MAZHAR ALA,M KHAN MIANKHEL, C.J.---The question of law raised in the following three writ petitions is one and the same, so we propose to dispose of the same through this single judgment in W.P. No,2471-P/2015:- 1) W.P. No,2471-P/2015 (Zahid Arif v. Chairman NAB etc); 2) W.P. No,2472-P/2015 (Sohail Bin Qayum v. NAB etc); and 3) W.P.No,2325-P/2015 (Sahibzada Riaz Noor v. Chairman NAB etc.
2. The petitioner Zahid Arif was arrested by the NAB authorities on 13.07.2000 on the allegations of accumulating assets disproportionate to his known sources of income. The proceedings against him ended when the petitioner entered into plea bargain with the NAB authorities under section 25 of the National Accountability Ordinance, 1999 (hereinafter called "NAB Ordinance"). The Provincial Government, while proceeding against the petitioner on departmental side, dismissed the petitioner from service under section 3 of the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called "RSO 2000") vide order dated 29.06.2001. The petitioner challenged his dismissal from service before the Provincial Service Tribunal, where his appeal was accepted vide judgment dated 17.12.2008 and he was re-instated in service subject to a proper departmental inquiry under section 5 of the RSO, 2000, if so desired. The opinion of the law officers of the Government was sought on the judgment of the Service Tribunal but they advised the Government not to challenge the said judgment before the Honourable apex Court.
3. Accordingly, the judgment of the Service Tribunal was implemented. The petitioner/accused was re-instated in service and the Secretary of the concerned Department nominated Sohail Bin Qayum (petitioner in W.P. No,2472-P/2015), as an inquiry officer, to conduct a formal inquiry against the accused/petitioner under the RSO, 2000. On conclusion of inquiry, the petitioner/inquiry officer exonerated the petitioner/accused from the charges and submitted his recommendations to the Secretary concerned. The said recommendation along with summaries of the Secretaries of the Works and Services as well as Establishment Departments were forwarded to the competent authority i.e, Chief Secretary, who at that time was Sahibzada Riaz Noor (Petitioner in W.P. No, 3825- P/2015), who approved the recommendation/summaries and the re-instatement of accused/petitioner, already made in compliance with the judgment of the Service Tribunal, was left intact vide Notification dated 02.04.2009.
4. It was after about more than 03 years in the case of petitioners Zahid Arif and Sohail Bin Qayum as well as after about more than 04 years in the case of petitioner Sahibzada Riaz Noor, when the NAB authorities issued call up notices on 27.05.2013, 28.03.2013 and 17.05.2013 respectively to them to appear before the Deputy Director, NAB for recording their statements. So, the petitioners appeared before the Inquiry Officer of NAB, recorded their statements and provided the relevant information. A call up notice was again issued against petitioner Sahibzada Riaz Noor on 22.9.2015 and the inquiry was converted into investigation against all the petitioners on the ground that under section 15 of the NAB Ordinance, the petitioner Zahid Arif was a convicted person after entering into plea bargain with the NAB authorities under section 25 of the NAB Ordinance, hence his reinstatement into service amounted to illegal reinstatement of a convicted person.
5. The petitioners feeling aggrieved have filed the instant writ petitions wherein the respondents were directed not to take any adverse action against them till final decision of the writ petitions.
6. Learned counsel for the petitioners argued that the initiation of inquiry and its conversion into investigation despite the judgment of the Service Tribunal, all the actions/inactions of respondents are bad in law, disclosing patent Malice and mala fide against the petitioners, which are violative of the petitioners' rights guaranteed under Articles 2-A, 9, 12, 14 of the Constitution of Islamic Republic of Pakistan 1973 and the Principles of Natural Justice. The learned counsel in support of their arguments placed reliance on the judgments of Siraj Din and 3 others v. Sardar Khan and 2 others (1993 SCMR 745), Arif Ghafoor v. Managing Director, H.M.C., Texila and others (PLD 2002 Supreme Court 13), Government of Pakistan through Secretary Mk) Finance and others v. Asif Ali and others (2006 SCMR 1005), Ghulam Sarwar Zardari V. Piyar Ali alias Piyaro and another (2010 SCMR 624), Dr. Javaid Shahbaz Rab v. The State through Chairman National Accountability Bureau, Islamabad (2011 PCr.LJ 376), Mansoor Ahmed Qureshi v. The State (PLD 2005 Karachi 443), Pakistan Telecommunication Company Limited through Chairman and 3 others v. Messrs Muhammad Saeed Wazir, for General-Manager, (T&R)PTCL and another (2005 SCMR 1225) and Badshah Gut Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43).
