Mst. Rukhsana Bangash VS Chairman NAB etc

W.P. No.2994-2020

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

W.P. No.2994-2020 Mst. Rukhsana Bangash Vs.

Chairman, National Accountability Bureau, Islamabad etc. S. No. of Date of Order with signature of Judge and that of order/ order/ parties or counsel where necessary. proceedings Proceedings

20.01.2021 Mr. Farooq H. Naek, Advocate Supreme Court and Mr. Aqeel Akhtar, Advocate for petitioner along with petitioner Sardar Muzaffar Ahmad Abbasi, Additional Deputy Prosecutor General, National Accountability Bureau, Rana Zain Tahir, Special Prosecutor General, National Accountability Bureau, Obaid Ullah Azam, Director, National Accountability Bureau and Mudasir Nayab, Assistant Director/IO, National Accountability Bureau.

AAMER FAROOQ J. The petitioner is facing inquiry conducted by National Accountability Bureau; she is aggrieved of call up notices issued by National Accountability Bureau and also seeks bail before arrest in the matter.

2.It is the case of the petitioner that call up notices issued are in violation of law declared in cases reported as ‘Dr. Arsalan Iftikhar Vs. Malik Riaz Hussain and others’ (PLD 2012 Supreme Court 903) and ‘Ghulam Hussain Baloch and another Vs. Chairman, National Accountability Bureau, Islamabad and 2-others’ (PLD 2007 Karachi 469). It was also submitted that it is apprehended that respondents might arrest the petitioner. Learned counsel further pointed out that respondents, with malafide and ulterior motives, are involving the petitioner in the inquiry initiated against her son primarily.

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3.At the very outset, learned Deputy Prosecutor General, National Accountability Bureau submitted that at present, neither warrant of arrest has been issued against the petitioner nor any such proposal has been initiated. It was contended that call up notices were against the law declared by the august Apex Court hence amended questionnaire has been issued. This Court was further informed by the learned Additional Deputy Prosecutor General that inquiry, against petitioner’s son, was initiated due to a letter from Financial Monitoring Unit with respect to two transactions made by him for purchase of foreign currency in the sum of $21,000 on the same day in different transactions.

4.Arguments advanced by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance.

5.Under section 19 of National Accountability Ordinance, 1999 (the Ordinance), National Accountability Bureau (NAB) has the power to call for information. In this behalf, for ease of convenience, section 19 of the Ordinance is reproduced below: -

19.Power to call for information:

The Chairman NAB or an officer of the NAB duly authorised by him may, during the course of an inquir y or investigation of an offence under this Ordinance:-

(a)call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Ordinance or any rule or order made there- under.

(b)require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation;

(c)examine any person acquainted with the facts and circumstances of the case;

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(d)require any bank or financial institution, notwithstanding anything contained in any other law for the time being in force, to provide any information relating to any person whosoever, including copies of entries made in a bank’s or a financial institution’s books such as ledgers, day books, cash books and all other books including record of information and transactions saved in electronic or digital form, and the keepers of such books or records shall be obliged to certify the copies in accordance with law ; and

(e)where there is reasonable suspicion that any person is involved in or is privy to an offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the High Court concer ned, direct that sur veillance of that person may be carried out through such means as may be necessar y in the facts and circumstances of the case and the Chairman NAB, may in this regard seek the aid and assistance of any Governmental agency and the information so collected may be used as evidence in the trial under this Ordinance:

Provided that the copies obtained or information received or evidence collected under clauses (d) and (e) shall be kept confidential and shall not be used for any purpose other than for legal proceedings under this Ordinance”.

6.The power of NAB to call for information and ask any accused person or the witness to appear before the Investigation Officer was questioned and examined in detail by Hon’ble Sindh High Court in case reported as ‘Ghulam Hussain Baloch and another Vs. Chairman, National Accountability Bureau, Islamabad and 2- others’ (PLD 2007 Karachi 469). The Hon’ble Sindh High Court observed as follows:- “For the purpose of prese nt case, the provisions of se ction 19(a), (b) & (c) are relevant, therefore, discussion would be in respe ct of said provisions. A bare re adi ng of the sai d provi si ons re ve al s that if an inquiry or investigation is ordered in respect of offence punishable under the Ordi nance by the Chai rman NAB then during the course of sai d i nqui ry or i nve sti gation of such offe nce the Chai rman NAB or any officer duly authorized by him is authorized to call for information from any person for the purpose of satisfying himself whether the re has been any contravention of provi sions of the Ordi nance or any rule or orde r made there unde r. In this cl ause , "any pe rson" would me an all pe rsons including witnesses and accused from whom the information is required. The question arises as to

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what sort of information the person is required to furni sh to the compe tent authori ty. The i nformati on would be i n re spe ct of offe nce all ege d or any matter whi ch can sugge st that the provisions of the Ordinance, rule or orde r made the reunde r have bee n contravened. For that purpose competent authority is required to ask any pe rson from whom such information is re qui red to provi de information which has nexus with the above provisions. If a person does not know the point or allegation or offence or fact on which information is to be provide or the pe rs on against whom such informati on is requi re d the n how such person would be in a position to help the competent authority, the refore, while call ing the i nformation from any pe rson, the pe rson must be i nformed the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters of the provisions in the B notice so that the person can furnish such information. If such specified i nformati on i s of such a nature whi ch, if furnished through any mode will serve the purpose, then such person should not normally be called to appear in person.

