1. ' SAJJAD ALI SHAH, J.---Through these Petitions the Petitioner has called in question order dated 23- 8-2007 passed by Special Judge (Customs and Taxation), Karachi in Special Cases Nos.7 and 10 of 2006 whereby transfer of said cases to the Accountability Court was allowed. Since both the petitions involved common question of law and are based on similar facts, therefore, we would decide both the afore stated petitions through this common judgment.
2. ' Briefly, Crimes Nos.19 and 286 of 2005 under various provisions of Sales Tax Act, 1990 were registered against number of persons for fraudulently obtaining payment of sales tax refund and the petitioner was one of the accused. It appears that during pendency of the said cases before the Customs and Taxation Court an application under section 16-A(a) of the National Accountability Ordinance, 1999 (hereinafter referred to as "Ordinance of 1999") dated 5-7-2007 signed by Acting A Chairman NAB was filed by the Special Prosecutor NAB along with covering application dated 16-8-2007 signed by him seeking transfer of said cases to Accountability Court and the Special Judge (Custom & Taxation) after hearing the Prosecutor through impugned orders directed transfer of Special Cases No.7 and 10 of 2006 to the Accountability Court which orders are impugned in the instant petitions.
3. ' Mr. Ch. Muhammad Iqbal learned Counsel appearing for the petitioner contends that an application under section 16-A(a) of the Ordinance of 1999 seeking transfer of case to the Accountability Court can only be filed by the Chairman under his signature as section 16-A(a) of the Ordinance 1999 does not permit delegation of power and, therefore, the applications moved by the Acting Chairman seeking transfer of said cases to the Accountability Court were incompetent, therefore, transfer of cases on such incompetent applications cannot sustain. In order to substantiate his contention that section 16-A(a) of the Ordinance of 1999 does not permit delegation of powers learned counsel referred to various provisions of Ordinance of 1999 which specifically provide the delegation of powers and has further placed on record Notification No.S.R.0.-73(1) 2006 whereby the Chairman NAB while exercising power under section 34-A of the Ordinance 1999 delegated his power to do various act upon various officers of NAB to show that powers under section 16-A(a) were never delegated. It was next contended that the applications seeking transfer of cases were signed by the Acting Chairman on 5-7-2007 on the basis of delegation of power by then Chairman vide notification dated 3-5-2007 who had resigned on 3-7- 2007, therefore, the authority so delegated came to an end the moment the Chairman resigned, therefore, the transfer applications signed by the Deputy Chairman as Acting Chairman on 5-7- 2007 was without authority. In continuation of his submissions it was further contended that Notification, dated 3-5-2007 whereby powers were delegated upon Deputy Chairman was further bad, as it was never published and further that since Mr.Nawid Ahsan was appointed new Chairman on 5-7-2007, therefore, the applications for transfer of cases should have been signed by the new Chairman, as even if, it is presumed that the Acting Chairman is competent to sign an application under section 16-A(a) seeking transfer of case to the Accountability Court, still the power so conferred on the Acting Chairman vide Notification dated 3-5-2007 had ceased to exist on 5-7-2007 when new Chairman was appointed. Learned counsel while referring to section 6(c) of Ordinance, 1999 contended that an Acting Chairman in absence of Chairman performs his functions and since on 5-7-2007 Chairman was appointed, therefore, the power of Chairman exercised by Acting Chairman by signing application under , section 16-A(a) of Ordinance, 1999 on 5-7-2007 was without lawful authority. In support of his contention learned Counsel has placed reliance on the judgments of this Court in the cases of Abdul Sattar Dero v. The State (2002 YLR 1870), Rauf Bakhsh Kadri v. The State and others (2003 M LD 777) and to contend that where the statute provides an act to be done in a particular manner it should be done in that particular manner otherwise not, case of Dr. Zahoor Mehdi v. Chief Election Commission of Pakistan (PLD 2008 SC 707 = 2008 CLD 1117) was quoted.
