MALIK HAQ NAWAZ, J.---By dint of the present appeal bearing No, Cr. Appeal 05/2019 which has been filed by the NAB authorities under section 32 of the NAB Ordinance, 1999, against the judgment/order of trial Court dated 20.02.2019, the NAB has prayed for reversal of the impugned judgment passed by the learned Judge Accountability Court Gilgit.
2. On 11.03.2019 when the instant appeal came for hearing, the learned Special Prosecutor NAB, was asked to satisfy the Court on the following two core issues: a. The Judgment of the learned trial Court was announced on 20.02.2019. Learned Special Prosecutor submitted an application for supply of copy on the same day which has been supplied to him on 21.02.2019 but the instant appeal has been filed before this Court on 05.03.2019, with a delay of 03 days, which delay is not explained. b. Whether an appeal is competent under section 32 of NAB Ordinance, 1999 without obtaining sanction of Chairman NAB.
3. The learned Special Prosecutor sough t time to address the Court on the above points, and the case came for hearing today .
4. The learned Special Prosecutor for NAB submitted that the appeal was filed within time as the copies of judgment/order were supplied to him on 01.03.2019. Secondly the appeal has been filed by the Prosecutor General Accountability , National Accountability Bureau, Islamabad who was well competent to file the appeal against the judgment/order passed by the Accountability Court Gilgit-Baltistan. The learned Special Prosecutor NAB relied on 2003 MLD 777 (Karachi), PLD 2006 Karachi 236, 2008 YLR 372 (Lahore), PLD 2012 SC 903 and PLD 2014 Sindh 490 .
5. To resolve the controversy of delay , the Reader of Accountability Court was directed to appear in Court in person along with record of the case, who is present in the Court along with record. The record reveals that the learned Special Prosecutor NAB submitted an application for supply of the copy of the judgment of the trial Court on 20.02.2019 and copy of the judgment/ order was supplied to him on the following day i.e. 21.02.2019. The learned Special Prosecutor NAB filed the appeal before this Court and inserted the date of 01.03.2019 on the index, but the report of the Addl. Registrar on the same index shows that it was presented before the Court on 05.03.2019, meaning thereby that the appeal was filed after lapse of the mandatory and stipulated period of 10 days which has not been explained nor there is any application for condonation of delay .
6. Section 32 of NAB postulates that an appeal shall not be filed without approval of Chairman. Section 32 of NAB Ordinance, 1999 is re-produced as under: Section 32. Appeal [and revision]:
(a) Any [person convicted or the Prosecutor General Accountability , if so directed by [the Chairman, NAB] aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the [xxxxxx] Court prefer an Appeal to the High Court of the Province where the Court is situated[:]
7. A cursory study of section 32 of NAB Ordinance. 1999 leaves no doubt in one's mind that any revision/appeal filed by the NAB authorities or any person acting on their behalf would not be competent till the same is filed with the approval/direction of Chairman NAB. Once language of a statute is clear , then the Courts of law are not permitted to interpret it otherwise and no departure would be permissible. Secondly it also is a well settled principle of law and worldly recognized principle in criminal dispensation of justice that when two interpretations of criminal statutes are equally possible, the one which favours the accused shall be preferred.
8. On the last date of hearing i.e. 11.3.2019, the learned Special Prosecutor NAB was confronted with shortcoming floating on the face of the record. The learned Special Prosecutor filed Cr. Misc. 69/2019 on 11.03.2019, which is also fixed today i.e. 18.03.2019 at serial No, 04 of the cause list. The sanction of Chairman NAB for filing of appeal under section 32 of NAB Ordinance-1999 has been accorded. The sanction of Chairman NAB has been forwarded to Deputy Director (Coord) Prosecution Wing, NAB (Rwp), Islamabad on 01.03.2019 vide letter No,132/LC(R)/Pros Div/2019 dated 01.03.2019 is reproduced for ready reference:- MOST IMMEDIA TE GOVERNMENT OF P AKIST AN NATIONAL ACCOUNT ABILITY BUREAU SHAHRAH-E-JAMHURIA T, G-5/1 ISLAMABAD No, 132/LC(R)/Pros Div/2019 01st March, 2019 To Deputy Director(Coord), Prosecution Wing, NAB (Rwp), Islamabad.
Subject:- Case analysis of Judgment dated 20-02-2019 passed by Accountability Court Gilgit in NAB Reference No, 07/2019 State v . Nizam Uddin etc. Reference:- Pros W ing NAB (R) letter No, 18(10) DPGA/NAB(R) 2019 dated 25.02.2019 .
It is intimated that the Competent Authority has approved filing of appeal in the subject case in the Chief Court Gilgit-Baltistan, Gilgit and Appeal and Certificate duly signed by the Competent Authority have been enclosed herewith in this regard.
2. Forwarded for further necessary action, please.
Sd/xxxxx (Ajmal Aziz Khalid)
Sr. LC(KP/R)
Pros Div , NAB HQ Ends: 05x Pages.