7. As against that, the learned DPG submitted that a person entering into plea bargain would be deemed to be a convicted person, therefore, he cannot be re-instated into service because of the said stigma, so the re-instatement of accused/petitioner is an act in violation of the provisions of section 15 of the NAB Ordinance read with sections 3A and 5 of the RSO, 2000. The learned DPG also questioned the maintainability of the writ petitions because the case against the petitioners is at the investigation stage and this Court while exercising its power under Article-199 of the Constitution cannot interfere or hamper with the case of an accused at investigation stage. The learned DPG also placed reliance on the judgment of this Court, titled, Syed Abid Hussain Shah and 9 others v. Chief Secretary N.-W.F.P., Peshawar and 7 others (2013 PCr.LJ 974).
8. We have heard arguments of the learned counsel for the parties and have also perused record of the case.
9. There is no cavil to the well-settled proposition that the High Court in exercise of its powers under Article-199 of the Constitution though can quash an FIR but normally would not quash the investigation of the case at its preliminary stage. However, the facts and circumstances of the instant case are different from the cases investigated under the Criminal Procedure Code against an accused person. The procedure under the NAB Ordinance is that first an inquiry is conducted, which is then converted into investigation and thereafter a Reference is filed against the accused before the Accountability Court. The arrest of an accused person under the Criminal Procedure Code can be made after lodging of an FIR but the NAB authorities even during the course of investigation can arrest a person. There is also no denial to the fact that under section 25(b) of the NAB Ordinance, an accused who is released on the ground of plea bargain would be deemed to be a convicted person.
10. The case of present petitioners is debatable keeping in view the original Sections of the NAB Ordinance, the RSO, 2000 and its subsequent amendments. The old section 15 of the NAB Ordinance was to the following effect:- "Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the Schedule to this Ordinance, he shall stand disqualified for 21 years for seeking, or from being elected chosen appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government of Pakistan.
Provided that any accused person who has availed the benefit of section 25 of this Ordinance shalt also be deemed to have been convicted for an offence under this Ordinance, and shall stand disqualified for 21 years as above. " (underlined by us).
The first amendment was brought in Section 15 of the NAB Ordinance through Ordinance No, IV of 2000 dated 30.02.2000, whereunder after the word "elections" the words "or to hold public office" were added. This Section was again amended through Ordinance No,XXXV of 2001 dated 10.08.2001 whereunder the following amendment was made:-
15. Disqualification to contest elections or to hold public office:
(a) Where an accused person is convicted of an offence under section 9 of this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province: Provided that any accused person who has availed the benefit of subsection (b) of section 25 shall also be deemed to have-been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province. ",
11. Similarly, section 3-A in the RSO, 2000 was inserted by KPK Act No,XII of 2003 dated 20.10.2003 as under:- "3 A. Procedure in case of conviction by a court of law.---
(1) Where a person in Government service or in corporation service on conviction by a court of law is sentenced to imprisonment or fine; the competent authority shall examine the facts and the grounds on which the order convicting such person was passed by a court of law.
(2) Where on examination the competent authority finds that order of imprisonment or fine is based on-
(a) established charges of corruption or moral turpitude, it shall pass order of dismissal from service of the delinquent person in Government service or in corporation service which shall be effective from the date of his conviction by a court of law; or
(b) charges other than corruption or moral turpitude it may, in the light of the facts and circumstances of the case, decide as to whether it is a fit case for taking departmental action under this Ordinance, and if it so decides it may, subject to the provisions of subsection (2) of section 3, impose any penalty provided by this Ordinance as it may deem fit. ".
Under the N.W.F.P. ORDINANCE NO. V OF 2001, section 5 of the RSO, 2000 was amended as under:- "5. Power to appoint an Inquiry Officer or Inquiry Committee.-
(1) Subject to the provisions of subsection (2), the competent authority shall, before passing an order under section 3, appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in section 3. The Inquiry Officer or, as the case may be, the Inquiry Committee, shall-
(a) communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority;
(b) require the accused within seven days from the day the charge is communicated to him to put in a written defence;
(c) enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him; and
(d) hear the case from day to day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.
(2) Where the Inquiry Officer or, as the case may be, the Inquiry Committee, is satisfied that the accused is hampering, or attempting to hamper, the progress of the Inquiry, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it deems proper in the interest of justice.
