' SARDAR MUHAMMAD SHAMIM KHAN, J.---This reference has been entrusted to this Court by Hon'ble Chief Justice as a result of difference of opinion between my learned brothers (Kh. Imtiaz Ahmad and Muhammad Farrukh Irfan Khan, JJ.) under Clause 26 of Letters Patent in order to render opinion, as per Rule (5), Part-H, Chapter-4 of Vol:V of the Rules and Orders of the Lahore High Court, Lahore.
2. The point of difference, referred to this Bench for an opinion is as under:-- "Whether this Court after coming to the conclusion that reference and subsequent proceedings taken thereon are liable to be quashed can make an observation that NAB authorities are competent to proceed against the petitioner if investigation is again initiated in accordance with law, or the said observation would amount to give free hand to the NAB authorities and premium to the prosecution of their own fault and provide them an opportunity to fill up their lacunas and equip them with better tool for victimization of the petitioners after the laps of more than 13 years"
3. Brief facts for the disposal of instant petition are that Mian Muhammad Nawaz Sharif, petitioner No,2, was elected as. Prime Minister of Pakistan in the year, 1999. On 12-10-1999, his Government was toppled by the then Army Chief and he was arrested and involved in some criminal cases. The Reference No, 7 of 2000 was filed on 29-6-2000 against three persons, namely, Mian Muhammad Sharif, father of petitioner No,2, MRs, Shamim Akhtar, mother of petitioner No,2 and Mian Muhammad Nawaz Sharif, petitioner No,2. The reference was based on following allegations:-- "3. The report reveals that an area measuring 401 kanals allegedly acquired by accused Nos.1 and 2 has been used for the construction of palatial mansions and other ancillary buildings thereon. The record indicates that the land is in the names of accused Nos.1 and 2, a major portion of which is surrounded by a high boundary wall.
4. That a number of buildings and structures have been constructed both inside and outside the boundary wall which are occupied by the accused persons. The construction appears to have been carried out between 1992-1999. Messrs NESPAK were asked to carry out a survey and provide an estimate of the cost of land, houses, structures and the other buildings located at the Raiwind Estate. As per the Survey Report, the investments and expenditures on the construction of the buildings and structures erected amounted to an estimated Rs,247.352 Million. A sum of Rs, 171:130 million appears to have been paid by accused No,3 for the construction of his own house and the house of Mian Shahbaz Shari! Located at the Estate.
5. That the income of the accused persons declared in the income tax returns filed during the years 1992-2000 amount to Rs,16.806 million, Rs,21.961 million and 2.422 million respectively. The total income of the said accused persons during the years 1992-2000 if added appear as Rs, 41.190 million. Whereas the total investment made by the accused persons for the construction of the buildings amounted to any estimated Rs, 247.352 million. Therefore, the amount spent on the construction of the buildings and acquisition of land by the accused persons is wholly disproportionate to legitimate sources of income as reflected in the annual tax returns filed by the accused persons, from time to time during the relevant period.
6. It appears from the record placed before me and the statements of witnesses recorded that accused 1-3 in connivance with and in collusion with each other appear to be in possession of assets/property wholly disproportionate to their known sources of income which they have failed to account for. All the three accused persons appear to have committed acts of corruption and corrupt practices as defined in Section 9 read with section 10 of the Schedule of Offences of the NAB Ordinance, 1999.
7. Having considered the facts and circumstances of the case and the personalities involved, I feel that it would be fair, just and appropriate if this Reference is filed before the Accountability Court at Attock Fort, because of the prevalent thereat to the security of all those who are involved in the trial. In order to ensure an open and transparent trial without fear of any disruption and breach of law and order, this Reference is being filed before this Accountability Court at Attock Fort.
4. It is pertinent to mention here that instant reference was filed and was submitted before the Accountability Court at Attock Fort on 27-3-2000, when Mian Muhammad Nawaz Sharif, petitioner No,2 was under arrest. He was exiled to Saudi Arabia on 10-12-2000. The Accountability Court did not issue summon for the attendance of Mian Muhammad Nawaz Sharif, petitioner No,2, rather, on the basis of statement made by learned Additional Prosecutor General for NAB, the case was adjourned sine die.