9. The sanction accorded by the Chairman NAB is also reproduced as under:- GOVERNMENT OF P AKIST AN NATIONAL ACCOUNT ABILITY BUREAU SHAHRAH-E-JAMHURIA T, G-5/1 ISLAMABAD Dated.......................
CER TIFICA TE In Ref State v . Nadeem Ahmad and another (Ref.No,07/2018)
The entire record and impugned judgmen t has been examined with care and caution. It would be in the interest of justice that the impugned judgment be assailed before the Hon'ble Chief Court, Gilgit-Baltistan, Gilgit by the NAB.
Therefore, in exercise of power conferred upon me under 5.32 of the National Accountability Ordinance, 1999, the Prosecutor General Accountability , NAB is directed to file an appeal in the Hon'ble Chief Court, Gilgit-Baltistan, Gilgit.
Sd/xx Justice (Javed Iqbal)
Chairman NAB
10. It is interesting to note that when the appeal was presented before the Court on 05.03.2019, as discussed supra, no sanction was available. The sanction accorded by the Chairman NAB is undated, which is no sanction in the eyes of law. There is no mechanism available with this Court nor the learned Special Prosecutor NAB is in a position to satisfy the Court about the facts that when the sanction to file the instant appeal was accorded by the Chairman NAB. It is an admitted fact that till filing of appeal i.e. 05.03.2019 no sanction was available on record.
There is no concept of Ex-post facto sanction in NAB Ordinance. The sanction so accorded does not fulfill the legal requirement of law and, we are convinced that all these efforts have been made to divert the mind of the Court and cover up the own inef ficiencies of NAB authorities at Gilgit .
11. To satisfy ourselves, we also minutely examined the judgment/order of the learned Judge Accountability Court Gilgit Baltistan and found, that paras 5 and 6 of the impugned judgment/order dated 20.02.2019 are relevant, which are reproduced, though it was not needed because of above inherent defect in filing of the appeal, however it is our duty to do complete justice, even if a party by his own conduct, act or omission has committed some gross illegalities in filing an appeal or revision. Paras 5 and 6 of the judgment reads as under:
5. Coming to the last point that is the authorization of investigation against the accused/petitioners in this particular case. Keeping in view this objection I have carefully examined the document at page 6 of reference book Vol.1.Director General NAB Rawalpindi being the competent authority has signed this document of authorization on 29.08.2017. In the subject of this document accused Nizamuddin, Sir Syed Ahmed and Shah Zareen are categorically named. This is the only document of authorization on record on the basis of which the investigation in this case has been conducted. A careful perusal of document it reveals that names of accused/petitioners are not mentioned. The word "others" appearing in the document is not sufficient to infer the name of any particular person.
Authorization of inquiry or investigation against any particular person should be specific and categorical with personal identification of said person in all respect against whom an investigation is to be conducted. Name of accused Nadeem Ahmad son of Hashmat Yar Khan and Riaz Ahmad son of Gohar Aman are not appearing in the document of authorization. Therefore the document of authorization does not encircle the accused/petitioners Nadeem Ahmad and Riaz Ahmad and investigation conducted by the I.O. is without lawful authority . Section 18(c) of National Accountability Ordinance 1999 reads as follows:- "(c) Where the Chairman NAB, or an officer of the NAB duly authorized by him, is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against, any person, he shall refer the matter for inquiry or investigation."
This defect is so material which affects the jurisdiction of investigating officer who had conducted investigation in this case against the present accused/petitioners. In the case cited "Daulat Ali and another v. The State" (2010 PCr.LJ 1311) hon'ble Gilgit-Baltistan Chief Court has quashed the entire procee dings on the single ground that investigation under section 18(c) of National Accountability Ordinance 1999 was not validly authorized. Hon'ble Court on this single ground has declared the investigation conducted by I.O. as illegal and without jurisdiction.
6. In view of the above this application under section 265-K, Cr.P.C. is accepted on the single ground that investigation against the accused/petition ers Nadeem Ahmad and Riaz Ahmad was not validly authorized by the DG NAB Rawalpindi hence the investiga tion conducted against the accused/petitioners is without jurisdiction. All the proceedings initiated/conducted against the accused/petitioners Nadeem Ahmad son of Hashmat Yar Khan and Riaz Ahmad son of Gohar Aman are hereby set aside. Consequently the accused/petitioners named above are hereby discharged. Accused/petitioners on bail present. Their sureties are discharged."
12. Pre-audit cheques are always issued to the DDO, of concerned departments, after a cursory scrutiny , which was the duty of the respondents. There is no evidence that these cheques were issued with any malicious intentions, without fulfilling the codal formalities.
13. The judgment of learned trial Court depicts that there was no authorization by the Chairman NAB to conduct investigation against the respondents, which was mandatory in nature and its non-compliance has vitiated the whole proceedings. The wisdom is drawn from PLD 1972 SC 271 , wherein it has been held as under:- Held: If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and are without jurisdiction."
