' 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. Lmtiaz 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 lapse of 13 years"
3. The relevant facts for the disposal of instant petition are that petitioner No,2, Mian Muhammad Nawaz Sharif, in year 1999 was elected as Prime Minister of Pakistan. On 12.10.1999, his Government was toppled by the then Army Chief and consequently he was arrested and thereafter he was involved in some criminal cases. Reference No,5 of 2000 was initiated against the petitioners and initial report under section 173, Cr.P.C. Was submitted before the Court on 27.03.2000, whereas, supplementary and final report under section 173, Cr.P.C. Was filed before the Court on 16.11.2000.
The conclusion of investigation conducted by NAB authorities is mentioned in para No,23 of the final report which is reproduced as under:- "3. From the above discussed facts, it is established that the Management of M/S Hudaibya Paper Mills Ltd. Comprising of Mian Muhammad Sharif, Mrs. Shamim Akhter, Mian Muhammad Nawaz Sharif; Mian Shahbaz Sharif; Mian Abbas Sharif, Mrs. Mariam Safdar, Mrs. Sabiha Abbas, Mian Hussain Nawaz and Mian Hamza Shahbaz Sharif was in possession of a huge illicit proceeds and it was difficult for them to explain the source of the acquisition of the same. In order to launder this money, under the cover of the provisions of "The Protection of Economic Reform Act, 1992, they fraudulently opened different fictitious foreign currency accounts and deposited huge amounts in these accounts. They also got themselves benefited from these funds all the time, by obtaining Pak Rupees credit lines in the name of M/S HPML and their other group companies from the banks by offering their foreign currency funds in these fictitious/fraudulent accounts as collateral. When these foreign currency accounts were exposed they decided to directly inject this money into the accounts of M/S HPML in such a way that the legitimacy of these proceeds could not be challenged. For this purpose through different money changers they arranged different Dollar TT's in favour of M/S Hudaibya Paper Mills Ltd from abroad equivalent to their foreign currency funds.
In these TT's under the instructions of the Sharif Family, the name of the ordering customer was given as Saddiqa. Sayed Mahfoodh Hashim Khadem and the purpose of this dispatch was mentioned. As share deposit money from her. After 28th May, 1998; the foreign currency accounts were frozen and subseqqently the rest of the foreign currency funds were got encashed and deposited into the accounts of M/S HPML as share deposit money on behalf of the account holders. To begin with, in the accounts of HPML for the year ending 30.06.1996, a sum of Rs, 30.469 million was shown as share deposit money from one of their cousin Sheikh Zakauddin. Whereas in the accounts of the company for the year ending 30.06.1998, sum of Rs,294.364 million, Rs,136.511 million, Rs,120.609 million and Rs, 60.788 million (totaling to Rs,612.273 million) was shown as share deposit money from Saddiqa Sayed Mahfoodh Hashim Khadim, M/S Talat Masood Qazi, Kashif Masud Qazi and Mrs. Sikandra Masood Qazi respectively. Mian Muhammad Nawaz Sharif. And Mian Shahbaz Sharif engaged Muhammad lshaq Dar in fraudulently opening of a number of fictitious accounts and in a number of other illegal activities to achieve their objectives for their own benefit. All the laundered money was used to pay off the liabilities of HPML and other companies of the Group. All this money totaling to Rs,642.742 million injected into the accounts of M/S HPML on the pretext of share deposit money in the name of these persons and the money approx. Equivalent to Rs,600.00 million used for final settlement with Al Towfeek Company for investment funds was/is in fact, owned by Mian Muhammad Sharif, Mrs. Shamim Akhter, Mian Muhammad Nawaz Sharif, Mian Shahbaz Sharif, Mian Abbas Sharif, Mrs. Sabiha Abbas, Mian Hussain Nawaz, Mian Hamza Shahbaz Sharif and Mariam Safdar. Though Mian Muhammad Nawaz Sharif and Mian Shahbaz Sharif are not presently the directors of HPML, yet they have benefited themselves directly from these criminal activities as they hold shares in HPML through their minor children.
7. The said entire money totaling to approx. Rs,1,242.732 million which has been used by Sharif family for their businesses over a period of time and finally to adjust their business liabilities is unexplained and is disproportionate to their known legitimate sources of income. The income tax/wealth tax return submitted by the accused members of Sharif family do not commensurate with the deposits held in the fraudulent foreign currency accounts by them. During this entire operation of money laundering/concealment of ill-gotten wealth, Sharifs defrauded a whole lot of institutions and individuals including a number of banks, tax authorities, etc. Hence, all the accused persons mentioned in column No,3 of this report, being directors/beneficiaries of this entire proceed as share holders (either directly or through their minor children) are guilty of the offence of corruption and corrupt practices as defined in the NAB Ordinance, 1999 as well as NAB (Amendment) Ordinance 2000. The accused persons are recommended for judicial action."
4. It is pertinent to mention here that when this Reference came-up for hearing before the Accountability Court at Attock Fort on 27.03.2000, Mian Muhammad Nawaz Sharif, petitioner No,2 was already under arrest. He was exiled to Saudi Arabia on 10.12.2000. Surprisingly, the Court seized of the matter, did not issue any summons for attendance of the petitioners/accused. On 12.04.2001 the Additional Prosecutor' General for NAB made statement before the Court that some of the accused/petitioners were not available in Pakistan, therefore, reference be adjourned sine die and that at appropriate time an application for its revival would be moved. On this statement of Addl.