4. ' On the other hand Mr. Muhammad Aslam Butt, DPGA for NAB has contended that section 6(c) envisages that whenever the Chairman NAB is absent or unable to perform the functions of his office, the Deputy Chairman, is to act as Chairman, despite Chairman NAB vide Notification dated 3-5-2007 had authorized the Deputy Chairman to act as Chairman in his absence. Per DPGA, Chairman NAB resigned on 3-7-2007 and the new Chairman though was appointed on 5-7-2007 but as evident from the Notification No.3 (467) HQ/2007/PM-1 he assumed the charge of the post on 6-7-2007 and, therefore, the Deputy Chairman NAB in absence of Chairman was fully competent to sign application under section 16-A(a) of the Ordinance, 1999 seeking transfer of said crime.
5. ' As to the non-publication of Notification dated 3-5-2007 Mr.Butt while placing reliance on the judgment of the apex Court in the case of Saghir Ahmed v. Province of Punjab and others (PLD 2004 Supreme Court 261) contends that the acts performed by public functionaries deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance of which they act or perform their functions and discharge their duties should be examined and that a presumption of regularity is attached to the official acts.
6. ' We have heard the learned counsel for the parties and have perused the record of this case as well as case laws cited at Bar.
7. ' It appears to be an admitted position that after registration of the aforesaid crimes against the petitioner, he obtained pre-arrest bail from Special. Judge (Customs and Taxation) Karachi, who had taken cognizance of the said offences which were punishable under various provisions of Sales Tax Act. The interim challan was submitted on 11-3-2006 and subsequently final. Challan was submitted on 24-1-2007 and while these cases were pending before the Special Judge (Customs & Taxation) that on 16-8-2007 Special Prosecutor moved an application under his signature annexing therewith an application under section 16-A(a) of the NAB Ordinance, 1999 dated 5-7- 2007 signed by the Acing Chairman NAB seeking the transfer of said cases of Accountability Court.
8. The Special Judge after hearing the Prosecutor and examining as to whether the cases involve an offence specified in the schedule annexed to the Ordinance 1999 through impugned order transferred the case to the Accountability Court.
9. ' In this background we will take up the first contention of Mr. Iqbal that power conferred on the Chairman under section 16-A(a) to seek transfer of a case pending before any Court of law or Tribunal to the Accountability Court cannot be delegated. Perhaps Mr.Iqbal has based his arguments on the basis of a Judgment of this Court in the case of Abdul Sattar Dero (supra) wherein this Court while examining a similar proposition upon perusal of section 16-A(a) has concluded that it vests discretion with the Chairman NAB only as persona designata to apply for the transfer of the case and his power cannot be delegated to any other person. However, learned counsel has failed to take note of the important fact that in that case the request for transfer of case was made in October, 2000 and the learned Division Bench of this Court in that case had taken note of the law as it stood on the day when such application was filed and not the amendments which were introduced thereafter. It appears that on 10-8-2001 Ordinance of 1999 was amended and section 34-A was inserted which reads as follows: "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."
10. A plain reading of the above reproduced provision leaves no doubt in our mind that the Chairman NAB by an order in writing can validly 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. In our opinion it would be totally misplaced to assume that since the Chairman through Notification No.S.R.O.-731(1)2006 has not delegated the power the power vested in him under section 16-A(a) to seek transfer of cases to the Accountability Court upon any officer of the NAB, therefore, such power becomes non- delegable. In this context, it would further be important to observe that though section 16-A(a) of the Ordinance 1999 opens up with a nen obstanate clause i. e . "notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any Court of law or Tribunal that any case involving offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance" but the non obstanate clause is confined to any other law for the time being in force and not to the provisions of NAB Ordinance itself. We in the circumstances do not see any clog on the powers of the Chairman to delegate his power under section 16-A(a) of the Ordinance 1999 upon any officer of NAB in terms of section 34-A of the Ordinance 1999.