14. It is now century old recognized principle of law, that when law requires a particular act should be done in a particular manner , it should be done in the way as provided and not otherwise. The performance of NAB in Gilgit- Baltistan is a big question mark. This Court in the judgment reported in 2016 PCr.LJ 1431 titled "Mirbaz Ali Faraz v.
NAB" and in another judgment reported in 2016 PCr.LJ 1871, titled "Muhammad Nasir v. The State" have held that the NAB authorities are always reluctant to lay hands on the actual and big culpr its and always lay hands on the low profile people, just to fill in the blanks. The relevant paras 16 and 17 from the judgment reported in 2016 PCr.LJ 1431 are re-produced as under:
16. It is strange to note that the actual beneficiaries, who all were privy to whole of these nasty affairs, are at large and NAB authorities are not interested to arrest them. The NAB authorities in Gilgit-Baltistan are acting so violently and that too with impunity , as they are sure that they are neither answerable nor accountable at any forum or before a Court of law and because of their high handiness they have jeopardized the whole system instead of contributing towards eradication of corruption. They have their own selective system of victimization and always running after the people of low profile category , which has put us at guard to scrutin ize the case with extra care and caution, just to repose the public confidence in Courts of law and to make the NAB authorities understand that they are not above law and in case of injustice, the Courts will guard the honor and dignity of the people, which is our prime duty .
17. The NAB Ordinance is a special law and its use in oppressive manner is neither permissible nor can be allowed and it has to be tested on the touchstone of fundamental right guaranteed by the Self-Governance and (Empowerment Order , 2009), which is synonyms the Part-2 of the Constitution of Islamic Republic of Pakistan.
Misuse of law by the NAB authorities cannot be overlooked or ignored by the Courts as the Courts of law are the last ray of hope for the people and it is moral as well as legal obligation of the Courts to safeguard and defend the fundamental rights of the people espec ially, when someone over steps to encroach these rights. The NAB authorities under the law in respect of their functionaries and use of powers by them in respect of their functional exercise of these powers are not unfettered and always are subject to judicial scrutiny and any arbitrary and perverse action must be curbed and discouraged by the Courts and the cases in hand are classical example of the mis-use of authority by NAB authorities at Gilgit, where they have arrested only low profile employees and actual beneficiaries are enjoying liberty with the unwarranted blessing of NAB authorities.
Likewise paras 5 and 6 of the judgment reported in 2016 PCr .LJ 1871 are also re-produced for ready reference.
5. We have heard both the learned counsel for the parties and have also gone through the law cases cited at bar pro and contra. The allegations against the petitioner are that he appointed many people against the rules and regulation and obtained rupees 3 to 4 lacs per appointment, thus accumulated wealth beyond his known sources.
The learned Prosecutor NAB when confronted as to why the Secretary Education and Minister Education have not been arrayed as accused, he candidly conceded that they could not, be arrested despite the best possible efforts by the NAB authorities. We are afraid that there is no evidence that either the above stated persons have left the country or not available in Pakistan. Now a days world is a global village and wanted criminal could be brought to justice through Interpol by the country of their origins, if a wanted criminal has left the country , which is not the case of prosecutor that the accused are not traceable in Pakistan.
6. It is inconceivable that any wanted criminal can hide himself for an indefinite period of time, owing to the facilities available by modern trace and track system. Despite all the recourses available to NAB authorities they did not bother to cause arrest of those, who were at the helm of the affairs, when all these obnoxious acts were being committed. We have already held in the cases of similar nature titled Mirbaz Ali Faraz, Shah Murad etc. that the persons placed in similar situation are to be treated alike and law does not grant immunity to any criminal because of his high status, since everybody is equal before law. Mere gravity or heinousn ess of an offence cannot be a reason to keep an accused behind the bars for an indefinite period of time. The liberty and freedom guaranteed by Chapter -II of Gilgit-Baltistan (Self-Empow erment and Governance) Order , 2009 could not be curtailed except in accordance with law and Courts have to strike a balance between rights of an accused and interest of the society and any accused booked by NAB authorities under various provisions of NAB could not to be kept in jail merely the allegation that the accusations are heinous in nature against the accused. To ensure the presence of an accused before the Court the mechanism is provided under section 23 of the Ordinance and if the Court or the prosecution is apprehensive that accused will jump bail, the court may fix heavy sureties beside imposing conditions while granting bail in NAB cases.
15. The appeal filed by the NAB is not competent on account of unexplained delay of 3 days and having been filed without obtaining sanction/approval of Chairman NAB, which was mandatory in nature. The undated sanction now placed on record by filing a Cr. Misc. 69/19 does not meet the legal requirement and just an attempt to frustrate the legal proceeding, which cannot be allowed to prevail.
16. The appeal is dismissed in limine.