AAMER FAROOQ, J.---This judgment shall decide instant writ petition as well as W.P. No.1878-2019, as both the petitions entail common questions of law and facts.
2. The petitioners are facing inquiry conducted by National Accountability Bureau (NAB) and have challenged call- up notices received by them as well as inquiry proceedings. In this behalf, petitioner in W.P. No.637-2019 was issued a call-up notice by NAB on 16.10.2018 to attend inquiry under section 9(a)(iv) and (xii) of National Accountability Ordinance, 1999 (the Ordinance) Likewise, petitioner in W.P. No.1878-2019 received a call-up notice on 24.08.2018 for appearance before Investigating Officer in inquiry under section 9(a)(iv) and (xii) of the Ordinance.
3. Learned counsel for the petitioners inter alia contended that impugned call-up notices are not in accordance with law laid down by this Court as well as Hon'ble Supreme Court of Pakistan in case reported as 'Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others' (PLD 2012 Supreme Court 903). It was further contended that no offence, against the petitioners, is made out under the provisions of the Ordinance. It was further submitted that bare perusal of call-up notices shows that requests were received from the authorities in United Kingdom (U.K.) for initiation of inquiry/investigation against the petitioners, which cannot be done under the Ordinance. It was also contended that if NAB is conducting inquiry/investigation under the provisions of Anti-Money Laundering Act, 2010 (AMLA), it is not authorized to do so, as the same is not within its domain; that the investigation, on the request of U.K. authorities, is being done under Agreement for Eradication of Corruption, which the Government of Pakistan entered into, however , the same was neither ratified nor made part of municipal law, hence cannot form basis for investigation/inquiry . Reliance was placed on case reported as 'Ms. Shehla Zia and others v. WAPDA' (PLD 1994 Supreme Court 693).
4. Learned Additional Prosecutor General NAB inter alia submitted that requests were received from U.K. authorities for recovery of proceeds of crime. In this behalf, it was contended that apparently , petitioners committed fraud in U.K. and transferred the proceeds of same to Pakistan through illegitimate means and procured properties.
It was submitted that request was made on 07.08.2017 by National Crime Agency , (NCA) as well as Serious Fraud Office (SFO) (UK) on 24.07.2017. Learned Additional Prosecutor General, NAB submitted that in the said background, call-up notices were issued to the petitioners for illegal acquisition of the properties, which is an offence under section 9(a)(iv) and (xii) of the Ordinance. It was further contended that since properties were procured through proceeds of crime, the same amounts to an offence under AMLA and can be investigated by NAB. It was further submitted that under AMLA, offence of corruption and corrupt practices, is a predicate offence, hence Accountability Court established under the Ordinance, has jurisdiction in the matter and NAB under the law is an investigating agency .
5. Since the question regarding impleme ntation of treaty/ international agreement is involved, hence notice was also issued to the learned Attorney General for Pakistan for assistance in the matter and in response thereto, Mr. Tariq Mahmood Khokhar , Additional Attorney General for Pakistan addressed arguments and submitted that United Nations Convention against Corruption was ratified by the President of Pakistan on 11.08.2007, however , candidly admitted that same was never made part of municipal law of Pakistan by an Act of Parliament.
6. Arguments heard. Record examined,
7. As noted above, petitioners are aggrieved of call-up notices received by them pursuant to the inquiry initiated by NAB against them for alleged offences 9 (a) (iv) and (xii) of the Ordinance on the basis of request made by Government of United Kingdom through its agencies namely National Crime Agency and Serious Fraud Of fice.
8. The examination of documents, appended with W.P. No.1878- 2019 by way of an application for additional documents (C.M. No.1359- 2020), shows that Chairman, NAB visited United Kingdom and was apprised of the fact, that 60 million UK mortgage fraud has been committed by Nisar Ahmed Afzal and his accomplices that led to successful prosecution leading to imprisonment sentences and 29 million confiscation order . The letter also discloses that out of crime proceeds, sum in excess of 25 million was transferred to Pakistan hence request was made for recovery of the same. Similar request was made by Serious Fraud Office vide letter dated 24.07.2017. It is the stance of parties that such request was made on the basis of United Nations Convention against Corruption which was ratified by the President of Pakistan on 11.08.2007; however , learned counsel for petitioners asserted that agreement/treaty cannot form basis of the request, as the same was never incorporated into municipal law and is not enforceable.
