1. MUZAFFAR ALI, J.---We propose to dispose of the Appeals Nos.16/08 and 15/08 through this single judgment as both the appeals are in consequence upon the single judgment dated 6-1-2001, passed by the Accountability Court No,III Rawalpindi/Islamabad in reference No,62/02. Initially, both the appeals were filed before the learned Lahore High Court, but on 24-6-2008 the appeals were transferred to this Court vide order dated 24-6-2008 of learned Lahore High Court and this Court has taken cognizance to hear the same after transfer.
2. Raja Muzaffar Hussain appellant, the then Deputy InspectorGeneral/Motor Registration Authority Gilgit, appellant Doulat Ali, the then S.-I. (MVE) RTA Office C.P.O Gilgit and one All Raza, (since dead) the then Office Superintendent (Steno-typist) RTA Office C.P.O Gilgit were prima facie found to be involved in offences of misuse of authority, corruption and corrupt practices as defined in the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance) by the RAB, Rawalpindi and letter No,U0 No,7(115) D-II/I&M/2000/RAB,RWP dated 31-10-2000, Ex-P.W.18/A was written by Obaid Sadiq Rear Admiral Commander RAB, directing the Directoi FIA Rawalpindi Zone, Rawalpindi to nominate an I.O. To hold a detail investigation into the allegations/charges against the accused persons in accordance with relevant provisions of Cr.P.0 and to submit a report in terms of section 173, Cr.P.0 along with the relevant record by or before 15th December 2000, and statements under Section 161 Cr.P.C. In response the Director F.I.A nominated D.D F.I.A. Gilgit to conduct the investigation and to report vide his footnote written by pen on the same letter Ex- P.W.18/A.
3. The thorough perusal of record of the case transpires that the Deputy Director F.I.A. Gilgit (Sardar Anwar the then Deputy Director F.I.A.) did not touch the investigation and P.W.18 Sardar Muhammad Azam Khan, Inspector F.I.A. Islamabad appeared as I.O. And hold the entire investigation against the appellants along with other accused persons and finally submitted his report under section 173 connecting the appellants along with the other accused persons with the alleged crimes of corruption and corrupt practices as defined under section 9 of the Ordinance on the basis of documentary/oral evidence obtained by the self-assumed I.O.
4. In the light of the above report, Reference No,62/02 was submitted before the NAB Court Rawalpindi by the Chairman NAB under sections 18(a) and 24 (b) of the Ordinance with the gist of allegations levelled against the accused in Para-I of the reference reproduced as under:--
1. That on the basis of a credible information, it transpired that the accused No, 1, by misusing his authority as the Motor Registration Officers/Motor Registration Authority, Gilgit in collusion and in connivance with accused Nos.2 to 5, registered 29 heavy duty trucks, on the basis of fake and fictitious auction documents and in violation of the prescribed rules and procedures, and thus caused colossal loss to the national exchequer in the form of non-payment of custom duty. F.I.A.
5. Was authorized to investigate the matter.
6. The case was tried by the Accountability Court No,III Rawalpindi/Islamabad and after going through the procedural requirements, the Court convicted the appellants along with Ali Raza (since dead) under Section 10 of the Ordinance to undergo 10 years' R.I each and a fine of Rs. 50,00,000 each or in default of payment of fine further 3 years' RI each and accused Mehboob-ur-Rehman, Muhammad Bashir and Mehrab Gul were acquitted giving them benefit of doubt, hence these appeals against the 'conviction.
7. We heard the learned counsel for the appellants and learned Special Prosecutor NAB. The learned counsel for the appellants raised the preliminary objection as that, the instant investigation in the case conducted by the I.O Sardar Muhammad Azam Khan Sub-Inspector F.I.A. Rawalpindi is without legal sanction or authority as the Officer was not duly authorized by the Chairman NAB to conduct the investigation in the case under section 18(c) of the Ordinance and interference of F.I.A.
8. Rawalpindi in the case is also in violation of section 18(d) of the Ordinance and invited our judixial attention towards the relevant sections. We, keeping in view the legal importance of the points, visited through section 18 of the Ordinance, which is being reproduced to understand the same:--
(a) The 1[...] Court shall not take cognizance of any offence under this Ordinance except on a reference made by 2[the Chairman. NAB or an officer of the NAB duly authorized by him].
(b) A reference under this Ordinance shall be initiated by the 3[...] National Accountability Bureau on... a reference received from the 4[....] appropriate government; or
(ii) receipt of a complaint; or
(iii) 5[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 the 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 7[NAB] 8[or by an officer of the NAB duly authorized by him].
