ZULFIQAR AHMAD KHAN, J.---Through this order, we intend to dispose of the instant petition in terms of which the Petitioner, wife of the accused Muzafar Ali Zuberi (Zuberi) initially sought recovery of Zuberi, who allegedly went missing on 01.07.2014. However it was later transpired that he was arrested by the Respondents, National Accountability Bureau (NAB). Since the notification delegating the powers by Chairman and its validity after expiry of the tenure of the earlier Chairman was questioned and the accused was in detention, therefore, this Court framed following questions of law after providing hearing to the learned counsel, which are reproduced in the following:
1. Whether the Notification issued by the then Chairman Admiral (Retd.) Fasih Bukhari on 08.08.2012 whereby he delegated his powers to the officers of NAB still holds the field despite his leaving the office of Chairman NAB and in view of this Notification, Officers of the NAB can exercise such delegated powers including holding of inquiry and investigation?
2 Whether on assumption of the office/charge by new Chairman NAB, the fresh Notification for delegation of power if any should have been issued .Afresh or the earlier Notification issued by the then Chairman is sufficient to serve the purpose under N.A.O., 1999?
3. Whether the NAB disclosed or informed the grounds and substance of arrest to the Muzaffar Ali Zuberi (husband of the Petitioner) in terms of clause (d) of section 24 of the NAB Ordinance 1999 and if not what is the effect?
Since the claim of the Petitioner was that her husband was kept in illegal detention and fate as well as validity of the Notification was yet to be decided, the case being of one at the initial stage having no investigations being concluded, this Court granted bail to the accused.
The NAB filed a Reference No,13/2014 on 25.07.2014, however they arrested Zuberi again on 15.09.2015 in a Reference No,48/2015. According to NAB, earlier reference was pertaining to the period of investigation commencing from 2011 to 2013 and in the subsequent reference, the period is spread out from 2009 to 2010 for the purpose of similar investigation. Role of accused Zuberi in Reference No,13/2014 was detailed in paragraph 8, the relevant portion of the said Reference related to Zuberi is reproduced hereunder.
"8. That the role of the Accused Persons in commission of above crime is as follows: a. That the accused No,1 Muzafar Ali Zuberi (main accused) remained posted in NBP Airport Branch from 2008 to June 2011 and from November 2011 to March 2013. b. That he illegally deployed accused No,7 Asif Siddique security guard, accused No,5 Waqas Ahmed Khan a private person and other unauthorized persons at AFU Booth where they had been found involved in clearance of Goods Declarations (GDs) on credit basis And pocketing of customs collection illegally. c. That he was involved in illegal debiting (transfer of amount) from Excise and Taxation Department A/C No,2361-0 by crediting the same into the account of Collector of Customs, to meet the shortage of custom collection. Accused No,1 Muzaffar Ali Zuberi used to clear the selected GDs on credit basis illegally through private persons. d. That he being in-charge of AFU booth, NBP Airport Branch, Karachi has been pocketing daily cash collection, by depositing less cash into the A/C # 1003-6 and A/C # 1004-5 of Collector Customs than the actual collection of cash. The year wise summary of cash pocketing is as under: Total 2011 2012 2013 326,909,629 202,853,773 82,836,039 G. Total Rs.612,599,441 e. That he has been involved in illegal debiting huge amount from the account No,2361-0 of Excise and Taxation Officer (ETO) Government of Sindh (GoS) to the Account No,1004-5 of Collector of Customs. The detail of year wise debits and credits are as under: Account No. 2361-0 of ETO 2011 2012 2013 DR CR DR CR DR CR 6,024,776 --- 95,549,256 58,094,000 10,087,563.00 --- Total Debit 2011-2013 Rs. 111,661,595 Total Credit 2011-2013 Rs. 58,094,000 Amount of Excise still not returned Rs. 53,567,595 f. That he has been involved in illegal transfer of amount from account of Collector of Customs (1004-5) into account of ETO without having the authority/mandate.
Notwithstanding therewith, NAB also moved an application No,23415/2014, dated 15.12.2014 for cancellation of bail granted by this Court, and as a counter measure, the Petitioner moved C.M.A.
No,39360/2015 on 16.09.2014 against the second-time arrest of Zuberi. Therefore, besides the main petition, these are two applications, will also be decided through this order.
