M/s Noor Jannast Shah Proprietor Vs Director General (KP) NAB etc.

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Petitioner(s) by: - IvIr. Mohammad Farooq Malik, Advocate.

Syed Sikandar Hayat Shah, Addl; AG for Provincial Government.

Respondent (s) by: Arbab Kaleem Ullah, Special Prosecutor, for NAE}.

N[r. Sabah Ud Din I(hattak, advocate for TIVIA.

Date of hearing. 04.04.2025 !f rf rf rf :f

TUDGMENT

wIoARAHfuIAD, t:- The petitioner, as per contents of the writ petition, has been sole proprietor of IWs Noor Janat Shah, a category "A" contractor, duly registered with the Local Council Board and Pakistan Engineering Council. It was averred in the petition that respondent No. 3 i.e. TMA Lachi (being the Executing Agency) advertised 16 projects duly approved by the District Developme.nt Committee in Kohat. In accordance with WP No. 2?8+Pn024

policies of the Govemment of Khyber Pakhtunkhwa, the \r' consultancy of respondent No. 4 were hired by the executing agency, TMA Lachi. Pursuant to the advertisement, the petitioner's firm submitted bids for the scheme mentioned at Serial No. 10, which included; (a) Supply/installation of pumping machinery based on a solar system, and

(b)Raising the main storage tank and establishing a distribution system. After fulfilling all codal formalities, the bid submitted by the petitioner's firm was accepted, and a work order was issued.

The petitioner's firm on completion ofpart ofthe work submitted four running bills, which were approved by the consultant (Respondent No. 4) and same were also approved by the Deputy Commissioner, Kohat. Meanwhile, NAB took cognizance of the matter regarding all running schemes in District Kohat, including the instant scheme, on 20.10.2016. After an inquiry, no misappropriation in the subject schemes were found, and as a result, the competent authority of NAB approved the case for closure. Subsequently, the petitioner's firm completed the assigned schemes as per the terms of advertisement. The matter was reopened subsequently, and the case was referred to the Anti-Comrption Establishment for further investigation. The Anti-Comrption Establishment did not find any illegality or irregularity in the subject scheme and thus took no further action.

Despite this, NAB authorities once again initiated inquiry in the matter for the third time, through the impugned letters dated WP No. 2784-P12024

20.02.2024 and07.05.2024, the already closed inquiries were re- v incarnated. The petitioner while feeling aggrieved thereof has filed this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan,1973, with the following prayer;

o'It is therefore, prayed that on acceptance of the instant writ petition impugned act and action of the NAB authority by issuing the impugned letter dated 20.2.2024 and 7.5.2024 may graciously be declared as illegal, unlawful and without lawful authority and ineffective upon the rights of the petitioner.

Secondly, official respondents may graciously be directed to release the security amount of the petitioner which was withheld, since 2015. Thirdly any other remedy deemed it appropriate may graciously be passed in favour of petitioner."

2.Learned counsel for petitioner mainly stated that NAB had earlier inquired into the matter and closed the inquiry after finding no evidence but later on another inquiry was initiated after much time had lapsed and that also with mala-fide intention. Learned counsel also contended that total layout of the scheme under inquiry was much less than Rs. 500/- million required under section 5(o) of The National Accountability Ordinance, 1999 as a minimum threshold for NAB to take cognizance. He added that NAB has been conducting inquiry into the matter despite the fact that it was having no jurisdiction under the amended Act.

3.Learned Special Prosecutor, NAB contended in rebuttal that closing of the earlier inquiry was no bar in initiating a fresh inquiry and that scope of the present inquiry was also much wider. In this WP No. 278+P12024

respect he referred to reply given inpara-7 and 8 of the comments so v as to indicate that scope of the present inquiry was much wider than the earlier inquiry, closed by NAB.

4.We have heard learned counsel for parties and perused the record.

5.Perusal of record reveal that respondents have given details regarding scope of the inquiry in reply to pan-7 and 8 which are also indicative of the total costs of the project where the alleged embezzlement had taken place. Reply given in paru-7-8 of the comments are also reproduced hereunder;

7-8. Denied as framed, this Bureau conducted an inquiry in the year 2016, the scope of which was limited to Rs. 15 M solar scheme installed for Water Supply Scheme out of Supply/installation of Pumping Machinery Based on Solar System worth Rs. 10.0 M and Raising Main Distribution System Storage Tank worth Rs. 40.0 M. In the subject inquiry difference in watt capacity at site and BOQ was obser"ved and the same was communicated to department for remedial action. Similarly, 02x schemes, of Rs. 15 M and Rs. 10 M solar lights were inquired. The closure Ietter issued pertains to some schemes of 2014-15 year. Moreover NAB has never given any directions to stop or delay the work on any project or to withheld any payment. The current inquiry is dealing with a wider scope of the following schemes namely;

il. Supplyflnstallation of PumPing Machinery Based on Solar System wofih Rs. 10.0 M and Raising Main Distribution System Storage Tank worth Rs. 40.0 M. Supply/lying of pipeline ilt Shakardara Rural-l ( Rs. 20 M).

b. Distribution of Pipeline at Shakardara Urban (Estd Cost 30 M) c. Solar Street Light at Village Lachi Urban (Estd.Cost 10 M) d. Solar Street Light from Shard aril to Bori Saghri (Estd.Cost 05 M) e. Solar Street Light Shakaradara Urban (Estd.Cost Rs. 10M)

WP No. 2784-P12024

f. Solar Street Light in shakaradara Urban \./ (Estd.Cost Rs. 15 M) g. Solar street Light shakardara phase-Ir (Bstd. Cost of Rs. 10M).

