P L D 2002 Lahore 1 (PLP)

AHMAD RIAZ SHEIKH, SON OF SH. ALLAH BAKHSH, RESIDENT OF 38‑C, F FAISAL TOWN, LAHORE (EX‑DEPUTY DIRECTOR, F.I.A., NOW O.S.D. MINISTRY OF INTERIOR, ISLAMABAD) Application under section 25 of the National Accountability Bureau Ordinance, 1999 on behalf of the accused/applicant, Ahmad Riaz Sheikh, for voluntary Return/Bargaining and confess of his guilt. Respectfully sheweth: (1) That the applicant was taken into custody for malpractices, misuse of his official position, living beyond his means and having acquired properties disproportionate to his income. The applicant confesses his guilt and surrenders all his movable and immovable properties in favour of the Government. (i) House No. 38‑C, Faisal Town, Lahore valued at Rs. 4 to Rs. 5 Million. (ii) Piece of land measuring 20 Kanals situated at Amirpur, Raiwind Road, Lahore, valued at Rs. 5 Million. (iii) Agricultural land measuring 75 acres, situated in District Bahawalnagar to the value of Rs. 6 Million approximately. (iv) Jewellery to the value of Rs. 5 Million which was taken in possession by the Investigating Officer. It is submitted that all the jewellery articles of the whole of the family members of the applicant had already been taken into possession by NAB Police and the applicant who was under suspension for five years had no cash ‑with him. Contrarily, the applicant and his family is already under heavy debts. As such the applicant and his children, who are of growing age, are facing acute hardship, miseries and starvation. (4) That the applicant is seriously ill and is suffering from multifarious diseases. He suffers from tightness in chest and left side of his chest, Anorexia, Nausea, Headache, Depression and severe pain per rectum and was operated upon thrice for fistula and also underwent angioplasty. In view of the above submissions, it is most respectfully prayed that the instant application may very kindly be accepted and all the properties of the applicant mentioned in para. 3 (i) to (iv) above be forfeited in favour of the State or the applicant tray graciously be set at liberty to dispose of the properties and deposit the sale proceeds thereof in the Government Treasury and also allow him to retain some portion thereof as subsistence of his as well as for his other family members. It is further prayed that pending final determination of the instant application, the applicant may kindly be ordered to be released on bail. Any other just and equitable relief which the applicant be found entitled may also kindly be granted. (AHMAD RIAZ SHEIKH), (UNDER ARREST) Caste Sheikh, resident of 38‑C, Faisal Town; Lahore Through (Rana Ijaz Ahmad Khan), Advocate Supreme Court (Malik Riaz Khalid Awan), Advocate High Court, Al‑"air Chambers, Dated 16‑5‑2001 1‑Turner Road, Lahore." NOTE.‑‑‑(Photostat of the Reference along with the accused's application contemplated by section 25 of the Ordinance was furnished by Mr. M. Akram Qureshi, Special Prosecutor NAB accompanied by Mr. Ahmed Bilal Sufi, Deputy Prosecutor‑General, NAB in the presence of Rana Ijaz Ahmad Khan, Advocate at 3‑30 p.m. today having been sent over telephonically by the Additional Registrar (Judicial) alongwith Mr. Aitzaz Ahsan, Senior Advocate for the petitioner and Mr. Sher Zaman, Deputy Attorney‑General at 2‑00 p.m. Copies whereof though were offered to the learned counsel for the petitioner who showed inability to accept the same due to lack of instructions).

3. The petitioner for seeking transfer whereof to Lahore, has recourses I to the present petition contending discrimination viz. lack of any special, circumstances or reason for transfer of the case from Lahore to Attock Court while trial of cases of leading figures spelt out in the petition are being conducted at Lahore; 1n terms of sections 177 to 180 of the Cr.P.C. the trial should be conducted at Lahore where majority of the prosecution witnesses and the co‑accused hails from and the lis originates; convenience of the accused in preference to that of the complainant and the prosecution and difficulties in hiring professionals of his own choice. However, concluding the arguments learned counsel explicitly opted for transfer of the case to Rawalpindi.

4. I am afraid the petition seems to have been instituted labouring' under an erroneous impression as if the petitioner's husband's case has been transferred by the NAB Authorities from Lahore to Attock. Conversely, A perusal of the documents reveals that though arrest of the petitioner's husband was effected from Lahore on 31‑1‑2001 whose remand was periodically extended for facilitating investigation which intermittently was disrupted on account of his hospitalisation in view of the acclaimed ailment, who, upon filing of the Reference by the Chairman NAB under section 18(g) read with section 24 of the Ordinance (ibid) on 30‑5‑2001, exercising the lawful option spelling out the reasons for choosing the venue at Attock in para. 7 thereof which is reproduced hereinbelow:‑‑ "

7. The accused wields extraordinary influence which is evident from his social contact with senior bureaucrats high profile politicians, ministers. Witnesses in this case are also concerned about their safety. In these circumstances this Reference is being filed in this Hon'ble Court at Attock Fort." Concerning which nothing has been canvassed at the rostrum lending to suggest that any extraneous consideration weighed with the Chairman, NAB, was shifted to Attock on 22‑6‑2001.