Counsel for the Petitioner time and again has attempted to draw. Our attention that under section 34-A of the National Accountability Ordinance, 1999, (NAB Ordinance) the vacuum created between the period commencing 01.03.2013 when the previous Chairman of NAB, Admiral (R) Fasih Bukhari left the charge and it was only on 08.10.2013 when new Chairman replacing Mr. Bukhari was appointed, while enquiry in the instant case having been initiated against the accused Zuberi on 17.06.2014 and his warrant of arrest issued on 27.06.2014. The counsel submitted that since the new Chairman of NAB never delegated any power to the NAB authorities and on the basis of earlier notification issued on 08.10.2012 under section 34-A of the NAB Ordinance, the then Chairman NAB Mr. Bukhari having delegated powers through the aforesaid notification, therefore the new Chairman of NAB since having never delegated any power to NAB authority thus no enquiry could have been conducted nor any investigation could be made against the accused (or any other person). Learned counsel drew our attention in this regard to the Judgment of Honorable Supreme Court of Pakistan reported as PLD 2010 SC 1109 (Bank of Punjab v. Haris Steel Industries), in which the High Court has held that the provisions of section 6(c) of the NAB Ordinance permit a Deputy Chairman to act as Chairman of NAB only when the Chairman is available, but is temporarily absent or is temporarily unable to perform the functions of his office e.g. On account of illness etc. He thereby contended that the said provisions did not allow the Deputy Chairman NAB to act when the office of the Chairman NAB was vacant. Having drawn our attention towards this alleged vacuum, the counsel however, did not have anything to offer viz merits of the case, in which there are volumes and volumes of statements from the personal accounts of Zuberi, in which more than 59 Million Rupees have been deposited including deposit slips of the said account, except for proposing that one of the payment of Rs,20,00,000/- deposited in the said account on 14.04.2009 was in respect of same property sold by Zuberi. However, even in that case he could not bring forward any evidence in support of such contention, which normally could have been Satisfied by submitting a copy of the sale agreement in relation to the property allegedly been sold by Zuberi.
While - the sole controversy was still progressing on the basis of Reference No,13/2014, a fresh Reference bearing No,48/2015 was also filed by NAB on 19.11.2015, wherein details of the investigation and results thereof have been reproduced against inter alia Zuberi as detailed in paragraph 4, which is reproduced hereunder: "4. That the investigation also reveals that the Accused No,1 Muzafar Ali Zuberi, incharge AFU Booth and Branch Manager NBP Airport Branch Karachi in the year 2009 and 2010 found involved in illegal debiting of various accounts i,e, Collector of Customs and 'Excise Department, Government of Sindh and others. The signature of accused No,1 also found on said vouchers. He illegally took millions of rupees from cash collection, various entries are also available in registers and date-wise reconciliation of daily collection register with clearing registers as accounts Nos.1004-5 and 1003-6 show un-balancing of entries. The accused No,1 with the connivance of accused No,2 Muhammad Shakeel Ahmed Khan illegally deployed accused No,3 Waqas Ahmed Khan and Accused No,4 Asif Siddiquie a private person for daily banking operation, for the purpose of misappropriation in daily collections."
' Prosecution case is that on the complaint of Regional Chief of National Bank of Pakistan (NBP) regarding misappropriation and embezzlement of money payable in relation to customs duty collected at AFU Booth of NBP during the period 2009 to 2013, Zuberi, who was posted in the NBP Airport Branch between the periods of 2008 to June, 2011 and from November 2011 to March 2013, when he was posted at the AFU at Karachi Airport, it was the responsibility of the officers designated there that upon having received customs duties and allied taxes on behalf of Federation and the Province, to deposit the same into two accounts namely 1003-6 and 1004-5 for the deposit of duties and taxes collected in cash, and those collected by pay orders, respectively.
