2008 PLP 372 (YLR)

Through this petition, the petitioner seeks quashment of proceedings in case A.C.R. No.31-03 titled "The State v. Zafar Iqbal Gurman pending before Account-ability Court No.1/respondent No.3 and accordingly seeks acquittal of the petitioner.

2. Learned counsel for the petitioner submits that petitioner was posted as S.D.O. in the Urban Central Scheme, Phase-IV, Kachi Abadi, D.G. Khan. The allegation against him is that he along with his co-accused embezzled a sum of Rs.23,87,924 by misusing their authority in the de-watering (lowering of sub-soil water table) in the above-mentioned Urban Central Scheme. The petitioner was arrested on 11-7-2003. However, the petitioner was subsequently released on bail in Writ Petition No.11080 of 2003.

3. Reference was filed against the petitioner and his co-accused in which the petitioner moved an application under section 265-K, Cr.P.C. for his acquittal, which was dismissed by the learned trial Court on 11-11-2004.

4. Learned counsel for the petitioner submitted that initiation of proceedings was without jurisdiction and the person who started the inquiry did not have the jurisdiction to do so; he referred to letter, dated 9-10-2000 which is the authorization letter issued by Chief of Staff N.A.B. in which it has been mentioned that the Chairman, N.A.B. has delegated the powers of inquiry and investigation to the Regional Accountability Commanders; that in original National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance) no power of delegation was given and, it was through an amendment on 5-7-2000 that sections C & D were incorporated in section 18 of the Ordinance; that section 34-A was added on 10-8-2001 by which the Chairman, N.A.B. could delegate any of his powers to an officer of the N.A.B.; that such power of delegation was made after 9th October, 2000 and it was on the basis of this letter that the proceedings were initiated against the petitioner and his co-accused Zafar Iqbal Gurmani vide letter, dated 31-10-2000 by which the Commander R.A.B. directed the Director Anti-Corruption Establish ment, Punjab to initiate detailed investigation against the petitioner and his co-accused. It was submitted that in sec tion 18(c)(d) of the Ordinance, words "duly authorized by him" means duly authorized in law and in the instant case the Chairman could not legally authorize any other officer to initiate proceedings against a person so referred. While referring to rule 14(1)(c) of Rules of Business, 1973 relating to the Federal Government, it was submitted that all rules, orders notifications etc. were to be issued after consultations by Justice Division and such rules have to be published in the official Gazette. It was also submitted that letter, dated 31-10-2000 'by which the authorization was made to the Anti-Corruption Establishment, Punjab was not legal, therefore, even the investigation so conducted was not in accordance with law. It was further contended that to cover this lacuna in the procedure which had been adopted by the N.A.B. Authorities, a Gazette notification was issued, by which the Chairman, N.A.B. delegated his powers to the officers of the N.A.B. The learned counsel relied upon PLD 2005 SC 605, PLD 1994 SC 486 and 2003 MLD

777. Concluded by submitting that the authorization for the sanction for investigation against the petitioner and his co-accused was not valid, therefore, an acquittal was prayed.

5. This petition was vehemently opposed by the learned Special Prosecutor for N.A.B. who submitted that on 6-10-2000 the Chairman had delegated his powers and functions under sections 18(c)(d), 19 and 27 of N.A.B. Ordinance, 1999 to the Commander R.A.B., Lahore; that the N.A.B. was an independent institution working and responsible directly to the President of Pakistani; that in case of any procedural lacuna, error, omission, if any they are covered by section 537 of Criminal Procedure Code as no injustice has been caused to the petitioner. Prayed for dismissal of the writ petition.

6. Allegedly the petitioner and his co-accused Zafar Iqbal Gurmani were found to have caused loss of Rs.23,87,924 to the Government Exchequer. Reference No.21/03 was filed in Accountability Court No.1. The main thrust of the arguments of learned counsel for the petitioner is that on 9-10-2000 the Chairman, N.A.B. did not have the power to delegate the powers of inquiry and investigation to the R.A.B. Commanders and subsequent letter, dated 31-10-2000 passed by the Commander R.A.B. directing Anti-Corruption Establishment, Punjab to initiate investigation against the petitioner and his co-accused are illegal. However, Notifica tion No. 6(1)2000-Legal/N.A.B., dated 6-10-2000 has been produced by the learned counsel or the N.A.B. in which the Chairman, N.A.B. had delegated his powers and functions to the Commanders, Regional Accountability Bureau, Lahore who had ordered for the initiation of investigation against the petitioner and his co-accused to the Anti-Corruption Establishment, Punjab on 31-10-2000. Thus, we do not find any lacuna in the letter, dated 31-10-2000. Even for the sake of arguments, if the contentions/objections raised by the learned counsel for the petitioner are taken to be admitted, then the same should have been taken at the initial stage of the investigation. Learned counsel for the petitioner has not placed on record any, such material which would prove that the petitioner and his co-accused ever raised any objection in this regard. The application under section 265-K, Cr.P.C. before the trial Court was filed at a very belated stage. The evidence in this case has almost been completed and the case is ripe for arguments to be addressed by the learned counsel for the parties. Even the case of the prosecution is covered by section 537, Cr.P.C. In the light of which we are of the view that the error, omission, irregularity in the proceedings, if any, are not sufficient to quash the proceedings. Respectfully reliance is also placed upon Farzana Naheed v. The State 2006 SCMR 826 in which, it has been held that defect in the investigation is not a valid ground for discharge of accused. Needless to add, that this irregularity, omission, error, if any, has not occasioned any failure of justice neither the same has been pointed out by the writ petitioner. .

7. In the light of what has been discussed above, we do not find force in this petition, the same is dismissed with no order as to costs. H.B.T./M-146/L Petition dismissed.