' MRS. IRSHAD QAISER, J.---Raheel Sabir Jadoon through the present writ petition seeks the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer; "On the acceptance of the instant writ petition following directions/writs may graciously be issued;
(a) Authorization of investigation by respondent No,2 against the petitioner is a sheer violation of verdict dated 20.12.2012 passed by this honourable Court in Writ Petitions Nos.916 and 917, is illegal hence liable to be quashed.
(b) Authorization/starting of investigation, in the presence of already availed opportunity of voluntary return (vr) by the petitioner, which is still intact and has not been proceeded and finally decided by the respondents Nos.3 and 1 respectively, is illegal against, the lawful rights enshrined in the National Accountably ordinance, 1999. Hence, liable to be quashed/stop/suspended.
(c) That not being a civil servant, any investigation/ proceedings/inquiry against the petitioner by the respondents No,1 to 6 is illegal and against the preamble and object of National Accountably Ordinance, 1999, hence liable to be quashed.
(d) That in absence of any claim by the so-called affected bank, pending adjudication in Banking Court Abbottabad, any proceedings, by the .Respondents Nos.1 to 6 against the petitioner is illegal, unlawful, misuse of power, hence, is liable to be quashed.
(e) That case of the petitioner may graciously be ordered to be sent to respondent No,1, for the purpose of proper consideration and decision on the plea of petitioner as per the law. And any other relief which is deemed fit and proper in the circumstances of the case may kindly also be given to the petitioner."
2. In the body of the petition, it is contended that he has been serving as Bank Manager in Al- Baraka Bank Ltd. Abbottabad for the last many years without any complaint but unfortunately he has been charged in an inquiry regarding the mismanagement of fund of Bank-Al-Baraka Ltd. That during inquiry, he was compelled by respondent to enter into Voluntary Return (VR), as a result he appeared before the respondent and availed the right of Voluntary Return under Section 25(a) of NAO 1999' by tendering application containing request to that effect. Later on, I.O. Pressurized him to deposit the entire amount with the threat that if he failed he will be arrested. Thus, feeling aggrieved of such position, he filed Writ Petition No,916-A of 2012 and W.P No,917-A of 2012 with the prayer that respondents be directed to accept the plea of VR to the extent of his liability as may be determined by respondents and also direct the respondents not to arrest and harass him. That in pursuance of the order of this Court dated 20-12-2012, he appeared before respondent on 7-1-2013 but without determining his proportionate share the concerned respondent obtained his statement on 7-1-2013 and also forced him to sign blank pro forma. That because of harsh and biased attitude of respondent, he filed two other Writ Petition No,54-A/2013 and Writ Petition No,55- A of 2013. Both these writ petitions were dismissed being infructuous. Now he filed the present writ petition. Respondents submitted their reply and denied the allegations of petitioner with the contention that this writ petition is the fifth one, in succession and not maintainable. That it is frivolous, baseless and amount to hampering with the investigation of NAB.
3. Arguments heard and available record thoroughly scanned and perused.
4. The main grievance of the petitioner is that the option of Voluntary Return (VR), which was duly availed by the petitioner in pursuance of inductive letter dated 1-11-2012 issued by respondent was neither properly considered nor decided according to law. Rather without giving any reason for rejection or otherwise of such request the respondent has authorized the investigation against petitioner and thus the first and foremost valuable right available to the petitioner under Section 25-A has been snatched. The other grievance of petitioner is that since the Bank A1-Baraka was not controlled and funded by Government of Pakistan, so the petitioner could not be termed as civil servant and NAB authority had no jurisdiction to initiate any sort of proceedings against the petitioner.
5. Before discussing the question of voluntary return we deem it appropriate to determine whether NAB authority has the jurisdiction to entertain the proceeding in such types of matter.
6. According to available record the Bank-Al-Baraka and BAL, Haripur sent complaints to NAB authority for taking the cognizance of the matter under the provisions of NAO 1999 against the accused petitioner and others for committing fraud. The NAB took the cognizance of the matter and conducted two separate inquires. During inquiries it revealed that petitioner in connivance with others was involved in carrying out the fraudulent transaction in Bank-al-Baraka amounting to Rs,27 Million. Further also committed offence of corruption by making bogus TDR, s amounting to Rs,24.3 Million in connivance with others at BAL Haripur. All these facts show that these alleged offences have been committed within the jurisdiction of Pakistan by its citizens.
7. Now it is to be seen that whether a "person" other 'than the holder of public office can be tried under the NAB Ordinance for any act which falls within the purview of said Ordinance.
8. This is the foundational question so far as the ambit and scope of the law under which the accused is being tried is concerned. To appreciate the import of the expression "a holder of public office or any other person" (S-9) it is essential to examine the context in which it has been used i,e, the preamble of the enactment and the language of sections 4, 9 (a) and 10 of NAO 1999.
9. According to the preamble of NAO 1999 "An Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practice and matters ancillary thereto" This point has been discussed in detail by the august Supreme Court case reported as PLD 2001 SC 607. Section 4 of the NAO 1999 clearly defines, that "the said Ordinance shall extend to whole of Pakistan and apply to all persons in Pakistan that is to say all citizens of Pakistan and persons who are or have been in the service of Pakistan wherever they may include area which are part of Federally and Provincially administrative Tribal areas." Section 9 of NAO 1999 gives the definition of corruption and corrupt practice and in Section 9(a) it is clearly mentioned "A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practice " Not only holder of public office but also any other person can be tried for offence under Section 9.
