Khan Mohammad Mehar (Appellant) VS The State (Respondent)

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IN THB.HIGT.I COURT OF SINDH, I(ARACHI

Prcsent:

Mnltstlcc Molmmutnrl lkrilu IOmt Aglm Il4r. lnstice Autjarl Ali lloltio

CR. ACCTT. APPEAL NO.O3 OF 2OO1

Appellant: Khan Muhammad Mahar s/o. Fakir ]an Muhammad Mahar through M/s. Farooq I-I. Naek, Advocate, Respondents: The State through M/s. Hayatullah and Syed Dilshad Hussain Shah, Special Prosecutor NAB and Mr. Jan Mul'rammad Khoro, Addl. Advocate General Sindh.

CR. ACCTT. APPEAL NO.Oz OF 2OO7 Appellants: L.Fakir ian Muhammad Mehar s/o. Mubarak Mehar,

2.Mst. Jannat wife of Fakir Jan Mul'rammad Mehar.

3.Mst. Rahat d/ o. Fakir Jan Muhammad Mehar, through M/s. Farooq H. Naek and Mahmood A. Qureshi, Advocates.

Respondents: The State through M/s. Hayatullah and Syed Dilshad Hussain Shah, Special Prosecutor NAB and Mr. Ian Muhammad Khoro, Adcll.

Advocate General Sindh.

CR. ACCTT. APPEAL NO.O3 OF 2OO7

Appellants: 1. Haji Badal s/o. Mubarak Mehar. 2, Abdul Ralunan son of Haji Badal. 3.Mubarak AIi s/o. Haji Badal, through M/s. Farooq FI. Naek and Mahrnood A. Qureshi, Advocates.

Respondents The State through M/s. Hayatullah and Syed Dilshad Hussain Shah, Special Prosecutor NAB and Mr. fan Muhammad Khoro, Actdl.

Advocate General Sindh.

CR. ACCTT. APPEAL NO.O4 OF 2OO7

t Appellants: 1. Muhammad Hassan s/o. Fakir ]an Muhamrnad.

2.Mst. Sami wife of Muhammad Hassan.

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3.Gul Muhammad s/o Muhammad LIassan,

4.Ali Anwar son of Muhammad Hassan through M/s. Farooq H.

Naek and Mahmood A' Qureshi, Advocates.

Respontlents:

Tlre State through M/s. Hayatullah and Syed Dilshad l-Iussain Shah, Special Prosecutor NAB and Mr.

Jan Muhammad Khoro, Addl.

Advocate General Sindh.

CR. ACCTT. APPEAL NO.Os OF 2OO7

Appellants: Mst. Zarina Malik wife of Malik Mehal Khan tfuough M/s. Farooq H. Naek and Mahmood A. Qureshi, Advocates.

Respondents; The State through M/* Hayatullah and Syed Dilshad Hussain Shall Special Prosecutor NAB and Mr.

Ian Muhammad Khoro, Addl.

Advocate General Sindh.

Date of Hearing: 77.09.2A23 Date of Armouncement: 25.09.2023

TUDGMENT

l,- Molmnmnd Karim IOnn Agln. l:- Vide judgment dated 10.02.2@l passed by the Accountability Court No.lII, Karachi in Reference No.39 of 2000 appellants Khan Muhammad Mehar s/o Jan Muharnmad Mehar and Abdul Rehman s/o. Haji Badal were convicted for the offence u/s.9(a)(lV&V) punishable under Section 10 of the NAB Ordinance 1999 and sentenced to suffer R.l. for 10 years and to pay a fine of Rs.14,00,00,000/- (Fourteen Crores) and in case of default in payment accused persons shall undergo R.l f.or 2 Vz years more. The entire movable and immovable propcrties mcntioned in the charge except properties at 5.No.30to 32 of agriculture propcrties and S.No.7 of resider"rtial were forfeited to the Government of Pakistan,

2.The background of this case is that the Suprerne Court in Criminal Appeal No.1-K of 2016 vide order dated 14.04.2016 ordered that these appeals be sent back to the Appellate Court (this court) in order to first determine the question of maintainability of the Reference in the following terrns:-