Reliance was placed on case reported as 'Ms. Shehla Zia and others v. WAPDA' (PLD 1994 Supreme Court 693), wherein Saleem Akhtar , J. (as he then was), while rendering opinion for the Bench, observed that without framing a law in terms of the international agreement the covenants of such agree ment cannot be implemented as a law nor they bind down any party . Similar views were expressed by the august Apex Court in case reported as 'Societe Generale DE Survellance S.A. v. Pakistan through Secretary , Ministry of Finance Revenue Division, Islamabad' (2002 SCMR 1694 ) in the following manner:- "26 Article 297 of the Constitution only provides that subject to the Constitution, the executive authority of the Federation shall extend only to those matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Four 'h Schedule embodies the list of those matters with respect to which Majlis-e-Shoora has the power to make the laws, Item 3 of which is very relevant which reads as under:- "3. External affairs; the implementation of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan."
Since the Majlis-e-Shoora has the power to make laws in respect of these matters, therefore, by virtue of Article 97 of the Constitution, the Federal Government, of Pakistan has the power to exercise executive authority in respect thereof which was exercised to ratify the treaty , but it has not conferred powe r on the executive-authority to legislate a Statute.
Admittedly , in Pakistan, the agreement was never incorporated through legislatio n under the laws of the country and the effect of the same is that rights created under the same cannot be enforced through the Court as in such situation, the Court is not vested with powers to do so, as was observed in 2002 SCMR 1694 supra"
This Court, in case titled 'Komal Qamar v. Federation of Pakistan and others " (W .P. No.3574-2020), followed the dictum in 2002 SCMR 1694 and it was opined that if Treaty or Interna tional Agreement was not made municipal law, the same cannot be enforced through. the Court, as in such case, the Court is not vested with power to do so.
9. The ratio of above two judgments by the Hon'ble Supreme Court of Pakistan is clear that an international agreement/treaty , unless made part of municipal law, is not enforceable by the courts of law and does not give rise to rights and obligations qua the citizens of Paki ;tan, however , non-incorporation of agreement/treaty into municipal law, does not extinguish the obligations of Pakistan as one of the signatories. Even-otherwise, for NAB to initiate an inquiry , it can do.so either on its own or on a complaint received from any person in light of section 18(b) of the Ordinance. The challenge to the inquiry proceedings, on account of non-incorporation of agreement into municipal law of Pakistan hence, is not made out inasmuch as letters from UK Agencies can be treated as a complaint or even information for commencing inquiry by NAB on its own.
10. National Accountability Bureau issued call-up notices to the petitioners under section 9(a)(iv) and (xii) of the Ordinance to the petitioners; the basis for the same, is illegal transfer of funds derived from the alleged mortgage fraud. In the said background, not only the provisions of the Ordinance are attracted but also at Anti-Money Laundering Act, 2010 as well (AMLA) inasmuch as section 3 of AMLA defines an offence of Money Laundering in the following terms:-
3. Of fence of money laundering.---A person shall be guilty or of fence of money laundering, if the person:--
(a) acquires, corwerts, possesse uses or transfers property , knowing or having reason to believe that such property is proceeds of crime;
(b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property , knowing or having reason to believe that such property is proceeds of crime;
(c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or
(d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c).
Explanation-I.---The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahalat Order , 1984 (P .O. 10 of 1984).
Explanation II.---For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate of fence shall not be required".
The bare perusal of the above definition of the offence shows that if any person acquires, converts, possesses, uses or transfers property knowing or having reasons to believe that such is the property of proceeds of crime, the same amounts to offence of Money Laundering. The punishment, provided for the offence, in section 4 of AMLA, is not less than one year rigorous imprisonment but may extend to ten years as well as fine up to Rs.25 million along with forfeiture of property involved in Money Laundering. Under Explanation-II to section 3 of AMLA, for proving offence of Money Laundering under section 3 ibid, the conviction of an accused for the respective predicate offence shall not be required. 'Predicate offence' as defined in section 2(xxvi) of AMLA, is an offence specified in Schedule-I to the Act. The offence of corruption and corrupt practices as provided in section 9 of the Ordinance is a predicate offence under the referred Schedule. Under Explanation-II to section 3 ibid, proving of an offence under section 9 of the Ordinance, is not sine qua non for proving an of fence under section 3 of AMLA.
11. The examination of call-up notices issued by NAB further reveals that no reference to predicate offence or provisions of AMLA, as such, has been made rather it has been stated that prima facie or allegedly offences under section 9(a)(iv) and (xii) of the Ordinance have been committed. The referred provision reads as follows:-- 9(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-
(iv) if he by corrupt, dishonest, or illega l means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property , valuable thing, or pecuniary advantage; or
(xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi)".
Section 9(a)(iv) of the Ordinance constitutes an offence if the property is purchased through corrupt, dishonest or illegal means by a person for himself or for his spouse or dependents or any other person.