Prosecution needs not to establish any nexus with the exercise of official powers by accused.
Similarly under Section 10 of NAO a holder of public office or any other person who commits the offence of corruption and corrupt practice shall be punishable with imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be.
10. All the above noted provisions of law read with its preamble clearly elaborate that a holder of public office or any other person can be inquired, investigated and tried by NAB authorities and the Accountability Court respectively. It is clear that the holder of a public office is intentionally separated from any other person, therefore, not only the holder of public office is amenable to the jurisdiction of NAO, 1999, any other person who may not be a holder of public office, is also amenable to the jurisdiction of an accountability Court. In this view of the matter, we hold that NAB authority had rightly taken the cognizance in the matter on the complaint of Bank Al-Baraka and BAL, Haripur against accused and others as during inquiry it reveals that accused in connivance with other was involved in carrying out huge fraudulent transaction in Bank-Al-Baraka amounting to Rs,27 Million. Further he is also charged for committing offence of corruption by making bogus TDRs amounting to Rs,24.3 Million in connivance with other, at BAL.
11. Now the next question for determination is that whether petitioner was compelled by NAB authority to enter into Voluntary Return and when he availed the option of VR, the respondent turned down his request and authorized the investigation against the petitioner through impugned letter. For just, administration of the case, it is proper to reproduce the relevant Provision of Section 25 of NAO 1999, which is as under; "25 (a) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office of any other person, prior to the authorization o) investigation against him, voluntarily comes forward and offers' to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liabilities in respect of the matter or transaction in issue: ' Provided that the matter, is not sub judice in any court of law."
12. Though accused can be persuaded without pressure or threat to agree on a settlement but subject to the provision of Ordinance. Reference is made to PLD 2000 SC 61. The very wording of Section 25 is very clear and unambiguous. It is neither the liability nor the duty of the I.O. And NAB authority to compel him to enter into VR rather this option is left with the sweet discretion of accused if prior to the authorization of investigation against him he voluntarily came forward and offers to return the assets or gain illegally acquired or made by him. In the present case in order to facilitate the present petitioner the I.O. Took the initiative and accused was provided an opportunity to settle the matter through VR. In pursuance of this offer, he submitted an affidavit on 13-11-2012 to the effect that:- "With my free consent and without coercion duress, or undue influence, I voluntarily come forward and admit that I am in possession of assets or gains acquired or made by me in the course or as consequence of offence under NAO-1999.
' I undertake that I shall deposit with NAB, amount determined by the Chairman NB/DG NAB and pray that I may be discharged of liability in respect of subject inquiry."
'But subsequently he served the respondent with legal notice dated 8-12-2012 with the following words:-- "That according to my client the Voluntary Return request dated 13-11-2012 submitted by him to you upon your requirement to do so is purely due to pressure, inducement and threat extended to him by you.
' That my client aforesaid proposes to face inquiry instead of pursuing the request for Voluntary Return.
' That threatened by the situation, my client has been constrained to file a writ petition in the Honourable Peshawar High Court Abbottabad Bench, which has been done today."
' He also filed two Writ Petitions Nos.916-A and 917-A of 2012 which were disposed of by this Court with the direction to petitioner to appear before Director General NAB on 7-1-2013 at 11.00 AM for settlement of dispute. As a result of meeting dated 7-1-2013, petitioner gave a written statement and willing to deposit 34% of the amount as down payment till 11-1-2013 in both cases. But instead of deposit the down payment, he once again filed two Writ Petitions Nos.54-A and 55-A of 2013, wherein he disputed the said VR, which were also dismissed vide order dated 24-4-2013 with the observation "that since the settlement could not be made regarding amount payable by petitioner in both the cases and now NAB authority has decided to conduct investigation under Section 18 of NAO therefore, in view of recent development present writ petitions have became infructuous."
It is also settled rather clearly mentioned in Section 25 NAB, Ordinance, 1999 that it is not the option of accused to settle the amount rather it is the discretion of Chairman NAB to accept the offer on such terms and conditions as he may consider necessary. Since the accused was not willing to accept the offer of competent authority, therefore, NAB authority had no other option except to pass an order for authorization of investigation through the impugned letter.
13. Now once again i,e, for the fifth time, he filed the present petition in respect of the same prayer asked in above writ petitions. The file manifests the classic example of stubbornness of the litigant and to waste the precious time of the Court and NAB authority. The petitioner appears to be determined to mock the process of law and the Court repeatedly on one pretext or the other. Thus he cannot be allowed to make mockery of law rather the Court is of the opinion that he should be burdened with heavy cost. However, at present at the request of learned counsel for the petitioner he is excused.
14. Since accused has not fulfilled the requirement of VR and failed to deposit down payment as agreed up therefore, NAB authority passed an order for authorization of investigation dated 10-4- 2013. No illegality has been pointed out by petitioner.
15. Thus this writ petition being without any force is hereby dismissed with the warning that he should be careful in future. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.