5. Perusal of record further reveals that Hon'ble Supreme Court of Pakistan allowed the accused/petitioner Mian Muhammad Nawaz Sharif, who was abroad, to come back and he (petitioner No,2) returned back and after his arrival in Pakistan learned trial Court did not issue summon to Mian Muhammad Nawaz Sharif, petitioner No,2 to face trial for many yeaRs, Meanwhile, the petitioners filed instant petition for quashment of the reference which was fixed before learned Division Bench of this Court comprising of my learned brothers Kh. Imtiaz Ahmad and Muhammad Farrukh Irfan Khan, JJ. At Rawalpindi.
6. It is pertinent to mention here that application for revival of the reference was filed by the NAB before the Accountability Court nine months after the filing of present writ petition.
7. After hearing arguments from both sides, learned Division Bench of this Court came to the conclusion that the instant reference was filed against the spirit of section 9 of National Accountability Bureau Ordinance, 1999, which clearly implies that an accused can only be said to commit or to have committed the offence of corruption or corrupt practices when accused cannot "reasonably account for" his sources, which clearly means that joining the accused in an investigation is condition precedent because if he can reasonably account for his sources pertaining to the said allegation; then he has committed no offence and in such eventuality no reference can be filed against him but in the instant case it is an established fact that petitioner No,2, Mian Muhammad Nawaz Sharif was under arrest when the instant reference was filed and he was not joined in the investigation, therefore, he was unable to account for the allegation levelled against him. Although learned Addl. Prosecutor General for NAB agitated in his arguments that said questionnaires were issued to Mian Muhammad Nawaz Sharif, petitioner No,2 but perusal of said questionnaires clearly shows that these questionnaires were sent to petitioner No,2 through Superintendent of Jail, Karachi. However, there is no evidence, available on the record that Superintendent of the Jail, Karachi, served such questionnaires upon Mian Muhammad Nawaz Sharif, petitioner No,2, even this fact has not been mentioned in the reference or an investigation report, therefore, learned Division Bench came to the conclusion that no questionnaires were ever sent to Mian Muhammad Nawaz Sharif, petitioner No,2 and he was not joined in the investigation though he was under arrest at that time. However, record shows that questionnaires were issued to Mian Muhammad Sharif, petitioner No,3 and Mst. Shamim Akhtar, petitioner No,
1. Both the accused/petitioners specifically replied that answers to the questionnaires were being submitted under protest and without assistance of record which has since been sealed and it was requested by, the petitioners/accused that if access is provided to them and the said office is de-sealed where relevant record is available, they would be in a better position to explain their resources and would be able to even append the record with the answers in order to prove their resources but this request of the petitioners/accused were never considered by the NAB authorities. In the opinion of learned Division Bench of this Court, it was ununderstandable that when the record was sealed by the NAB authorities then why they did not allow the accused/petitioners to have access to the said record. While placing reliance on case-law reported as Nadeem Sarwar v. Station House Officer, Saddar Hafizabad and others (2000 YLR 756), it was observed that "it is the statutory duty of every Investigating Officer of a criminal case to associate the accused person with investigation and also to record his version of incident in question." It was further observed by my learned brothers that Article 10-A of the Constitution ensures, as a fundamental right, a fair trial of the accused facing the charges, therefore, after incorporation of this new provision in the Constitution it has also become all the more important that investigations and inquires should be fully transparent. It was further observed by my learned brothers that the answers given by the petitioners/accused were not taken into consideration by the NAB and the accused/petitioners were not given an opportunity to explain their position and the petitioners were not provided an opportunity to account for their resources, therefore, requirement of Section 9(v) of National Accountability Bureau Ordinance, 1999 was not complied with by NAB authorities.
8. While placing reliance on case-law reported as Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd., and others (PLD 2010 SC 1109) it was observed that the Investigating Officer who conducted the investigation of instant reference was not a skilled person who could investigate the present reference which relates to acquiring of land, their prices and price of construction. While seeking guidance from a case-law reported as Abdul Latif v. Inspector General Police and others (1999 PCr.LJ 1357), it was held by learned Division Bench of this Court that if investigation was not conducted in that manner, subsequent proceedings based on such findings, would be bound to fall on the ground automatically and that defective investigation, under the law, is no investigation at all.
9, After taking into consideration facts and circumstances of this case, learned Division Bench of this Court came to the conclusion that Reference No,7 of 2000 against the petitioners/accused and subsequent proceedings before the Court stands quashed. However, one of my learned brother (Kh. Imtiaz Ahmad, J.) observed as under:- "The result of the above discussion is that this writ petition succeeds. Reference No,7 of 2000 against the petitioners and subsequent proceedings before the Court stand quashed. However, it is clarified that the NAB authorities are competent to proceed against the petitioners if the investigation is again initiated in accordance with law."