However, through a racket created by Zuberi and his other colleagues, these persons invented a parallel banking system, wherefrom the cash received at the AFU Booth rather than being deposited into the government treasury Account No,1003-6 was deposited in his personal account bearing No,1027-0071-010834-01-2 opened at Bank Al-Habib in the name of the present Petitioner (wife of Zuberi) jointly with Zuberi himself. The NAB Reference No,13/2014 shows that Zuberi along with other co-accused pocketed cash originally payable to the government exchequer's Accounts No,1003-6 and 1004-5, for the Collector of Customs to the tune of Rs,610,599,441 as per the following details: Month 2011 2012 2013 Shortage Shortage Shortage January 34,078,185 26,907,059 33,662,884 February 32,347,756 21,080,613 30,894,065 March 41,378,816 26,246,474 18,279,090 April 28,088,484 22,128,343 May 21,309,550 3,997,355 June 29,737,353 43,696,047 July 24,660,937 22,204,438 August 30,190,436 14,277,557 September 20,057,130 6,023,587 October 23,003,912 MISSING November 25,291,288 12,222,476 December 16,765,782 4,069,824 Total 326,909,629 202,853,773 82,836,039 Not only that moneys were swindled from the above referred two accounts, the racket also deprived Excise and Taxation Department, Government of Sindh Account No,1004-5 to the tune of Rs,6,938,950. As per paragraph 11 of the NAB Reference No,13/2014, the accused persons misappropriated and embezzled more than one billion rupees in total.
We now take our attention to Reference No,48/2015, which describes that racket was operating after having opened a number of other private accounts, where moneys were deposited besides the above referred over a billion of rupees. The racket in between the period 2009 to 2010 defrauded the exchequer to Rs,499,796,870/-. Therefore, the net financial impact by these two references is over One and Half Billion Rupees having been swindled by Zuberi and his colleagues by simply taking the cash in their pockets from the said AFU Booth and after having been split as per their cartel rules they would deposit them into their personal accounts, and in the instant case we are referring to the accounts of the Petitioner and Zuberi maintained at the Bank Al-Habib in Karachi.
Before we go to the merits and the incriminating material presented before us as to the money transferred into the above Bank Al-Habib account, we first find it important to consider the preliminary question posed by the counsel for the Petitioner that an irregularity has been committed inherently by NAB authorities when during the investigation and subsequent formulation 'of these two references, since no Chairman NAB was available to fulfill the statutory requirement of delegating powers to Deputy Chairman to investigate the offence under the NAB Ordinance. To further consider this assertion, we find it prudent to go through the trail of appointments of NAB Chairmen, which is reproduced in the following table: DURATION FOR CHAIRMEN NAB S.No.Name of Chairman Tenure
1. S. Amjad Hussain 16.11.1999 to 25.09.2000
2. Lt. Gen. Khalid Maqbool26.09.2000 To 26.10.2001
3. Lt. Gen. Munir Hafeez 01.11.2001 To 31.10.2003
4. Lt. Gen. Shahid Aziz ------- To May, 2007
5. Nawid Ahsan ------- To February, 2010
6. Deedar Hussain Shah 09.02.2010 To 10.03.2011
7. Admiral (R) Fasih Bukhari16.10.2011 To 28.05.2013
8. Qamar Zaman 08.10.2013 Till date With regard to the delegation of powers from the Chairman of NAB, we note that vide a notification dated 06.10.2000, the then Chairman, NAB Lt. Gen. Khalid Maqbool delegated his powers to Maj. Gen. Muhammad Sabir and the latter was authorized to exercise the said powers and perform functions with the area of responsibility. Through SRO 1033(1)/2012, Admiral (R) Fasih Bukhari, Chairman, NAB delegated his powers to the officers of NAB to the extent indicated in the said SRO.
These powers were continued to be so exercised when the said SRO was superseded by SRO 1153(1)/2014 dated 10.12.2014. Notwithstanding the fact that previous Chairman, NAB Admiral (R)
Fasih Bukhari left on 28.05.2012 and the current Chairman having taken the charge on 08.10.2013, the power delegating SRO 1153(1)/2014 takes effect from 11.10.2013, therefore by a plain reading of the said SRO, we do not see any vacuum of power delegation as asserted by the counsel for the Petitioner.
Notwithstanding therewith with respect to the Reference No,13/2014, the investigation was authorized on 12.09.2014 by Director General, NAB, Sindh and in the Reference 48/2015, the investigations were authorized on 08.01.2015, which clearly show that vide SRO 1153(1)/2014 powers were already delegated w,e,f, 11.10.2413, therefore, the investigation commenced on 12.09.2014 as well as on 08.01.2015, culminating in Reference No,13/2014 and 48/2015 respectively, had the statutory backing required under the NAB Ordinance.
