' The petitioner has filed this petition on 25-2-2005 with the following prayer:--
(i) "That it be declared that the investigation/proceedings initiated against the petitioner on the purported letter, dated 17-1-2002 are ab initio void and all material collected are nullity in the eye of law and the same are liable to be ignored being unauthorized and without jurisdiction.
(ii) That the respondents should be restrained from taking any adverse action against the petitioner on the basis of such investigation and father from harassing and humilitating and further from harassing and humilitating the petitioner on frivolous allegations and under colourful exercise of powers under the National Accountability. Ordinance, 1999 and such pendency of the investigation/proceedings in purported exercise of powers be set at naught being not in spirit of the law;
(iii) Grant any other/further relief(s) as deemed fit and proper in the circumstances of the case.
(iv) Cost of the suit."
' The petitioner alleged that he was employed by the government of Sindh as an Excise and Taxation Officer in the year, 1976, and had meritorious record at his disposal, of successful raids to curb the evil of narcotics. It is urged that in the year, 2001, the petitioner along with other officials was involved by the National Accountability Bureau on alleged charges of corruption and corrupt practices, misuse of authority, and the swindling away of nominees from the public exchequer.
Accountability Reference No.10 of 2001 was filed against the petitioner including the principal accused, Agha Wazir Abbas and others. All the accused were acquitted except the principal accused Agha Wazir Abbas, who it is alleged was directly involved in issuance of the fake permits.
The .Petitioner remained absent and proceedings against him were subsequedly separated from trial. The proceedings against the petitioner were initiated under National Accountability Ordinance, 1999, on the purported sanction of respondent No.2 on the alleged delegation of powers by the respondent No.
1. The purported authority/power letter, dated 17-1-2002, addressed to respondent No.3 conveyed that the petitioner had acquired moveable and immovable properties beyond his pecuniary sources in his name and in the names of his dependents as banamidars, disproportionate to the known sources of his income and the investigation of the same was entrusted to respondent No.4.
During this time and in the absence of the petitioner, the respondent No.1 allegedly harassed his family members and his women folk. Consequently C.P. No.D-1901 of 2002 was filed and disposed- off on the basis of an undertaking by the respondent No.4. It is urged that purported authorization of investigation carried out by the respondent No.2 was in violation of law, and that the entire investigation so far conducted, was corram non judice, without legal authority, and liable to be quashed.
' The respondents in their para-wise comments have stated that the jurisdiction has vested in the 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 purposes 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 Act. The Director-General of NAB could also be termed an Officer of the NAB, and the purported action for delegation of his power was in consonance with the law and hence no illegality was committed by the respondent No.4 by holding an inquiry/investigation against the petitioner.
' We have heard Mr. K.A. Kazi, learned counsel for the petitioner and Mr. Muhammad Ali Waris Lari, learned counsel for NAB, and have perused the record of the case very carefully.
The learned counsel for the petitioner has argued that during the course of an investigation, the petitioner cannot be subjected to agony of authorized investigation for an indefinite period, which is casting a B shadow upon the conduct of NAB. It is urged that under section 22 of the National Accountability Ordinance, the Chairman NAB may inquire into and investigate any suspected offender involved in commission of 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 to 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 of an offence and to proceed with the 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. Its application is on 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 ends of any of his functions for carrying out the performance of the Ordinance, by way of insertion, section 34-A, by virtue of National Accountability Bureau Amendment Ordinance, 2001, dated August 10th 2001, sections 34 and 34-A are reproduced herein below:-- "(34 Power to makes 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 are unambiguous and clear. 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 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 Qadir v. NAB (2004 CLC 1353). More particularly when an officer of National Accountability Bureau is posted and appointed on deputation by the Government of Pakistan, therefore, delegation of powers under section 34-A (ibid) are in accordance with law.
' Learned counsel for petitioner has placed reliance upon the case of PLD 2007, Karachi, 469, in which 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 for inquiry unless it is mentioned that inquiry or investigation is required to be conducted 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 Kaioodi 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 investigation or inquiry, the Court taking cognizance, is competent in law to take such cognizance, and if it has 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, 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 provision 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, was in conflict with 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 is in contravention of clause 24-A of the General Clauses Act, since 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 NAB hereby delegate my powers to the officers of National Accountability Bureau 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 12do- 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 withFull powers. approval of Director
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 260.-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 Onto 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 ORDER ' 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 anydo- All employees of Banks, Financial Institutions and DFIs in grade of Vice President and below. investigation in conjunction with anyother agency or person, under section 22(a) and (b).
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 powers 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.
' In view of what has been discussed above, this petition is not sustainable in law and is hereby dismissed.