Athar Minallah, C.J. Through this consolidated judgment, we will decide the instant petition alongwith W.P. No. 2537/2021 titled "Subah Sadiq Malik v. National Accountability Bureau through its Chairman & anothers" and W.P. No.2442/2021 titled "Mirza Muhammad Shafique v. National Accountability Bureau through Chairman & another". (Khurshid Anwar Bhinder, Subha Sadiq Malik and Mirza Muhammad Shafique, shall be collectively referred to as "Petitioners").
2. The Petitioners have challenged the proceedings pending against them before the learned Accountability Court pursuant to Reference No.07/2016, filed by the National Accountability Bureau (hereinafter referred to as the "Bureau"). The Petitioners have also assailed order, dated 30-06- 2021, passed by the learned Accountability Court. The Petitioners were working in the Bureau and the proceedings were initiated in relation to the acts and omissions allegedly committed by them while performing their functions.
3. Khurshid Anwar Bhinder (hereinafter referred to as "Petitioner no.1") was appointed as Director General, Punjab. He was given additional charge as Director General, Rawalpindi. Subah Sadiq (hereinafter referred to as "Petitioner no.2") was appointed as Director General of the Bureau at the relevant time. Mirza Muhammad Shafiq (hereinafter referred to as "Petitioner no.3") was the inquiry officer in the proceedings initiated pursuant to receiving a complaint against Khalid Rashid.
The inquiry against the latter was completed and Reference was filed against him i.e. Reference no.03/2013. At a later stage, he filed an application under section 265-K of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Cr.P.C."), which was allowed by the learned Accountability Court vide order, dated 07-04-2014, whereby he was acquitted. Khalid Rashid filed a petition under section 30 of the National Accountability Ordinance, 1999 (hereinafter referred to as the "Ordinance of 1999") before the learned Accountability Court wherein he had prayed for initiation of proceedings against the officials of the Bureau. The petition was dismissed by the learned Accountability Court vide order, dated 13-06-2014. CPLA No.1093/2012 filed by Khalid Rashid was dismissed by the august Supreme Court vide order, dated 06-03-2015. However, CMA No.1556/2015 filed by Khalid Rashid was disposed-of by the august Supreme Court vide order, dated 23-04-2015, whereby the Bureau was directed to probe the complaint. It was further observed that if there was a justification for action under the Ordinance of 1999, then appropriate legal proceedings would be initiated. The Bureau after conducting an inquiry, filed Reference no.07/2016, against the Petitioners. The Reference was filed in February, 2016 and charge was framed on 05-01-2017. The Petitioners had filed applications under section 265-K of Cr.P.C. and they were dismissed by the learned Accountability Court vide order, dated 18-03-2020. The said order was challenged before this Court and the matter was remanded to the learned Accountability Court vide judgment, dated 19-01-2021. The learned Accountability Court, after affording an opportunity of hearing to the Petitioners, has passed order, dated 30-06-2021. The Petitioners are alleged to have committed the offence of corruption and corrupt practices described under section 9 of the Ordinance of 1999.
4. It is noted that the sole allegation against the Petitioners is regarding "misuse of authority".
Admittedly, it has not been alleged that the Petitioners had gained any benefit nor that they had extended benefit to some other person. The Investigating Officer of the Bureau and the learned Special Prosecutor have also not disputed the fact that the allegation against the Petitioners was to the extent of "misuse of authority". We had asked the learned Special Prosecutor of the Bureau to satisfy us as to how a case was made out against the Petitioners under the Ordinance of 1999 solely on the basis of allegation of "misuse of authority" sans involvement in corruption and corrupt practices. He was asked to satisfy us in the light of the principles and law highlighted by a learned Division Bench of this Court in the case titled "Muhammad Masood Chishti v. Chairman, National Accountability Bureau & 4 others" [PLD 2021 Islamabad 350].
5. The learned Special Prosecutor, despite his able assistance, was not able to satisfy us that there is a probability of the Petitioners being convicted. He was also not able to satisfy us that a case was made out to proceed against the Petitioners in the light of the principles and law highlighted in the case of Muhammad Masood Chishti, supra. The learned Special Prosecutor, however, acknowledged that the proceedings were regarding "misuse of authority". With the able assistance of the learned counsels for the Petitioners and the learned Special Prosecutor, we have carefully perused the record and we are satisfied that the sole allegation against the Petitioners is regarding "misuse of authority". It would be beneficial to reproduce the relevant portions of the judgment rendered by this Court in the case of Muhammad Masood Chishti, supra and the same are as follows.- "12. The Ordinance of 1999 is penal in nature because the legislature has created criminal offences which exposes an accused to the consequences of being convicted followed by sentencing. Even being arrayed as an accused has profound consequences for the latter. It is settled law that an offence can only be created by the legislature through clear and unambiguous language.
Moreover, a statute which creates an offence leading to conviction and sentence is required to be strictly construed. When the language of the statute is plain and simple then the court has to give effect to the words used in the statute. In case of ambiguity or when two reasonable interpretations emerge then preference has to be given to such interpretation which leans in favour of protecting the liberty of a person. A statute which creates a crime and offence is presumed to include the requirement of the existence of both mens rea as well as actus reus as has been aptly highlighted in the maxim "Actus non facit reum nisi mens sit rea", i.e 'an act does not make anyone guilty unless there is a criminal intent or a guilty mind". It is, therefore, obvious that the criminality of an act depends on the intention of its doer and would thus become an offence when done with a guilty mind. It is on the basis of these principles relating to the interpretation of penal statutes that we would be examining the matter in hand.
