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SHOAIB WARSI versus FEDERATION OF PAKISTAN

ection Section 18 off confessed to the offense The principle NAB NAB authorities require great caution and care when initiating an investigation or investigation or investigation against any person under the National Accountability Ordinance, 1999 against the allegations against him. Some solid material and evidence was needed to support. A person contacting the commission of a payable offense under the National Accountability Ordinance, 1999 [Page 262] A

P L D 2017 Sindh 243

Before Aqeel Ahmed Abbasi and Sadiq Hussain Bhatti, JJ

SHOAIB WARSI and another—Petitioners

versus

FEDERATION OF PAKISTAN and others—Respondents

Constitutional Petitions Nos. D-1199 and D-214 of 2016, decided on 1st July, 2016.

(a) National Accountability Ordinance (XVIII of 1999)—

—S. 18—Cognizance of offence—Principle—Great caution and care is required by NAB authorities while initiating proceedings or authorizing inquiry or investigation against any person under National Accountability Ordinance, 1999—Some concrete material and evidence were necessary in support of the allegations against any person connecting with commission of a cognizable offence under National Accountability Ordinance, 1999. [p. 262] A

(b) National Accountability Ordinance (XVIII of 1999)—

Ss. 18 & 24—Criminal Procedure Code (V of 1898), S.54— Constitution of Pakistan, Art. 10—Arrest—Stages—Liberty of citizen— Constitutional mandate—Arrest of accused required under National Accountability Ordinance, 1999, can be made at three different stages in terms of proceedings: First stage is that if after receipt of any  fÓrm;ation as provided under S. 18(b) of National Accountability Ordinance, u>9-9, Chairman NAB fÓrm;s an opinion that reasonable

complaint has been made or credible infÓrm;ation has been received or reasonable suspicion exists that accused is involved in case cognizable under National Accountability Ordinance, 1999, then he may arrest accused person, provided that there is some inquiry or investigation, duly authorized by competent authority is pending against accused under National Accountability Ordinance, 1999, second stage of arrest is provided under S.18(e) of National Accountability Ordinance, 1999, where, Chairman NAB can make arrest of accused if conditions as mentioned in S.54, Cr.P.C. are fulfilled or if investigating officer conducting such inquiry or investigation requests for permission to arrest accused, then he can grant such permission of arrest of accused, however after examining grounds/reasons and incriminating material produced by investigating officer which may justify such permission of arrest and third stage is visualized under S. 24(a) of National Accountability Ordinance, 1999, under which, if accused is neither arrested by Chairman NAB initially nor as provided under S. 18(e) of National Accountability Ordinance, 1999, then Chairman NAB can direct that such accused person may be arrested, however before making arrest or issuing warrants of arrest or awarding permission to any investigating officer to arrest accused, Chairman NAB is required under law to first satisfy himself as to whether there is any tangible evidence or incriminating material available against accused connecting him with alleged offence cognizable under National Accountability Ordinance, 1999, and the conditions as detailed in S.54, Cr.P.C, are fulfilled—If Chairman NAB fÓrm;s an opinion on the material placed before him, only then he can make arrest or permit investigating officer to make arrest of accused, otherwise an accused cannot be arrested on the basis of mere allegations or suspicion, in absence of sufficient incriminating material or evidence available with NAB authorities—Authority vested in Chairman NAB, to arrest accused at any stage of inquiry and investigation is neither absolute nor gives Chairman NAB unfettered powers to deprive a citizen of his inviolable right to liberty, which is to be safeguarded jealously, keeping in view the constitutional mandate under Art. 10 of the Constitution, [p. 265] B

(c) National Accountability Ordinance (XVIII of 1999)—

—Ss. 18, 19 & 24—Criminal Procedure Code (V of 1898), S.54— Fundamental Rights of citizens—Enforcement—Duty of Court— Proceedings by NAB—Procedure—Opportunity of hearing—Nonissuance of notice—Effect—NAB authorities did not follow legal course as provided under National Accountability Ordinance, 1999, and also violated principles of natural justice, while initiating proceedings under National Accountability Ordinance, 1999, against accused person, even without proper authorization of inquiry and investigation—

National Accountability Bureau in most of the cases, instead of providing opportunity to accused to explain allegations against him by issuing notice in terms of S.9 of National Accountability Ordinance, 1999, the arrest of accused is made against spirit of provisions of Ss. 19 & 24 of National Accountability Ordinance, 1999, and also in violation of express provision of S.54, Cr.P.C. and deprive a citizen of his fundamental right of liberty and fair trial as guaranteed under the Constitution—Court has to jealously safeguard Fundamental Rights as guaranteed by the Constitution, particularly right to life and liberty of a citizen by invoking its extra ordinary constitutional jurisdiction under Art. 199 of the Constitution—Any authority is required to act strictly in accordance with law and to perfÓrm; its duty in the manner in which it has been authorized under the law—Violation of any statutory provision, rules or regulations makes such act of the Authority as illegal and unwarranted under law. [p. 266] C

(d) National Accountability Ordinance (XVIII of 1999)—

—Ss. 9(b), 18 & 24-—Bail, grant of—Unauthorized investigation— Delay in conclusion of trial—Accused were arrested by NAB after they completed 90 days physical remand with Pakistan Rangers in an Anti-Terrorism case—Accused had been in the custody for more than one year and trial was not concluded—Effect—Prosecution failed to produce any lawful authorization of inquiry and investigation by competent authority in respect of allegations as contained in investigation report and reference filed before Accountability Court— No sufficient incriminating material specifying role of petitioners relating to allegations of misuse of authority and corruption or benefit derived by accused or extended to the beneficiary were produced by NAB—In spite of considerable lapse of time i.e. more than a year since arrest of accused persons, trial had not yet commenced before Accountability Court nor even charge was framed—Inordinate delay had taken place in trial which could not be attributed to accused persons and such delay was not explained by prosecution—Inordinate delay in trial while keeping accused persons behind bars as punishment was contrary to the spirit of National Accountability Ordinance, 1999, which required expeditious decision in the matters relating to NAB— Accused person who were behind the bar for more than a year, whereas co-accused persons were granted ad-interim pre-arrest bail in the same reference—Bail was granted to accused in circumstances, [pp. 274, 275] D&.E

Wakeeluddin and others v. The State and others 2007 PCr.LJ 1515; Syed Mansoor Ali and others v. Chairman, NAB and others PLD 2016 Sindh 41; Anwarul Haq Qureshi v. NAB and another (2008 SCMR 1135; Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 and Raja Muhammad Zarat Khan and

another v. Federation of Pakistan and 2 others PLD 2007 Kar.597 ref.

Khawaja Muhammad Asif v. Federation of Pakistan and others PLD 2014 SC 206; Abdul Qadir v. Federation of Pakistan 2002 SCMR 1478; Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645; Muhammad Jahangir Badar v. The State PLD 2003 SC 525 and Balochistan Public Service Commission v. NAB through Chairman and 2 others 2013 PCr.U 405 rel.

Khawaja Shams-ul-Islam along with Emran Taj and Farooq H. Naek along with Obaid-ur-Rehman for Petitioners.

Noor Muhammad Dayo, Spl. Prosecutor, NAB along with SIO, NAB Abdul Fatah for Respondent No.l.

Date of hearing: 1st July, 2016.

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