Prosecutor General for NAB, the Court adjourned the case sine die. An 'application for revival of the case was moved by NAB authorities which was allowed by the Court on 17.08.2007. On 25.08.2007 the Court observed that since Hon'ble Supreme Court of Pakistan had allowed the accused persons who were abroad, to come back, therefore, the Court will have to wait till such time and service of summons shall be effected upon them. The case was adjourned time and again due to different reasons and on 21.08.2008, the Court again adjourned the case sine die on the ground that application for recommencement of trial had not been filed under the signatures of Chairman, NAB.
5. It is pertinent to mention here that Mian Muhammad Nawaz Shard-. Petitioner No,2 returned back and after his arrival in Pakistan, learned trial court did not issue summons to him to face the trial for many years. Meanwhile,the petitioners filed the instant petition for quashment of reference which was fixed before learned Division Bench of this Court comprising of my learned brothers (Kh. Imtiaz Ahmad and Muhammad Farrah Irfan Khan,JJ.) at Rawalpindi Bench of this Court.
6. Perusal of record reveals that an application for revival of the reference was filed by the NAB authorities before the Accountability Court nine months after the filing of present petition by the petitioners.
7. After hearing arguments from both the sides, learned Division Bench of this Court came to the conclusion that 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 of the accused in an investigation is condition precedent because if he (accused) can reasonably account for his sources pertaining to said allegation then he has committed no offence and in such eventuality no reference can be filed against him. In the instant case in spite of the fact that all the petitioners were available, they were never joined in the investigation of this case. Although in the report submitted by NAB authorities it has been mentioned that questionnaires were issued to petitioners/accused but no such questionnaire was available on record and learned Prosecutor for NAB has frankly conceded that petitioners were never summoned to join the investigation nor any questionnaire was issued to them and that no such questionnaire is available on record. In case law reported as "Nadeem Sarwar v.. Station House' Officer Saddar, Hafizabad and others" (2000 YLR 756) it was observed as under:- ' "Association of accused---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".
' Similarly while seeking guidance from case law reported as "Liaqat All and others v. State" (1998 PCr.LJ 216), it was observed by my learned brothers that phrase "collection of evidence" used in the definition of investigation, cannot be confined to such evidence which favours only the prosecution.
It was also observed in, the said case that Investigating Officer is bound to record the version of the accused in every case if presented, failure of police to record the accused's version or the evidence sought to be adduced by him, amounts to frustrate the .Constitutional guarantee, set out in Article 10 of the Constitution. The Constitution of Pakistan also gives guarantee to every person of his fair trial through due process of law.
8. Learned Division Bench of this Court also relied upon case law reported as "Ghani-ur-Rehman v.
National Accountability Bureau and others" (PLD 2011 SC 1144) whereby Hon'ble Supreme Court of Pakistan observed as under:- "Mere possession of any pecuniary resource or property is by itself not an offence but it is the failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes relevant offence."
9. Keeping in view the fact that petitioners/accused persons were not joined in the investigation of this case, both of my learned brothers came to the conclusion that by violating the provisions of Section-9(v) of the National Accountability Bureau Ordinance, 1999, the investigation so conducted by the NAB authorities was absolutely illegal, as despite the availability of the petitioners, they were never required to join the investigation or to account for the resources.
10. It was further observed by my learned brothers that during .Investigation of instant reference statement of approver i.e Ishaq Dar was recorded against the petitioners by the Magistrate on 15.10.1999 but such evidence recorded by the Magistrate was illegal, therefore, same could not be used against the petitioners. Section 26 of the National Accountability Bureau Ordinance, 1999 deals with the tender of pardon to an accomplice/plea bargaining. Its subsection (e ) is reproduced as under:- "(e) Any statement made before the Chairman NAB or the Court by a person who has accepted a tender of pardon may be given in evidence against him at such trial"
11. While discussing evidence of approver against the petitioners in the instant case, learned Division Bench of this Court came to the conclusion that such statement could only be recorded by Chairman, NAB or the Court. A Magistrate was not competent to record such statement. Although later on by second amendment in National Accountability Bureau Ordinance, 2000 promulgated on 05.07.2000 much after the recording of said statement by the Magistrate, an amendment in section 26 (e) was made whereby words "Chairman NAB or the Court" were substituted by the word "Magistrate" but this amendment cannot have retrospective affect, therefore, it was held that aforesaid statement of approver was not recorded by a person authorized by law, so it loses its value and significance. It is also the case of the petitioners that military regime subjected the approver to torture in order to procure said statement against the petitioners.
12. After taking into consideration the facts and circumstances of this Case , learned Division Bench of this Court came to the conclusion that Reference No,5/2000 against the petitioners 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,5/2000 against the petitioners and subsequent proceedings before the Court 'stands quashed.
However, it is clarified that the NAB authorities are competent to proceed against the petitioiners if the investigation is again initiated in accordance with law."
13. 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 the opinion of my learned brother Kh. Imtiaz Ahmad, J. ,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."
14. On the receipt of instant reference notices were issued to both the parties. Learned counsel for the petitioners contended that when Reference was quashed by learned Division Bench of this Court then according to law re-investigation of the Reference cannot be carried out 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 All Vi.Rk v. Inspector General of .Punjab Police, Lahore and 8 others (PLD 2010 Lahore 224), it has been stated by learned counsel for the petitioners that observation made by one of my learned brother for reinvestigation 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, reinvestigation 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.
15. Learned Additional Prosecutor General for NAB while defending the observations of one of my learned brothers (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. And the same can be conducted 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.
