during the course of investigation the petitioner could not be made subject to agony of ever authorized investigation for an indefinite period which is casting a shadow upon the conduct of NAB. It is urged that under section 22 of the National Accountability Ordinance, the Chairman, NAB may inquire into a investigate any suspected offender when involved in the commission of an offence under the Ordinance, 1999. Section 22 of the Ordinance reads as under:-- "(22) Jurisdiction.---(a) The Chairman, NAB may (inquire into and) investigate any suspected offence which appears to him on reasonable grounds tb involve (an offence under) this Ordinance, and has been referred to him, or of his own accord.
(b) The Chairman NAB may, if he thinks fit, conduct any such investigation in conjunction with any other agency or any other person (***) who is, in the opinion of the Chairman, NAB, a proper Agency or person to be concerned in it."
' It is revealed that as per subsection (a) jurisdiction is conferred upon the Chairman NAB to take notice/cognizance of the an offence and to proceed with inquiry, whereas subsection (b) confers powers upon the Chairman NAB to conduct any such investigation with any agency or any other person who in the opinion of the Chairman NAB, is a proper agency having regulatory executive power of a Government Administrative Agency over a subject-matter, and its application on the matters arising out of provisions contained in sections 16(d), 16-A, 18, 19, 20, 21, 23, 24, 25, 25-A, 26, 27, 31-D and 34-A of the Ordinance. It is next urged that the Chairman NAB in writing can delegate powers and also authorize performance of any of his functions, for carrying out the objectives of the Ordinance, by way of insertion of section 34-A, by virtue of the NAB Amendment Ordinance, 2001, dated August 10, 2001, sections 34 and 34-A are reproduced herein below:-- "(34. Power to make rules.---The Chairman, NAB may, with the approval of the President, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.)"
(34-A). Delegation of powers.---The Chairman, NAB may, by an order in writing, delegate any of his powers to and authorize performance of any of his functions by, an officer of the NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order, for carrying out the purposes of this Ordinance).
' The expressions therein are unambiguous and clear, and the language of the section read in conjunction with sections 18(c) to 18(h) speaks volumes. It is urged that the Chairman NAB could not delegate powers to the Director-General, NAB, for carrying out investigation against the respondents who is an active service component of the Pakistan Army, in view of the judicial review on the method of development of law. On the other side it is urged that Courts would not formally pronounce upon purely academic controversies as held by a Division Bench of this Court in Abdul Rauf Qadri v. NAB (2004 CLC 1353). More particularly, when the officer of National Accountability Bureau was posted and appointed on deputation by the Government of Pakistan, therefore, delegation of powers under section 34-A (ibid) has in accordance with law.
' Learned counsel for petitioner has placed reliance on the case of PLD 2007 Karachi 469, wherein the following observations are of much significance, which are reproduced herein-under:-- "In the present case, there is no material before this Court whether the Chairman NAB had dealt with the above subject and had formed the opinion that any offence punishable under the Ordinance was committed by any person so as to empower him to initiate the inquiry or investigation in the matter. If such opinion would have disclosed such fact by specifying the said offence. The silence on the part of the respondents on this very important aspect of the matter adversely affect the entire process of inquiry and investigation. If there is no foundation of any allegation of commission of offence under the Ordinance then the super-structure made on such foundation is bound to collapse without any further action. In the comments, it has simply been mentioned that the Chairman NAB had ordered for inquiry or investigation which by itself is not sufficient to order of inquiry unless it is mentioned that inquiry or investigation is required to be conduced in an offence, which is punishable under the Ordinance. Further, none of the notices issued by the Investigating Officer to the petitioners and other persons disclose the nature and commission of any offence, but the notices are also silent on the subject.
' In the case of Messrs Kaloodi International (Pvt.) Ltd. And another v. Federation of Pakistan and others (PLD 2001 Karachi 311), it is contemplated that during the inquiry, investigation or proceedings, during initiation of any inquiry, investigation, reference or any other proceedings by the National Accountability Bureau should always precede and not to succeed the initiation of proceedings etc. As fait accompli. It was further held that if there is any defect, or irregularity during the course of investigations, or inquiry the Court taking cognizance was competent in law to take such cognizance, and had taken cognizance competently and validly, then any defect or irregularity in the course of investigation or inquiry shall not have the effect of vitiating the proceedings in Court, the trial or the decision. It should always be kept in view that the taking of cognizance by the trial Court does not suffer from any jurisdictional error or illegality.
' The investigation of the case is conducted under the Ordinance and section 54 is applicable as held in the case of Wakeeluddin and others v. The State and others (2007 PCr.LJ 1515). If any of the provisions of the Code is in conflict with any of the provisions of the National Accountability Ordinance then the provision of the, National Accountability Ordinance would apply with necessary adoption and changes in section 17 of the Ordinance.
' Adverting to the question whether the powers delegated under section 34-A by the Chairman NAB to the Director General NAB are in conflict to the preamble of the Ordinance and or in juxtaposition to the cognizance of the offence under section 18 of the Ordinance by the Chairman NAB or an officer of the NAB duly authorized by him. Undoubtedly the Chairman NAB had authorized and delegated powers to the Director-General, NAB, which according to the learned counsel for the petitioner was in contravention of clause 24-A of the General Clauses Act, as the Government of Pakistan had not proceeded to notify the same in the Government Gazette.
