P L D 2014 Sindh 334 (PLP)

SAJJAD ALI SHAH, J.

Through instant petitions, the petitioners seek quashment of proceedings emanating from NAB Reference Nos. 40, 41 and 44 of 2013 on the ground that the same being coram non judice, void ab initio and as an ancillary relief seek suspension of references and grant of pre-arrest bail. Since the facts and points of law in all three petitions are common, therefore, we intend to decide all three cited petitions through this common order. The short point agitated by the learned counsel for the petitioners before us is that the References Nos.40, 41 of 2013 were made to the Accountability Court at Karachi on 12-7-2013 whereas Reference No.44 of 2013 on 15-7-2013 by the Director General, National Accountability Bureau Sindh at Karachi under an authority from Chairman NAB whereas, the fact of the matter being that the apex Court had removed Chairman NAB Admiral (Retd.) Fasih Bokhari vide its Order dated 30-5-2013 by declaring his appointment as void ab initio, therefore, the reference to the Accountability Court was without lawful authority. Per counsel under the provision of Section 18(a) of the National Accountability Ordinance, 1999 (hereinafter referred to as "NAB Ordinance") the Court is prevented from taking cognizance of any offence under the NAB Ordinance unless, the reference is made by the Chairman NAB or an officer of the NAB duly authorized by him, and since at the time when the references were made there was no Chairman of NAB, therefore, any authority conferred by the then Chairman NAB upon the Director General had come to an end along with removal from his office and the References filed before the NAB Court were in clear violation of section 18(a) of the NAB Ordinance and therefore, liable to be quashed. In support of his contention counsel has placed reliance on the judgment of the Apex Court in the case of Ch. Nasir Ali Khan v. Federation of Pakistan (PLD 2013 SC 568) whereby the apex Court has declared the appointment of Chairman NAB as void ab initio and to support his contention that in absence of Chairman NAB the References filed were per incuriam, reliance has been placed on the judgment of the apex Court in the case of Bank of Punjab v. Haris Steel (PLD 2010 SC 1109) and of this Court in the case of Haji Kabir Khan v. The State (2003 YLR 1607) and The State v. Fazal Ahmed and others (2014 PCr.LJ 758). On the other hand Mr. Noor Muhammad Dayo, ADPG NAB contends that filing of reference being a continuation of proceedings whereby inquiry or investigation was directed and a consequential act which if performed in absence of Chairman NAB would not vitiate the proceedings. It was next contended that the authority conferred by the Chairman NAB upon the Director General NAB for Sindh at Karachi continues, notwithstanding, the vacation of office of Chairman NAB. It was lastly contended that the defect if any in filing of reference is curable as it can be subsequently ratified. Counsel has further placed reliance on an order passed in Const. Petition No.D-2898 of 2011 (Ghulam Shabbir v. The State) on 15-12-2011 whereby a Bench of this Court observed that the competence of the person who had filed the Reference on behalf of NAB even if is defective, is a curable defect. We have heard the learned counsel for the respective parties and have perused the record. First we would like to examine the contention of ADPG NAB that filing of reference being a continuation of proceedings which have started from the inquiry or investigation duly authorized by Chairman NAB and therefore, the same if filed without a valid authorization in terms of Section 18(a) or (g) hardly matters as the defect, if any, can subsequently be cured/ratified. In order to properly examine this contention it. would be beneficial to reproduce the provisions of Section 18(a) and (g) of the NAB Ordinance, 1999:-- Section 18(a) "The [...] Court shall not take cognizance of any offence under this Ordinance except on a reference made by the [Chairman NAB or an officer of the NAB duly authorized by him] ". Section 18(g) "The [....] Chairnian NAB, [or by an officer of the NAB duly authorized [...] him,] shall appraise the material and the evidence placed before him during the inquiry and the investigation, and if he decides that it would be proper and just to proceed further [and there is sufficient material to justify filing of a reference], he shall refer the matter to [a] Court": Perusal of above reproduced subsections of Section 18 of NAB Ordinance, 1999 reflects that the Chairman NAB or an officer who is duly authorized by the Chairman has to appraise the material and evidence which has been discovered / collected during the inquiry and the investigation and thereafter has to form an opinion as to whether the material so discovered or collected is sufficient to justify filing of reference before the Accountability Court. The application of mind by the