16. Mr. Naseer Ahmad Bhutta, Additional Attorney General and Mr. Muhammad Mahmood Khan, D.A.G, 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 brothers (Kh. Imtiaz Ahmad, J.) allowing the NAB authorities to re-investigate the case, is liable to be set aside.
17. I have heard the arguments, advanced by learned counsel for the parties and perused the record with care.
18. 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)"
19. 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.
20. The meanings of word 'quash' gives 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 'quashes' connotes the process of annulling or vacating proceedings by judicial decision.
21. 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.
22. It has further "been noticed 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 "non est" and "non-existence".
23. 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---Re investigation-System of re investigation is a recent innovation which is always taken up at the instance of influential 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 re investigation and successive investigations, therefore, was disapproved."
24. 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.
25. 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 lapse of thirteen years which is not permissible in the law.
26. For what has been discussed above, I am of the considered opinion that both of my learned brothers have rightly quashed instant reference (No,5 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, 1 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."
27. 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(sic)
4. The State of Orissa v. Minaketan Patnaik (AIR 1953 Orissa 160).
' It has been 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.
28. Disposed of.
Sd.
Sardar Muhammad Shamim Khan, J Kh. Haris Ahmad, Assisted by Mustafa Ramday and Ms. Anosha Rehman for Petitioner.
Ch. Riaz Ahmad, Additional Prosecutor General, NAB.
Data of hearing: 26th, 27th, 28th, 29th November, 2012 and 3rd December, 2012.
' KH. IMTIAZ AHMAD, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 19.73 along with all other enabling provisions of law has been filed for the quashment of Reference No,5 of 2000 pending in the NAB Court No,IV, Rawalpindi.
2. The relevant facts for the disposal of this writ petition are that petitioner No,2 herein namely Mian Muhammad Nawaz Sharif in the year 1999 was the elected Prime Minister of Pakistan. On 12.10.1999 the then military dictator removed his government and consequently petitioner No,2 was arrested and thereafter he was involved in two cases, and under the NAB Ordinance,1999 the famous "helicopter case" and the other known as "hijacking" case. During this period Reference No,5 of 2000 was initiated against the petitioners. An initial report was filed before the court on 27.3.2000 while the final and supplementary report under Section 173 Cr.P.C. Was filed on 16.11.2000. The conclusion of the investigation so conducted is mentioned in para 23 of the final report which reads as under:- ' "From the above discussed facts, it is established that the Management of M/S Hudaibya Paper Mills Ltd. Comprising of Mian Muhammad Sharif, Mrs. Shamim Akhter, Mian Muhammad. Nawaz Sharif, Mian Shahbaz Sharif, Mian Abbas Sharif, Mrs. Mariam Safdar, Mrs. Sabiha Abbas, Mian Hussain Nawaz and Mian Hamza Shahbaz Sharif was in possession of a huge illicit proceeds and it was difficult for them to explain the source of the acquisition of the same. In order to launder this money, under the cover of the provisions of "The Protection of Economic Reform Act, 1992, they fraudulently opened different fictitious foreign currency accounts and deposited huge amounts in these accounts. They also got themselves benefited from these funds all the time, by obtaining Pak rupees credit lines in the name of M/S HPML and their other group companies from the banks by offering their foreign currency funds in these fictitious/fraudulent accbunts as collateral. When these foreign currency accounts were exposed they decided to directly inject this money into the accounts of M/S HPML in such a way that the legitimacy of these proceeds could not be challenged. For this purpose through different money changers they arranged different Dollar TT's in favour of M/S Hudaibya Paper Mills Ltd. From abroad equivalent to their foreign currency funds. In these TT's urder the instructions of the Sharif Family, the name of the ordering customer was given as Saddiqa Sayed Mahfoodh Hashim Khadem and the purpose of this dispatch was mentioned as share deposit money from her. After 28th May, 1998, the foreign currency accounts were frozen and subsequently the rest of the foreign currency funds were got encashed and deposited into the accounts of M/S HPML as share deposit money on behalf of the account holders. To begin with, in the accounts of HPML for the year ending 30.06.1996, a sum of Rs,30.469 was shown as share deposit money from one of their cousin Sheikh Zakauddin. Whereas in the accounts of the company for the year ending 30.06.1998, a sum of Rs,294.364 million, Rs,136.511 million, Rs,120.609 million and Rs,60.788 million (totaling to Rs,612.273 million) was shown as share deposit money from Saddiqa Sayed Mahfoodh Hashim Khadim, M/S Talat Masood Qazi, Kashif Masud Qazi and Mrs.Sikandra Masood Qazi respectively. Mian Muhammad Nawaz Sharif and Mian Shahbaz Sharif engaged Muhammad Ishaq Dar in fraudulently opening of a number of fictitious accounts and in a number of other illegal activities to achieve their objectives for their own benefit. All the laundered money was used to pay off the liabilities of HPML and other companies of the Group. All this money totaling to Rs,642.742 million injected into the accounts of M/S HPML on the pretext of share deposit money in the name of these persons and the money approx. Equivalent to Rs,600.00 million used for final settlement with Al Towfeek Company for investment funds was/is in fact, owned by Mian Muhammad Sharif, Mrs.Shamim Akhter, Mian Muhammad Nawaz Sharif, Mian Shahbaz Sharif, Mian Abbas Sharif, Mrs. Sabiha Abbas, Mian Hussain Nawaz, Mian Hamza Shahbaz Sharif and Mariam Safdar. Though Mian Muhammad Nawaz Sharif and Mian Shahbaz Sharif are not presently the directors of HPM, yet they have benefited themselves directly from these criminal activities as they hold shares in HPML through their minor children.