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'2. Horoclcr todny uyort hcoring lennrcd cotursel lor llrc nppellant, llu lenrncd Alloruty Cenernl for Pnkistntt orul nlso lhc lennrcd Adrlitionnl Prosaculor Gt'trcrnl NAll, trt' .littd lhnl insh'nl olenl,rloirtittg,tr scpnmle npplicntiotr to llnl tjJi'ct nnl rlt't'irlirrg llu' nmltrr, il wns prrlmln npyroprinle for tlrc court of nppcnl lo rlrrirlr llu' ttttllar $lt yroblttg lttto lhe nnluro o/ thc absence of llu' Clminnnn on llu' gilr,lr rllk, i.0.9,9,20A0 nnd uhe llrcr slgulng of tlrc refcrurcc by the Acfirrg Clnlnunn .uns otrc o/ thc ftutctlotts tohlch falls ruithltt tlrc Ttttrts i cttt of lt is j u ristli c I I o tt,

3.Tlrus roillt lltc cottatrrencc of tle lennrcd counsel lor llrc pnrties, tlris oppcol is nllorued nnd llrc ordw irr qucstiott is set nside, lrcueuer ns llrc nmin opyenl is pcnding ndjudicnliotr be{ore llrc lenrnerl Accountnhilily Appellnte Courl since 2007, rue rlit'ect tlrc Registrnr of the lenrned Higlt Court to fix tltis mnlter rrrillrin ltpo tpccks nnd hecnnse of llrc long delny in lhis cose, we nre sanguine thnt tlrc lennrcd Higtt Court slnll decide llis nmller within n period of three months itrclurling the questiott rulrcther the refercncc filed tuith the signatures of Irinj. General Sycd Llsnnu AIi Slmh as Actittg Clnirruan, NAB was cortrpctent in law aud the effect thereof. lt is nlso expected of lle lenrned Higlr Court to nttend to tlrc question tlmt objection to the conryetence of tlrc reference wns not rniserl by tlrc nppellnnt durhry the trinl nncl it is rtot one of the grounds set out hr tlw nrcnto of nppenl, ratlrcr for the frst tinrc tlrc question utns agilaterl tluough n niscellnneous npplicntion, thus in aieut of such situntiott wlrcther the nie of acquiescence, estoppel, waiaer etc. was attracted to the appellant and on this score alone l:ns plen of challenging tlrc contpetetce of reference shoulrl be rejectecl"

3.As can be seen the first issue before us as per order of the Supreme Court is the maintainability of the reference which was the foundation of the conviction and appeals. If tl're reference is not maintainable in the first place then it would follow that the reference was without lawful authority. Thus, we will confine ourselves to the issue of the maintainability of the reference in this judgment.

4.Learned counsel for tl're appellants has contended that the reference was signed on 09.09.2000 by Syed Usman Shah wl'ro at the time was deputy chairman and had no lawful authority to sign the reference as the absence, and in particular the nature of the absence, of the chairman NAB had not been proven; that even otherwise the deputy chainnan had no larvful authority under the NAO to sign the reference because he had no delegatecl authority to do so and that the doctrine of estoppel, waiver or acquiescence was not applicable based on the particular facts and circunrstances of this case and as such the reference was not maintainable and should be set aside as being signed and filecl without Iawful authority. In support of his contentions he has placed reliance on the cases of Al-Jehad Trust v Federation of I'akistan (PLD 1996 SC 324), Gulzar Ahrned Raza v Ghairnran, National Accountability Bureau (NAB) (2010 YLR 2977) Haii t Mulranrmad lloota v Member (Reverrue) Board of Revenue, Punjab (PLD 2003 5C979), Mian Muhamrrrad Nawaz Sharif v President of Pakistan ( PLD 1993 SC 473), Manak Lal, Advocate v Dr. Prenr Chand Singhvi (PLD 1957 SC (tnd.) 346),

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Muhanrrnad Alrnrad v Mrs.

