' Through this writ petition, an order, dated 20-10-2001 passed by the Accountability Court No,1, Attock Fort in NAB Reference No,14 of 2001 is being assailed.
2. Brief background of the case is as follows:-- "Reference No,14 of 2001 (as it is presently called) had been filed by the Chief Ehtesab Commissioner on 12-5-1998 before the Ehtesab Bench under the erstwhile Ehtesab Act, 1997. Later on, two supplementary references were filed on 30-6-1998 and 21-8-1998 by the same authority under the old law. Charge-sheet was framed on 22-9-1998 when the old law was substituted by the National Accountability Bureau Ordinance (Ordinance No,XVIII of 1999) which repealed the Ehtesab Act, 1997 with further amendments brought about by the National Accountability Bureau (Amendment) Ordinance, 2001."
3. While the matter was proceeding before the Accountability Court No,1 at Attock Fort, the Chairman, National Accountability Bureau (herein referred to as NAB) submitted a third supplementary reference on 12-9-2001 which is the subject-matter of this writ petition.
4. The petitioner raised several objections against the filing of the third supplementary reference but these were disallowed by. The Accountability Court No,
1. Whose findings were as follows:-- "For all the reasons stated above the objections to the submission of letter, dated 18-4-2001 of Chairman, NAB as well as the objections to the submission of supplementary Reference No,3, dated 10-9-2001 are hereby dismissed."
5. The contentions of learned counsel for the petitioner before this Court were as follows:--
(i) that there is no provision in the NAB Ordinance for filing a supplementary reference;
(ii) that the NAB Ordinance postulates only one reference against one party in a unique matter;
(iii) that the NAB Ordinance being a special law shall override the provisions of Criminal Procedure Code whenever there is a clash between the two laws. In this connection, a reference has been made to section 17 of the NAB Ordinance which reads as follows:-- "Provision of the Code to apply.--- (a) Notwithstanding anything contained in any other law for the time being in force unless there is anything inconsistent with the provisions to this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis apply to the proceedings under this Order.
(b) Subject to subsection (a), the provisions of Chapter XXII-A.Of the Code shall apply to trials under this Ordinance.
(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Accountability Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case."
(iv) that while making reference to section 18 of the Ordinance, learned counsel for the petitioner has stated that in section 18(a) since the words used are: 'a reference', there is no scope for multiple references or supplementary reference. And as according to him, section 18(a) envisages only a reference, the provisions of the special law as such were to be strictly followed. In this connection, he further made a reference to the case titled The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and the maxim: Generalla specialibus non-derogant;
(v) that even when a supplementary challan is submitted under section 173,. Cr.P..C. Subsequent report has the effect of superseding the previous report and, therefore, the third reference shall supersede the previous references and those shall have to be discarded.
' The next point was with respect to the locus standi of Rear Admiral Obaid Sadiq Commander Regional Accountability Rawalpindi (RAB) who had been authorized by the Chairman, National Accountability Bureau to refer the matter to the agency/agencies concerned for further inquiry/investigation and to forward a report thereof. It was stated that the Chairman, National Accountability Bureau was himself a delegatee of the Legislature and could not delegate his further essential powers to Rear Admiral Obaid Sadiq who ordered for the investigation of the case by the F.I.A. And upon such investigation, the third reference was filed.
' It was the case of learned counsel for the petitioner that NAB, Rawalpindi does not figure anywhere in the NAB Ordinance and as such, the Rear Admiral Obaid Sadiq was not an officer of the NAB to have been authorized to proceed with the investigations and take further actions by the Chairman NAB. It was, therefore, his case that the reference has been incompetently filed in offence to the provisions of section 18 of the Ordinance.
6. It was argued that anyhow the Rear Admiral Obaid Sadiq was a further delegatee of the Chairman, NAB and he could not entrust powers of investigation to the Director-General Federal Investigating Agency who had handpicked the investigators for the filing of the third supplementary reference. A reference was also made to a letter addressed by the Rear Admiral Obaid Sadiq to the Director-General F.I.A. Which did not refer to the details of authorization given to the Rear Admiral Obaid Sadiq for making such a reference.
7. It was also the case of learned counsel for the petitioner that the third supplementary reference is in fact a new case which has been made out after four years and it has no value.
8. Learned counsel for the petitioner stated that the petitioner was not being treated in accordance with law and was being made to suffer through the filing of the supplementary reference so that there is no end to the rigors of his trial and that he remains incarcerated indefinitely on account of the mala fides of the NAB.
9. The learned Prosecutor-General appearing on behalf of the NAB while disagreeing with the contentions of learned counsel for the petitioner stated that the 1997 reference against the petitioner was filed after it was discovered that he owned ill-gotten and undeclared properties in various foreign countries as well as Pakistan. That regarding the properties outside Pakistan, the Government had genuine difficulties in obtaining information in view of the complex mechanisms which are used in the commission of white coloured crimes. That in places like Isle of Man and off shore companies, trusts are created and the names of the trustees remain a mystery and obscure.
