P L D 2006 Karachi 236 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present petition are that the petitioner was posted as Deputy Director to be tried under the NAB Ordinance; that the amount involved in the case is not a small amount but in fact the petitioner had demanded Rs.7 lacs for closing the inquiry against the complainant; that the petitioner had accepted Rs.10,000 as instalment towards the large amount of Rs.7 lacs which he had agreed to accept from the petitioner for closing the inquiry; that the amount was secured by the raiding party as such the petitioner was caught red handed; that the Hon'ble Supreme Court of Pakistan had examined Section 18(g) of the NAB Ordinance which was found to be not discriminatory and the powers of Chairman NAB under the said section to refer or not a case to Accountability Court were found to be normal powers vested in all police officers or officers of investigation agencies; that the said findings were given after considering all the material and perusing the various provisions of Constitution including Article 25, law involved in the matter and also considering the rule laid down in the case of Government of Baluchistan v. Azizullah Memon, PLD 1993 SC 341; that the rule laid down in the case of Rauf Bukhsh Kadri, 2003 MLD 777 is not applicable to the facts of the present case; that this Court is not competent to give a decision contrary to the decision given by Supreme Court of Pakistan on the ground that certain provisions of law were not considered. He has relied upon a case of Shoukat Baig v. Shahid Jamil, PLD 2005 SC

530. He has further stated that there is sufficient material available on the record to connect the petitioner with the crime as the trial Court has framed the charge and recorded the statement of complainant who has fully supported the prosecution case and implicated the petitioner with the commission of this crime therefore the proceedings cannot be quashed.

4. We have given due consideration to the arguments, gone through the material available on the record and found that the question revolves around the powers of Chairman NAB to send the reference to the Accountability Court. Such powers of the Chairman NAB were considered by the Hon'ble Supreme Court of Pakistan in the case of Khan Afsandaryar Wali v. Federation of Pakistan, PLD 2001 SC

607. The Hon'ble Supreme Court of Pakistan in paragraph 273 appearing at page 934 examined three questions out of them one was powers of Chairman NAB under section 18 (g) of the NAB Ordinance. In paragraphs 274 to 276, the questions were answered. It will be profitable to reproduce paragraphs 273, to 276 that read as under:- "

273. Question (xvi) in the admitting order is to the effect whether various provisions of the impugned Ordinance grant arbitrary and unfettered discretion to the Chairman, NAB e.g. (i) under section 9 (c) of the impugned Ordinance to set whatever conditions he feels with respect to the release of an accused from custody, (ii) under section 18(g) to refer or not a case to any Accountability Court and (iii) under section 25-A(g) to refuse to recognize a settlement arrived at between a creditor and debtor.

274. We have already held that the Chairman, NAB is not competent to reject a settlement arrived at between a creditor and debtor through the intervention of Governor, State Bank of Pakistan without the approval of the Accountability Court.

275. The powers vesting in the Chairman, NAB to release an accused from custody having regard 'to the gravity of the charge against him, favour the accused. However, while doing so, he is to record valid reasons in writing. As regards the vesting of powers with the Chairman, NAB under section 18(g) to refer or not a case to the Accountability Court after perusal of the material and evidence collected during inquiry and investigation, suffice it to say that this power corresponds to the normal powers vested in all Police. Officers of investigating agencies. Reference may be made to section 170, Cr.P.C. which reads as under:- "

170. Case to be sent to Magistrate when evidence is sufficient.--(1) If, upon an investigation under this Chapter it appears to the Officer Incharge of the Police-Station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. (2) When the officer Incharge of a Police-Station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) omitted. (4) Rep. By the Code of Criminal Procedure (Amndt.) Act (II of 1926), S.2. (5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report."

276. Clearly, the existence of sufficient evidence is a condition precedent for the police acting under section 170, Cr.P.C. and for making a request to the Magistrate to take cognizance of the offence. It is for the Officer Incharge of a Police Station to decide whether there is sufficient evidence to justify the forwarding of the accused to the competent Magistrate. As stated above, a corresponding provision is contained in section 18(g) to which no exception can be taken subject to compliance with the procedure laid down in section 170, Cr.P.C. so far as it is applicable. To this extent Section 18(g) be suitably amended."

5. Thus, it is clear that the powers granted to the Chairman NAB under section 18(g) of the NAB Ordinance can be exercised subject to the condition that there should be sufficient evidence against the accused for filing a reference. If such condition is fulfilled then no exceptions can be taken against the exercise of powers of Chairman , NAB.

6. A Division Bench of this Court in the case of Rauf Bukhsh Kadri v. The State, 2003 MLD 777 took the view that the Hon'ble Supreme Court of Pakistan in the case of Asfandyar Wall did not consider that such powers are discriminatory on the touchstone of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 as interpreted in case of Waris Masieh v. State, PLD 1957 SC 157 as neither such question was raised nor decided. However, this Court examined the powers of Chairman, NAB as granted to him under section 18 (g) of the NAB Ordinance on the touchstone of the Article 25 and held that the discretion of the Chairman, NAB or an officer authorized by him to file the reference before the Accountability Court is not absolute or arbitrary. Therefore, it was held that such a reference could be filed only when the Chairman or the authorized officer is satisfied that the amount involved is a large magnitude and the resort to the facility of plea bargaining to the accused would be in the national interest and in the absence of such satisfaction a case could only be triable under the ordinary law. However, it was further held that since filing of the reference is essentially the function of the Chairman, NAB (though it may be amenable to judicial review in proper cases) and since he in view of the experience of the institution is in a better position to determine whether the amount involved in the case could be classified as large or otherwise. Therefore, the cases were remanded to the Chairman, NAB to re-examine the cases from the above standpoint.