Chairman NAB himself or by an officer duly authorized by him is a condition precedent for filing a reference before the Accountability Court as the Chairman or his delegatee after appraisal of material so collected may direct termination of proceedings saving an accused person from the rigor of trial under a law which even does not confer power upon the Accountability Court to consider the request of such under trial accused for grant of bail. Additionally, in our opinion Section 18(g) of the Ordinance, 1999 provides a safeguard to the accused persons before putting them on trial and or to face the rigor of criminal proceedings by way of eliminating the inquiry or investigation which would not stand the test of trial by placing the responsibility on the highest office of NAB i.e. Chairman or his delegatee to scrutinize the investigation before filing it in Court. Likewise, the law further provides another security measure in terms of Section 18(a) of NAB Ordinance by preventing the Courts from taking cognizance of an offence under the NAB Ordinance unless the reference is made by the Chairman NAB himself or his delegatee. It is by now settled law that the procedure laid down in a statute which provides for stringent punishments must be construed strictly, reference can be made to Muhammad Imran v. The State (2011 SCMR 1954). We, therefore, are not inclined to accept the contention that compliance of Section 18(g) is not required or non-compliance would not render the reference without lawful authority. However, it is not a case where Reference has been filed by an officer of Accountability Bureau without authority from the Chairman NAB. It is an admitted position that the officer who filed the Reference was duly authorized by the Chairman NAB in terms of sections 18(a) and 18(g) of the Ordinance 1999 but his authority according to Mr. Khawaja had come to an end upon vacation of office of Chairman NAB on 30-5-2013 and the new Chairman was not appointed till 15-7-2013 when all the three references subject matter of these petitions were filed. This will lead us to examine "as to whether the power conferred upon an officer of NAB by the Chairman in terms of Section 18 (a) or 18(g) of the Ordinance, 1999 would come to an end once the office of the Chairman NAB falls vacant" if so then what would be the fate of the acts performed by the office under such authority after vacation of office by Chairman NAB. First we would examine the case-law cited by Mr. Khawaja Shamsul Islam in support of his contention that such delegation comes to an end once the office of the delegator falls vacant. In the case of Bank of Punjab (supra) the provision of Section 6(c) which provided "As and when the Chairman NAB is absent orunable to perform the functions of his office due to any reason whatsoever, the Deputy Chairman NAB will act as the Chairman NAB, and in case the Deputy Chairman NAB is absent or unable to perform the functions of the office, any officer of the NAB duly authorized by the Chairman NAB shall act as Chairman NAB was considered by the apex Court with the following conclusion:-- "Having thus looked at all aspects of this matter, we find that a Deputy Chairman could assume acting charge of the office of the Chairman only when a Chairman existed but was absent or was for some reason unable to perform functions of his office and not when the office had become permanently vacant". In the second case, The State v. Fazal Ahmed (2014 PCr.LJ 758), this Court while examining the provision of Section 8(d) of Ordinance, 1999 which provide that "In case the Prosecutor General Accountability, is absent or unable to perform the function of his office due to any reason whatsoever, any other Law Officer of the NAB duly authorized by the Chairman NAB, shall act as the Prosecutor General Accountability". This Court held that "the Chairman NAB had no lawful authority to authorize any other Law Officer of the NAB to act as a Prosecutor General Accountability, during a period when the office of the Prosecutor General Accountability was lying vacant". In the cited judgments provisions of sections 6(c) and 8 (d) of Ordinance, 1999 which appears to be pari materia were interpreted. In both the subsections the law required the absence or inability of the Chairman NAB or the Prosecutor General NAB to perform functions of their respective offices as a condition precedent for Deputy Chairman NAB to act as Chairman NAB or before the Chairman NAB could authorize any other Law Officer to act as the Prosecutor General. However, in the instant case question is "as to whether a lawful delegatee can exercise the authority conferred upon him after the office of the delegator falls vacant". The delegation of power, in law, means the transfer of authority by one person or group to another. In cases where the delegation of authority is by person upon another to look-after his personal interest, such delegation of