(e) The Chairman NAB and such members, officers 9[...] or servants of the NAB shall have and exercise, for the purposes of an inquiry 10[...] or investigation the power to arrest any person, and all the powers of an officer-incharge 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 11[NAB] or any officer 12[of NAB] duly authorized by the Chairman NAB.
(f) .............................................................................................................................................................
(g) The 15[...] Chairman NAB, 16[or by an officer of the NAB duly authorized 17(...} him], shall appraise the material "and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further 18[and there is sufficient material to justify filing of a reference], he shall refer the matter to 19[a] Court.
(h) .............................................................................................................................................................
9. Apparently section 18 of the Ordinance provides a special procedure by adopting which NAB authorities can move against a person to initiate a reference, an investigation or inquiry. Under section 18(a) of the Ordinance jurisdiction of NAB Court (hereinafter referred to the Court) has been ousted to take cognizance of an offence, unless a reference is made by the Chairman NAB or an Officer of the NAB duly authorized by the Chairman. In subsection (b) of the section 18 a special procedure has been provided to initiate a reference against a person, whereby the NAB shall initiate a reference, having received either from appropriate Government or from a complainant and otherwise on its own accord. Subsection (c) provides procedure to conduct inquiry or investigation under which, investigation or inquiry shall be conducted against any person only when the matter is referred by the Chairman NAB or by the Officer duly authorized by him.
10. Subsection (d) ousts any other authority or agency to conduct investigation or to hold inquiry of an offence alleged to have been committed under the Ordinance, unless the agency or the authority is required to do so by the Chairman NAB or by the Officer duly authorized by him. Subsection (e) confers the power to arrest any person on the Chairman NAB, members, officers or servants of the NAB and if required, the NAB may seek assistance of any agency including Police, etc. The agency or the officer would be bound to extend assistance, provided that no person shall be arrested without permission of the Chairman NAB or the officer duly authorized by him. Subsection (g) of the Section 18 empowers the Chairman NAB or the officer duly authorized by him to appraise the material and the evidence placed before him during investigation or inquiry.
11. The procedure provided by section 18 of the Ordinance is mandatory in its nature and the Chairman NAB is bound to follow the special procedure to proceed a person against, under the Ordinance and in this context we visited the record of the case to ascertain whether the special procedure under section 18 of the Ordinance has been followed in the case in hand. Perusal of the record transpires that one Sardar Muhammad Azam Khan a Sub-Inspector F.I.A. Crime Branch, Rawalpindi has conducted the entire investigation against the appellants along with other accused in the case and during his investigation, he has not only exercised the powers under section 19 of the Ordinance, but has arrested the appellants along with other accused, while during his examination-in-chief he states that, he was entrusted the investigation of the case by Mr. Ijaz Malik, Director F.I.A. Rawalpindi again when he was subjected to cross examination by the defence counsel during his statement before the Court, he categorically admitted that there was no written authorization granted in his name by the Chairman NAB to investigate the case, we reproduce the relevant portion of his statement here under "vide letter Ex.PW-18/A the authorization was issued in the name of Ijaz Malik. There was no written authorization granted specifically in my own name by the Chairman NAB."M The only document, which has been written to initiate detail investigation against the appellants by appointing an investigating officer, is Ex.PW-18/A. The letter has been written by Mr. Obaid Sadiq Rear Admiral Commander RAB, to the Director F.I.A. Rawalpindi Zone, Rawalpindi to nominate an I.0 to conduct detail investigation in the case. The director F.I.A. Has appointed Deputy Director F.I.A. Gilgit to investigate the matter and to report, vide his foot note on the said letter. Mr. Sardar Anwar was Deputy Director F.I.A. Gilgit at that time and record of the case transpires that, he even did not touch the case, but Sardar Muhammad Azam appeared in the scene posing himself to be I.0 and by receiving his report under section 173, Cr.P.C, the Chairman NAB referred the matter to the Court, it is pertinent to note here that neither written or duly authorization by the Chairman NAB even in the name of Mr. Obaid Saqiq Commander RAB is available in the record of the case nor any document is available in the record of the case vide which, the Chairman or an officer duly authorized by him has ordered in favour of F.I.A. To be required to conduct the investigation in the case, hence, apparently, the investigation conducted by the Sardar Muhammad Azam and involment of F.I.A. Are in violation of Section 18 subsections (c), (d), (e) and (g) of the Ordinance.
12. ' The learned prosecutor is asked to meet the above preliminaries he had no option but to admit the above violations as he could not turn the record of the case otherwise,' but he with a professional skill tried to turn our judicial mined towards the points that, (a) the Chairman NAB has himself referred the matter to the Court on the report submitted by the I.O. As such he has rectified the short comings of the case and cured the violations stated above. (b) the preliminary objections taken before this Court for sudden surprise and these objections have not been taken before the Trial Court nor have been incorporated in the memorandum of this appeal as such the appellants are not entitled under law to take any benefit of their objections (c) the objections are merely of technical nature and can be avoided as discrepancies.
