Salahuddin Panhwar, J.--Through instant petition, petitioners pray as under:--
(a) To quash the proceedings pending with the respondents against the petitioners in lieu of the notices issued to them and declare the same as illegal, unlawful, having been initiated with mala fides and without jurisdiction and hence of no legal effect and void ab-initio;
(b) To quash the notices issued by the respondents calling upon the petitioners to appear before them and declare the same as illegal, unlawful, having been issued with mala fides, without jurisdiction and hence of no legal effect and void ab-initio;
(c) To direct the respondents to bring forth before this Honourable Court all and any evidence/record of any offence purportedly committed by the petitioners under the National Accountability Ordinance, 1999;
(d) To restrain the respondents from calling, detaining, harassing, arresting and from taking any other coercive action against the petitioners, their family members and
(b) A reference under this Ordinance shall he initiated by the National Accountability Bureau on--
(i) a reference received from the appropriate government; or
(ii) receipt of a complaint; or
(iii) its own accord.
(c) ....................
(d) The responsibility for inquiry into an investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency of authority is required to do so by the Chairman (NAB) or by an officer of the NAB duly authorized by him)
(e) The Chairman NAB and such members, officers or servants of the NAB shall have and exercise, for the purpose of an inquiry or investigation the power to arrest any person, and all the powers of an officer-incharge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, police officer or any other official or agency, as. The case may be, is sought by the NAB such official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman (NAB) or any officer (of NAB) duly authorized by the Chairman NAB.
The plain reading of sub-section (e) of Section 18 of the Ordinance insists that for purpose of an inquiry or investigation, the officer so inquiring/investigating shall have all the powers, as are available with Officer Incharge of a Police Station under the Code, which are so provided under Chapter XIV of the Criminal Procedure Code. Needless to add here that Chapter. XIV of the Cr.P.C, also includes the Sections 160 to 164 which deal with power to require attendance, recording of statement.
7. Since from the reading of Section 18(b) of the Ordinance it becomes clear that an inquiry/investigation could be initiated only by the Chairman or an officer of the NAB, duly authorized by him, thus the Officer, so authorized for conducting such an inquiry/investigation, shall enjoy all powers as are available to an officer incharge of a police station within meaning of the Chapter XIV of the Criminal Procedure Code.
8. The provision of Section 19 of the Ordinance speaks about additional power of the officer, conducting inquiry/investigation, which have been initiated under the order of the competent person, Since the call up notice (s) have been made root of the matter, therefore, it would be conducive to reproduce the same:--
19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made there-under; A bare reading of the said provision reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence any officer duly authorized by Chairman is competent to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made there-under.
Sub-section-19(b)
(b) require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;
9. The above sub-section empowers the authorized C-Liicer to require any person to produce or deliver any useful and relevant document. Since the usefulness or relevancy are terms which cannot be explained or understood without a proper reference, therefore, whenever, a notice is required to be given under this section it would require the authorized officer to mention the document (s) or reference through which one could infer about documents to be produced as provided in sub-Section 19(e) which is reproduced as under:- Sub-section-19(c)
(c) examine any person acquainted with the facts and circumstances of the case;
10. Thus, it is manifest that above sub-section empowers the authorized Officer to examine any person acquainted with the facts and circumstances of the case. 'Any person' includes witnesses or an accused even. We are in complete agreement and knowledge of the their employees, without the permission of this Honourable Court;
(e) To restrain the respondents from issuing, addressing notices to the clients/customers of Bilal Logistics (Pvt:) Ltd, Cargo Logistics (Pvt.) Ltd. And M/s. Bilal Associates and/or any other business concerns of the petitioners;
(f) To restrain the respondents from issuing/addressing notices to the banks of the petitioners, Cargo Logistics (Pvt.) Ltd., Bilal Logistics (Pvt.) Ltd. And M/s. Bilal Associates and/or any other business concerns of the petitioners;
2. Succinctly, relevant facts as set out in the petition are that Petitioner No, 1 is the Chief; Executive of Bilal Logistics (Pvt.) Limited and Director in Cargo Logistics International (Pvt.) Limited. He is also the sole proprietor of Bilal Associates. The Petitioners No, 3 and 4 are the Directors of Bilal Logistics (Pvt.)
Limited whereas Petitioner No, 2 is a housewife and Petitioner No, 5 is student and has no concern with the family business. Respondents illegally, unlawfully and without any justification issued notices to the petitioner calling him to appear at the office of the NAB Sindh to record his plea; no details Whatsoever have been disclosed in those notices with regard to any offence-of corruption or corrupt practices punishable under the provisions of the NAB Ordinance, 1999. The Petitioner No, 1 visited the office of the respondents and on their demand submitted relevant documents of his business and on coercion of the Respondent No, 3 filled the confidential forms supplied by them.
Thereafter time and again Respondent No, 3 was issuing notices of similar nature without disclosing the details of any crime committed by petitioners. Pursuant to the notices petitioner sent legal notice whereby raised legal objections against the enquiry and conduct of the NAB Authorities, in-spite of that they were bent upon to compel the petitioners to supply the information regarding Cargo Logistics (Pvt.) Limited, Bilal Logistics (Pvt.) Limited and M/s. Bilal Associates (Pvt.)
