P L D 2008 Lahore 381 (PLP)

Petitioner was arrested by NAB Authorities on 22-1-2008 in consequence of raid conducted in the supervision of a Judicial Magistrate, Lahore while he had accepted Rs.50,000 from Aslam Feroze, complainant, for restoration of electricity connection earlier disconnected by him on 17-1-2008 and allegation is that the complainant had made payment of Rs.15,000 earlier to the petitioner on 17-1-2008 while the bargain was Rs.65,

000. The complainant being unhappy on the illegal demand of the petitioner then informed NAB authorities/ respondents, a raid was conducted and the petitioner was allegedly arrested red-handed with tainted amount Rs.50,

000. The petitioner remained on physical remand and afterwards was sent to judicial lock-up on 6-2-2008 by learned Administrative Judge of Accountability Court, Lahore.

2. Learned counsel for the petitioner has submitted that NAB Authorities are not competent to get the raids conducted in the matter, which fall exclusively within the domain of Anti-Corruption Authorities. He also submitted that the aims and objects of National Accountability Ordinance, 1999 is to root out corruption in the public departments of high magnitude and submitted that if the NAB starts involving itself in small matters like one in hand it would deviate from the objective of the Ordinance itself. Learned counsel further submitted that there is also no jurisdiction with the Chairman NAB or any of his delegatees to make pick and choose. He submitted that in the instant case at the most the allegation against the petitioner is that he received illegal gratification being S.D.O. of electricity department from Aslam Feroze complainant for restoration of his power supply and submitted that under the law it is the Anti-Corruption Department, which deals with such-like matters under Prevention of Corruption Act, 1947 and Criminal Law Amendment Act, 1958. Learned counsel submitted that the Anti-Corruption Act, 1958 and Criminal Law Amendment Act, 1958 have not been repealed and are very much live statutes. He submitted that the exercise made by NAB Authorities in this case has deprived the petitioner from remedies available to him in relevant Anti-Corruption Law to claim bail from Special Judge Anti-Corruption or from Central Special Judge whereas the quantum of sentence under section 161, P.P.C. and 5/2/47 Prevention of Corruption Act, 1947 is maximum seven years whereas under the NAB Ordinance the sentence is severe and as such the assumption of jurisdiction by NAB through pick and choose is contrary to the spirit of Article 25 of the Constitution of Islamic Republic of Pakistan 1973. In support of his contention learned counsel has referred to 2003 MLD 777 the case of Rauf Bukhsh Qadri v. The State. He therefore, submitted that since the petitioner is in judicial look-up and no more required for investigation by NAB Authorities therefore, the action being contrary to Article 25 of the Constitution of Pakistan, the petitioner is entitled to bail.

3. Learned Special Prosecutor assisted by learned counsel for the complainant has opposed the bail application and submitted that since the petitioner is a Central Government employee therefore, NAB Authorities had jurisdiction in the matter and could conduct the raid.

4. We have heard learned counsel for the petitioner and learned Special Prosecutor of NAB and find that main purpose of the promulgation of National Accountability Ordinance, 1999 was to check large scale rampant corruption in the public offices in particular and in the country in general, therefore, the NAB Authorities took cognizance of cases of high magnitude corruption and other laws on the subject of checking of corruption from the public offices such as Anti-Corruption Laws and Criminal Law Amendment Act, 1958 were not repealed and remained as live statutes and the. Special Courts under said statute are very much functional along with the investigation staff etc. etc. There is no jurisdiction with Chairman, NAB or any of his delegatees to make pick and choose for filing reference against anybody under the provisions of National Accountability Ordinance, 1999 as discretion with NAB Authorities is not absolute or arbitrary. It was held in the cited case of Rauf Bukhsh Qadri v. The State by a learned Division Bench of Karachi High Court reported in 2003 MLD 777 that "such reference could be filed only when the Chairman or the authorized officer is satisfied that amount involved is of large magnitude and resort to the facility of pre-bargaining with the accused would be in the national interest." It was further held that case otherwise would only by triable under the ordinary law in the absence of any such situation.

5. Taking up the present case on the touchstone of Article 25 of the Constitution on Islamic Republic of Pakistan we find that discrimination in treatment to the citizens by public authorities cannot be allowed to sustain in opposition to law on the subject as constitutional protection through said Article of equality of all citizens has been guaranteed. The action by NAB Authorities prima facie was not warranted under the law as other laws on the subject could cater the need of the day in the shape of action against the petitioner on the application of the aggrieved person. This petition is, therefore, accepted and the petitioner is allowed bail in the sum Rs.1,00,000 (one lac) with one surety in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Court. H.B.T./R-13/L???????????????????????????????????????????????????????????????????????????????????? Bail grant.