By virtue of Order 19/(40)/NACS(NAB)/2004, and in continuation of the order, dated 27-5-2005, relating to the exercise of powers vested in the Chairman NAB under section 34-A of the Ordinance, the powers have been delegated for carrying out the purposes of the Ordinance which are reproduced herein below:-- "APPENDIX II Government of Pakistan National Accountability Bureau Ata Turk Avenue, G-5/2, Islamabad No. 19(4)/NCS(NAB)/2004
' In exercise of powers vested in me under section 34-A National Accountability Ordinance, 1999, I, Lt. General Munir Hafiez, Chairman National Accountability Bureau hereby delegate my powers to the officers of NAB to extent indicated below for carrying out the purposes of the Ordinance with respect to the authorization of the following funds:-- S. No. Nature of power/functionOfficer of NAB authorizedExtent of delegation
1. Closure of inquiry/ Investigation and release of accused, if in custody, under section 9(c)All DGs Regional NABs. (i) Grade 16 & below (ii) Holder of an office or post in connection with the affairs of a local council except District Nazim.
2. To freeze property and matters incidental thereto, under section 12-do- Full powers.
3. To refer the matter for inquiry or investigation, under section 18(c).-do- (i) Grade 20 & below (ii)
Holder of an office or, post in connection with the affairs of a local council.
4. To refer a case to Accountability Court, under sections 18(g) and 24(b)-do- (i) Grade 16 & below (ii) Holder of an office or post in connection with the affairs of a local council except District Nazim.
5. To arrest during inquiry or investigation, under section 18(e)-do- -do-
6. To refer the matter to the Court within the meaning of section 18(h)-do- Full powers.
7. To call for information, under section 19.DD Co-ord of each Regional NAB with approval of DirectorFull powers.
8. To inquire into and investigate any suspected offence and to conduct any investigation in conjunction with any other agency or person, under section 22(a) and (b).All DGs Regional NABS.(i) Grade 20 & below (ii)
Holder of an office or post in connection with the affairs of a local council
9. Power to arrest the accused, under sections 24(a)-do- (i) Grade 16 & below (ii) Holder of an office or post in connection with the affairs of a local council except District Nazim.
10. Power to notify Police Station or Sub-Jail, under section 24(t).-do- Full powers.
11. To accept/reject voluntary return and plea bargain and to refer the matter to Court for approval and release of accused, if in custody, under section 25(a) and (h).-do- -do-
12. Tender of Pardeon, under section 26.-do- (i) Grade 20 & below (ii)
Holder of an office or post in connection with the affairs of a local council.
13. Power to point officers and staff in NAB, under section 28-do- Upto Grade 1 to 15
14. Power to give protection to the witnesses, under section 31-E.-do- Full powers
15. To file appeal and revision, under section 32(a).-do- (i) Grade 16 & below (ii) Holder of an office or post in connection with the affairs of a local council except District Nazim.
' This order shall come into force with immediate effect.
(Sd.)
(Munir Hafiez) Lieutenant General Chairman National Accountability Bureau Islamabad ' Dated: 22nd September, 2004."
"APPENDIX III ' Government of Pakistan National Accountability Bureau Ata Turk Avenue, G-5/2, Islamabad
' In continuation of Order No.19(40)/NACS(NAB)/2004, dated 22-9-2004, relating to delegation of powers, I, Lt. General Munir Hafiez, Chairman National Accountability Bureau in exercise of powers vested in me under section 34-A of National Accountability Ordinance, 1999, hereby further delegate following powers to the extent indicated below for carrying out the purposes of the Ordinance:-- S.No.Nature of power/functionOfficer of NAB authorizedExtent of delegation
1. Closure of inquiry/ Investigation and release of accused, if in custody, under section 9(c)All DGs Regional NABs.All employees of Banks, Financial Institutions and DFIs in grade 2 and below. Grade 16 and below.
2. To refer the matter for Inquiry or investigation under section 18(c).do- All employees of Banks, Financial Institutions and DFIs in grade of Vie president and below.
3. To refer case to Accountability Court under sections 18(g) and 24(b)do- All employees of Banks, Financial Institutions and DFIs in grade 2 and below. Grade 16 and below.
4. To inquiry into and investigate any suspected offence and to conduct any investigation in conjunction with anyother agency or person, under section 22(a) and (b).do- All employees of Banks, Financial Institutions and DFIs in grade of Vice President and below.
5. Power to arrest the accused, under section 24(a).do- All Employees of Banks, Finance Institutions and DFIs in grade 2 and below. Grade 16 and below.
6. To accept/reject voluntary return and plea bargain and to refer the matter to Court for approval and release of accused, in custody, under section 25(a) and (b).do- do-
7. Tender of Pardon, under section 26.do- All employees of Banks, Financial Institutions and DFIs in grade of Vice President and below.
8. To file appeal and revision, under section 32(a)do- All employees of Banks, Financial Institutions and DFIs in grade 2 and below.Grand 16 and below.
' This order shall come into force with immediate effect.
(Sd/-)
(MUNIR HAFIEZ) Lieutenant General Chairman National Accountability Bureau Islamabad Dated: 27th May, 2005.
' In any view of the matter, the Chairman NAB had in exercise of the vested power issued the above orders directing all the Director Generals, Regional NAB, to carry out functions for the smooth running of the objects of the Ordinance and for expeditious disposal of cases which contained powers to refer matters to inquiry, investigation in terms of section 18-C of Ordinance, 1999.
' We are of the considered view that this petition is not sustainable in law and is hereby dismissed.