' AHMED ALI M. SHAIKH, J.---By this common Judgment we intend to dispose of the captioned matters as a common legal proposition "whether the Accountability Court has jurisdiction to join a person not named in the Reference as an accused" is raised in all these Criminal Accountability Appeal/Revision Applications.
2. Brief facts of the case are that in NAB References/Supplementary References Nos. 10 of 2001 and 31 of 2001 filed by Chairman NAB before the Accountability Court names of the appellant/applicants were neither mentioned as accused nor find place in the summary of evidence. However, on the basis of deposition(s) of prosecution witnesses, the trial Court vide impugned orders dated 12-9-2001, 2-4-2002 and 20-4-2002, included the names of the appellant/applicants in the said NAB References and issued non-bailable warrants against them, the operation of which were suspended by this Court.
3. In Criminal Accountability Appeal No,52 of 2001, the Accountability Court vide order dated 12-9- 2001 included the name of appellant in the list of accused persons to face trial and issued NBW against him. Against the said order, appellant on 16-10-2001 preferred Criminal Revision Application No, 159 of 2001 before this Courts during pendency of which the Accountability Court vide order dated 12-11-2001 recorded the guilt of the applicant under section 31-A of the NAB Ordinance, 1999 and convicted and sentenced him to suffer three years' RI and also issued a proclamation under section 87, Cr.P.C. Against the appellant to appear before the Accountability Court on 12-12-2001, though, according to the pleadings, the appellant at no point of time attempted to avoid to appear before the Accountability Court.
4. It is contended by the learned counsel for the appellant/applicants that initially names of the applicants were neither mentioned in the References nor they have any nexus with the said NAB References. Besides, the Accountability Court cannot take cognizance against the appellant/applicants unless a Reference is filed against them by the Chairman, NAB or an authorized officer of NAB. It is further contended that section 18 of the NAB Ordinance provides complete mechanism for taking cognizance of an offence falling under the Ordinance and as per section 18(a), no Court shall take cognizance of any offence under the Ordinance except on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him while section 18(c) provides that where the Chairman or an officer of the NAB duly authorized by him, is of the opinion that it is necessary and appropriate to initiate proceedings against any person he shall refer the matter for inquiry and investigation. In support of their contention, learned counsel referred to case of Kabir Khan v. The State reported in 2003 YLR 1607.
5. Learned counsel for appellant Maqbool Ahmed Sheikh also contended though there was no Reference or Supplementary Reference against the appellant the Accountability Court while proceeding with a Reference against some officers of Excise and Taxation Department, Government of Sindh, suo motu issued non-bailable warrant against the appellant and later on convicted him under section 31-A of the Ordinance. He further contended that the accountability is not in any manner vested with the power for resorting to proceedings under section 31-A of the NAB Ordinance, 1999, in respect of a person against whom Reference was not made nor he was joined legally as accused person. He further pointed out that appellant also preferred a petition against aforesaid conviction and sentence but after grant of leave, the Honourable Supreme Court vide order dated 25-9-2006 dismissed the Appeal as not pressed.
6. Mr. Abdul Hafeez Lakho, learned counsel for applicant also argued that his client Shafique-ur- Rehman was cited as a prosecution witness but the Accountability Court has erroneously replaced its opinion with that of the Chairman NAB, included his name in the list of accused persons and issued NBW as well.
7. Conversely, the learned ADPG, NAB, concedes to the above proposition and does not support the impugned orders.
8. Having heard learned counsel for appellant/applicants as well as ADPG, NAB, scanned the record. It appears from the pleadings that NAB filed Reference No,10 of 2001 against Iqbal Solangi, Majeed Pathan, Niaz Baloch, Agha Wazir Abbas, Kaka Kishanchand, Raj Kumar, Manraatul Jagwani, Bhagwandas, Ashar and Reference No,31 of 2001 against Agha Wazir Abbas, Riaz Hassan Khoso, Abdul Razak Abbasi, Asif, Akhlaq Ahmed, Saleh Muhammad Rahu, Abdul Hameed, Messrs Standard Store (Pvt.) Limited through its director Pesi R. Amavia and Abadan F. Abada. Appellant/applicants were not nominated as accused either in the said References or in any Supplementary Reference filed under section 18(g) read with section 24(b) of NAB Ordinance, 1999.
9. Section 18 of the Ordinance, 1999 provides its own mode of taking cognizance by the Accountability Court i.e, except upon a reference made by the Chairman NAB or an officer of the NAB duly authorized by him. Section 18(c) provides that where 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 and investigation.
Section 3 of the Ordinance, 1999, provides an overriding effect of this Special Law notwithstanding anything contained in any other law for the time being in force while section 17(a) provides that notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Ordinance, the provisions of the Code of Criminal Procedure, 1898, shall mutatis mutandis, apply to the proceedings under this Ordinance.
10. In the case of Kabir Khan v. The State, reported in 2003 YLR 1607 (Peshawar) it was held that Code of Criminal Procedure shall apply to the proceedings under this Ordinance unless there is anything inconsistent with the provisions of NAB Ordinance. Since NAB Ordinance provides its own mode of taking cognizance by the Accountability Court in terms of section 18 of the Ordinance, corresponding provision of section 190, Cr.P.C. Would not apply to the proceedings under the Ordinance. Whereas under section 190, the Court may take cognizance upon a police report under section 173, Cr.P.C. But in wake of section 18(a), the Accountability Court cannot take cognizance of offence on any such report.
11. In the case of Ahmed .Siyal v. National Accountability Bureau, reported in 2004 SCM R 265, the honourable Supreme Court while dilating the overriding effect of the Ordinance, has observed that "section 3 of the Ordinance categorically declared that the provisions of the Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. It would thus be seen that the provisions of the Ordinance have overriding effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over the procedure provided in Criminal Procedure Code."
12. It is worthwhile to mention here that under the Criminal Procedure Code, the Court can take cognizance on a police report or a complaint filed by complainant whereas under the NAB Ordinance, the Accountability Court cannot take such cognizance except upon a Reference sent to it by the Chairman NAB or an officer duly authorized by him. Besides, before filing a Reference under NAB Ordinance, certain conditions are to be fulfilled i.e, where the Chairman NAB or an officer of the NAB duly authorized by the Chairman, 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 while section 18(g) provides that Chairman NAB or by an officer of the NAB duly authorized by 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 and there is sufficient material to justify filing of a reference, he shall refer the matter to Court. A bare perusal of section 18(a) and (g) shows that first of all there must be inquiry and investigation against any person and then Chairman or an authorized officer of the NAB shall appraise the material and the evidence placed before him during the inquiry and the investigation and if the Chairman/ authorized officer of the NAB decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer the matter to the Court.
13. The entire material placed on record does not reflect that any inquiry or investigation was ever conducted/initiated against the appellant/applicants by the NAB and in the References/Supplementary References, filed by the NAB after inquiry and investigation, names of appellant/ applicants do not find place. Moreover, in law, the Accountability Court has no power to either include new persons in the list of accused or conduct its own investigation or substitute its own opinion with that of investigating officer authorized under the Ordinance. Apart from above, before issuing the non-bailable warrant against the appellant/applicants no notice was issued by the trial Court, which is also against the principles of natural justice. It is settled law that when law requires a particular thing to be done in a particular manner, it must be done in that manner and in no other manner.
14. In view of our above discussion, we are of firm view that impugned orders passed by the Accountability Court being contrary to the provisions of sections 18(a), 18(c) and 18(g) of the NAB Ordinance, 1999, are set aside and proceedings culminating from such orders are hereby quashed.
The listed Criminal Accountability Appeal/Revision Applications stand disposed of in above terms.