P L D 2014 Balochistan 109 (PLP)

JAMAL KHAN MANDOKHAIL, J.

Background of the case is that a departmental inquiry was initiated against the petitioners, and subsequently, they were punished by the competent authority. Being aggrieved, they preferred Service Appeals Nos. 8, 10, 11, 12, 13 and 16 of 2000, before the Balochistan Service Tribunal, Quetta ("the Tribunal"). While deciding the appeals, the Tribunal, through a common judgment on 21st December, 2000, made the following directions:-- "The appellants have not only embezzled the amount, but had also brought a bad name and ill-repute to the Country, therefore, it is a fit case, to be referred to the Provincial Accountability Bureau, Quetta. A copy of this judgment be sent to the Provincial Accountability Bureau, Quetta for information and action. Announced on:21-12-2000."

2. Pursuant to the said directions, the National Accountability Bureau ("NAB") sanctioned an investigation into the matter, and finally submitted a reference against the petitioners before the Accountability Court-II, Balochistan Quetta, ("the trial Court"). It is, however, to be noted that in the meanwhile, the petitioners challenged the order of the Tribunal before the Hon'ble Supreme Court of Pakistan, which set aside the order and remanded the case to the Department for conducting fresh inquiry, if so desired. The petitioners filed an application under section 265-K Cr.P.C. read with section 17(a)(b) and section 18(a) of the National Accountability Bureau Ordinance, 1999, ("the Ordinance"), which was dismissed by the trial Court on 28th March, 2013, hence this petition.

3. The learned counsel for the petitioners stated that according to section 18(a) of the Ordinance, no cognizance of any offence shall be taken, except on a reference made by the Chairman, NAB, or any officer of the NAB duly authorized by him. He argued that proceedings under this Ordinance can only be initiated by the Chairman NAB on (i). a reference received from the appropriate Government; or, (ii). receipt of a complaint; or (iii). its own accord. The learned counsel stated that, while submitting the present reference, the NAB authorities did not follow the prescribed procedure. According to him, there is no provision under section 18(a) of the Ordinance to initiate proceedings on the directions of the Tribunal, therefore, the reference submitted by the NAB authorities against the petitioner and the proceedings initiated thereon by the trial Court are coram non judice, which requires to be quashed.

4. The learned D.P.G., NAB, opposed the contention and stated that though the proceedings against the petitioners were initiated by the NAB authorities pursuant to the order of the Tribunal, but there is no provision under the law to debar the NAB authorities to take action against a person upon a direction of a Court or a Tribunal. He added that even otherwise, after coming to know about the commission of the corruption by the petitioners, the present reference was properly filed. He stated that the investigation, the submission of the reference against the petitioners and the trial are just and proper, therefore, the same cannot be quashed.

5. We have heard the learned counsel for the petitioner and have gone through the record. It is a fact that the Chairman NAB sanctioned the investigation against the petitioners after receiving the copy of the judgment of the Tribunal, and subsequently, found that there are sufficient materials available on the record, connecting the petitioners with the commission of the offence, hence the Reference No. 3 of 2008 was submitted before the trial Court. Section 18(a) of the Ordinance authorizes only the Chairman NAB or an officer of the NAB authorize by him, to submit a reference in an Accountability Court against any person involved in the commission of an offence, falls under the Ordinance. The purpose for assigning such power to the Chairman NAB is to protect a citizen from malicious and frivolous prosecution and to put a check upon frequent and arbitrary prosecution of a citizen. It is, therefore, abundantly clear that no one, except the Chairman NAB or an officer authorized by him, is competent to sanction an investigation, sign and file a reference in a Court of law against any person holding a public office at the time of the commission of an offence.

6. Similarly, the mode for submission of a reference has been provided by sub-clause (b) of section 18 of the Ordinance, wherein a reference shall be initiated on, (i) a reference received from the appropriate Government; or, (ii) receipt of a complaint; or (iii) its own accord. It is clear that if any Government/Semi-Government wants to initiate criminal proceedings under the Ordinance against any person holding a public office, it may send a reference to the NAB authorities in this behalf. Since, no specific form of a reference has been provided in this behalf, therefore, any written formal document could be considered as a reference. On receipt of such reference, the NAB authorities then can initiate proceedings according to the provisions of the Ordinance. Secondly, the proceedings under this Ordinance may be initiated by the NAB authorities on receipt of a complaint. The word 'Complaint' has been defined in the Black's Law Dictionary as under:-- "A formal charge accusing a person on an offence. Indictment; information." Similarly, in the Concise Oxford English Dictionary, it is defined as under:-- "an act or the action of complaining. a reason for dissatisfaction" Thus, accusing a person is known as a compliant, which may be oral or in writing. Hence, a 'written Complaint' is just a primary document or an information, forming a basis for settling a law at motion, therefore, on receiving a complaint, the NAB authorities should consider the same accordingly. It is important to mention here that this clause did not specify as to who will be a complainant. The intention of the legislature is clear, that anybody or authority can inform the NAB that a person holding a public office is involved in an offence punishable under the Ordinance, therefore, such information can be termed as a complaint. Thirdly, the NAB authorities may initiate proceedings against a person on its own accord. Naturally, he can initiate a proceedings on its own accord, only on coming to know about an offence from any source, including a reference received from a Government or upon receipt of a complaint. Such information may also be gathered from a judgment or order of a Tribunal or Court, forming basis to initiate proceedings by the Chairman NAB on its own accord, as provided by sub-clause (ii) of clause (a) of section 18 of the Ordinance and sub-clause (iii) of clause (a) of section 18 of the Ordinance. Hence, mentioning of the fact that a reference has been submitted on the directions of a Tribunal, does not vitiate the investigation or proceedings before the trial Court. The learned counsel for the petitioners have not been able to point out any illegality, irregularity or jurisdictional defect in the investigation as will as in the proceedings before the trial Court, therefore, we see no reason to interfere in the impugned order. Thus, in view of what has been stated and discussed hereinabove, the petition is accordingly dismissed. The trial court should proceed with the matter expeditiously in accordance with law and to decide it as early as possible. JJK/118/Bal Petition dismissed.