6.It is not case of respondents that the total amount of costs of the project have been siphoned but even if said amount is taken for the purpose of determination of jurisdiction at this initial stage we found that same was much less than the minimum threshold of Rs.

500 Million provided in section 5 (o) of the National Accountability Ordinance, 1999 (herein after referred to as o,The Ordinance").

Offences has been defined for the purpose of NAB under clause (o) of section 5 of the Ordinance, as follows;

(o)ttoffence" means the offences of corruption and corrupt practices and other offence as defined in this Ordinance of the value not less than five hundred million rupees and includes the offences specified in the schedule to this Ordinanc e.))

7.When an act does not fall within the definition of offences for the purpose of the Ordinance, then NAB authorities would be completely precluded from interfering in such matters. If we calculate total amount mentioned in replies to paragraphs 7 and 8, it comes to Rs. 150 million. Therefore, the jurisdiction ofNAB was not available in this matter. In the case of "Muhammad Sarwar v. National Accountability Bureau through Chairman and 3 others" (2023 P Cr. L J 790) it was held that;

'07. The substantial change brought in is that if the allegation of misappropriation of misusing the public money does not exceed 500 Million rupees or the number WP No. 2784-P12024

of persons allowed is less than 100 the NAB will not have any jurisdiction and, therefore, the Accountability Court created under section 5(g) of NAO, 1999 shall take its hand off to further proceed in the reference and return it at once to the NAB..."

when learned Special Prosecutor was confronted with this situation, he raised a new argument by saying that the actual amount could not be ascertained at the stage of inquiry.

submission of the leamed Special Prosecutor's does not hold water, in the facts and circumstances of present case. There may be situations where NAB can inquire into a matter where the alleged embezzled amount is uncertain, but in this case, the total layout of the project has been determined, and there was no doubt regarding same. As mentioned earlier, even ifthe total amount is considered to have been embezzLed, it still falls below the minimum threshold provided for NAB to take cognizance of a matter. It cannot be held that, despite the minimum jurisdictional threshold for NAB, their officers are at liberty to inquire into any matter, regardless of the value, as set forth by the legislature.

National Accountability (Amendment) Act, 2022, was promulgated by the legislature with a particular aim and object namely, to restrain NAB from taking cognizance of cases involving alleged comrption of lesser value and to focus on cases of comrption or embezzlement of higher value. It was wittr this purpose and object that a minimum threshold was provided for WP No. 2784-P12024

the investigating agency. Holding that NAB would be at liberty v to inquire into any matter regardless of its value would defeat the purpose and object of the Act. In the case of "Imran Ahmad Khan Niazi v. Federation of Pakistan", PLD 2024 SC 102, it has been held by the Hon'ble Supreme Court that;

'o9,It may be noticed from the provisions produced above that the 2022 Amendments have indeed brought about a significant change in the legal position under the NAB Ordinance. Whereas prior to the 2022 Amendments the NAB Ordinance applied to all persons in Pakistan after the 2022 Amendments the scope of NAB Ordinance has been significantly restricted with nearly all holders of public office exempted from its application unless there is proof of any monetary or material benefit being received by them or a person acting on their behalf. However, even if the NAB manages to overcome the exceptions listed in the amended Section 4 of the NAB Ordinance the jurisdictional hurdle of an accused having caused a minimum loss of Rs.500 million or more would stiil need to be crossed. lf tnat is not done the accused wiII be ousted from the jurisdiction of the NAB. Therefore, it is only when the requirements of Section 4 and Section 5(o) of the NAB Ordinance (as altered by the 2022 Amendments) are satisfied can the accused person be inquired/ investigated into by the NAR and be tried in the Accountability Court".

In the above case it has been further held that;

WP No. 2784-P12024

,'offences that cause loss valued at less than Rs.500 v million no longer come within the ambit of the NAB. The apparent rationale for enhancing the pecunialy jurisdiction is noted in the Statement of Objects and Reasons attached to the Second Amendment. It reads:

...Through the insertion of proposed amendments, the pecuniary jurisdiction of the NAB has been fixed to take only action against mega scandals...rr

Therefore, the arguments of the learned Special Prosecutor cannot be accepted, especially when the total amount or cost of the project where alleged comrption has been made was clear and determined.

g. In light of what has been discussed above, petitioner has made out a case for interference of this Court. Consequently, the instant writ petition is allowed to the effect of quashing the inquiry proceedings as well as the impugned letters dated ZO.O2.ZOZ4 and 07.05.2014. It is, however, clarified that this order shall not have the effect of shielding the petitioner from any other inqurry that may be pending or which may be initiated by the Anti-Comrption Establishment or other law enforcement petition was agencies. The other relief prayed for in instant writ that not pressed by learned counsel for petitioner, who stated petitioner would pursue his remedies in respect of relief extent, the concerning the security amount, separately. To that WPNo.27WPn024

\r relief concerning the security amount in the instant writ petition w stands dismissed as withdrawn. However, the petitioner will be at liberly to institute or pursue other remedies in respect of it, at appropriate forums.

Announced on;

4th of April,2025 *Zacghg,d,)

JUDGE

(DB)Mr. Justice Wiqar Ahmad & Mr. Jtstice AMul Fayaz WP No. 27t0{.Pn024