' The said entire money totaling to approx. Rs,1,242.732 million which has been used by Sharif family for their businesses over a period of time and finally to adjust their business liabilities is unexplained and is disproportionate to their known legitimate sources of income. The income tax/wealth tax return submitted by the accused members of Sharif family do not commensurate with the deposits held in the fraudulent foreign currency accounts by them. During this entire operation of money laundering/concealment of ill-gotten wealth, Sharifs defrauded a whole lot of institutions and individuals including a number of banks, tax authorities, etc. Hence, all the accused persons mentioned in column No,3 of this report, being directors/beneficiaries of this entire proceed as share holders (either directly or through their minor children) arc guilty of the offence of corruption and corrupt practices as defined in the NAB Ordinance, 1999 as well as NAB (Amendment) Ordinance 2000. The accused persons are recommended for judicial action."
3. It is also appropriate to mention that when this reference was filed and came up for hearing before the Accountability Court at Attock Fort on 27.3.2000, petitioner No,2 was already under arrest. He was, however exiled to Saudi Arabia on 10.12.2000. Nonetheless, the court seized of the matter did not issue any summons for the attendance of the accused. However, on 12.4.2001, the Additional Prosecutor General NAB made statement before the court that some of the accused were not available and were abroad and so the reference be adjourned sine die and that at appropriate time they would move an application for its revival. On this statement of Additional Prosecutor General NAB , the court adjourned the case sine die. Thereafter again an application for its revival was moved which was allowed on 17.8.2007 and the court directed the prosecution to procure latest address of the accused. On 25.8.2007 on the application of prosecution, the court ordered for deletion of name of Mian Muhammad Sharif who had expired meanwhile. The court further observed that since the Hon'ble Supreme Court had allowed the accused persons, who were abroad, to come back, therefore, the court will have to wait till such time that said persons reach Pakistan and service of summons shall be effected and thereafter adjourned the case for 7.9.2007 for further proceedings. On 7.9.2007 the court repeated the earlier order and adjourned the case for 13.9.2007. On 13.9.2007 the case was adjourned on the request of Deputy Prosecutor General NAB and Prosecutor. On 3.10.2007 again the case was adjourned on the request of Deputy Prosecutor General NAB and Senior Prosecutor for the State to 18.10.2007 for the reason that some of accused persons were likely to arrive in Pakistan. However, the court also observed that in case the position remains the same the prosecution would justify for not adjourning the case sine die. On 18.10.2007 the case was adjourned for 19.10.2007 as the Presiding Officer was on leave and on 19.10.2007 the court adjourned the case to the first week of November, 2007 for the reason that Mian Muhammad Nawaz Sharif was scheduled to arrive in Pakistan in the first week of November. On 8.11.2007 the case was adjourned to 22.11.2007 on the request of the Deputy Prosecutor General due to Emergency declared in the country. On 22.11.2007 the case was adjourned for further proceedings and on 5.12.2007 the court directed the Prosecutor General Accountability Court to clarify whether the Government intends to prosecute the case or not and to seek instructions in this behalf and the case was adjourned to 12.1.2008. Again the case was adjourned on 12.1.2008 to 21.2.2008 awaiting the instructions from Chairman NAB. For the same purpose the case was again adjourned to 28.3.2008 and then to 8.5.2008 and then to 22.5.2008, 19.6.2008, 4,7.2008 and 31.7.2008.
On all these dates the case remained adjourned for awaiting the instructions from Chairman NAB.
Then the case was fixed for 21.8.2008 on which date again the court adjourned the case sine die on the ground that application for recommencement of the trial had not been filed under the signatures of Chairman NAB. Thereafter on 22.8.2008 an application by NAB was moved for recalling the order dated 21.8.2008. This application remained pending till 12.11.2008 on which date it was dismissed for non-prosecution. Thereafter on 17.2.2010 the NAB authorities again filed a petition for revival of reference which application was also dismissed on 3.5.2010 on the ground that it was not signed by Chairman NAB and directed the NAB to file fresh application duly signed by Chairman NAB and thereafter on 17.7.2012 again the application for .Revival of reference was filed i.e, after 9 months of the filing of present writ petition which is still pending. During all these years, the learned Trial Court never summoned the accused to face the trial.
4. Learned counsel for the petitioners contended that he would not indulge into factual inquiry but would confine himself only to the legal grounds showing that the proceedings in the reference were illegal and without due process of law. He contended that as far as Mian Muhammad Nawaz Sharif is concerned, he is neither a director of the company nor a share holder and that his case is distinguishable from the case of other petitioners though allegedly he had nominal shares in the name of his minor children. To the extent of rest of the petitioners, the learned counsel contended that merely being a director of the company is no ground to hold that he is also liable for any criminal liability unless it is proved. The very basis on which the learned counsel for the petitioner has challenged the proceedings of the reference and the investigation of the reference is on the legal plan. He contended that under Section 9(v) of the NAB Ordinance, 1999, a person can be held liable only if he or any of his dependents or benamidars owns, possesses, or has any right or title in any movable or immovable property or pecuniary resources disproportionate to his own sources of income, which he cannot "reasonably account for". He contended that it is a condition precedent before filing reference that the accused is unable to "reasonably account for" his sources. He contended that in the present case, it is an admitted fact that none of the petitioners were ever summoned to join the investigation, so much so when the proceedings were initiated the petitioner No,2 was under arrest and so on this legal ground, the, investigation so conducted without joining the petitioners in the investigation is no investigation at all. He contended that this is a special law and its provisions have to be construed strictly. He further contended that, though, the petitioners were available to join the investigation but with mala fide intention they were not joined in the investigation. He further maintained that at the most the evidence collected against the petitioner is the statement of approver i.e, of Ishaque Dar which was recorded by the Magistrate of 15.10.1999.
