' The petitioner is facing a trial under Reference No,34 of 2010 before the National Accountability Court-II Lahore. This reference was filed in the said court on 3-1-2011. The Reference was pending and charge was framed against the petitioner on 28-1-2011 and evidence of six witnesses have been completed as per the learned counsel for .The petitioner and the examination-in-chief of Dr.Sadiq as P.W.7 has also been recorded. There are twenty witnesses cited by the prosecution to be produced against the present petitioners.
2. The petitioner started appearing of his own in the National Accountability Court and was arrested on 12-11-2011 by the NAB authority. He was produced before the National Accountability Court-II, Lahore on 13-11-2011 and physical remand for one day was allowed till 14-11-2011 on which date a prayer for further physical remand was made by the NAB authorities to the learned Judge Accountability Court-II, Lahore and vide order dated 14-11-2011 seven days physical remand of the accused/petitioner was granted and he was directed to be produced before the said Court on 21- 11-2011. The petitioner assailed the order dated 14-11-2011 through the instant writ petition which was filed on 16-11-2011 before this Court and it came up for preliminary hearing on 17-11-2011 on which date notices were issued to the respondents Nos.1, 2 and 4 for 22-11-2011. On 22-11-2011 the learned counsel for the petitioner disclosed that the physical remand of the petitioner which was previously allowed till 21-11-2011 has been further extended till 5-12-2011 and sought time to place on record a copy of the order dated 21-11-2011. The copy of the writ petition was handed over to the learned Additional Deputy Prosecutor-General, NAB who attended the case on court's call and the later was directed to seek instructions in this matter. The petitioner then moved a C.M. No,4226 of 2011 for placing on record additional documents and accordingly the petitioner has placed on record the documents annexed with the C.M which inter alia included the order dated 21-11-2011 passed by the Judge Accountability Court-II, Lahore whereby the physical remand of the petitioner for completion of investigation has been extended for further 14 days period. The matter has been heard at length today.
3. It is contended by the learned counsel for the petitioner that the petitioner is facing a trial under a Reference for the offences under section 9(a) punishable under section 10(a) of the National Accountability Ordinance, 1999 and was regularly attending the proceedings of the trial before the learned Judge Accountability Court-II; Lahore. The statements of six witnesses have been completely recorded and the examination-in-chief of P.W.7 Dr. Muhammad Sadiq was also recorded and all of a sudden the arrest of the petitioner has been effected in this matter. The learned counsel has raised two points that in the first place after the submission of the Reference before the Accountability Court, the petitioner could not have been arrested. Secondly that no reinvestigation could have been undertaken by the NAB authorities in the midway of the trial as a complete Reference has been submitted against the petitioner and the grant of physical remand by the learned Judge Accountability Court of the petitioner first till 21-11-2011 and its subsequent extension till 5-12-2011 is illegal, arbitrary and without lawful authority. The learned counsel has relied upon the judgment reported as Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) to argue that once a challan has been submitted in a criminal case against an accused person then he cannot be arrested on the ground of reinvestigation by the police. The learned counsel further contended that reinvestigation . Cannot be lawfully conducted after submission of the challan before the learned trial court in a criminal case. The learned counsel finally argued that the total liability of the petitioner under the Reference has been determined in the Reference for which the petitioner was facing the trial and the grant of physical remand to the NAB authorities of the petitioner after his arrest is absolutely illegal, arbitrary and mala fide one.