To us, the appointment of Chairman, NAB and delegating of his authority are two different issues, while the procedure of appointment of Chairman NAB being cumbersome and one being appointed by President of Pakistan directly, there could be a gap between the period of an earlier NAB Chairman leaving and the new incumbent taking over the charge, notwithstanding therewith law knows no vacuum, in the interest of public policy, such gap cannot give benefit or open a flood gate for those involved in corruption and plundering the public money on account of such gap.
This view finds support from the following judgments reported as:
1. Syed Adnan Rasheed vs. National Accountability Bureau reported as 2014 PLD (Sindh) 334. In this case, the learned Division Bench of this Court held that Authority so conferred under S.18(a) or 18(g) of National Accountability Ordinance, 1999, by Chairman National Accountability Bureau upon his subordinate would continue till such delegation was expressly revoked and such delegated authority was rightly exercised by delegatee/subordinate officer in the name of and on behalf of Chairman National Accountability Bureau by holding that once the office of Chairman National Accountability Bureau fell vacant then delegation would remain in abeyance till new Chairman was appointed to the office in whose name such delegated authority was to be exercised unless expressly revoked. Such was because of the fact that delegatee exercised the power in the name of delegator and once the office of delegator fell vacant there was none to object in whose name the delegatee could exercise such powers in particular when the defect stood cured upon resumption of office by Chairman National Accountability Bureau and that the new Chairman did not object to the powers exercised in the interim period.
2. Al-Jehad Trust v. Federation of Pakistan reported as 2011 PLD SC 811; and
3. Niaz A Baloch v. Chairman NAB reported as 2008 M LD 1451 ' In the light of Multiline Associates v. Ardeshir Cowasjee (PLD. 1995 SC 423) earlier judgment of equal Bench in the High Court on the same point being on the second Bench (If, however, a contrary view had to be taken, a larger Bench should be constituted), we do not find any reason to differ from the opinion expressed in the case of Adnan Rasheed (supra), we are also of the view that in the light of the unreported judgment in the case of CPD 2898/2011 that a crime committed by a person cannot be allowed to go unpunished merely because the proceedings were not filed by the competent authority appropriately the objection raised about the Notification of previous Chairman NAB dated 08.08.2012 whereby the latter delegated his powers to the officers of NAB held ' the field despite his leaving the office of Chairman NAB. Thereafter in the light of Notification SRO 1153(1)/2014 made effective from 11.10.2013, 'the authorized officer of NAB could exercise such delegated powers including holding of inquiry and investigation. Even otherwise nothing was produced before us as to whether the delegated powers given by earlier chairman were subsequently withdrawn/revoked or the new chairman shown any displeasure or objection as to why on the basis of earlier delegated powers the jurisdiction was exercised. We have also not found out any violation of provision of section 24(d) of the N.A.O., 1999 in view of the material produced by the I.O.
Notwithstanding therewith, Reference No,48/2015, for which authorization was duly given on 08.01.2015, wherein Zuberi is the leading accused and per the account-details of Bank Al-Habib provided for the period commencing 01.01.2009 to 31.12.2010, where only in this account over 59 Million Rupees have been deposited for his personal benefit and for the benefit of his wife (the present Petitioner), we do not feel any strength in the arguments of the learned counsel for the Petitioner that the benefit of the vacation of the Chairman NAB could be granted to the accused so that he and his cartel can go scot free having deprived the national exchequer of moneys reaching to over One and Half Billion Rupees.