(3) The Inquiry Officer or, as the case may be, the inquiry Committee, shall submit his or its findings and recommendations to the competent authority within twenty-five days of the initiation of inquiry.
(4) The competent authority may dispense with the inquiry under subsection (1) if it is in possession of sufficient documentary evidence against the accused, or for reasons to be recorded in writing; it is satisfied that there is no need of holding an inquiry.
(5) Where a person who has entered into plea bargaining under any law for the time being in force, and has returned the assets or gains acquired through corruption or corrupt practices voluntarily, the inquiry shall not be ordered: Provided that show cause notice shall be issued on the basis of such plea bargaining to such person informing of the action proposed to be taken against him and the grounds of such action requiring him to submit reply within fifteen days of the receipt of the notice. On receipt of the reply, the competent authority may pass such orders as it may deem fit".
This amendment was given retrospective effect from the 15th day of August, 2000.
12. In view of the above relevant provisions of law, the admitted position in this case would be that accused/petitioner was arrested by NAB on 13.07.2000 and released by the Court on 17.10.2000 after plea bargain with the NAB authorities and at that time both the amendments in section 15 of the NAB Ordinance were not yet introduced and the only disqualification for an accused was that of 21 years to be elected, chosen, appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government of Pakistan. The petitioner being a Government servant was not coming in that category. The NAB authorities communicated the above plea bargain to the Head of the Department of the petitioner, who dismissed the petitioner under section 3 of the RSO, 2000 from service on 29.06.2001 without any Inquiry. The august Supreme Court of Pakistan in the case of Pakistan Telecommunication Company Limited through Chairman and 3 others v. Messrs Muhammad Saeed Wazir, former General Manager, (T&R)
PTCL and another (2005 SCMR 1225) has laid down that"- "Contention of the petitioner was that civil servant having entered into a plea bargain with National Accountability Bureau, could be dismissed under S.3(1)(c)(iv) of the Removal from Service (Special Powers) Ordinance, 2000---Validity---Issuance of show-cause notice and holding of inquiry, in the given circumstances, was necessary under S.3, Removal from Service (Special Powers) Ordinance, 2000---When neither any show-cause notice was issued nor any inquiry was held, Service Tribunal had rightly set aside the impugned order of dismissal--- Regardless of whether the proceedings were taken under Government Servants (Efficiency and Discipline) Rules, 1973 or under Removal from Service (Special Powers) Ordinance, 2000, a dismissal without notice and without inquiry could not be ordered in circumstances of the present case---Petition for leave to appeal was dismissed. "
The petitioner filed service appeal before the Services Tribunal on 01.12.2001 which was decided on 17.12.2008 whereby the dismissal order was set aside and accused/petitioner was re-instated into service. The concluding Para of the judgment of the Service Tribunal runs as under:- "23. We, therefore, accept the present appeals, set aside the impugned orders dated 20.08.2001 and 29.6.2001 of dismissal of the appellants from service, and we direct the official respondents to reinstate the appellants into their service immediately w.e.f, the dates of their dismissal from service. The respondents may initiate and conduct disciplinary proceedings against the appellants, urgently, if they may so like, in accordance with the law prevailing and in force on the dates of plea bargaining of the appellants, in the light of the judgments of the August Supreme Court of Pakistan and the High Courts. For the purposes of the inquiry, the appellants shall be deemed to be at the stage of service before 23.5.2001. The issues of payment of salary etc. Of the appellants for the period from the dates of dismissal till the dates of their re-instatement as a consequence of this judgment, and of their back benefits, shall follow the result of the disciplinary proceedings."
' With regard to the effect of amended sections 3 and 5 of the RSO 2000, it was observed by the Service Tribunal that:- "The facts of the cases have clarified that proceedings against both the appellants were initiated on, or before, 13.4.2001. Neither Section 3 nor Section 5 of the N.W.F.P. Removal from Service (Special Powers) Ordinance, 2000 (the N.W.F.P. Ordinance No,V of 2000) was substituted till 23.5.2001. The order of dismissal of Sher Adam Khan appellant was issued on 20.8.2001, while the order of dismissal of Zahid Arif appellant was issued on 29.6.2001. Section 3 of the N.W.F.P. Ordinance No,V of 2000 contained the provision regarding inquiry by the Committee constituted under Section 5 on 13.4.2001. That provision was deleted later on, but was re-inserted vide the N.W.F.P Ordinance No, VIII of 2002. The appellants were entitled to the facility available in section 3 of the NWFP Ordinance No,V of 2000 which was not withdrawn till 23.5.2001. "
The above judgment of the Service Tribunal was not challenged before the apex Court and got finality. A proper inquiry was thus conducted against the petitioner by Suhail Bin Qayyum, petitioner, who was appointed by the Secretary of the Department as Inquiry Officer. The Inquiry Officer in his inquiry report exonerated the petitioner on the ground that he had shown all his assets in his annual declaration of assets proforma available in the department and no one objected to it.