4. The contention of the learned counsel for the petitioner has been controverted by the learned'
Addl. Deputy Prosecutor-General NAB by arguing that a warrant of arrest of the petitioner was issued by the Director. General, NAB Punjab on 13-12-2010, a copy of which warrant has been placed on the record by him. It is further contended that the offences with which the petitioner has been charged are non-bailable in nature and in execution of warrants of arrest, the petitioner has been arrested. The learned Addl. Deputy Prosecutor General has further. Contended that after the arrest of a person in a case under the National Accountability Ordinance, 1999 there is no legal bar for investigation/ reinvestigation of the case notwithstanding the submission of final Reference against the accused. It .Was further contended by the learned Law Officer that liability of the petitioner has been determined to be Rs,27,97,850 and the physical remand was justifiably granted by the. Learned Judge Accountability Court for the purpose of completing the investigation of the case as the petitioner never joined the investigation during the inquiry proceedings and he did not seek his bail in the matter and that when the petitioner appeared before the court of learned Judge Accountability Court-II, Lahore, he moved an application under section 265.K, Cr.P.C. For his acquittal which application was dismissed vide order dated 15-3-2011 and the learned Judge transmitted a copy of the order dated 15-3-2011 to the NAB authorities holding that the NAB authorities have acted unusually in this matter by not arresting the petitioner in the case and accordingly, the warrant of arrest which stood already issued against the petitioner was executed and the petitioner was arrested. After the arrest of a person, there was no legal bar under the National Accountability Ordinance, 1999 for the grant of physical remand for completion of investigation by the NAB authorities and the orders granting the physical remand passed by the learned Judge Accountability Court are, therefore, in accordance with law and do not suffer from any illegality.
5. We have considered the arguments of the learned counsel for the parties.
6. It is not denied that a warrant of arrest of the petitioner was issued by the Director General, NAB Punjab on 13-12-2010 in the instant case by invoking the provisions of sections 24(a) and 18(e) of the National Accountability Ordinance, 1999. It is also not denied that the petitioner never sought his bail in the Reference in which he was the sole accused and was facing the trial. Section 24(a) of National Accountability Ordinance, 1999 reads as follows:-- "(a) The Chairman NAB shall have the power, at any stage of the (inquiry or) investigation under this Ordinance, to direct that the accused, if not already, arrested, shall be arrested."
' The provisions of section 24(a) ibid have been applied to the proceedings of the trial as well, as per clause (c) of section 24 which reads as follows:- "(c) The provisions of subsection (a) shall also apply to cases, which have already been referred to the Court."
8. A combined reading of Clauses 24(a) and clause (c) ibid sufficiently provides that even in the cases which have been referred for trial to the Court under the National Accountability Ordinance, 1999, a person can be lawfully arrested. A warrant of arrest was issued against the petitioner by invoking the provisions of section 18(e) of the National Accountability Ordinance, 1999 and his warrant of arrest remained effective and executable till the accused is arrested. The petitioner admittedly did not seek his bail in the matter from any court. The petitioner never joined the Inquiry or investigation proceedings at any earlier stage. It is also a matter of record that the petitioner moved an application under section 265-K, Cr.P.C. Before the learned Judge Accountability Court which was dismissed vide order dated 15-3-2011 and the learned Judge Accountability Court in the last two paragraphs of the said order dated 15-3-2011 observed as follows:-- "Completion of investigation in accordance with the law is always duty of the 1.0. And preparation of investigation report and filing of reference, after duly investigation in accordance with law, reflect his conduct and efficiency which is not relevant for the deciding of application under section 265-K, Cr.P.C. The said novel style of investigation requires attention of senior officer of the investigating agency.
' In this case, the prosecution has collected evidence, though without joining of the accused in investigation, which without passing through test of the cross-examination, throw lights on the alleged involvement of the accused in commission of offence alleged with which no doubt can be dented by way of cross-examination as well as production of defence evidence. In view of above discussion, it cannot be said that in this case, the collected evidence by the NAB authorities against the accused, if comes against him without any contradiction, rebuttal or dent, there is no probability of his conviction. The application of the accused .Petitioner is thus without any substance, hence, dismissed. Copy of order be sent to DG, NAB, Punjab, Lahore for information about work, and conduct of the. I.O."
9. This order has been produced by the petitioner himself as Annexure-E in his Writ petition. Upon remitting of this order dated 15-3-2010 by the learned Judge Accountability Court to the Director General NAB Punjab, the NAB authorities perhaps became conscious of their responsibilities and effected the arrest of the petitioner in execution of the warrants issued by the Director General, NAB dated 13-12-2010. So no illegality is found in the arrest of the accused/petitioner in consequence of the warrant of arrest issued against him dated 13-12-2010. Section 9, clause (b) of National Accountability Ordinance, 1999 reads as follows:-- "(b) All offences under this Ordinance shall be non-bailable and notwithstanding anything contained in sections (426, 491) 497, 498 and 561A or any other provision of the. Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance."