10. My learned brother Muhammad Farrukh Irfan Khan, J., although agreed with the findings arrived at by my learned brother Kh. Imtiaz Ahmad, J. Pertaining to the quashment of reference, however, he differed with his opinion whereby NAB authorities were authorized to proceed against the petitioners if investigation is again initiated in accordance with law by observing as follows:- "As a sequel of the above discussion and reasons detailed above, I am of the considered view that after quashing the impugned Reference, the aforestated clarification/observation would not only amount to give a premium to the prosecution of their own fault but also provide them another opportunity ostensibly to fill up their lacunas and equip them with better tools for combating/victimizing the petitioners at the hands of the NAB authorities, which obviously is not the intent and - purport of the law. For these reasons, in my humble view the stated observation/ clarification is superfluous and uncalled for."
11. On the receipt of instant reference notices were issued to both the parties. Learned counsel for the petitioners contended that after quashment of the reference re-investigation cannot be carried out under the law against the petitioneRs, While placing reliance on case-law reported as K.
Chandrasekhar v. State of Kerala and others (1998) 5 Supreme Court Cases 223), Waris Khan v.
Deputy Superintendent Custom Mardan and another (2001 PCr.LJ 660) and Liaqat Ali Virk v.
Inspector General of Punjab Police, Lahore and 8 others (PLD 2010 Lahore 224), it was argued by learned counsel for the petitioners that observation made by one of my learned brother for re- investigation of the reference would amount to provide an opportunity to the prosecution to fill up lacunas of the reference; that National Accountability Bureau Ordinance, 1999 is silent on the question of re-investigation after the submission of the reference before the Accountability Court which is a special law, therefore, re-investigation after quashment of reference would be totally illegal. Thus, it was prayed that observation made by one of my learned brother (Kh. Imtiaz Ahmad, J.) is liable to be set aside.
12. Learned Additional Prosecutor General for NAB while defending the observations of one of my learned brother (Kh. Imtiaz Ahmad, J.) submits that NAB authorities are competent to re- investigate the matter and re-investigation can be carried out even after submission of report under section 173, Cr.P.C. Or at any stage. However, when confronted that whether he can refer to any case-law that after quashament of the reference re-investigation can be carried out by the NAB authorities, he has frankly conceded that he was unable to find out any such case-law.
13. Mr. Naseer Ahmad Bhutta, Additional Attorney General and Mr. Muhammad Mahmood Khan, DAG, representing Federation of Pakistan, have categorically stated before me that as the instant reference has been quashed, therefore, re-investigation in this matter cannot be carried out by the NAB authorities and they have frankly conceded that the observations made by one of my learned brother (Kh. Imtiaz Ahmad, J.) allowing the NAB authorities to re-investigate the case, is liable to be set aside.
14. I have heard the arguments, advanced by learned counsel for the parties and perused the record with care.
15. After taking into consideration facts and circumstances of the instant reference and keeping in view the law laid down in National Accountability Bureau Ordinance, 1999, I am of the considered view that both of my learned brothers have rightly quashed the instant reference as the same was filed contrary to the spirit of subsection (v) of Section 9 of the said Ordinance which runs as under:- "9. Corruption and Corrupt Practices:
(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:-
(v) if he or any of his dependents or benamidars owns, possesses, or has (acquired) right or title in any ("assets" or holds irrevocable power of attorney in respect of any assets") or pecuniary resources disproportionate to his known sources of income, which he cannot (reasonably) account for (or maintains a standard of living beyond that which is commensurate with his sources of income); "
16. Now, I would like to decide the point of difference between my learned brothers that whether after the quashment of the reference the NAB authorities can be permitted to re-investigate the matter or not. First of all I would like to reproduce the meanings of the word "QUASH".
(a) In the dictionary of Modern Legal Usage it has been defined as under:- "(1) to suppress or subdue; to crush out, beat into pieces;
(2) to annul; to make void (as a writ or indictment); to put an end to (as legal proceedings)."
(b) In the Law Lexicon of British India the word ' quash' has been defined as under:-- "Quash to overthrow or annul, to make void; to abate (Tomlins Law Dic)(as) Quashing a conviction."
(c) Mr. Abbott, in his Abbott's Law Dictionary, defines 'quash' "to mean to annul, overthrow, or vacate by judicial acts".
