2009 PLP 1471 (YLR)

MRS. QAISER IQBAL, J.

The petitioners have invoked the constitutional jurisdiction, seeking a specific direction against the respondents that they may not harass the petitioners pending investigation against them by the National Accountability Bureau. It is pointed out that on several occasions the officials of the NAB issued the letters requiring attendance of the petitioner directing them to produce the documents contained in the letters, dated 24-4-2008 bearing No. 1157/46/IW-1/ CO-A/T-02/NAB Sindh /2008/1721 and No.1157/47/IW-1/CO-A/T-02/NAB/ Sindh/ 2008/1722. For the sake of convenience and adjudication of the point raised, above referred letters are reproduced herein below in extensor

No.1157/46/IW-1/CO-A/T- 02/NAB Sindh/2008/1721 Dated 24 April, 2008. ORDER TO REQUIRE ATTENDANCE AT INQUIRY To, Mr. Shakil Sultan son of Late S.M. Sultan House # 60, Faran Society, Haider Ali Road, Karachi. Whereas the competent authority has taken the cognizance of an offence committed by Munshi Sheruddin Lashari Tapedar Deh Safooran/Mehran and others under the NAO, 1999. Whereas, the presence of the aforesaid person is necessary for the purpose of inquiry into the offence reported to have been committed under section 9(a) of National" Accountability Ordinance, 1999, therefore, the said person is hereby directed to appear before Team No. 2, IW-1 NAB Sindh at Barrack 36 Pakistan Secretariat Opposite Passport Office Saddar, Karachi at 1000 hours on 30th April, 2008 there to provide the following information pertaining to irrevocable General Power of Attorney, Irrevocable Sub-General Power of Attorney and indenture of lease in your favour: (a) Copies of irrevocable General Power of Attorney Registered Document No. 1985, dated 5-12-1994, executed in your favour before Sub-Registrar T-Division-III. (b) Copies of irrevocable Sub-General Power of Attorney Registered Document No. 660, dated 27-7-1995, executed in favour of Shakeel Sultan before Sub-Registrar T-Division-XVI. (c) Copies of Indenture of lease Registered Document No.796, dated 28-1-1996, executed in favour of Shabana wife of Ali Ahmed before Sub-Registrar T-Division-XVI. (d) Copies of Indenture of lease Registered Document No.798, dated 28-1-1996, executed in favour of Mrs. Shapara Sultan wife of Shakeel Sultan before Sub-Registrar T-Division-XVI. Whereas, it is reminded that failing to comply with this notice, shall fall under the provision of section 19 of the NAO 1999. Ld Cdr DD Coord (IW-1) (Ahmed Saeed) No.1157/47//I W -1/CO-A/T-02/NAB Sindh/2008/1722 Dated 24 April, 2008. ORDER TO REQUIRE ATTENDANCE AT INQUIRY To, Mrs. Mahpara Shakil son of Shakil Sultan House # 60, Faran Society, Haider Ali Road, Karachi. Whereas the competent authority has taken the cognizance of an offence committed by Munshi Sheruddin Lasbari Tapedar Deh Safooran/Mehran and others under the NAO, 1999. Whereas, the presence of the aforesaid person is necessary for the purpose of inquiry into the offence report to have been committed under section 9(a) of National Accountability Ordinance, 1999, therefore, the said person is hereby directed to appear before Team No. 2, IW-1 NAB Sindh at Barrack 36 Pakistan Secretariat Opposite Passport Office Saddar, Karachi at 1000 hours on 30th - April, 2008 there to provide the following information penaining to Indenture of lease Registered Document No. 798, dated 28-1-1996, executed in your favour before Sub-Registrar T-Division XVI. Whereas it is reminded that failing to comply with this notice, shall fall under the provision of section 19 of the NAO, 1999. Ld Cdr DD Coord (IW-1) (Ahmed Saeed) Learned counsel for the petitioners submits that the dispute in respect of the land in question is sub judice in Suit Nos.631/1996, 733/1997, 618/2000, 1078/ 2003, Nil/2008 and C.P. No.1451 of 2005 in some of the suits status quo is operating. It is urged that the respondent No.1 had been issuing threats of dire consequences to the petitioners for involvement in, false cases during pendency of lis over the disputed property, the respondent' No.1 is illegally thrashing the controversy, impugned letters have been issued by the NAB with mala fide intention finding no other efficacious remedy, petitioners have invoked the constitutional jurisdiction seeking following relief:

"(i) To direct the respondent No.1 not to make harassment to the petitioners and not to involve then in any false criminal NAB case. Further direct the respondent No.1 not to (sic) any order or letter to the petitioners. (ii) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case. (iii) Cost of proceedings." Learned ADPG., NAB has contended that the investigation in the matter has been conducted in accordance with the norms provided, after due authorization by the Chairman NAB enquiry against the petitioners were commencing, impugned notices were issued for the purpose of requiring attendance of the petitioners in the probe. However, it is stated that neither the petitioners would be harassed nor any action against them would be taken contrary to the law of land. We have considered the arguments advanced at bar. There is no cavil that the enquiry against the petitioners is under probe, impugned notices have been issued to them for production of the documents under section 19 of the Ordinance, 1999. It is borne out from the order placed on record in Civil Suit No.733/1997 that the dispute in respect of the land bearing Survey Nos. 68. 80 and 81, situated at Deh Safooran Tappo Solang, Taluka and District Malir, is sub judice between the petitioners and Messrs Pak Ideal Cooperative Housing Society, Limited. Consequently, both the parties have filed a number of suits against each other including the constitutional petition over the same subject matter. At present without embarking upon the merits of the dispute, statement of learned ADPG, NAB is sufficient to meet the exigency. Learned counsel for the petitioner has contended that in presence of civil litigation, the investigation carried out by the respondent be stayed, in support thereof reliance has been placed in the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353). Learned ADPG, NAB has embarked upon the non-applicability of the above referred authorities and stated that the cases cited at bar are not applicable to the facts and circumstances of the present case because it related to the criminal trial if prima offence has been committed in ordinary course of trial, therefore, High Court in its extraordinary jurisdiction to provide swift efficacious (sic) was no more a valid principle in the present circumstances. The rule of administration of justice in criminal matters laid down by the Hon'ble Supreme Court is that when civil matter is pending adjudication, criminal proceedings pending in Civil Court would remain stayed till decision of the Civil Court. Adverting to section 156(2) of the Code of Criminal Procedure, the investigation in cognizable offence cannot be called in question at any stage and such officer was not empowered under such section to investigate. Violation of section 156(1), Cr.P.C. does not vitiate the trial resulting in miscarriage of justice, in view of subsection (2) of section 156 as held in the case of State through Advocate General, Sindh v. Bashir and others (PLD 1997 SC 408). Much of the stress has been laid on behalf of the petitioner on implication arisen out, of section 24-A of the General Clauses Act, 1897, exercise, reasonably, fairly, justly and for advancement of purpose of enactment, which provides for a mechanism for government functionaries to act in a manner provided under the statute and also furnished reasons for such an action. There is no cavil to the above proposition of law yet spirit of section 156(2), Cr.P.C. cannot be ignored. In view of what has been discussed, we have come to the explicit conclusion that the investigation/probe by the Investigating Officer of the respondent No.1 cannot be stayed at this juncture on account of a clear statement of learned ADPG, NAB that the petitioners would not be harassed and such investigation would be conducted strictly in accordance with law. Substantial would meet the exigency, the petition hereby stands disposed of in the above terms. S.A.K./S-48/K Petition disposed of.