12. The argument by learned counsel for the petitioners that relevant provisions of law, for which the petitioners can be enquired or investigated, if at all, are the provisions of AMLA and not the Ordinance and that NAB has no authority/jurisdiction to investigate for any offence under AMLA is misconceived inasmuch as under section 24 of AMLA, investigating or prosecuting agencies may nominate such persons as they think fit to be the investigating officers under AMLA. The 'Investigating Agency' is defined in section 2(xviii) which includes the National Accountability Bureau (NAB); likewise, 'Investigating Officer' means an Officer nominated or appointed under section 24 of AMLA (as per section 2(xvii) of AMLA). National Accountability Bureau is one of the Investigating Agencies for investigating an offence under section 3 ibid and while doing so, it has to nominate or appoint a person or persons as Investigating Officers under the Act of 2010 from amongst its Officers. Section 20 of AMLA lays down the jurisdiction and under subsection (1) of the same, the Court of Session has the jurisdiction, however , in light of first proviso to the section, where predicate offence is triable by any court other than the Court of Sessions, the offence of Money Laundering and all matters connected therewith or incidental thereto, shall be tried by the Court trying the predicate offence. In the instant case, call up notices only mention that inquiry/investigation is being conducted under section 9(a)(iv) and (xii) of the Ordinance, which not only is an independent offence but also is a predicate of fence for the purposes of of fence of Money Laundering under AMLA.
13. The Hon'ble Supreme Court of Pakistan, in case reported as 'Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others' (PLD 2012 Supreme Court 903), laid down the principles for the information, which is required to be incorporated in a call-up notice by NAB. The referred judgment has been followed by this Court in case titled ' Mst.
Rukhsana Bangash v.Chairman, National Accountability Bureau, Islamabad and others (W .P. No.2994- 2020) vide order dated 20.01.2021 and following principles were laid down:-- i) If notice is issued to a person, who is a suspect in inquiry or investigation, the nature of allegations against him ii) The name and identity of complainant; if NAB has initiated inquiry/investigation , then it should be stated so in notice. iii) Documents, if any , sought from person called as suspect or witness. iv) If person is called as a witness, it should be so stated in call up notice. v) If custodian of any material document or record is called for examination of same, the call up notice should state so and the details of documents and record. vi) Date, time and place, where person called, is to appear . vii) Any other relevant information.
14. The call-up notices, on examination, show that they do not fulfill the criteria laid down by, the august Apex Court and followed by this Court in the aforementioned case, hence are not in accordance with law .
15. Taking stock of above discussion of law and facts is that NAB issued call up notices in the inquiry/investigation initiated by it under the Ordinance on the basis of requests received from Agencies in UK. Even if, the Treaty/Agreement, on the basis of which requests were made, is not enforceable in courts of law due to non- incorporation of the same as municipal law, NAB could still have initiated inquiry/investigation under section 18(b) of the Ordinance. In the facts as borne out from pleadings and submissions made by learned counsel for the parties, apparently provisions of AMLA are also attracted and the. NAB is one of the investigating agencies for offence of Money Laundering under the referred Act. In case, after investigation, if there is sufficient evidence against petitioners and the NAB decides to prosecute the petitioners, the Accountability Courts shall have the jurisdiction if prosecution is under section 9 of the Ordinance as well as for offence. of Money Laundering under AMLA. If the prosecution is under AMLA, only then relevant Court of Session shall have the jurisdiction even though the investigating agency is NAB.
16. In view of foregoing, the following observations are made:- a) Call-up notices dated 16.10.20:8 and 24.08.2018 are not in accordance with law , hence have no legal ef fect; b) Since NAB, under section 18(b) of the Ordinance, is empowered to initiate inquiry on its own accord or on a complaint received, hence was entitled to initiate inquiry against the petitioners on the basis of request made by two Investigating Agencies of United Kingdom, even though the United Nations Convention on Corruption has not been made part of municipal law; c) NAB is one of the Investigating Agenc ies under AMLA and can investigate predicate offence of corruption and corrupt practices as provided in section 9 of the Ordinance as well as offence of Money Laundering as provided in section 3 of AMLA; while investigating offence(s) under AMLA,. NAB has to notify the Investigating Officer/Of ficers in terms of section 24 of AMLA. d)Even-if the predicate offence is not made out or is under investigation, the investigation can be continued or concluded under AMLA but the matter would be prosecuted against the petitioners in the Courts of Session, however , if predicate offence forms part of final report/Reference, then in that eventuality , the Accountability Court, under the Ordinance, shall have the jurisdiction in the matter ,
17. For the foregoing reasons, instant petitions are partly allowed H and the call-up notices are declared to be in violation of law laid down by Hon'ble Supreme Court of Pakistan. However , NAB shall be at liberty to issue fresh call up notices in accordance with law. The relief, to the extent of declaring the inquiry without lawful authority is refused I and the petitions accordingly dismissed.