' IKRAMULLAH KHAN, J.---Through .The instant writ petition, the petitioner has sought his release on bail, on a number of grounds including the one that of considerable delay in filing the required reference as contained thereunder the provision of section 18 of the National Accountability Bureau Ordinance, 1999 (for short NAB Ordinance).
2. The precise but relevant uncurtained facts are that the learned Chairman NAB on 19-2-2013, issued warrant of arrest, while exercising his power as envisaged there under sections 18(c) and 24(a) of the NAB Ordinance, for the arrest of the petitioner, required thereunder in connection of investigation in the matter of illegalities, irregularities committed in procurement of various security items including ammunition weapons, vehicles and life security jackets etc. Required there for the Police force of Khyber Pakhtunkhwa
3. A regular tender was invited by the Police Department in this regard and inter-departmental purchase and price evaluation committee was constituted thereof by the competent authority in this regard. The NAB Authorities, took the cognizance of the scam, as some irregularities, kick back and under table task were reported therein the process of evaluation of the tender against the prescribed rules on the subject, hence, petitioner and one another principal accused, the contractor were arrested to investigate and probe into the matter as afore-stated.
4. The petitioner was thoroughly investigated in this regard and as alleged by the. NAB Authorities, procured thereof, from the petitioners house a sum.Of Rs. 41 Million in cash, while also detected that petitioner owns a 10 Marla constructed house in posh area of Hayatabad Town Ship, Peshawar though allotted in his wife name.
5. The learned counsel for the petitioner contended that, initially an inquiry was launched in the matter of regularities conducted therein the process of evaluation of and acceptance of tenders in regard to the purchase of various items as aforestated, though the petitioner being a budget officer, were(sic.) no any, link, connection with the committee constituted thereof for the purpose, but when no clue or participation of the petitioner were detected therein the matter during the course of investigation, he was made an scapegoat in the matter, to save the skin of. Very high profile, and high ranked persons in connivance with the principle co-accused, who was made an approver in the case and he managed to plant an huge amount against the petitioner and shown to be recovered from the petitioner house, though he was under custody of the NAB Authorities.
Further submitted that according to Standing Order 3 of 2003, issued by competent authority in this regard the budget officer could not be entrusted with any task in connection of purchase, evaluation of price etc. While for the purpose, a high standard inter departmental committee was constituted. Contended that, the advance payment made to the contractor was duly approved by the Finance Department of Khyber Pakhtunkhwa, which has outside the job description of the petitioner. Submitted that on 10-10-2009, one budget Officer-III of Finance Department communicated the approval of advance payment to be paid to the contractor but in this connection, the petitioner had played no any active role, as the required summary/request had been made by the then Provincial Police Officer. Hence, as no reference had been so far submitted by the Chairman NAB against the petitioner, and as such his further detention is illegal, against the norms of justice and unconstitutional.
6. On the other hand, the learned DPG representing the NAB. Conversely argued that the petitioner has been involved in a scam which had caused loss of billion worth to the exchequers as the petitioner, facilitated but with mala fide intention to procure advance payment to the contractor against the rules, a huge amount had been recovered thereof from the house of the accused, which does not appropriate to the income of the accused, and submitted that the accused had been charged by his co-accused, now the approver in his statement recorded thereunder section 164, Cr.P.C. By a competent Judicial Magistrate in this regard, strongly oppose the release of the petitioner at this stage on bail.
7. Arguments heard and scrupulously and carefully gone through the available record with the assistance of both the learned counsel the crucial point herein, which has been agitated on behalf of the petitioner, which irritate the judicial conscious of this Court, is whether without a regular reference against the petitioner, so far not filed by the NAB Authorities his further detention could be justified.
8. A special procedure has been provided thereunder the NAB Ordinance for submitting of reference before the Court but no definite or specified time has been prescribed thereunder the provision of NAB Ordinance contained thereof in section 18(a) and (b) wherein the Accountability Court shall take cognizance of a scheduled offence, only on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him in this behalf while under the provision, contained there under section 18(g) the Chairman or any other officer authorized by him in this regard shall appraise the material and the evidence placed before him during inquiry and the investigation, and if he decides that it would be proper and just to proceed and there is sufficient material to justify filing of a reference, he shall refer the matter to a Court, but at the same time the provision of Cr.P.C. Has been applied to all the proceeding what has to be followed under this Ordinance, except when any provision of Cr.P.C. Has been inconsistent with any provision of the NAB Ordinance.
9. The provision contained thereunder sections 169 and 170 of the Code has not been specifically ousted nor inconsistent with any provision of the NAB Ordinance, then, the NAB Authorities are bound to give effect to the provision contained there under sections 169 and 170 of the Code in its true spirit to enable the Court to take cognizance of the matter as well as to provide an opportunity to the accused to defend himself properly in this regard.