That reference was made to the High Bailiff's Court of the Isle of man for a judicial inquiry and this resulted in the revelation of facts and, therefore, the reference had to be filed after acquisition of such information. That this has happened in case of other countries as well including Switzerland and as the collection of evidence to stand the test of adjudication is a difficult task, obviously the supplementary reference on receipt of further evidence is justified and is the need unlike common crimes or hurt cases or ordinary corruption cases.
10. The learned Prosecutor-General while answering to the objection with respect to the locus standi of the Rear Admiral Obaid Sadiq at Regional Accountability Bureau, Rawalpindi stated that he was appointed as an officer of NAB and referred to a summary which had been sent to the Chief Executive Secretariat and on the basis of which a Notification of the 5th June, 2000 bearing No,E-7- 1(4)-Admn/2000 was issued in terms of section 28 of the National Accountability Bureau Ordinance, 1999. The competent authority as is reflected in the notification appointed the Rear Admiral Obaid Sadiq as an officer of the NAB and his name is at Serial No,6. That although the Regional Accountability Bureau who are now called as RABs are not mentioned in the Ordinance itself, have been created by the competent authority and are a part of the Accountability Bureau working under the Accountability Bureau Ordinance.
11. About the delegation of powers by the Chairman to the officers of NAB, extensive reference was made to sections 18 and 34-A of the Ordinance. These read as follows:-- ``Section 18 Cognizance of offences.--- (a) The Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an officer of the NAB duly authorized by him.
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on-
(i) A reference received from the appropriate Government; or
(ii) receipt of a complaint; or
(iii) its own accord.
(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.
(d) The responsibility for inquiry into and investigation of an offence alleged to have been committed under this Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman or by an Officer of the NAB duly authorized by him.
(e) The Chairman, NAB and such members, officers, and or servants of the NAB shall have and exercise, for the purpose of an inquiry and/or investigation the power to arrest any person, and all the powers of an officer-in-charge of a Police Station under the Code, and for that purpose may cause the attendance of any person, and when and if the assistance of any agency, Police Officer or any other official or agency shall render such assistance provided that no person shall be arrested without the permission of the Chairman or any officer duly authorized by the Chairman, NAB..
(f) Any inquiry and investigation under this Ordinance shall be completed expeditiously as may be practical and feasible.
(g) The Chairman, NAB or by an officer of the NAB duly authorized by him shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further and there is sufficient material to justify filing of a reference, he shall refer the matter to an Accountability Court.
(h) If a complaint is inquired into and investigated by the NAB and it is concluded that the complaint received was prima facie frivolous or has been filed with intent to malign or defame any person, the Chairman or Deputy Chairman, NAB or the prescribed Law Officer, may refer the matter to the Court, and if the complainant is found guilty he shall be punishable with imprisonment for a term which may extend to one year, or with fine or both."
' Section 34-A. Delegation of powers.--- The Chairman, NAB may, by an order in writing delegate any of his powers to and authorize performance of any of his functions by, an officer of the NAB as he may deem fit and proper, subject to such conditions, if any, as may be specified in the order, for carrying out the purposes of this Ordinance."
12. It has been stated that the words "a reference" used in the Ordinance have the same meaning as the words "a report" used in section 173, Cr.P.C. And as supplementary challan could be submitted under section 173, Cr.P.C., therefore, there was nothing extraordinary or exceptionable in submission of supplementary reference under the NAB Ordinance.
13. The learned Prosecutor-General assured this Court that no new charge is to be framed in this case and that the supplementary reference was a further information to the Court about the latest evidence gathered and about the nature of the evidence and the witnesses who had to be produced. That this has happened while the trial was proceeding.
14. In the Criminal Procedure Code from where help can be taken for resolving the present controversy, there are three sections which relate to final reports. These are sections 169, 170 and 173, Cr.P.C. Section 169 relates to cases in which no person is sent up for trial. Section 170 relates to cases in which some person is sent up, whereas section 173 contains general directions relating to both. Section 173 is in fact a report of the Police Officer which has to be submitted after the investigation to the competent Court who has then to take cognizance under section 190(1) of the Cr.P.C. I find there is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on afresh investigation of the case after the conclusion of the previous one and the submission of a subsequent report whether called as a final report or otherwise under section 173, Cr.P.C. Excluding the defects which may be visible in the first investigation or the flaws in the first one which may have been subsequently detected.
15. The first investigation may be defective or may not have resulted in the collection of the entire evidence and, therefore, a subsequent report which is also called as a subsequent charge-sheet is necessitated.
16. It is now settled law that the police has a right to submit a charge-sheet even after the submission of the final report and to conduct investigation as long as it was not based on mala fides even after a report under section 173, Cr.P.C. Is submitted. Reliance in this connection is placed on Ch. Ataullah v. Ch. Mumtaz Ahmad Kahloon and 3 others 1973 PCr.LJ 69, Muhammad Akbar v.