earrrar Anwar Sheikh (1980 Cl,C 661), Bashcslrar Nath v Cornnrlsslorrer,f lncoprc Tax, Dcllrl ond ttaiasthan (Alf{ t959 5C 149 (V '16 C22), Mst. llllqls liultarn v ltellomcnl Conrnrlssioner Lahnre (l'l,D 1975 l.tlto11' I85), l(nrrrrlrl l)ork l.nbour ll6arrl v Messrs Quallly Iluilders Ltd. (PI't) 2t)ltr st- l2l), ft,turr,rrvnr llurnln v llultatt Altrrtad (20(15 SCMI{ l3tlfl), Evacuee 'li'trst llropurly llo,r''(l v Msl. Snkllrn llltrl (2007 SCMR 262), Msl. Badshah llt'gttnt t, 'l'ht Ad(ll. Corrrrrtlsslttnet (l() Lahore (2003 SCMR 629), Nawab Syed ll.rurtnq Ali v Clrlcf Settlcrrrepl Corrtntlssl6ner (l'l.D '1971SC 236), Muhammad r\slanr r, Shanrlru Akhtar' (lrt.D 2(112 l-llgh Court [Ar&Kl 14), Irshad Ali v Itrovirrce of Sirrdh tlrrougtr l-lorrre Sccretary (2015 PLC (C.S) 283, Commissioner lncome Tax v l{abib l,arrl< Linrited and ANZ Grindlays Bank PLC (2014 SCMt{ 1557), Conrnrissioner Incorrre Tax v Habib Dank Limited and ANZ Grindlays Barrk PLC (2015 PTD 619), Sfieikh l(halid Mehmood v Station House Officer (Pvt] (2015 P Cr.. L 387), Ba'k of Punjab and another v. Haris Steel lndustries

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Ltd. (PLD 2010 Suprerne Court 1109), Ch. Nisar Ali Khan v' Federation of and Pakistan and others (PTD 2013 Supreme Court 568) and shahid orakazi another V. Federation of Pakistan through Secretary Law, Ministry of Law, Islanrabad and another (PLD 20L1 Supreme Court 365'

). 5. On the otl.rer hand special prosecutor NAB has conceded that the Chairman was absent but contended that this was not a bar on the Deputy chairman signing the reference in his capacity as Acting chairman or deputy Chairman; that the Deputy Chairman hacl full authority to sign the reference and that the case was hit by the doctrine of estoppel and as such the reference was maintainable.

6, We have hcard the parties, considered the record as well as the relevant Iaw

7.As mcntioncrl carlicr we arc only c{etcrt'nining ttre mairrtainability of the reference antl nclt its mcrlts.

ll. Wc arc cognlz.ant of llre fact tlrnt tlte refcrctrcLr !\'as filetl irr the year 2fi)0 under tfuc Nalionat Accountnbillty Orrtlnittrcc l99r(NAO) fltltl rls strch lve rvill travc to consider tltc lnrv oPcrirtitrll irt lhat tlrne , The first lasue ls ttre qucotlon of thc natttrs of tlre Chairtnan's absencc' g. tn this respcct the following $ections of thc NAO as set out below will be of assistancc in terms of wlto can appoint the Chairman NAB and Deputy t

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Clrairman antl tlreir role witlrin thc organization ant{ rvho has thc power ttt sign/ file references;;

"5(c) "Cltnlrnrnn Nnllonal Arcottntntlllity llureau" mcans fl person ,r,li,its ngrrolntctl ,r* *,,.h by tlrei I'rcsklent of thc Islamlc ltepublic of Itrklstnit ns ttlt'lltlont'tl ln nt'cllon 6([r) lrcrcaflcr;

5(i) "l)cputy Chnirllrntl" llu',ltls lttc pcrson appointcrl.as lli:nutI of Clrah'rnnrr try tlrc Clrlcf [!xecutlve of tlrc i'liamic l{cpublic l)ilkistntr

6.National Accoutttnbllity Uurcau, - for

(a)tScrc slrall be co.stituicrl a National Accountability Bureau thc rvhole of l'akistani

(b)National Accountabili ty [lureau:

(i)There shall be a Cl'rairman NAB to be appointed by the irresident for such periocl as the Chief Executive of Pakistan may determine and consider ProPer and necessary;

(ii)The Chairman NAB sirall be appointed on such terms and conditions and shall have the status and privileges as may be detennined by the Chief Executive.