He submitted that this statement recorded by the Magistrate is illegal as under Section 26(e) of the National Accountability Bureau Ordinance, 1999, it was only the Chairman NAB or the court which was competent to record the statement. He contended that through the National Accountability Bureau (Second Amendment) Ordinance, 2000, which came into force on 5.7.2000, the amendment was made in Section 26(e) and word "Magistrate" was substituted. He emphasized that this amendment cannot be retrospective and as the statement of accomplice was recorded on '15.10.1999 so the said statement recorded by the Magistrate was illegal, ab initio, being not recorded by the competent authority/court. He placed reliance on the case of "Nadeem Sarwar v.
Station House Officer Police Station Sadar, Hafizabad and others" (2000 YLR 756), "Bank of Punjab and another v. Haris Steel Industries (Pvt) Ltd and others" (PLD 2010 SC-1109), "Abdul Latif v.
Inspector General Police and others" (1999 PCr.LJ 1357), "Liaqat All and another v. The State" (1998 PCr.LJ 216), "Ghani-ur-Rehman v. National Accountability Bureau and others" (PLD 2011 SC-1144), "Hakim Ali Zardari v. State" (2007 MLD 910), "Muhammad Kashif and others v. Maj. (Retd) Atta Ullah Butt and others" (2003 MLD 1017), "Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi and others" (2009 SCMR 141), "State through Advocate General NWFP Peshawar and others v. Gulzar .Muhammad and others (1998 SCMR 873), Khan Asfandyar Wali and others v.
Federation of Pakistan `through Cabinet Division, Islamabad and others" (PLD 2001 SC 607).
5. On the other hand, learned Additional Prosecutor NAB contended that as the reference has been filed in the court and a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is only maintainable when there is no other alternate remedy available to the petitioners but in the present case the petitioners have the remedy before the learned Trial Court under Section 265-K Cr.P.C. He further contended that defective investigation cannot be a basis for the quashment of a reference and even after the submission of challan, order for re-investigation of the case can be passed and the petitioners have the remedy to move the learned Trial Court for reinvestigation of the case and even this court is competent to pass such order. He placed reliance upon the cases of "Suleman v. Fateh Naseeb and others" (1995 PCr.LJ 1543), "Ajmeel Khan v. Abdur Rahim and others" (PLD 2009 SC 102), "Ch. Muhammad Anwar v. Senior Superintendent of Police, Investigating Cell, Lahore and 2 others" (2002 PCr.LJ 2014) and " Liaqat Ali v. Additional Inspector General Police (Investigation Branch) Punjab and 3 others" (2011 MLD 1179).
6. Arguments heard. Record perused.
7. There is no denial of the fact that factual inquiry cannot be made in a writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Since, in the present writ petition only legal questions have been raised, so this court has the jurisdiction to decide the said legal questions.
8. As has been mentioned above and is apparent from the record that in this case when the proceedings were initiated by the NAB authorities admittedly, the petitioners Nos.2, 3 and 4 were under arrest thereafter petitioner No,2 namely Mian Muhammad Nawaz Sharif was sacked on 12.10.1999.The investigation started much before 27.3.2000 when the interim report was submitted in the court and it is also established that the petitioners Nos.2, 3 and 4 were sent to Saudi Arabia on 10.12.2000 meaning thereby that when the interim report was filed on 27.3.2000 at least these petitioners were under arrest while the other petitioners were also available. The first question which requires determination is that when the proceedings are initiated whether it is mandatory to join the accused in the investigation? It is appropriate to reproduce Section 9 of the National Accountability Bureau Ordinance, 1999, which reads as under:- "9. Corruption and corrupt practices.
(a) A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices-- (i)
(ii)
(iii) .....................................
(iv) .....................................
(v) If he or any of his dependents or benamidars owns, possesses, or has any right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(vi) .......................
(vii) ...........
Now the perusal of above-said provision clearly implies that the accused can only be said to commit or to have committed the offence of corruption or corrupt practices which he can not reasonably account for meaning thereby that joining him in the investigation is condition precedent because if he can reasonably account for the said allegations then he has committed no offence. In this case in spite of the fact that all the petitioners were available, they were never joined in the investigation. In the report it was mentioned that the questionnaire was issued to them but no such questionnaire is available on the record and the learned Prosecutor NAB has frankly conceded that the petitioners Were never summoned to join the investigation nor any questionnaire was issued to them nor any such questionnaire is available on the record. In the case of "Nadeem Sarwar v. Station House Officer Saddar, Hafizabad and others" (2000 YLR 756) it was observed as under;- ' "association of accused---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."
9. Similarly in a case reported as "Liaqat Ali and others v. State" (1998 PCr.LJ 216), it was observed that phrase "collection of evidence" used in the definition of investigation cannot be confined to such evidence which favours only the prosecution. It was also observed in the said case that Investigating Officer is bound to record the version of the accused in every case if presented, failure of policeto record the accused's version or the evidence sought to be adduced by him amounts to frustrate the constitutional guarantee, set out in Article 10 of the Constitution. The Constitution of Pakistan also gives guarantee to every person of his fair trial through due process of law.