These assets were also shown in the Wealth Tax statement and there was no other evidence to show that these assets were accumulated illegally. The objection of the learned DPG that no record was requisitioned from the NAB authorities during the course of inquiry loses its weight, when the NAB itself had informed the Department about the plea bargain made by the accused/petitioner and was then also in the knowledge of the judgment of the Service Tribunal for re-inquiry. If they were in possession of some material evidence against the petitioner, they could have made it part of the record of inquiry.
13. The call up notices were duly responded by the petitioners by recording their statements and providing necessary information to the NAB authorities, where after they kept mum over the matter for a long period of more than 3/4 years. It appears from the record that on 24th August, 2015, the NAB authorities wrote a letter to the Chief Secretary, KPK, Peshawar about the illegal re-instatement of accused/petitioner and requested him to look into the matter and take necessary steps to safeguard the public/government interest. Reply to the letter in question was given by the Secretary Establishment, Government of KPK wherein it was stated that the Provincial Government is of the view that prima facie there was no mala fide action on part of Sahibzada Riaz Noor, Ex- Chief Secretary in this case. A call up notice was issued to the Secretary Establishment to appear before the Additional Director, NAB on 14.12.2015 and it was because of this action of the NAB that the Secretary Establishment through a written letter dated 31.12.2015 requested to consider his letter as withdrawn so that the law may take its due courie. The conduct of the NAB is apparent from its letter dated 24.8.2015 written to the Chief Secretary KPK whereby he was informed that the NAB has authorized investigation against Sahizada Riaz Noor, Ex-Chief Secretary KPK and others regarding illegal reinstatement of accused Zahid Arif, Ex-Assistant Engineer C&W Department. It was further intimated that the accused entered into Plea Bargain with NAB, which is to be deemed conviction under the provisions of NAO, 1999 against whom an inquiry was ordered by the Service Tribunal but the Inquiry Officer exonerated him of the charges and the Ex-Chief Secretary, being the competent authority, agreed with the recommendation of the Inquiry Officer. The Chief Secretary was requested to look into the matter and take necessary steps to safeguard the public / government interest. This letter was replied by the Secretary Establishment Department, KPK on behalf of the Chief Secretary wherein it was stated that the accused officer was dismissed from service on 29.06.2001 while the amendment in subsection (a) of section 15 of National Accountability Ordinance, 1999 was made on 10.08.2001, therefore, after conducting formal inquiry the competent authority (the then Chief Secretary) on the recommendation of the inquiry officer exonerated and reinstated the accused into service. So, there was no mala fide action on part of Sahibzada Riaz Noor, Ex-Chief Secretary in this case,. When this letter was received by the NAB authorities, they issued a Call up Notice under section 19 of the NAB Ordinance against the Secretary Establishment, KPK to appear before the Additional Director, NAB on 14.12.2015 for recording his statement and providing information/evidence whatsoever, which relate to the commission of said offence. Just within 15 days of appearing the Secretary Establishment before the NAB authorities, he withdrew his letter dated 02.12.2015 vide his letter dated 31.12.2015. The above action of NAB thus clearly depicts their conduct against the petitioners and misuse of their powers against the high-ranking officers of the Government, who had nothing to do with the matter but they were compelled to retreat from their stance that the Ex-Chief Secretary had approved the summary in good faith.