5. Thus, no question of transfer was involved at the end of the NAB Authorities in terms of section 16‑A of the Ordinance.

6. Adverting to the plea as to locale of the lis banking upon sections 177 to 180 of the Cr.P.r. suffices it to observe that the Ordinance (ibid) being a special law in terms of section 17 thereof provisions of the Cr.P.C. have been rendered applicable save to the extent of inconsistency, relevant text whereof is reproduced hereinbelow:‑‑ "

17. Provision of the Code to apply.‑‑(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions of this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis apply to the proceedings under this Ordinance. (b) Subject to subsection (a), the provisions of Chapter XXII‑A of the Code shall apply to trials under this Ordinance. (c) Notwithstanding anything contained in subsection (a) or subsection (b) in any law for the time being in force, the Accountability Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case."

7. Which view has been affirmed in the precedent law reported as (1) Chairman, National Accountability Bureau, Islamabad v. Mian Muhammad Abbas Sharif and 7 others PLD 2001 Lahore 157 in the following terms:‑‑ "Likewise the submissions as to locale of the offence charged, witnesses, residence of the accused, record "etc. banking upon the provisions of section 177 of the Cr.P.C. has been canvassed losing sight of the fact that National Accountability Bureau Ordinance being a Special Law a conscious departure has been made therefrom by virtue of section 16(d) as well as section 17(a) (ibid) (reproduced above) to the extent of inconsistency, text whereof for the sake of ready reference is reproduced below in extenso:‑‑ 'Section 16(d).‑‑Notwithstanding anything contained in this section, if in respect of any case relating to an offence triable under this Ordinance, the Chairman NAB, having regard to the facts and circumstances of the case may file a reference before any Accountability Court established anywhere in Pakistan, and such Court shall have the jurisdiction to try the same.' Whereby the Chairman, NAB has been empowered to file a reference before any Accountability Court established anywhere in Pakistan, thus, is of no avail." (2) Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 relevant portion whereof is as under:‑‑ "

233. Venue of _trial: The relevant question reads.‑‑'Whether section 16(d) of the impugned Ordinance which authorises the Chairman, NAB to select the venue of the trial by filing a reference before any Accountability Court established anywhere in Pakistan suffers from excessive delegation?

234. It is true that ordinarily, the jurisdiction to try a person for an offence does not depend upon the place where the offender is found, but the place where crime is committed. Generally speaking, all crime is local. These principles are also enshrined in general law relating to proceedings in criminal prosecution and jurisdiction of the Criminal Courts as also trials. Section 177, Cr.P.C. also provides that every offence ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it is committed. However, notwithstanding the above provisions the Provincial Government under section 178 (ibid) may direct that any cases or class of cases in any district sent for trial to a Court of Session, may be tried in any Sessions Division provided such direction is not repugnant to any direction previously issued by the High Court under section 526, Cr.P.C. or any other law for the time being in force. Thus, the determination of venue of trial under the Ordinance in terms of section 16(d) does not contravene the concepts of 'Federalism' and/or Provincial autonomy."

8. Further on this count it is relevant to observe that the urged stance of the learned counsel for the petitioner dissipates on having volenced for holding trial at Rawalpindi.

9. Adverting to the contention as to the health reasons, it may be pointed out that, apart from the fact that ever since shifting of the accused to Attock on 22‑6‑2001 no untoward event is reported to have precipitated, any exigency in this regard could be taken care of by providing a well‑equipped ambulance service for removal to specialised institutions situated within easy range such as PIMS in Islamabad.

10. Whereas comfortable transportation and other allied facilities could be catered for the defence counsel from Rawalpindi for ensuring expeditious conclusion of the trial in accordance with law to serve the interest of justice.

11. In this behalf learned counsel appearing on behalf of the respondent responding to query stated that the prosecution could conclude its case within the prescribed statutory period of 30 days proceeding therewith on day‑to day basis six days a week.

12. To whom the learned counsel for the petitioner joining issue stated that it should be five days a week for enabling the defence counsel to retrieve to his place of origin over the week end. To which the learned counsel for the respondent concurred.

13. In view of the foregoing, turning down the petition, declining the sought for transfer, the learned trial Court seized of the lis is required to finalize the proceedings expeditiously on day‑to‑day basis, five days a week within the prescribed statutory period commencing 9th instant on which date reportedly the case is fixed for trial provided no hindrance is caused by the accused side. M.B.A./A‑323/L Order accordingly.