' In the case of "Bank of Punjab and another v. Haris Steel Industries (Pvt) Ltd and, others" (PLD 2010 SC-1109), it was observed as under:- ' "Investigation means nothing more than collection of evidence. It is evidence and evidence alone which could lead a court of law to a just and fair conclusion about the guilt or innocence of an accused person. It is, therefore, only an honest investigation which could guarantee a fair trial and conceiving a fair trial in the absence of an impartial and a just investigation would be a mere illusion and a mirage. It is, hence, only a fair investigation which could assure a fair trial and thus any act which ensures a clean investigation which is above board, is an act in aid of securing the guaranteed right, and not in derogation thereof".
' In 'a case captioned "Ghani-ur-Rehman v. National Accountability Bureau and others" (PLD 2011 SC 1144), it was observed by the Supreme Court of Pakistan as under:- ' "Mere possession of any pecuniary resource or property is by itself not an .Offence but it is the failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes relevant offence."
' The same view was taken in the case of "Hakim. Ali Zardari v. The State" (2007 MLD 910).
11. In view of what has been said above, we have no doubt in our mind that by violating the provisions of Section-9(v) of the National Accountability Bureau Ordinance, 1999, the investigation so conducted by the NAB authorities was absolutely illegal, as in spite of availability of the petitioners, they were never required to join the investigation or to account for the resources.
12. The next question which requires determination is that as to what is the evidentiary value of the statement of so called accomplice to whom pardon was tendered. The said statement was recorded on 15.10.1999. Section 26 of the National Accountability Bureau Ordinance, 1999 deals with the tender of pardon to an accomplice/plea bargaining. Its sub Section (e) is reproduced as under:- "(e) Any statement made before the Chairman NAB or the Court by a person who has accepted a tender of pardon may be given in evidence against him at such trial."
' The above-section clearly provides that such statement could only be recorded by the Chairman NAB or the court. A Magistrate was not competent to record such statement. It Was through the National Accountability Bureau (Second Amendment) Ordinance, 2000 promulgated on 5.7.2000 much after the recording of said statement by the Magistrate that the amendment in Section 26(e) was made whereby words "Chairman NAB or the court" were substituted by the word M "Magistrate". This amendment can not have retrospective affect and so it stands established that the afore-said statement was not recorded by a person authorized by law, so it losses its value and significance. It is also the case of the petitioners that military regime subjected the approver to torture and then procured the said statement. Be that as it may, the fact remains that we are dealing with this aspect on a legal ground, so, it is unnecessary to give any findings on this aspect.
13. The next question which requires determination is that whether in view of availability of alternate remedy, this court has the power to quash the reference as well as the proceedings. In the case of "State through Advocate-General, NWFP Peshawar and others v. Gulzar Muhammad and others"
(1998 SCMR 873), it was observed by the August Supreme Court that if the accused are not held entitled to the acquittal in terms of Sections 249-A/265-K Cr.P.C. Then they have the right to approach the High Court for quashment of proceedings against them and further observed that this rule proceeds on prudence and cautiousness. Nonetheless both the jurisdictions under Sections 249-A/265-K and 561-A Cr.P.C. Are co-extensive. It may be mentioned here that this writ petition, though, has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but with all the enabling provisions of law. Similarly, in the case of "Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others" (PLD 2001 SC- 607), the august Supreme Court of Pakistan observed as under:- ' "These provisions which confer Fundamental Rights on a citizen whenever violated and complaint is made to a High Court about their violation, the Court must step into investigation such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case."
14. Similarly in the case of "Abdul Latif v. Inspector-General Police and others" .(1999 PCr.LJ 1357), it was observed as under:- ' "Under Section 157 of the Code of Criminal Procedure the Investigating Agency is under a mandate to send the FIR immediately to the concerned Magistrate. This provision has been made to put effective check on investigation. Provisions of Sections 157, 160 and 161 and other sections of Cr.P.C.
Dealing with investigation had provided mechanism of check and balance so that fair and impartial investigation be conducted within frame work of said provisions and also without fear or favour from political and foreign elements or without nepotism and favouritism. If investigation was not conducted in that manner, subsequent proceedings based on such findings, would be bound to fall on the ground automatically."
15. The above-said observations clearly implies that if the .Investigation is not conducted in the manner provided by the law, then the subsequent proceedings based on such findings are bound to fall on the ground, automatically.
16. Similarly, in the case of "Muhammad Kashif and others v. Maj. (Retd) Atta Ullah Butt and others"
(2003 MLD 1017), it was observed that if challan has been submitted even then the proceedings can be quashed under Section 561-A Cr.P.C. Same is the view expressed in the case of "Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi and others" (2009 SCMR 141).
17. Coming to the contentions raised by the Prosecutor NAB that defective investigation can not be made basis for the quashment of the reference. There is a difference between the defective investigation and an investigation which under the law is "no investigation" at all. As has been mentioned above that an offence under Section 9(v) of the National Accountability Bureau Ordinance, 1999 is only constituted when the accused fails to account for his resources meaning thereby that joining 'him in the investigation is a condition precedent for holding him guilty of offence but in this case in spite of availability of the petitioners, neither they were joined in the investigation nor even after lapse of 12 years the court had ever summoned them to face the trial.
The case law cited by the learned Prosecutor NAB has distinguishable facts and is not applicable in stricto sensu.
18. In view of what has been said above, we are of the considered opinion after taking into consideration entire facts and case law available on the subject that it was no investigation at all on the basis of which reference was filed and because there was no investigation, then the proceedings in the main reference would also be devoid of any legal sanctity.