Limited. That there is nothing against the petitioners, even then the enquiry conducted by the NAB Authority is a clear case of fishing and roving enquiry 'when it is a matter of record that petitioner has submitted all' the relevant information.
3. Learned counsel for petitioner while reiterating the facts as mentioned above, contended that respondents have no jurisdiction to interfere into the legal business of the petitioners; all notices on various occasions are without any justification and nowhere had it appeared that any criminal offence is committed by the petitioners or they have caused any financial loss to the Public Exchequer. The Enquiry Officer without authorization has issued notices in order to compel the petitioners for illegal gratification. The NAB Authorities have only jurisdiction to conduct probe in the cases which revolve around Public Exchequer and not in any manner they have right to conduct the enquiry with the private business of the petitioner thereby all their actions are illegal and beyond the purview of Section 9 of the NAB Ordinance 1999. In support of contentions, he has relied upon cases reported in Dr. Arsalan Iftikhar versus' Malik Riaz Hussain (PLD 2012 (SC) page 903 and Ghulam Hussain Baloch versus Chairman, National Accountability Bureau, Islamabad (PLD 2007 Karachi, page 469),
4. Conversely, learned Special Prosecutor has contended that this Court has no jurisdiction to interfere in the enquiry proceedings or investigation as petitioners are involved in tax evasion and they have caused loss to the Public Exchequer by concealing the real amount and transferring the amount through Hawala (Hundi). Thus, notices issued by the Authorities to the petitioners are completely in accordance with law and after authorization by the competent authority. It is further contended that Honourable Supreme Court in a popular Suo Moto Case of ISAF has categorically directed for enquiry and investigation therefore this is not a case where one can claim that official respondents are causing harassm ent but fact is that they are proceeding completely in accordance with law as complaint was received against their companies regarding involvement of the petitioners in tax evasion and they are also involved in suspicious transactions while shifting money outside of country. Through enquiry, it came on record that petitioners deposited taxes through M/s. Bilal Logistics (Pvt.) Limited but their all business dealings are carried out by M/s. Cargo Logistics (Pvt.) Limited es separate entity,. Therefore this petition is devoid of merits and is filed at premature stage in order to avoid the legal process conducted by concerned authorities.
5. Heard counsel, perused the record.
6. Before scanning the merits of the case, it would be relevant to examine the scope of NAB Ordinance, 1999 regarding enquiry, investigation and submission of report. Thus, it would be relevant and proper to refer sub-Sections of Section 18 of the Ordinance which are as under:- Sec.
18. Cognizance of offences:--
(a) ..............
Accountability Bureau, Islamabad (PLD 2007 Karachi 469). The last paragraph whereof is reproduced hereunder:-- "We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer frog material irregularity and illegality, because they cannot be termed as legal notices within the meaning of Section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers."
(Underlining is supplied for emphasis)
13. From the above concluding part of the dictum makes it clear that only notice (s) were declared to be illegal and not the investigation, being conducted and carried out, rather competence of authorized officer was reaffirmed while holding that he can issue fresh notice (s) within the observation (s) made in the said judgment. Thus it stands stamped that an investigation shall be required to be disposed of, as provided under the law or relevant statute.
14. In case of Dr. Arsalan Iftikhar, probe carried out by NAB Authorities was challenged; however investigation was not stopped by the Honourable Supreme Court but, a commission was constituted to conduct a thorough probe. Relevant Paragraph No, 28 of dictum is as under:-- "The Commission shall have the following powers and may seek such further orders as maybe considered necessary:-
(i) he shall exercise all the powers envisioned in the Supreme Court Rules, 1980 and the powers of Judicial Officers for the purpose of carrying out the objects mentioned hereinabove;
(ii) he shall be free to avail the services of advocates, experts of forensic science, persons with relevant experience, including fiscal laws etc. State functionaries when called upon to do so shall provide necessary assistance to the Commission;
(iii) the Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject;
(iv) the Commission is required to complete this task within a period of thirty days after receipt of the copy of this order.
15. In view of what has been discussed above, we are of the firm view that NAB Authorities cannot be precluded to issue call up notice or conduct an enquiry/investigation because an investigation/ inquiry under this Ordinance shall require to be disposed as provided under Section 18(f) and (g) of the Ordinance which reads as under.
(f) Any inquiry [or] investigation under this Ordinance shall be completed expeditiously as may be practical and feasible:
(g) The Chairman NAB or 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 (a) Court.
Therefore, prayer clause of the petitioners cannot be inclined because it shall result in causing a serious prejudice to the prosecution towards its right in probing into an inquiry/investigation of an offence. However, it would be pertinent to mention that law insists and guarantees that 'things should be done strictly in the manner as provided under the law' and one cannot be put to remain under the sword of Damocles on the pretext of inquiry/investigation. Investigating Officer is always required to act strictly in accordance with law and procedure because a legal right to inves gate/inquire into should not be at the cost of guaranteed fundamental rights of an individual. This could only be achieved if things are done as required, by the law and law alone.
16. As discussed above, NAB authorities are hereby directed to conclude the enquiry within meaning of Section 18 sub-section (1) and while doing so they shall not cause any harassment and arrest of the petitioners however if tangible evidence is gathered against them, they will be at liberty to proceed in accordance with law.
17. In above terms, instant petition is disposed of.