(iii)the Chairrnan NAB may resign his office by writing under his hand addressed to the Chief Executive'

-l (c) Acting Chairman, National Accountability Bureau: As and *l1en the chairman NAB is absent or unable to perform the functions of his office due to arry reason whatsoever, the Deputy Chairman will act as the Chairman NAB, and in case the Deputy Chairmal is absent or unable to perform the functions of the office, any other person duly authorized by the Chairman NAB, to act as Chairman NAB.

7.Deputy Chairman, National Accountability Bureau.- (a) There shall be a Deputy Chairnran NAB appointed by the Chief Executive in consultation with the Chairman NAB. The Deputy Chairrnan shall assist the Chairman in the perfornrance of his duties anr{ carry oul such functions as may be directed by the Chairman.

(b)TIre Dcputy Chairman slrall scrve at the pleasure of the President.

18, Cognlzancc nf offenccs.- (a)'....

(t )..,..

(c)..,., (d),...

(e).....

(g)'l'lts Chalrnran NAlt slrnll nppralsu thc nraterial antl the cvirlence placcd bsforu hinr r.lurlng the irxluiry nnr,l thrl irrvcstigation, antl if he rlecirlcs lhat it rvoultl be ;rropar anrl just to proccerl further, he shall refcr the nratlcr lo an Accountability Court.

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10.Tlte Suprenre Courl in lts order rcprocluced above tlirccted us to probe into thc nature of tlre Clralrmnn's abscncc on 09.CI.2ffi0.

11.'l"ltt'rt'ilsrrn for thls rllrortkxr rvns lx,cause ll llrc Chalrman had no grxxl rtlasoll frrt lrt'irr11 ntr.strrl llrr.n llrt'l)ctrtrrty Clralrmnn woukl not havc hacl thc atttltority to sl11rt tllt' rcft ft trcr'.

11.l'lrt'Clr,rinnnrr Nntiorrol Accountobllity llurcau (NAt,) holcls the pivotal ftrlf i11 tlrt' ftrrrctiorring of thc NAU as can be seen from his higher level of oPp6is1111.rrt, lris qualitication (Lt. Ceneral as opposee{ to Maj. General) ancl most imp1rfl6111 arrtl significant powers belng either assigned exclusively to the Clrainnan or other polvcrs which cannot be carried out without his prior approval. For cxample, the signing/filing of references, filing of appeals and .rpproving the arrcst of irrdivicluals.

13.Due to the importance of the powers given to the Chairman NAB it cannot lrc simpll, claimed that when the Chairmen was absent and as such the Deputy Chainnan could step in and fill l'ris shoes. As per the Supreme Court order we had to probe into the nature of the Chairman's absence on the day in question

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i.e 09.09.2000. For example, was he on annual leave, was he attending a conference outside Pakistan or was I'ris unwell. It is an admitted position as can be ascertained by the Supreme Court's order and NAB's comments that the Chairman was absent from the office but not the reason u,hy or where he lvas. This is the crux of the Supreme Court order i.e the nature of his absence i.e whv was he absent and where was he.

14.Tlre qucstion is wherc was the Chairman or1 the day in question i.e 09.09.2000 wlrich mcant tlrat he was unable to sign the reference. lVhen confrontcd by this Courl, tlcspltc bcing givcn numerous opportturities to finrl out tlte whercabouts cll tlre Cltnlrmnn on the glvcrr tlntc, the Spccial Prosccutor Nr\B could nol cornt' u;r rvith nny cx;:lanallorr. I"lr: sinrpll, statctl that tht Ch.rirman war abyclrl (a fact rvlrich rvas trlreatly knorvn).