19. The result of above discussion is that this writ petition succeeds. Reference No,05-2000 against the petitioners and subsequent proceedings before the court stands 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. Sd.
Kh. Imtiaz Ahmad, J ' MUHAMMAD FARRUKH IRFAN KHAN, J.--Writ Petition No,2617-2011 was heard at Rawalpindi Bench of this Court by the Division Bench consisting of Hon'ble Justice Kh. Imtiaz Ahmad and myself. After hearing the detailed arguments of the parties and examining the voluminous record, Judgment was reserved to be pronounced later. After deliberation my learned brother Kh. Imtiaz Ahmad-J elected to write the judgment. I have had the privilege of going through the proposed judgment and fully agree with conclusion arrived at by my learned brother in quashing the impugned Reference. However, with utmost respect to the learning and scholar of my learned brother, I regret to disagree with the following clarification given at the end of his conclusion;- "It is clarified that the NAB authorities are competent to proceed against the petitioners if the investigation is again instituted in accordance with law."
In my humble view such an explicit observation is likely to be mistaken as an express permission by this Court to initiate investigation afresh against the petitioners, which this Court is not ordering and such an observation/clarification is likely to be misused for victimization, which cannot be allowed against any person. My reasons for disagreeing with the aforesaid observation are given in this separate note which may be placed before the Hon'ble Chief Justice for appropriate order in the matter.
2. The National Accountability Bureau Ordinance (XVIII of 1999) (hereinafter referred to as NAB Ordinance) is fully enforced and NAB authorities are expected to be cognizant of their responsibilities. Any new or fresh investigation, if initiated by NAB in any case against any accused can always be undertaken by the said authority, however, it will always be subject to compliance with law and procedure and shall always remain open to judicial scrutiny if a person against whom such an investigation is initiated is aggrieved.
3. In my humble view, we have not heard arguments on the question as to whether "NAB authorities are competent to proceed against the petitioners if the investigation is again instituted in accordance with law" and therefore no such observation be expressly given in the instant proceedings. As to whether such an investigation can be again initiated after 12 years is a question which has not been raised by the respondents, nor have we heard arguments on this issue and if such an observation is given by this Court as a clarification or otherwise, that would be prejudicial to the petitioners, in this petition, without hearing them on this issue and hence violate the principles of natural justice that no person shall be condemned unheard. Whether or not such an investigation or re-investigation can be initiated after 12 years on the same charges, in particular when the accused were available for investigation at relevant time but were not associated in the investigation, as also frankly conceded by the learned counsel for NAB, is not of ordinary significance but has to be carefully and cautiously adjudicated on the touchstone of appropriate law and judicial precedents.
4. In my humble view NAB Ordinance cannot be used as a tool to harass any citizen of this country whether an artisan, farmer, professional, businessman, government servant or a political person as all are equal before the law and the laws of Pakistan, including the NAB Ordinance, have to be applied equally and squarely to all of them.
5. It is useful to recall that the intent and object of the NAB Ordinance is to ensure investigation and conclusion of a trial within shortest possible time as held in case reported as Majid Rasheed v. The State (2010 MLD 27);- "The law as emphatically available in the criminal jurisprudence and repeatedly ordained by the superior Courts of this country aims at ensuring that the accused are made to be available for trial but it has never been nor it can ever be the intention of law to punish the accused for the offence the trial whereof is still pending against him. The concept of punishment is essentially relatable to the conclusion of the trial and the punishment can only be imposed after the end of the trial. The fact that unless otherwise specifically prohibited under the law, the benefit of section 382-B, Cr. P. C. Is generally available to a convict also indicates that nobody can be incarcerated during the trial merely as a matter of punishment."
6. The purpose of the NAB Ordinance is to dispose of the accountability cases expeditiously and without any delay as held in the case reported as Ms. Benazir Bhutto v. The State (2001 YLR 1647 at page 1652).
7. In the case of Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645) the Hon'ble Supreme Court of Pakistan has observed that "The NAB Ordinance was promulgated to provide effective measures of detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power of authority, misappropriation of property, taking kickbacks, commissions and for matters connected and ancillary or incidental thereto. The object of NAB Ordinance as is evident in its preamble is to provide expeditious trial of the scheduled offences within the shortest possible time." It was further observed by the Hon'ble august Court that "it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial as in the instant case, under section 16(a) of the Ordinance the Court is bound to dispose of the case within 30 days".
7(sic). In the case reported as Muhammad Saeed Mehdi v. The State (2002 SCMR 282) the Hon'ble apex Court has laid down as under:- "We have carefully considered the submission made by the learned counsel for the parties. The objection of a criminal trial is to make the accused face the trial and not to punish an under trial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars. It is also well- recognized principle of law that. Bail cannot be withheld as punishment on accusation of non- bailable offences against any accused. It is also a salutary proposition of law that an accused is entitled to expeditious access to justice which includes a right to fair and expeditious trial without any unreasonable delay. In the instant case, it is admitted that the trial against the petitioner has not commenced for no fault attributable to him. It is undisputed that undue delay has taken place in the commencement of the Mal against the petitioners for non production of co-accused Mr. Shaft M. Sehwani, who has been found to be unable to travel to Attock though it is conceded that he is able to appear before any Court at Rawalpindi. Be that as it may, the, object of NAB Ordinance, as contained in its reamble, inter alia, provides or expeditious trial o scheduled offences within the shortest possible time. This position is reassured in section 16 of NAB Ordinance postulating for day to day trial of the case and its conclusion within thirty .Days. Obviously, in the present case such objection does not seem to be anywhere near its achievement for the reasons mentioned above. (emphasis supplied)
8. On the point that, the reference has remained pending for almost 12 years as the case came up on 27th March 2000, when some of the petitioners were under arrest, I make reference to a few passages from a judgment of a learned Division Bench of this Court in the case of Sardar Muhammad Naseem v. Judge Accountability Court, Lahore (PLD 2006 Lahore 162) wherein it was observed as follows:- "6. Learned counsel for NAB while explaining the position from his side, stated that the case against the petitioner was of a very serious nature and certainly this will end in his conviction.