' The investigating officer through his statement has produced a complete detail of all the entries of Bank Al-Habib account managed and owned by the Petitioner and her husband Zuberi, the counsel for the Petitioner has no satisfactory answer as to any other source of income from where money have been pouring in in those accounts like drops of rain, wherein total 167 credits in the total sum of Rs,59,768,326/- have been made between the year 2009-2010. The learned counsel could not bring anything in his defense except for one entry of two million rupees dated 14.04.2009, to which he said that this was on account of sale of the some property by Zuberi, however, counsel, as stated earlier, did not bring any evidence in support of this assertion either. However, the counsel made one more assertion that the Petitioner besides being a Banker was also running a dairy farm and these frequent deposits are on account of sale of milk by the Petitioner, such assertion of the petitioner was immediately and vehemently denied by the A.D.P.G., NAB, who actually brought on record a statement made by some Muhammad Jamil son of Abdul Karim, who was called by the NAB authorities and where he stated on 08.07.2014 that he has been associated with the business of dairy farming for the last thirty (30) years and he has lands on Karachi Superhighway as well as in some parts of Thatta. With regard to Zuberi, he stated that he knew Zuberi only for the last four to five years, because he (Zuberi) was interested in acquiring his dairy farm land on rent, however nothing happened except in 2012 and 2013 when Zuberi contacted him and showed interest in buying his 4-1/2 acre land, which he agreed to sell to him for Rs,2,20,00,000/-, for which he stated that he was paid through cash and cheque, however, no agreement was entered into between him and Zuberi as Zuberi was not interested in creating any such legal document. Having bought the land in 2012-2013, Zuberi placed some 400 to 450 buffaloes and cows at that premises. Mr. Jamil also stated that Zuberi also showed interest in purchasing additional seven acres of land in the sum of Rs,26,15,000/= per acre and gave him cheques totaling 1,90,00,000/- (Rupees One Crore and Ninety Lacs only) and he had not been entered into any written agreement in respect thereof rather stated that as many as cheques are passed, he should be given title of the land at the rate agreed between the parties. This statement clearly shows that it was only in the year 2012 to 2013 when Zuberi thought of doing a parallel business of running a dairy farm. The instant period for which the said reference is filed and for which the statement of accounts of Zuberi is before us is from 01.01. 2009 to 31.12.2010, the council could not satisfy us or bring forward any evidence in support of his client with respect of these 167 credit entries and from where these moneys have been pouring.
' It is pertinent to mention that during investigation the I.O. Recorded the evidence of the following witnesses, which are reproduced as under:
1. Muhammad Hassan, Branch Manager, NBP Airport, Karachi stated that during 2013-14, he filed a complaint against the Ex-Branch Manager, NBP, Airport Branch along with officer of AFU Booth, as massive shortage in daily collection and signs of parallel banking were observed...It was also submitted that later on record of AFU booth was checked and found that original registers of period 2009 to 2010 were not checked by Auditors and other NBP officers and another complaint was filed to NAB to conduct another Inquiry of the matter of 2009-2010.
2. Imam Bux, Operation Manager, NBP, Airport Branch, Karachi stated that original record of AFU booth of NBP Airport Branch Karachi was requested by the NAB. In this regard original collector registers along with clearing and other registers were handed over to the NAB through seizer Memo signed by me as producer JO of the case and two witnesses.
3. Haseeb-ur-Rehman, OG-II, Allaudin, Cashier and Abu Sufyan, Cashier submitted that as mentioned above I along with Abu Sufyan and Allaudin, were attached with NAB Investigation team, and during our attachment, the original Pink registers, daily clearing registers, account statements of account No,1003, 1004 and 2361 were handed over to us and were directed to reconcile the date-wise transfer and cash entries of collection register with clearing registers. It is stated that, it is correct that Muzafar Ali Zuberi, in charge AFU deployed Waqas Ahmed Khan a private person, on daily wages at AFU Booth.... And that Asif Siddique Ex-Security Guard of AFU Booth was also deployed in banking working by Muzafar Ali Zuberi. Both Waqas Ahmed Khan and Asif Siddique used to run the most of affairs of AFU Booth and that initially the life of Waqas Ahmed Khan was hand to mouth but after working of few months, his life style was suddenly changed and he used to present himself as a wealthy person....The vouchering, cash management, pay order working and others were done through the Waqas Ahmed Khan, Asif Siddique, Shakeel Ahmed and Muzafar Ali Zuberi himself.... The record related to pocketing of the cash collection was also found entered on back side of most of the pink register sheets. In this connection date wise pocketing summary of accused Muzaffar Ali (Zuberi) was also furnished and handed over to NAB Investigation Team.