15.'l'lre Chaintrorr NAll at llru tinrr, rvlrcn tlrt rcfcrurtrirr lvrlli sig,nr'rl tv.1s Lt. Gcneral Syed Muhanrnrerl Anriarl irntl tlrr. l)eptrty Chrirurnn lvtts lvlaj,General t- Usman (Shalr) as pcr rccurcl rvlul sillnctl thc refcrcncc in the absence of the Chairnran Lt. General Syerl Muhanrnretl Arniatl.- ,l fr

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16' As mentioned abovc no rcason lras lx,cn assignerl for the Ctrairman's absence. He nrny hovc lrccrr ol lronre ln rvlrlclr case lhe refercnce coulcl havc been sent to lrirn of ltis lrouse for sl6rrlng ns ls oftcn tlone ln mattcrs of urgcncy. Or the refert'nce coultl tx' lrnvc lrr.on silln(,(l by lhe Ctralrman lhc ncxt day rvhen he rt'tunlt'tl lo 1l1s 6l[ict' pr 1yg1l ll11 f6llprvlrrl', wct'k ns llrerc appears to be no lr.rrticttl.rr urll(!nc]' irr rllgrrlrrll lht' rcfr'lt'ncc. 'llrc lncl llrat the Chairman was not atrst'nl ntrrl urrntrlt' to firlfill hls tlullcs ls forliflctt by the fact thal no nolification rnnkirrll tlrt [)t'pu1y' Clrnirnran Actlng Cltnlnnan in the absence of the Chairman \yils rt\'or issuerl rt'hictr intlicatcs tlrnt tltc Cltalrmnn rvas available on the clay rslretl the rcfcrcrtce \\rars signcrl,

17.Tltus, sitrce the NAB has not bcan able to explain the nature of the Clrairnran's absence on 09.09.2000 and therc is no material on record to suggest tlrat he rvas absent on the saicl day e,g tlrrough approved leave, approval to travel abroad, sick leave etc after our probe we find that there is no material to suggest that the Chairman was in fact absent from Pakistan that day apart from rrot attending the office in the context in which absence is usually meant i.e with a reason for the absence and NAB has been unable to explain the nature of the absence rvhich implies his presence and availability.

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18.By using the word "absence" the legislature could not have meant absence from office for example one day whilst the Chairman attendecl a meeting in Karachi as this would mean as soon as the Chairman was out of office the Deputy Chairman would not only assulne his role but also his porvers rvhich could nol have been the legislative intent. Absence in our view as intendetl by the legislature would mean for example when the Chairman was outside of Pakistan (or a given period and as such the day to day affairs of running the NAI! fell within the purview of tlrc Deputy Ctuirman and/or Acting Chairman as to allow any other intcrpretation lvould imply that if the Chairman as mcntioned earlier was nutsirlc' o[ Islanrnbarl ancl nbscnt frour NAB office for ont' rlay tlrc Depuly Chainncn bclng, ntuclr lorvcr ln titlc anrl position coukl stt'p i11 and take ovcr all lltc ltrtwcrs of lltc Clralrrrrnn lnclutllug txtrr.urcly trclusit't' dtttl significancc oncr cuclt as signing rofcrcrtces. l-lurtcc, illrscucr.' turtu otr tlrt' naturt' of tlrc abstncr ar cntpltnsizcrl by llrc Suprcnlo Court, lf for oxdnrple tlrrt Chairman tvas abroatl for sry nlxrul (r nronths on NA[t lrusiucss sttch rcas()n f()r A his absence nriglrl trigger thc abscncr! rls t'nt,isioucrl by thc Stattrto as it was necessary for some one to tenrporarily step in to fulfill his functions antl ensure continuity of the Or8anization.,

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( 19' Hence, we find that thc Dcpury Chalrman coutd not have simply stepped in and signetl the rcfcrt'nce unrlcr rlrtse clrcurnetancca wherc no rcason for the absencc (whlch reason wilr emcnllnl lo prove lhat lhe absence was genuine) was Siven antl it nll|r!.rrs thnl ttre Chalrmnn was rrnly nbscnt frorn llre office but not ncct'ssarily' unrclclrnblt, nrrtl coukl hnvc slgncrl lhc rcfercnce lht next clay, rvlriclr rvas treytrnrl lrls powcrs untcsr hc lrad delcgalecl powcrs to do so from the Clrairm.rn.

Did the Deputy Chairnran havc any detegated powers from Chairman NAB to sign the rc(crence?