The State and another 1972 SCM R 335, Safia Begum v. S.H.O. Police Station Garh Mahraja, District Jhang and 3 others 1993 PCr.LJ 97, State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408, Muhammad Yousaf v. The State and others 2000 SCM R 453, Shahid Mehmood v. The State 1998 M LD 2094 and Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13.
17. If we look at the initial reference which had been filed on February 25, 1998, its paragraph 3 reads as follows:-- "That on the basis of data collected by the Ehtesab Bureau there are reasons to believe that the estimated value of these assets is to the tune of US Dollars 1.5 Billion (1 Billion and 5 hundred million US Dollars). Further probe to determine the exact magnitude of the amount/assets is still underway by the Ehtesab Bureau and as a result of probe the material, if found, will be placed before the Honourable Ehtesab Bench."
' This had been filed by the Chief Ehtesab Commissioner at the relevant time and it made reservation about the submission of further information upon discovery.
18. A reference may also be made to the Supplementary Reference No,27 of 1998 (Annexure "E") which states that the supplementary reference was being filed as a result of further probe and collection of evidence both orally and documentary.
19. Annexure "F" placed on the file is a letter from the office of the Chief Ehtesab Commissioner addressed to Ehtesab Bench of the Lahore High Court in which mention has been made about the investigation being conducted in Switzerland.
20. It has been stated on the basis of these arguments that even at the initial stage when the original reference was filed, a clean breast of the situation was made and the Ehtesab Bench had been informed that filing of supplementary reference shall be necessitated in this case and that nothing unexpected had happened through the filing of the third reference.
21. The filing of the third reference has been accepted by the learned trial Court which has given detailed reasons for such an acceptance and this Court agrees with the contentions of the learned Prosecutor-General as well as of the trial Court whose order has been assailed that the third reference being supplementary to the previous references was in fact meant to place additional evidence before the Court on the same subject-matter which had been subsequently discovered from abroad and the delay about its filing has been explained with good reason.
22. The learned Prosecutor-General has cogently replied to the contentions of learned counsel for the petitioner with respect to the powers vesting in a delegatee to the Chairman. It was stated by learned counsel for the petitioner that the Chairman enjoyed too much of authority and this was without checks and balances and that there was need for further check on his powers and the powers to be exercised by his delegatees in the interest of justice and fairness. I find a curative legislation in this connection through Ordinance XXXV of 2001 on the basis of such-like objections.
Whether the NAB Ordinance was bad for excessive delegation was not the subject-matter of debate before this Court. Needless to say there is always scope for further curative actions and legislation as law develops and the matters are agitated before Courts on the questions of exercise of powers and discretion. There are already other Institutions performing almost similar functions as NAB but were not found up to the mark and this necessitated in the creation of another very powerful Institution like NAB. NAB has now to take care of itself as an Institution and has to protect itself against recession which were faced by its counter-part Institutions. So, that it enjoys the confidence of the public while equipped with the best and modern expertise and while working with a clinical disinterestedness which behoves a respectable national Institution. So that nobody can raise a finger on the integrity of the Institution and while it has an impact and is genuinely feared by the criminals.
23. However, when a charge-sheet/supplementary charge-sheet/ report is filed under section 173, Cr.P.C. It is inbumbent upon a Court to advert to it, examine it and to take cognizance in the matter as envisaged by section 190, Cr.P.C. In the same way as it would take cognizance when a report under section 173, Cr.P.C. Had been initially filed.
24. The word "cognizance" is not defined by the Court but it really means the application of mind by a Trial Court with respect to the new facts unfolded before it and its ascertainment about the seriousness of the approach and the evidentiary value of such new facts.
25. Taking cognizance on very report submitted is essential for the ends of justice because on one hand the prosecution has been given the concession to lay before the Court the newly discovered evidence and other facts but on the other hand this cannot be something to be taken for granted.
But has to be subjected to a formal check before the parties and for a formal decision whether a further action was proceedable on the basis of the fresh report or reference. This exercise is, therefore, called taking of cognizance.
26. Without taking cognizance even on supplementary report or a reference, a Court cannot proceed further. The question is, has the Court taken cognizance in this case on basis of fresh material? The learned Prosecutor-General has informed that the Court has taken cognizance as it has summoned the witnesses and recorded their examination-in-chief. While this petition was pending.. It was stated that there was no injunctive order restraining the Court in recording a statement. This is true but the Court could have only recorded the statements after taking cognizance of the matter and having passed an order to that effect and which does not find a place in the dismissal order which is impugned before this Court.
27. The learned Prosecutor-General stated that no such objection has been taken by the petitioner before the Accountability Court. This appears so but the Accountability Court has to follow the dictates of law itself and has to take cognizance of the case before passing an order summoning witnesses under section 540, Cr.P.C.
28. Whereas, this Court upholds the order of 20-10-2001 but it would direct the Accountability Court to take cognizance of the case as envisaged by law and through an illuminative order, determine whether the evidence reflected in the third supplementary reference was necessary and then proceed to summon the witnesses having justified their summoning under section 540, Cr.P.C.