authority expires inter alia upon .happening of any of the following events: (i) upon death or incapacity of the delegator; (ii) upon expiry of period of delegation; (iii) upon completion of specified act for which the authority was delegated; and (iv) upon revocation of authority. However, organizational delegation of authority or delegation under a statutory authority is assignment of certain responsibilities along with necessary authority by a person holding superior designation to his subordinate designation or group of such subordinates. Before delegating the responsibilities or powers to discharge such responsibilities, the delegator has to decide precisely the responsibilities which are to be delegated upon his subordinate or a group of subordinates. The usual practice is to list the responsibilities/functions to be performed by the subordinate or the delegatee. However, such delegation does not mean surrender of authority by the delegator in favour of the subordinate. It only means transfer of certain responsibilities to subordinates and giving them the necessary authority to discharge the responsibility properly. Due to delegation, the routine responsibilities of the superiors are reduced and as a result he is able to concentrates on other important issues. Additionally, due to such delegation, subordinate becomes responsible for certain functions transferred to him. The change of person on the superior designation who executed the instrument of delegation while exercising statutory power or authority under organizational setup or in whose favour such authority was delegated (unless it is by name) hardly matters as such delegation unless expressly revoked remain effective. In the instant case sections 18(a) and 18(g) both empower the Chairman NAB to delegate upon his subordinate officers authority in respect of (i) filing of reference before the Accountability Court and (ii) appraisal of material and evidence collected during the inquiry and the investigation and then to decide as to whether it would be proper and just to file reference before the Accountability Court. Consequently, once the Chairman, NAB has delegated the specified authority in term of Section 18(a) or 18(g) of Ordinance, 1999 upon his subordinate officers then the change of person holding the position of Chairman NAB or the officer upon whom such authority was delegated (if by designation) hardly matters. The authority so conferred under Section 18(a) or 18(g) by the Chairman NAB upon his subordinate would continue till such delegation is expressly revoked. However, since such delegated authority is exercised by the delegatee/subordinate officer in the name of and on behalf of the Chairman NAB, therefore, the delegatee's/subordinateofficers can only exercise such authority during the period when the Chairman NAB is in office though he may be absent or unable to perform the function of his office due to any reason whatsoever. However, once the office of the Chairman NAB falls vacant then the delegation remains in abeyance till a new Chairman is appointed to the. office in whose name such delegated authority is to be exercised unless expressly revoked. This is because of the fact that the delegatee exercises the power in the name of the delegator and once the office of the delegator falls vacant there is none in whose name the delegatee could exercise such powers. In the instant case it appears to be an admitted position that references subject matter of these petitions were filed in the Accountability Court though by an officer of NAB duly authorized by the Chairman NAB but during a period when the office of Chairman NAB was vacant and the authority of the officer filing reference was under abeyance. If also appears to an admitted position that new Chairman NAB has assumed the office and consequently the authority stood revived and per ADPG is being exercised till date: In the circumstances, we are of the view that the defect, if any, stood cured upon resumption of office by the Chairman NAB. It is also an admitted position that the petitioner did not challenge the authority of the office filing reference before the Accountability Court nor till date challenged the order whereby cognizance was taken. The petition to the extent of seeking quashment of references is therefore, dismissed. As to confirmation of bail, admittedly, this Court has confirmed bail of several accused persons of containers scam cases and while pressing the rule of consistency. Mr. Khawaja Shamsul Islam has prayed for confirmation of bail. The position is not denied by Mr. Noor Muhammad Dayo, ADPG NAB. Consequently, we while allowing the second prayer of the petition confirm the bail of the petitioners on same terms and conditions on which interim bail was allowed. The petitioners are directed to cooperate with the Investigating Officer and to effect appearance before the Accountability Court. MH/A-26/Sindh Bail confirmed.