13. The reference filed by the Bureau in this case has alleged the commission of offences under clauses (vi) and (xii) of section 9(a) and item 5 of the Schedule. The offence under clause (vi) of section 9(a) has two distinct categories. The first is in the context of 'misuse of authority' while the other becomes operative when a public office holder fails to exercise his or her authority. Mere 'misuse of authority', no matter how grave or gross in nature, would not be sufficient to constitute an offence under section 9(a)(vi) because the unambiguous language used by the legislature makes the existence of the other ingredients a precondition. The intent of misuse of authority by a public office holder must be to gain any benefit or favor personally or for another. Rendering or attempting to render such gain or benefit would also fall within the ambit of the offence. Gaining any benefit or favour, either by the public office holder vested with authority or for any other, is a pre-condition for constituting an offence under section 9(a)(vi). Likewise, in the case of the other distinct part of the offence, the existence of the ensuing consequence flowing from failure to exercise authority is a prerequisite for the criminality of the omission. The intent of failure to exercise authority must be facilitating the grant or rendition of any undue benefit or favour which could have been prevented if authority had been exercised. The controlling part of section 9(a) explicitly makes the offences relatable to corruption and corrupt practices. Thus clauses (i) to (xii) of section 9 (a) cannot be interpreted independently i.e. excluding or ignoring the expression 'corruption and corrupt practices" explicitly used in the controlling part. Clause (xii) of section 9(a) would be attracted only if the ingredients of the offences described in one of the clauses in section 9(a) are fulfilled, such as clause (vi) in the case in hand. The offence described under item 5 of the Schedule is in respect of loss caused to the entities mentioned therein. However, such loss would only become a criminal offence under the Ordinance of 1999 if it is caused due to deceit, fraud or dishonesty. Merely causing loss, regardless of its quantum, would not constitute a criminal offence.
14. We have already reproduced the dictionary meaning of the expressions 'corruption' and 'corrupt practices'. The expression essentially has a nexus with dishonesty, fraud, conduct involving graft or bribery, deception, depravity etc. It involves intent or conscious knowledge of wrongdoing and goes beyond conduct or action sans a guilty mind. As a corollary, actus reus by itself does not constitute the offence nor loss caused pursuant thereto unless it is accompanied by mens rea. In the context of the offences under the Ordinance of 1999 the existence of both actus reus and mens rea should, prima facie, float on the surface of the reference filed by the Bureau under section 18 of the Ordinance of 1999. The expressions, "shall appraise the material and evidence", "if decides that it would be proper and just to proceed further" and " there is sufficient material to justify filing of reference", used in section 18 (g) are crucial because they impose a high standard of statutory duty which is required to be discharged before referring the matter to a court. It thus becomes an onerous duty of the Chairman or the authorized officer to clearly show, through the substance of offence contained in the reference, that the statutory preconditions had been fulfilled after proper application of mind. Section 25 (b) renders it mandatory that the reference "shall contain the substance of the offence or offences as the case may be, alleged to have been committed ---". It is thus implicit in the language of the provision that the reference would demonstrably show the existence of the ingredients of the offence alleged to have been committed. Section 18 (a) provides that the court shall not take cognizance under the Ordinance of 1999 except on a reference made by the Chairman or an officer authorized by the latter. The discretion exercised by the court in the context of whether or not to take cognizance is essentially based on and guided by the substance of the reference. The application of mind and, prima facie, the existence of the ingredients of an offence described in one of the clauses of section 9 (a) are crucial preconditions for filing of a reference or exercise of discretion by the court while taking or refusing to take cognizance. If the substance of the offence contained in the reference does not justify its filing nor cognizance is taken by the court on the basis thereof then the proceedings in such an eventuality would be contrary to the unambiguous intent of the legislature. These safeguards have been prescribed so that no one is arbitrarily deprived of enjoying the right of liberty."
6. Admittedly, the Reference and pursuant thereto the proceedings before the learned Accountability Court are solely in relation to the allegation of "misuse of authority". In essence, the allegations are in the nature of alleged misconduct on part of the Petitioners while working in the Bureau. No case was made out against the Petitioners to proceed under the Ordinance of 1999 merely on the allegation of "misuse of authority" while they were appointed in the Bureau. In the light of the principles and law highlighted in the case of Muhammad Masood Chishti, supra, no offence described under section 9 of the Ordinance of 1999 was attracted so as to justify initiation of proceedings, let alone framing of charge by the learned Accountability Court. We are satisfied that since no case was made out against the Petitioners, therefore, there is no likelihood or probability of their conviction under the Ordinance of 1999. The pending trial would be an exercise in futility while the Petitioners would be unnecessarily exposed to hardship.
7. For the above reasons, we allow the petitions and declare that no offence under section 9 of the Ordinance of 1999 was attracted so as to justify initiation of proceedings against the Petitioners.
The proceedings were ultra vires the Ordinance of 1999 and there was no probability that the Petitioners could be convicted under the Ordinance of 1999. The proceedings are, therefore, Quashed and the applications filed by the Petitioners seeking acquittal under section 265-K of Cr.P.C. stand accepted.