' Muhammad Shahid, Officer Grade-III submitted that date wise record cash collection and cash registers and account statement of account No,1003-6 of Collector of Customs were handed over and directed to reconcile the date wise record and to identify the shortage of any cash collection....During the date wise reconciliation of cash collections, massive shortage in deposition of cash collection has been identified. In this connection date wise complete report of two years i,e, 2009 and 2010 furnished (duly signed by me) and submitted to the NAB Investigation Team. During the scrutiny of date wise cash collection as entered in the Pink Sheet Collection registers, it has also been observed that AFU Officers were regularly taking the cash collection for personal use. In this regard Muzafar Ali Zuberi, Ex-AFU In-charge took highest amount of Government cash collection, the record of said taking is also found entered on back side of Pink Sheet Collection Registers. On inquiring of the NAB, I. I regarding deployment of private persons at AFU Booth, it is submitted that it is correct that Waqas Ahmed Khan was deployed at AFU Booth by Muzafar Ali Zuberi, Ex AFU In- charge, and all matters of AFU Booth were supervised by said Waqas Ahmed Khan. During scrutiny of Pink Sheet Collection Registers, the hand writing of Waqas Ahmed Khan found on most of the registers.
5. Muhammad Aslam Khan, Ex-Operating Manager and present AFU Booth Incharge and Khalid Mehmood, Compliance Officer submitted that date wise recording of daily collection which conducted by the Mr. Allauddin, Abu Sufyan and Haseeb ur Rehman were verified checked with Pink Sheet register/Daily Collection registers and found correct entering of record into computer sheet/tables.... It is correct that Waqas Ahmed Khan was deployed at AFU Booth by Muzafar Ali Zuberi, Ex AFU In-charge, and all matters of AFU Booth were supervised by said Waqas Ahmed Khan. During security of Pink Sheet Collection registers, the hand writing of Waqas Ahmed Khan found on most of the registers.
6. Syed Sarwat Hussain Rizvi, Ex-Operation Manager, NBP Airport Branch, Karachi submitted that I remained Operation Manager NBP Airport Branch w,e,f, 16.08.2012 to 16.05.2013, it is also stated that separate Booth at few meters distance has been established for collection of Customs and other duties on commodities or item landed at Airport. In this connection dedicated officers and staff are also allotted/posted. During my postings at NBP Airport Branch, I observed that Muzafar Ali (Zuberi) was posted at AFU Booth and at NBP Airport Branch since long time, and he was in-charge of AFU Booth. It was reported and found that Muzafar Ali Zuberi had deployed various private persons at AFU Booth and among them a person namely Waqas Ahmed Khan was much closed to him. He (Waqas) was initially appointed/deployed illegally on daily wages basis and he was involved or made in-charge or all matters of AFU Booth by Muzafar Ali Zuberi. It is also submitted that duties of Customs department are collected in two manners; one in the form of cash and other in the form of pay order only (no other instrument is acceptable). In this regard two account i,e, 1003 for cash, and 1004 for transfer (pay order) also opened by Custom Department since long. All the cash collection at AFU booth are mandatory to be deposited into account No,1003 on earliest time or by next working day, accordingly the transfer collection after clearing are required to be deposited into account No,1004, there after collective collection is required to be shifted to 'the collection of customs. Today, the original Pink/daily collection registers, original clearing registers, the date wise computerization record of pink/daily collection registers of 2009 and 2010, presented to me and it was directed by the I.0 to verify daily transfer collection with daily clearing of few months. In this connection I and Muhammad Amin the then Operation Manager, verified the entries of few months and found massive unbalancing in the daily transfer collection and daily clearing. Accordingly by verifying the month wise massive shortage in collection and clearing has been observed.
After considering the question of law as well as the incriminating material produced by the I.O., there are no reasonable grounds to believe that the accused is not involved in the offence cognizable under the NAB Ordinance, therefore the earlier bail granted to the accused is withdrawn; the application filed by NAB seeking cancellation of bail to Zuberi is accordingly allowed; and application filed by the Petitioner seeking bail of the accused Zuberi in subsequent Reference No,48/2015 is dismissed, while the main petition is also dismissed being devoid of merits.
The surety furnished for the first bail may be discharged and returned on proper verification and identification.
The observations made in this order are of tentative nature and shall however not prejudice the case of either party.