11. ' The other important aspect of the matter of which we had taken note appears to be that Notification dated 3-5-2007 by which the Chairman NAB had delegated his power upon his Deputy to act as Chairman in his absence w.e.f. 14th May, 2007 till further orders is not under section 34-A of the Ordinance 1999, but under section 6(c), however, before examining this aspect of the matter it would be beneficial to reproduce section 6(c) of the Ordinance of 1999:- "6(c). Acting Chairman, National Accountability Bureau: As and when the Chairman NAB is absent or unable to perform the functions of his office due to any reason whatsoever, the Deputy Chairman (NAB) will act as the Chairman NAB, and in case the Deputy Chairman (NAB) is absent or unable to perform the functions of the office, (any officer of the NAB) duly authorized by the Chairman ' NAB (shall) act as Chairman NAB".
12. A perusal of reproduced provision reflects that as and when the Chairman NAB is absent or unable to perform functions of his office due to any reason whatsoever the Deputy Chairman NAB without any act on the part of Chairman or delegation of power acts as Chairman, however, when the Deputy Chairman is absent or unable to perform the functions of the office, then Chairman has to delegate the power on any officer of the NAB to act as Chairman. In the circumstances, Notification dated 3-5-2007 whereby Chairman NAB has appointed his Deputy to act as Chairman in his absence appears to be redundant as the law envisages automatic delegation of powers upon Deputy Chairman of the NAB to act as Chairman in the absence of Chairman. Consequently, the contention of Mr. Iqbal as to non-publication of Notification dated 3-5-2007 or ceasure of authority upon resignation of Chairman NAB becomes irrelevant.
13. ' Now the only question which requires consideration appears to be as to whether on 5-7-2007 when the Deputy Chairman NAB acting as Chairman NAB had signed the application under section 16A(a) seeking transfer of the case to the Accountability Court, the Chairman NAB was absent or unable to perform the functions of his office due to any reason whatsoever. In order to establish the relinquishment of charge by the previous Chairman and the appointment of new one Mr.Iqbal has referred to two Notification dated 5-7-2007, whereas Mr.Butt has referred to Notification dated 6-7- 2007 to show that the new Chairman assumed the charge on 6-7-2007. In order to property appreciate the contention of the respective parties it would be beneficial to reproduce all the three Notifications: ' Islamabad the 5th July, 2007 "Notification No . 41/184/2000-E-1- --In exercise of powers conferred by section 6(b)(i) of the National Accountability Bureau Ordinance, 1999 (amended from time to time), the President of the Islamic Republic of Pakistan is pleased to appoint, Mr.Nawid Ahsan, as Chairman, National Accountability Bureau, for a period of four years, with immediate effect.
14. ' The terms and conditions of the appointment will be notified separately."
15. ' Islamabad the 6th July, 2007 "Notification No.3(467)/ HQ/ 2007/PM-I---In pursuance of the ' Establishment Division's Notification No.41/ 184/2000-E-I, dated 5th July, 2007, Mr.Nawid Ahsan, has assumed the charge of the post of the Chairman, National Accountability Bureau, on 6th July, 2007."
16. ' Islamabad the 11th July, 2007 "Notification No.7-7(3)/HQ/2005/ Admn-I--- In pursuance of the Establishment Division's Notification No.24/11/2005-E-I, dated 5th July, 2007, Lt. Gen. (R) Shahid Aziz has relinquished the charge of the post of the Chairman, National Accountability Bureau, on 3rd July, 2007."
17. Perusal of the above reproduced Notifications in sequence reflects that Lt.-Gen. (R) Shahid Aziz relinquished the charge of the post of Chairman NAB on 3rd July, 2007 and the new Chairman viz. Mr.Nawid Ahsan though was appointed on 5th July, 2007, but had assumed the charge of the post of Chairman NAB on 6th July, 2007, therefore, it can safely be concluded that though the new Chairman NAB was appointed on 5th July, 2007 but was not available/absent or unable to perform the functions of his office in terms of section 6(c) of the Ordinance 1999 and consequently the application moved by the Deputy Chairman NAB as Acting Chairman in absence of Chairman NAB cannot be termed without lawful authority.
18. ' In view of what has been discussed above, these petitions fails and are hereby dismissed.