' According to him, the petitioner also was a contributory factor against adjournments. '
7. The offence may be of a very serious nature calling for a prolonged trial but we do not expect this to be an unending exercise.
8. The object of criminal justice is to confront a criminal with the charge as early and precisely as possible while following the due process and not to punish him before the verdict through a prolonged incarceration. There is truth in the proposition that justice delayed is justice denied.
9. In cases which end in the acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to the prolonged period of his incarceration and the delayed trial. Whereas, in case he remains on bail he can still be made to suffer an imprisonment after the trial.
10. An accused is not only entitled to a fair trial but also to a proper and human treatment. A proper treatment envisages an honest investigation, an honest preparation of the record and the charge- sheet and a trial without delay.
11. A State is under an obligation to ensure that its Courts were well-equipped with the required manpower for handling the trials with dispatch. Likewise, the prosecutors are required to be equipped with the required skills essential for establishing a foolproof case before a Court without much cost of time.
12. Section 16(a) of the National Accountability Ordinance, 1999, has been enacted with such a rationale. It has laid a period of 30 days for disposing of a trial.
13. A question for consideration of the concerned authorities will be whether the prosecutors working for NAB and its different forums were respecting this important provision of the law or not and were skilled for meeting the requirement of law? This case however, does not give a commendable impression about them.
14. It is now for the authorities to take curative measures so that the intention and the spirit of law is respected in the matter of the tenure of a trial otherwise, as we have seen in case of Anti'
Corruption Laws, the NAB law will also lose its purpose while defeating the expectations and aspirations attached to the law. The entire desire for elimination of corruption and corrupt practices though expeditious trials will then be a far of cry and ultimately the public confidence will get totally shattered. Who will then bridge the credibility gap?"
9. In case reported as Khadim Hussain v. The State (2012 PCr.LJ) it was held as follows:- "The concept of a fair trial necessarily includes a trial without inordinate delay, because it is a right of every accused to stand trial within a reasonable lime. It is proverbial that justice delayed is justice denied. Inordinate and scandalous delay in trial, which in the present case is two and half years, is not only abuse of the process of law and of Court, but also violation of fundamental right of access to justice."
10. In case reported as Muhammad Hussain v. The State (PLD 1959 (W.P.) Lahore 322) it was held as under:- "In the above circumstances, there cannot be the least doubt that the cases have not progressed for over four or five years. The plight of the petitioner can well be understood. These cases were originally registered on 30th September, 1952, and the sword of damocles has been hanging over his head for over six years. The chances of the accused to defend himself after a lapse of so many years must have been seriously affected. If the prosecution does not take care to see that a case against any accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its progress, the fault must lie at its door, whether for non- production of sanction, the witnesses, the co-accused from jail, or by frequent transfers of case from Court to Court, by change of law or by the conduct of the Prosecutor. The intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay. Section 344 of the Code of Criminal Procedure, requires the Court to record (1) reasons for every adjournment (2) to consider the reasons for, and (3) the period for which an adjournment is to be granted. The section indicates that adjournments can be made for absence of witnesses or for any other reasonable cause. Any cause other than the absence of witnesses must be for a cause of necessitating or justifying an adjournment on reasonable grounds. What is a reasonable ground is a question of fact in each case. The Court must apply its mind to its reasonableness and should not grant an adjournment mechanically and without cause. The recording of reasons is as necessary a condition as the reasonableness of the cause for which adjournment is granted. The provision has been made deliberately to avoid unnecessary delays and adjournments so as to ensure speedy decision. In the present case, the adjournments were given without any reasonable cause, and in fact for causes which did not exist. Adjournments were given for months when a Public Prosecutor had already been appointed for the conduct of the cases. The supply of copies, if it was necessary, could and should have been taken in hand simultaneously and not after a counsel had been nominated and in any case it should not have taken ten months to copy a few statements. The state of affairs discloses utter incompetence and callous disregard of the worry and anxiety of a person who is charged with crime. It is a mockery of law to allow criminal cases to proceed for four or five years without any progress. It is revolting to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided. The conduct of these cases by the learned Public Prosecutor reflects a lack of interest in the cases. He did not apply his mind to what was needed and he has sought adjournment after adjournment, which should have been shown such an indulgence? If not, should the prosecution fails persistently without reasonable cause to produce its witnesses, or seeks adjournments unjustifiably, it is the duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise. A fair and speedy trial is the essence and essential of judicial administration in a civilized country. Protracted proceedings as in this case are a mockery of the law and must be deemed to be an abuse of process of Court."
11. Delay in trial for two and a half years in one case was held to be not only abuse of the process of law and of the Court, but also violation of fundamental right of access to Justice, whereas the present case remained pending for over 12 years without justifiable explanation.
12. As a sequel of the above discussion and reasons detailed above, I am of the considered view that after quashing the impugned Reference, the forestalled 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. Sd.
Muhammad Farrukh Iran Khan, J