20.ln this respect S.7 NAO as reproduced above is of importance' 21. UnderS.T NAO the Deputy Chairman;

(a)nray assist the Clrairman in the performance of his duties and (b) carry out such functions *'y be directed by the Chairman' 's 2L lllith regard to assist this clearly in our view does not apply to such an a scenario important function as signing references on his behatf. In fact in such actual functions of he rtould not be assisting the Chairman but carrying out the the Chairman rvhich he had no legal authority to do under the NAO'

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23.with regard to carrying out such functions as may be directed by the chairman.NAB has failed to place on record any written function which the of an Chairman had directed the Deputy Chairman to carry out whether in terms to SOP, rule detegated authority or otherwise and as such there is no material suggest that the Chairman NAB ever directed the Deputy Chairman to sign and

fite references. There is also no material to suggest that any verbal order rvas given to that effect and it is well settled by now that verbal orders have no sanctity in the eyes o{ the law.

24.T'his in any cvent woulcl run contrary to S.18(g) NAO rvhich rvas reproduccd aboye whiclr authorizerl ttrc Chairnran lo apprraise the nraterial antl (hc evidcnce ptaccd bcfore him tluring thc tnqulry nnrl tlte irtvcstigntion, antl if hr dccirles that it woutrt be propcr ancl just to procectl fttrtltsr, hr"'shall rt'fcr tht' malter to an Accountability Courl. !'lorv coultl suclt porvc'r to sign tr rcfcrcnce bc' givcn to a Deputy Ctmirnrnn rvuukl lrml rtot 0\,tlll rlpprilisetl the trtatr"'rial antl evirlence placed bcfora hirn? lt would rrot bc possible as this rvas tlttl furrction of I the Clrairman.

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\qt 25' The NAO was amenrletl on 5rrr Jul}l 2000 to enable the Chairman to delegate lris porvers by addlng o ncw ctause 6(lv) to the NAO which reatls as under;

"'l-irc Clailrntrtrt, NAll umy ltlegtle nty ol his you'ers lo, nnit millwrizr yntonnonrc ol nry of lils luuctirtns by, nn ofliur ol tle NAIt n.c fu mq l":,nt fil oni yroyor, mltlect lo suclr ronrlilions, if ,r,,U, rr.i nrrtrT l,r rycifird fu lh' onler, lor uwying onl llto P,trqoses rrl llri.r ()nli,rrurtrn. "

?(''. tvtuch latt'r lry Arnerrrhncrrt (Ortlinnncc )XXXV of 2001 dated 10.08.2001 a sprtific po\v(rr ttr tlctcgatc rvas givcn to tlre Cltairman NAI] by virtue of S3a (A) u'hich is rcproducctl bclorv for ease of reference;

'34-A. Dclegntiort of Poucrs,'-'Tlrc Clminnnn NAB nny, by an artler irr rrrrilirrS, rlelcgnte nny of lis pouers nnd lo oullrcrize pcrfornmtcc o{ nny ofltis funclions by, nn offcer of ilrc NAB ns lrc nny dcem fit nnd proper, ntbject to srrclt condiliotrs if nny, ns nmy bc spccifed fu tlrc order, for cnrrying out the PurPoses of llis Orrlinnnce".

T/. The special prosecutor NAB however was not able to produce any material to show that the Chairman had delegated any of his powels to the Deputy Chairman at the time when he signed the reference. IrVhen a delegation of porvers takes place in the NAB this is ahvays by way of statutory declaration in rvriting and is gazetted. For example, as is set out below;

The Gazette of Pakistan

EXTRAORDINARY

PUBLISHED BY AUTHORITY

ISLAM^BAD, FRIDAY, JULY 15,2005

PN RT II

Stntutory Notlfications (S.lt,O.)

GoVERNlvl IiN'r Of PA KSITAN

NATIONA L NCCOUN'I'AUI LTI'YI IIUITUAU

ol{Dlll{s

Islitrnabnd, th0 t!t\l Saplcttttrc'r, 20Ol

5.R.(). 712(lll2{JJ5,-..1n cxcrcise of powcrs vesterl in me uncler I section 3{-A of National Accountability Orelinance, 1999, I Ltc{. General Munir Haliez, Chairman National Accountability Bureau hcreby delegate m)' pohrers to the officers of NAB lo the extent inrlicatecl below for

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carrying out the purposes of the Ordinance with respect to the authorization of the iollowing [unctions:-