17. The meanings of word 'quash' give rise to an impression that where proceedings are irregular or defective the same would be quashed in civil as well as criminal cases. In legal phraseology the word 'quash' connotes the process of annulling or vacating proceedings by judicial decision.
18. It has been noticed that the Criminal Procedure Code or the NAB Ordinance does not contain any provision authorizing the Court to order for re-investigation after filing of reference or after submitting report under Section 173, Cr.P.C. Before the competent Court of law and to call a person to join fresh investigation after the quashment of the proceedings, therefore, observation of my learned brother (Kh. Imtiaz Ahmad, J.) whereby NAB was empowered to re-investigate the matter, is beyond the jurisdiction of the Court.
19. It has further been observed that when report under section 173, Cr.P.C. Is forwarded to Magistrate for taking cognizance of the offence, the Magistrate can direct the Officer Incharge of the Police Station to make further investigation keeping in view the provision of subsection (2) of section 173, Cr.P.C. From the plain reading of above said section it becomes clear that even after submission of report under subsection (2) of section 173, Cr.P.C., police has right to further investigation but not fresh investigation or re-investigation. Although, under special circumstances re-investigation can be permitted after submission of report under section 173, Cr.P.C. And during the trial before the learned trial Court but findings of such investigation are just an opinion of the police and Court has to decide the case after recording evidence of the parties but in the instant matter the effect of quashing of proceedings is that said proceedings are "annulled"/"void" for all purposes. After the quashment of this reference it has become "nonest" and "non existence".
20. The system of re-investigation was disapproved by Hon'ble Supreme Court of Pakistan in judgment reported as Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) wherein it has observed as under:-- "(c) Criminal Procedure Code (v of 1898)--- Ss.156 & 173 --- Reinvestigation--- System of reinvestigation is a recent innovation which is always taken up at the intance of influentail people for obtaining favourable reports, which in no way assists the Courts in coming to a correct conclusion, rather they create more complications in the way of administration of justice--- Such system of reinvestigation and successive investigations, therefore, was disapproved."
21. Subsection (a) of section 16 of National Accountability Bureau Ordinance, 1999 provides that an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within 30 days. The reference against the petitioners was filed before the Accountability Court, Rawalpindi in the year, 2000 which should have been decided within 30 days as it is a mandatory provision of law. The observation of one of my learned brothers allowing NAB authorities, for re-investigation of the reference, after about 13 years of filing of reference, would be contrary to the scheme of aforesaid law.
22. Perusal of record reveals that NAB or Federation of Pakistan (respondents) during the arguments of instant petition before Hon'ble Division Bench of this Court, did not make any request for allowing them to re-investigate the matter, therefore, there was no reason for making such an observation by one of my learned brothers (Kh. Imtiaz Ahmad, J) which would amount to give free hand to NAB authorities and premium to prosecution of their own faults and provide them an opportunity to fill up their lacunas and equip them with better tool for .Victimization of the petitioners after laps of thirteen years which is not permissible in the law.
23. For what has been discussed above, I am of the considered opinion that both of my learned brothers have rightly quashed instant reference (No,7 of 2000). However, observation made by one of my learned brothers Kh. Imtiaz Ahmad, J., whereby, it was held that "However, it is clarified that the NAB authorities are competent to proceed against the petitioners if the investigation is again initiated in accordance with law." is hereby set aside and I agree with the opinion and observations of my learned brother Muhammad Farrukh Irfan Khan, J., wherein it was held by his lordship that "As a sequel of the above discussion and reasons detailed above, I am of the considered view that after quashing the impugned Reference, the aforestated clarification/ observation would not only amount to give a premium to the prosecution of their own fault but also provide them another opportunity ostensibly to fill up their lacunas and equip them with better tools for combating/victimizing the petitioners at the hands of the NAB authorities, which obviously is not the intent and purport of the law. For these reasons, in my humble view the stated observation/clarification is superfluous and uncalled for."
24. Seeking guidance from the case-laws reported as:--
(1) The State v. Salehoon (PLD 1971 Lahore 292)
(2) Muhammad Sharif v. The State (PLD 1971 Lahore 708),
(3) State v. Salehoon PLD 1971 Lah.
292.
(4) The State of Orissa v. Minaketan Patnaik (AIR 1953 Orissa 160)
It is observed that this petition is not to be referred again to the aforesaid learned Bench which originally heard the same as the decision would not be that of majority, rather, it would be the opinion of this Court (Referee Judge) which would have decisive effect and would be of binding nature and the judgment will follow such opinion. 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.