2012 PLP 116 (MLD)

GULZAR AHMED, J.

The applicant has made the following prayer in this Criminal Miscellaneous Application:-- (a) Declare that proceedings against the petitioner being Reference No.12 of 2008 pending before the Accountability Court No.1 at Karachi is illegal and are being conducted in violation of provisions of law and the Constitution. (b) After calling and perusing the R&P and record of the prosecution papers the proceedings against the petitioner pending as Reference No.12 of 2008 before the Accountability Court No.1 at Karachi may be quashed. (c) Any other relief this Hon'ble court deem fit and proper in the circumstances of the case.

2. It is contended by learned counsel for the applicant that the properties mentioned in the reference filed against the applicant are of his wife and no attempt was made to record her statement before filing of reference. He has further contended that there is separation between applicant and his wife. He has further contended that the Chairman NAB has mechanically passed the order of signing the reference and in doing so did not apply his mind and also did not give any reason as required under section 24-A General Clauses Act. In support of his submission he has relied upon the cases of KHAN ASFANDYAR WALI AND OTHERS V. FEDERATION OF PAKISTAN AND OTHERS (PLD 2001 Supreme Court 607) and RAUF BAKHSH KADRI V. THE STATE AND OTHERS (2003 MLD 777).

3. On the other hand learned Senior Prosecutor General NAB has opposed the application and has contended that there was no requirement of recording statement of wife of applicant and that the reference has been filed in accordance with law.

4. Learned D.A.G. has adopted the arguments of Senior Prosecutor, NAB.

5. We have considered the submission of learned counsel and have gone through the record.

6. The applicant seems to be an employee of FIA and against him Reference No. 12 of 2008 has been filed in the Accountability Court at Karachi wherein, inter alia, it is alleged that applicant has purchased moveable and immovable properties in the name of his wife Mrs. Nargis Ali Bukhari, who also has banks accounts and investments which are unexplained. The applicant has challenged the reference by way of the present application. Para-wise comments have been filed by respondent No. 1 to which the petitioner has filed rejoinder.

7. So far the first submission of learned counsel for the applicant with regard to non-recording of statement of the applicant's wife, we may note that in the reference there are allegations that during his service the applicant has purchased two immovable properties in the name of his wife Mrs.Nargis Ali Bukhari and he also acquired moveable properties in the name of his spouse and made certain investments also in his spouse's business and also opened bank accounts in the name of his wife. Thus, Mrs. Nargis Ali Bukhari is shown in the reference to be a benami owner of these assets and properties and the real beneficiary is alleged to be the applicant himself. The burden to prove such fact and burden to negate such fact respectively will lie upon the NAB and applicant and they will both have opportunity of leading evidence before the Accountability Court. At this stage of the proceedings where only reference has been filed against the applicant mere non-recording of statement of wife of the applicant will not support the fact that prima facie ground for filing the reference in law has not been made out or there is defect in the reference on such ground for which no law has been cited before us.

8. As regards the second submission of learned counsel that there is separation between applicant and his wife, in our view not much turns upon such fact as in the first place it is not disclosed as to when separation, if at all, took place between applicant and his wife and as to what is meant by the applicant by the word "separation" as the counsel for the applicant did not admit before us that divorce has taken place between applicant and his wife.

9. As regards the third submission of learned counsel for the applicant that Chairman NAB has mechanically passed the order of signing the reference and did not apply his mind, there is no cavil to the fact that in the case of Khan Asfandyar Wali relied upon by the counsel for applicant the Chairman NAB is required to give reasons in support of his order as required under section 24A of General Clauses Act. Section 18(g) of the National Accountability Bureau Ordinance requires that the Chairman NAB shall appraise the material and evidence placed before him during enquiry and investigation and if he decide's that it would be proper and just to proceed further and there is sufficient material to justify filing of reference, he shall refer the matter to a Court. The applicant himself has filed as annexure 'C' to the Criminal Miscellaneous Application investigation report which itself comprises of 18 pages which refers to large number of documents and in the end the Investigation Officer has recommended for referring the matter to competent authority for filing reference in the Accountability Court. The Chairman NAB in para 8 of the reference has made the following statement:-- "That on appraisal of material and evidence placed before me, I am satisfied that it is just and proper to proceed further as there is sufficient incriminating material to justify the filing of this reference. The matter is referred to the Hon'ble Court."

10. Above quoted para 8 of the reference will show that the Chairman has appraised the material and evidence placed before him and that he was satisfied that it is just and proper to proceed further as there is sufficient incriminating material justifying the filing of reference, referred the matter to the Court. Such statement in the reference, in our view, is demonstrative of the fact that the Chairman NAB has applied his mind to material placed before him for referring the matter to the Court and also given reasons for doing so and this seem to be sufficient compliance of section 24A General Clauses Act and section 18(g) of the NAB Ordinance. The judgment of Rauf Bakhsh Kadri relied upon by the counsel for the applicant apparently has no application to the case in hand.

11. After hearing the learned counsel for the parties, by a short order dated 16-8-2011 this Criminal Miscellaneous Application was dismissed. Above are the reasons for the same. H.B.T./A-144/K Application dismissed.