14. So far as the safeguarding of the public/government interest is concerned, the same had already been safeguarded through recovery of a huge amount from the accused/petitioner. The criminal and departmental proceedings are quite distinct from each others. If an accused is acquitted by the Court of law, punitive action can be taken against him on departmental side and vice versa. Once the accused/petitioner made plea bargain, he was no more required by the NAB and the formal inquiry against him was under the judgment of the Service Tribunal, which was not challenged by the Government or the NAB authorities before the apex Court. The august Supreme Court of Pakistan in the case of Arif Ghafoor v. Managing Director, H.M.C., Taxila and others (PLD 2002 SC 13) has held that:- "Disciplinary proceedings' and criminal proceedings' as used in service matter--- Distinguished---Both the proceedings cannot be termed as synonymous and interchangeable- --'Disciplinary proceedings' and 'criminal proceedings' are quite distinct from each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction---Decision of one forum would have no bearing on the decision of other forum in any manner whatsoever and it would be a misconceived notion to consider the acquittal in criminal trial as an embargo against disciplinary proceedings. "
Their lordships of the August Supreme Court of Pakistan in the case of Government of Pakistan through Secretary M/o Finance and others v. Asif All and others (2006 SCMR 1005) have also held that:- "Criminal Courts in the light of strict observance of law of evidence, have to judge admissibility of evidence to hold a person guilty of criminal charge but in case of charge of misconduct, departmental authorities are not required to follow technicalities of law. Unless essential elements of components of a criminal offence are proved through evidence, direct or circumstantial, the conviction is not possible, whereas in case of misconduct, departmental authorities may not follow complicated procedure of criminal Court and rule of appraisal of evidence, rather such authorities in the light of general principle of law may determine question of guilt or innocence of a person by giving him a fair and adequate opportunity of hearing in accordance with law. "
In the case of Mansoor Ahmed Qureshi v. The State (PLD 2005 Karachi 433) it has been observed that:- "Subsection (a) and Proviso to 5.15 of National Accountability Ordinance, 1999 was amended on 10.8.2001 by Amending Ordinance to include punishment of a convicted accused to hold public office and to be disqualified for a period of ten years etc. - When reference was filed on 14.7.2001 said punishment was not available - Amended Ordinance promulgated on 10.8.2011, was to have effect from the date of its promulgation and could not be given retrospective effect and accused could only be deemed to be convicted under un amended proviso to 5.15(2) of National Accountability Ordinance, 1999. "
It is well settled proposition of law that the question of interference with vested rights is a matter separate from the issue of retrospective operation. Only that law can be given retrospective effect which brings some change in its procedure but no retrospective effect can be given to a substantive law, under which certain rights accrues to a person. The august Supreme Court of Pakistan in the case of Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa (2015 SCMR 43) has held as under:- Amendment/substitution of an enactment--- Curtailing substantive right/accrued right--- Retroactive/retrospective operation--- Scope-- Substituted section, particularly one curtailing substantive rights, did not have "retroactive operation" unless the legislature elected to give it retrospective effect---Substituted section could not obliterate accrued rights.
It may also be mentioned here that no retrospective effect has been given while promulgating Ordinance No,XXXV of 2001 and Ordinance No,CXXXIII of 2002. Thus, at the time of making plea bargain by the accused/petitioner, the amended law requiring the cessation of office by petitioner was not in the field.
15. This is a case of the nature where an accused already released by the competent Court of law is again being compelled to go through the rigorous proceedings of the NAB authorities including their arrest before filing of a Reference in a matter which was within the powers of the Inquiry and Competent Authority under the RSO, 2000 to which an indemnity under section 14A of RSO, 2000 has also been given against any prosecution or other legal proceedings. The August Supreme Court of Pakistan in the case of Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another (2010 SCMR 624) has laid down as under:- "Art.199-Constitutional jurisdiction of High Court - Scope - Mala fide investigation - High Court has jurisdiction under Art.199 of the Constitution and is competent to correct such proceedings and pass necessary orders to ensure justice and fair play. Investigating authorities do not have entire and total authority of running investigation to their whim - If investigation is launched mala fide or beyond jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed. "
16. We thus find that the alleged amendments in the National Accountability Ordinance are not applicable to the case of the petitioner nor the NAB authorities can be given a free hand to initiate proceedings in a case at such a belated stage at their own whims specially when it has attained finality at a proper forum. Under the Plea Bargain, petitioner was released before any trial, therefore, the accused/petitioner can not be vexed twice by the NAB authorities as to why he was re-instated in service when at the time of release of the petitioner, no such provision of cessation of public office was in the field under the NAO Ordinance and the relevant amendments in the Laws were made thereafter, as discussed above.
17. So, in this view of the matter, all the three writ petitions are accepted and the action initiated by the respondents is declared as null and void and the inquiry/investigation/proceedings against the petitioners are hereby quashed. The parties are left to bear their own costs.