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S. No. Naturc of Officers of Extent of porvcr/ functiorr NAB clelegation authoriz.ecl t 2 3 4 t. Clo.surc' of All DCs i, Crade 1.6 & inquiry/ lrrvcstilgn l{eg,lonal below.

tion nnrl rclcnsc ol NAlls. ii. I-lolder of an thc nccusctl, lf ltt office or post custody u/s 9(c) in connection with the affairs of a local council except District Nazim

CORRIGENDUM

In the order No.19(a0)NACS (NAB)/2004 DATED 27-9-2044 regarding delegation of Powers under section 34-A of. National Accountibility Ordinance, 1.999 in column relating to extent of delegation against serial No.10, for " do" read "full powers".

sd/-

MUNIR HAFIEZ

Lieutenant General ), Chairman National Accountability Bureau, Islamabad, Dated l.srJuly 2005,

28.When such statutory delegations are made by the Chairman they can even survive the maker leaving office for a reasonable period of time as was held in the cases of Al-)ehacl Trust V Federation of Pakistan (PLD 2011 SC 811) anrt Muhammcd Rafiq V State(NAB) (2019 SCMR 846)

29.ln tlris case howcver clespita thc Chnirman lraving the porver to clelegate authority Lo the dcputy chairmnn hc chose not to clo so. Which is further support for tlre proposition that thc Chairnran was not nbscnt or clse he n'right have given suclt authority altlrough ll wouhl be cxtrcmcly rarr:, if ever, frlr a Chainnan to delegate lriu autltority to ri1lrr nnrl filc rcfurcncr-'s to thc l)upt111, Chainnan unr.ler S.18(g) NAO as this is probably llrc rnost lrnptrrtant polvcr which the Chairnran Possesses under tlto NAO unless he was perhaps suffcring from long term ilh'ress t.

or $,ould be arvay frorn Pakistan for a number o[ months as in most cases the signing of a refcrence can wait a weck or tlvo let alone a clay or two.

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>o\ 30' Thus, we find that the Deputy Chairman also harl no authority to sign the reference on this count as well.

Estoppel, waiver and arqulescenco

31.The kcy to this lssut, scetns to lrc wlrcther the appeltant kncw or was at Ieast arvart' tlrat tlrt' l)cltrrly Clrnlrrrrnn lrntl no autlrorily to rign the reference based on the pnrticulnr facts onrl clrcunrstRnccs of lhe casc when the reference rvas filu'tl arrtl knorvirrg so he fniled to rolse lhc issue.

32.In this rcspe'ct reliancc is placctl on thc lollowing cases; h'r the casc of Muhanrnrad Ahnrad (supra) it was held as uncler:- "TlE lenn ':r.nitcr' inrylies llrc iutenlionnl relinquishnrcnl of n kttoturt right nfter knouleclge of the facts. Il implies the irrtctrtionnl forbenrnncc to enforce right ond necessnrily, tlrcrefore, osstt,,Ies tlrc existutce of m opporfiuity for cltoice bekveen lhe rclinquislnnent and tlrc enforccnrcnt of lhe right" Sold added) In the case of Mst. Bilqis Sultana (supra) it was held as under:- "Il zpns pointed out tlmt Bigadier Arujnrl Clmudltry lnd u'nited his right to tlw transfer of tlrc proper$ becnuse he remninecl quiet for four years nfter its trnnsfer to the petitioner. Tlrc frst anflrer to this objectiott is tlmt ns hns been slrctnr altoae, llrc tratsfer of tle property to tlrc petitioner tuos tulwlly uoid being irt excess of lnu,ful ) autloity ad, tlurefare, tle questiort of runiaer u,ould not arise. The second ar$tuer uould be that it lms tot been slrcun at aII tlrc petitiorcr tlmt tlrc Brtgadier Tons atufile of the trnnsfer of tlrc property in her fauour or thnt the property lnd been releaserl by the Central Govennnertt aud was tlttts aanilable for transfer. Wniaer has beeu ilefined fls "Att intattional relilquiilurtcrtt of a known rigltt', tfi it lrrls been held in Midnnpore Zaniwlnry Co. v, I(tuuar Clnndrn (1) thnt - "Mere onissiotr to clnim or enforce n rigltl for sonrc time does nol nnotnrl lo n wniuer af n righl."