13. ' We are going to discuss the points raised by the learned special prosecutor one by one and first we take the point (c) to understand whether the violation of section 18 subsections (c), (d), (e) and
(g) is mere technicality or it vitiates the entire investigation. In this regard we have case law laid down by the Karachi High Court in the case" Islamuddin Shaikh v. Federation of Pak and others" reported in PLD 2001 Page 419, where in the case of Khan Asfandyar Wali and others decided by the august Supreme Court reported in PLD 2001 SC Page 607 has also been cited and discussed. In the above cited case, the learned brother Judges have discussed inter alia section "31 D introduced by the second amendment dated 5-7-2000 in the Ordinance along with section 18 of the Ordinance and consequently have hold that any reference made by the Chairman NAB under section 18, without a reference from the Governor SBP, would be illegal and a nullity. The learned brother Judges extended this procedural principle in relation with initiating or conducting any inquiry or proceedings in respect of wilful default in payment of "imprudent bank loans" etc. In the case in hand not only mandatory procedure provided by Section 18 Subsections (c), (d) and (g) have been admittedly violated but section 19 of the Ordinance has also been violated, hence the violations are not merely technical but the entire investigation, inquiry, appraisal of the evidence and calling of persons for information in the case etc. Under section 19 of the Ordinance and the report submitted under section 173, Cr.P.0 by a self appeared and assumed I.0 are nullity and without any legal sanction.
14. The point of rectification raised by the learned special prosecutor also having devoid of substance for the reason that, the Ordinance provides no provision to empower the Chairman NAB to rectify the procedural infirmity, while the investigation conducted by the said officer is not a mere discrepancy, but makes entire investigation void ab initio and the officer is to be accounted for how he posed himself to be the I.O. In the case as his act amounts to fraud, particularly he himself has admitted in his statement that, the authorization was issued in the name of one Ijaz Malik, that too was misstatement.
15. The technical objection raised by the learned special prosecutor is answered as that, indeed the point of unauthorized investigation and violation of special procedure provided by Section 18 of the Ordinance has not been taken before the learned trial Court and even it has not been taken in the memo of the appeal even before this Court and for the Ist time, the point has been put up by the learned Counsel for the appellants during course of arguments before us. Since the point has some legal importance as such its legal consequences are required to be looked into, hence this Court asked the learned Counsel for the appellants to meet the same. In response he cited case law laid down by the august Supreme Court of Pakistan in the case titled "Rashid Ahamad v. The State" PLD 1972 SC 271, whereby the august Supreme Court for the Ist instance holds as under:-- Ist "(a) Pakistan Criminal Law Amendment Act (XL of 1958). Ss.6(5) and 2(a)---Sanction for prosecution---Obtaining sanction of appropriate authority: mandatory and condition precedent for prosecution---Proper sanction not obtained---All proceedings rendered illegal and without Jurisdiction---Employee working under Central government- Sanction accorded by Officer under notification issued by Provincial Government---Sanction, not valid---Entire proceedings rendered illegal and without jurisdiction" .
16. 2nd "Held: If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction [p. 275] B".
17. 3rd "(b) Jurisdiction---Question relating to, could be raised at any stage of the proceedings.
18. If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. [p. 275] B".
19. In the above cited case too, the objection of sanction by the competent authority was not taken at the stage of trial and had taken before the honourable High Court in appeal and since the august Supreme Court has rendered all the proceedings, illegal and without jurisdiction, commenced without obtaining proper sanction for the prosecution as such the Supreme Court held that the objection against the nullity and without jurisdiction proceedings could be raised at any stage even before the Supreme Court for the Ist time.
20. We, keeping in view the above valuable findings of the august Supreme Court, can hold without any fear of mistake that, in the case in hand the conditions precedent envisaged in section 18 (c), (d),(e) and (g) and Section 19 of the Ordinance have been utterly and obviously violated as such all the proceedings followed by the void investigation conducted by the officer without authority, became void, illegal and without jurisdiction i,e,, the reference made by the Chairman NAB under section 18(a) and trial by Accountability Court rendered to be vitiated, hence the objection can be raised before this Court for the 1st time and even before the Supreme Court too.
21. The upshot of the above discussion is that the entire proceedings against the appellants in the case are nullity and without jurisdiction as such by accepting the appeals, the conviction and sentence awarded against the appellants are set aside and the appellants are acquitted.