10. The arrest of the accused/petitioner for the first time on 13-11-2011 as detailed above, was further approved by the Judge Accountability Court when he was produced before the said learned Judge on 14-11-2011 and the following portion of the order dated 14-11-2011 is relevant and is reproduced:-- "The warrant of arrest was issued on 13-12-2010 i,e, before filing of reference. In view of above, for the purpose of completion of investigation and recovery of alleged embezzled amount, 7 days physical remand of the accused is granted and he be produced on 21-11-2011."
11.. Since, the petitioner did not join the. Investigation earlier, therefore, the learned Judge Accountability Court after the arms/ of the petitioner passed the order dated 14-11-2011 of granting the physical remand of the petitioner for the completion of investigation and recovery of the alleged embezzled amount from him. This physical remand of the petitioner is further stated to have been extended for a further period of fortnight till 5-12-2011. According to section 18' clause (d) of National Accountability Ordinance, 1999, an exclusive responsibility and jurisdiction of conducting the investigation of an offence alleged to have been committed under the National Accountability Ordinance, 1999 rests with the NAB authorities. According to section 24 clause (d)' ibid a physical remand of an accused person who is arrested under the National Accountability Ordinance, 1999 can be lawfully granted by the Judge Accountability Court for a maximum period of 90' days provided at one time, the physical remand is not to exceed fifteen days duration.
Section 24 clause (d) ibid is reproduced as follows:- "(d) Notwithstanding anything contained in the Code, where the holder of a public ,office so or any other accused of an offence is arrested by NAB under this Ordinance, NAB shall,. As soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produce him before the Court within a period of twenty-four hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall, having regard to facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days and the Court may remand an accused person to custody not exceeding fifteen days at a time and for every subsequent remand the Court shall record reasons in writing copy of which shall be sent to the High Court."
12. It is also laid down by the Hon'ble Supreme Court of Pakistan in the reported judgment Bahadur Khan v. Muhammad Azam and 2 others(2006 SCM R 373), that even if a challan has been submitted before the learned trial court in a criminal case, further reinvestigation of ,the case A can always be undertaken by the Investigating Agency. The. Hon'ble Supreme Court of Pakistan has laid down the law in a judgment reported as Sardar Muhammad Nawaz v. Mst.Firdous Begum (2008 SCM R 404) that a judgment pronounced by a larger Bench of the Hon'ble Supreme Court is to be given a preferential binding effect by the courts. The reference to the judgment reported as Muhammad Nasir Che.Ema v. Mazhar Javaid and others (PLD 2007 SC 31) by the learned counsel for the petitioner wherein an Hon'ble Division Bench comprising Hon'ble two Judges of the Supreme Court laid down that once a challan has been submitted then a fresh investigation cannot be ordered in the matter is distinguishable and a judgment passed by the Hon'ble larger Bench reported as Bahadur Khan v. Muhammad Azam and 2 others (2006 SCM R 373) can be preferably relied upon by this Court to approve the conducting , of the investigation by the NAB authorities in this case notwithstanding the fact that the Reference against the present petitioner stood already submitted to the learned Judge Accountability Court-II, Lahore and some progress of recording of evidence had also taken place. As the petitioner did not join the investigation during the inquiry, his warrants of arrest was issued; he was accordingly arrested; the provisions of section 18(e) read with provisions of section 24(d) of B National Accountability Ordinance, 1999 fully authorize the NAB authorities to undertake the investigation of the case. The learned Judge Accountability Court has recorded strong valid reasons for grant of physical remand of the petitioner in the impugned order stating that this physical remand is being given for the purpose of completion of investigation and also for the purpose of effecting the recovery of alleged embezzled amount from the petitioner, therefore, we are not persuaded to declare the orders passed by the Judge Accountability Court-II, Lahore in this -matter as assailed in the instant Writ Petition to be either illegal or without lawful authority. No case for interference is made out at this stage. The instant writ petition, having no force, is hereby dismissed.