Il hns bee n lrclil tlurc nnd ngnirr thnt the doctrine ry' rrrrircr tuotrlil sley ln onlry ruhen lhcre is some "clear nud dccisirc' nct or couiluct bcryond lrlrrr sdlolce, .ts lrnrc silcrrre lrry rt pnrly lu regnnl lo n rlg,ltt perlectly l'llorrr lo llre otlrcr can rnroly nilslmil n ,,tfiu of nuernge frrfrlligcrrce".(trokl atldttl)

33.ln tlrir cart'athnllterlly tlre appellant rvali a lay nr.rn anrl h.rd no spscif[6 knowletlgc aboul tlrc larv nlrtl in prarticulnr thc nicctics of s,ho anr.l rvho couLl not li6,n llrc refc.rcrrcc. Quite nnturally hu lyas only intcrcstctl in rlefentling the clrarges against hinr. 'l'hus, he harl rro knowletlge th:rt the. refercnce lrarl been I signed and therefore filerl unlarvfully against hinr anrl as such he cannot be sairl t

ll

ry to hnvs wfilvc(l in the hearing his rlght lo ralse lhc issnc lalcr or even ncquiesce of tlrc csre wlthour lnwfgl nutlrorlty,

34.ln nrr1,r.v(.^l n ruufl en^tr.l htnr d casr: lf lt lncks iuriscllction even if the lrarlics nt't1ult *cr, ltr lt. lrr llrls rcspt't:t tollnttct' lr plncetl on thrl following cases;

lrt llrt'crrst ol Munowwnr lltrgsnln anrl 2 otlters (supra) it wa$ held as trtltlt r:.

"lot lhr yoinl of qtrcslion, lltis Conrt hns giuel a.clonr ilislittcliott irt otsc ,ri M,,luiu,lr,,ti l-ltrcsnin t'. Mnlwittrnrt Stnli 2004 SCMR Na7. We hnae alrcrrily ltcld tlrnt wlrcn a Court a$fers from tunnt of lnlrcrllei Jirisdtcllottt tto nttto'tnt a/ consent or ncqtilesience ln tlrc'proccedlngs cnn lnuest such Court ruith suih iurisdlcttan. ito questiott o/ waiuu or estoppel is nttrncterl ln snch cirannstatces".(bold addect)

In the case of l(arachi Dock Labour Board (supra) it was held as under:- "It is 1tt'oper to tnentiott \rcrc thnt nccordittg to tlrc settletl rules of lmo, pnriics cannol confcr jurisdictiotr ttpott n Court or otlrcr iurlicinl or qunsi-judicinl forwt througlt consenl ulich ollrcnt'ise irt lnrrr ruould lmae no juriscliction anrl tlrc sanrc is the positiotr rcgardhry waiuer and acquicscencc qun tlrc Courts etc. tulticlt laclc jwisdiction and arch behtg au inlrcrent defect cannot be curcd on the nies of consett, tuaiaer, estopyel, ncquiesce efc.(bold added) l 35. In this case since the Deputy Chairman basecl on the particular facts and circumstances of this case had no lawful authority to sign ancl file the reference the accountability court had no power to take cognizance of the same uncler s.18(g) NAo and hence lacked the jurisdiction to hear the reference.

36.This being the case we fincl that the reference was filetl lvithout larvful authority and it is set asicle with the effect that the appellants are acquitterl of the charge and their bail bonds stancl clischargetl.

37.It follows thnt nny propertics confiscaterl on account of the.ir convictio*s and scnlenccs unclcr tlrc rc'fercnces shall bc rcturneci t6 thq ap[rr,llarrts or their Iawfut owncr.i antl all fittt:s ancl nny othur fiuaucial [rcpaltir_,s i*r1xr5q.ql bt, thr.

irnpugnctl iur"l6nrcnt uport tlte np;lallants or ally ono e[sr. urcrrtitr*e.tl thcrei* arr, set aside'

3g. The appcals stanrl rlisposctl o[ in ths nbovc tcrnrs.

IUDGE

W es(o:,f z3

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