10. Unstipulated and unexplained delay in filing of a reference against an accused is not fair and just to keep a person behind the bars, nor the remand of an accused after every 15-days to judicial lockup without plausible explanation in this regard shall be termed as fair and just, while fair and just trial is a constitutional, right of a detenu/accused being enshrined there under Article 1.0 of the Constitution of Islamic Republic of Pakistan, 1973.
11. Under the provision of section 170, Cr.P.C. Or under the provision of 18(g) of the. NAB Ordinance, the availability of sufficient material against an accused is sine qua non for filing either complaint under section 173, Cr:P.C. Or a reference under section 24(b) of the NAB Ordinance, for the purpose to prosecute an accused before a competent Court of law for the commission of any offence levelled thereof against an accused person.
12. The provision contained. There under section 24(d) of NAB Ordinance has provided therein, 90 days to keep a person in custody for the purpose of inquiry or investigation is not purposeless, but impliedly a time frame has been given therein for the purpose that if the concerned NAB Authorities collected sufficient material against the accused then, they shall decide either to file the reference against the accused on the expiry of the stipulated time of 90-days before the competent Court to take cognizance or otherwise to discharge the accused, if in the opinion of the competent authority no sufficient incriminating material were available, but this provision of law shall not be stretched in favour of the prosecution to keep a person without any regular complaint in the form of a reference as envisaged there under section 24(d), behind the bars to wait for the decision of the Chairman NAB in regard to filing or otherwise of the reference.
13. The Hon'ble High Court of Karachi in case of Zahoor Ahmad Sheikh v. Chairman NAB (PLD 2007 Karachi at page 267 has held that:-- "where investigation is not completed expeditiously or as may be practicable and feasible from the date of forming opinion of initiation of proceeding as provided under section 18(c), the Chairman NAB or any officer of NAB duly authorized forward to the Accountability Court through PGA-NAB or DPGA NAB, an interim reference stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim reference, unless, for reasons to be recorded, the Court decides that the trial should not so commence".
' Likewise in the afore-stated referred judgment some directions were made thereof, to be strictly followed by the NAB Authorities, irrespective of their rank or status in the following words.
"Thus the Chairman NAB or any other officer of the NAB duly authorized is required to comply with the provision of sections 169, 170 and 173 of the code with necessary changes as mentioned above".
14. But unfortunately so far the afore-stated directions were never complied with by the Chairman NAB in this regard and no proper changes were introduced in the existing provision of the NAB Ordinance, which otherwise should be followed by the Courts in this regard and any violation of the nature shall entitle the accused of all available benefit in this regard.
15. The august Supreme Court of Pakistan in case of Anwar ul Haq Qureshi v. National Accountability Bureau and another (2008 SCM R 1135) has held similar view while placing reliance on judgment rendered thereof in case of Abdul Qadir v. Federation of Pakistan and others reported as 2002 SCM R 1478 and held as;-- "That conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of section 24(d) of the Ordinance which is mandatory in nature and has to be complied with in letter and spirit as the same is based on constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution of Pakistan, 1973, non-compliance of such provision of the Constitution and the Ordinance would render the arrest and detention illegal".
16. In the present case, the petitioner has been arrested for the purpose of investigation on a warrant of arrest issued by the Chairman NAB on 21-2-2013, the stipulated period entitled the NAB Authorities to keep a person/accused in custody for 90-days for the purpose of investigation has been expired since, but so far no either interim or complete reference has been filed before the Court, without any plausible genuine and reasonable explanation in this regard by the NAB Authorities.
17. Insofar as the recovery of huge amount from the jointly dwelling house at the instance of the principal accused (now the approver) in the absence of the petitioner is concerned, mere dis- appropriate assets to known source of an accused and mere prosecution of an accused without distinction of criminal and civil liabilities in transaction is itself misuse of process of law and similarly stretching law in favour of prosecution is unjust and unfair at all and no presumption of guilt as envisaged there under the provision of section 14(d) of the NAB Ordinance shall be raised without distinction of criminal and civil liabilities in due course of trial against an accused.
18. No any relevant document could be produced showing any signature or approval on behalf of the petitioner that he had ever been facilitated the procurement of advance payment for the co- accused and such facts alleged thereof against the petitioner need further probe. In this regard reliance could be placed on 2008 SCM R 196 "Dr. Allah Nawaz A. Qazi v. State through Chairman NAB".
19. In the light of the above mentioned reasons, we are inclined to allow this writ petition on the sole ground of non submission of any reference so far against the petitioner and thereby declare that the further detention of the petitioner without any expectation of trial in the near future, as no Chairman NAB has been so far appointed, unconstitutional, therefore, direct that the petitioner be released on bail provided he furnishes bail bonds in the sum of Rs. 2,00,00,000 (two crore) with two sureties each in the like amount to the satisfaction of the Accountability Court who shall ensure that the sureties are local, reliable and men of means.
20. Above were the reasons of our short order of even date.