7. From the above authority, it is clear that it is the Chairman NAB who has to form opinion keeping in view the experience of the institution B to see whether the amount involved in the case is large or otherwise. The Chairman NAB was conscious of the rule laid down by this Court in the case of Rauf Bukhsh Kadri and examined the facts of the present case. He formed the opinion that illegal gratification of Rs.7 lacs in the case of a Deputy Director NAB who was involved in the investigation of an inquiry of NAB cases and keeping in view the experience of the institution and to save the institution itself from the menace of corruption found the said amount to be large therefore he sent the Reference to the Court. Nevertheless, the said opinion is amenable to judicial review by this Court. We have examined the case and found in agreement with. the learned DPGA that the petitioner was Deputy Director in NAB. He was authorized to make inquiry and investigation in the offence of corruption and corrupt practices. He was holding inquiry against the complainant and in order to drop the said inquiry the petitioner demanded illegal gratification of Rs.7 lacs from the complainant. In addition, in order to achieve the said object he accepted Rs.10,000, which was recovered, from his possession during the raid as such he was caught red handed with the money. If the officers involved in the inquiry and investigation of the offences of NAB Ordinance are themselves involved in the corruption then such officers are required to be dealt with severely. It appears that amount of Rs.7 lacs for dropping the enquiry is sufficiently c a large amount keeping in view the work to be done by the petitioner. Therefore, the discretion exercised by the Chairman NAB is not arbitrary.

8. Furthermore the condition placed upon the Chairman NAB in exercise of his powers under section 18(g) of the NAB Ordinance under the case of Rauf Bukhsh Kadri on the touchstone of Article 25 and further on the ground that such point was not raised before the Hon'ble Supreme Court of Pakistan in the case of Asfandyar Wali the learned DPGA has taken exception to the above and has contended that this Court is not competent to do so. He has emphasized that the Hon'ble Supreme Court had considered various Articles of the Constitution including the Article 25 and various cases including the case of Azizullah Memon (supra) on the subject and then decided the case, therefore, it cannot be said that while giving decision in the Asfandyar Wali's case the provisions of Article 25 were not in view of the Supreme Court. He has further argued that the decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before it. In support of this proposition, he has relied upon the case of Shoukat Baig v. Shahid Jamil, PLD 2005 SC 530.

9. We have given due consideration to the arguments and found that the arguments of the learned DPGA are not out of contest. In the case of Shoukat Baig (supra) Hon'ble Supreme Court found that the Lahore High Court made certain observations with regard to various decisions of the Supreme Court of Pakistan by taking the ground that certain points and provisions of law were not considered while delivering various judgments. The Hon'ble Supreme Court of Pakistan took serious view of the matter and observed that the decision of Supreme Court becomes the law of the land and is binding not only on the Courts in Pakistan but also on all the functionaries of the Government and that the decision of the Supreme Court cannot be ignored on the ground that certain grounds were not urged before the Supreme Court. In the similar situation the Supreme Court of India in the cases of Director of Settlements. A.P. v. M.R. Apparano (AIR 2002 SC 1598), B.M. Lakhani v. Malkapur Municipality (AIR 1970 SC 1002) also held that the High Court was not justified in ignoring the decision of Supreme Court on the ground that some provisions of law were not consider or the grounds were not urged before it. Thus, it is unanimous view of the Hon'ble Supreme Courts of Pakistan as well as India that when a decision is given by the Supreme Court it is binding upon all Courts including High Courts and the High Courts cannot ignore the said decision on the ground that certain points or provisions of law were not considered. As such it is for the Supreme Court to modify or put any condition or exception to its own decision.

10. In the present case the Hon'ble Supreme Court of Pakistan examined the vires of section 18(g) of the NAB Ordinance and formed the opinion that the Chairman, NAB under section 18(g) of the NAB Ordinance is authorized to refer or not a case to the Accountability Court after perusal of the material and evidence collected during the inquiry and investigation but subject to only one condition that there should be sufficient evidence against accused for making the request of sending the reference to the Accountability Court for taking cognizance. In the present case we have examined the material available on the record and found that there was sufficient evidence collected by the Investigating Officer against the petitioner therefore the Chairman, NAB was justified in sending the reference to the Accountability Court as held by the E Supreme Court. Therefore such exercise of the powers by the Chairman, NAB are in accordance with law laid down by the Supreme Court therefore no exception can be taken to the above.

11. If the case is examined from any angle either under the rule laid down in the case of Rauf Bakhsh Kadri or Asfandyar Wali, we are of the view that the Chairman NAB was competent to send the Reference to the Court.

12. As regards the merits of the case, the learned trial Judge has framed the charge, which shows that there was sufficient material available on the record against the petitioner. The Accountability Court recorded the statement of complainant who, has fully supported the prosecution case and implicated the petitioner with the commission of G this crime. As such there are reasonable grounds for believing that the petitioner is involved in the case and prime facie case has been made out against him from the statement of complainant therefore the impugned order does not require any interference.

13. In the light of what has been discussed above, the petition is dismissed. Interim order passed on 21-2-2006 is hereby recalled and vacated. H.B.T./H-4/K????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.