The i mprove ments as poi nted out by the le arned DPG i n the investigati on process before the NAB authorities are basically carried out to facilitate all the concerned pe rsons to give them due re spe ct, not to harass the m, to provide all re asonable facili tie s, rel ieve them wi thin shortest possible time, wi thout detaini ng them unne cessary or put any hardship to, any pe rson then in all fairness the person at the ini tial stage shoul d not normal ly be aske d to appe ar in pe rson and furni sh such information, which otherwise, can serve the purpose by furnishing such i nformati on through any othe r manne r. This doe s not me an that the authori tie s have n o powe r to cal l such pe rson, but i n unavoidable ci rcumstance s whe re the pre sence of the pe rson is ne ce ssary the n the pe rson can be called by signing re asons as required unde r secti on 24-A of Gene ral Cl auses Act, whi ch sti pul ates that whe re any authori ty or officer is empowered to make order or give any direction, such powe r is re qui re d to be e xe rci se d re ason abl y, f ai rl y, justl y an d fo r the advancement of the purpose of enactment and give reasons for making such orde r. The copy of such orde r shoul d fi nd pl ace and be made available in the case diary.

It is pointed out that if a person is called then in the summons or noti ce the date, time and pl ace of his appe arance should be spe cifi cally menti oned. After doi ng the nee dful an e ndorseme nt be made on the notice or summons showing the date, time and place of his appearance and the date , ti me and de parture from the pl ace to whi ch he was summoned, which shall be delivered to the said person. All such orders me ntioning such facts and i nformati on should

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be attached to the case diary. It is al so pointed out that no avoidable trouble should be given to any pe rson from whom information is calle d for or inqui ries are made and no person should be unnecessarily detained.

As regards the clause (b) under which the Chairman NAB and an offi cer duly authorize d by hi m, is authori zed to requi re any pe rson to produce or deli ve r any document or thing useful or rele vant to the inqui ry and i nve sti gati on of the offe nce : thi s cl ause , pe rson can al so be asked to produce or delive r the docume nt or thing whi ch will he lp the Inve sti gating Offi ce r i n the inqui ry or i nvestigation of the offence . Under this cl ause, the Investigating Offi cer is also requi red to specify the offence, name of the accused person, particulars of the document or thing, if available or any document or thing concerning the offence and accused having nexus with inquiry or investigation, which is required to be produced or delivered in the notice. Under this cl ause also at the initial stage, normally the person should not be asked to appear in person and to produce such document or thing for the simple re asons that when the docume nt or thi ng i s re cei ve d by the Inve sti gating Offi ce r i t will serve the purpose and if for any re ason attendance of such person is requi red the n he can be call ed by assi gni ng vali d and coge nt re asons whi ch shall appe ar in the case di ary. The date, ti me and pl ace of his appearance and production of the document or thing should be mentioned i n the noti ce or summons. After appearance and doing the nee dful , an endorse ment be made on the copy of noti ce or summons showi ng the date , ti me and pl ace of hi s appe ar ance and the da te , ti me of hi s production of document or thing and departure from the said place which shall be delivered to the said pe rson and the copy of such order shall be attached with the case diary.

As regards the clause (c), the Chairman NAB or any officer duly authori ze d by hi m i s e mpowe re d to e xami ne any pe rson, who i s acquainted with the facts and ci rcumstance s of the case having nexus with the inquiry or investigation of offence. Unde r this clause also, the normal practi ce i s that the Investi gati ng Offi ce r normall y re cords the statements of the wi tne sses at the pl ace of i nci dent wi thout l os s of time by pe rsonally going there. In the cases before the NAB authorities, the statements can al so be re corded at the pl ace of incident or re sidence of the pe rson. For any reason, if the Inve sti gating Offi ce r finds that the witness or any person should be examined at certain place then he can i ssue such summons or noti ce showi ng the name of accuse d and particulars of offence with date, time and place of this appearance. As soon as he appe ars before him the n hi s stateme nt should be recorded. After doing the needful, an

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endorsement be made on the copy of notice or summons, showing the date, time and place of his appearance and the date, time of his departure from the said place, which shall be delivered to the said pe rson and such orde r should also be file d wi th the case diary.

It is not out of pl ace to mention he re that the conce rned offi cer is authori zed to re cord statements of wi tne sses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make. The law does not permit such officer to beat the wi tness or confine hi m for the purpose or inducing him to make a particular statement. One of the purposes of examination of witness is to obtain evidence preliminary to arrest the accused.

The words "any pe rson" appe aring in the cl ause i ncl ude the accused person also. The Constitution gives guarantee to the citizen unde r Arti cl e 4 that the y wi l l be tre ated accordi ng to l aw. Unde r Article 13 protection has been given to the accused of an offence that he will not be compelled to be a witness against himself. It is al so against the natural justice and principles of Criminal Law to compel a person to give evidence against himself in the offence instituted against him and the n base the charge on such evi de nce. Duri ng the interrogation, the a cc use d c an re f use to ans we r onl y tho se que sti ons whi ch a re incrimi natory, but he i s re qui red to answe r all othe r questi ons. The protection against self incrimination i s available to accused not onl y i n re spe ct of his words, but al so on the use of docume nts, books, pape rs etc. Forcing a pe rson to produce , de li ve r or turnove r i ncri mi nating wri tten materi als i s in effe ct requi ring hi m to testify agai nst hi mse lf. Reference is invi ted to 116 US 616 (1886) as re ported at page 96 o f Consti tution of Paki stan, 1973 by Shaukat Mahmood. It is also agai nst the guarantee provided under Article 13 of the Constitution.

In the last half of the Seventeen Century privilege against self-incrimination was well- established in England: The adoption of privilege marke d a gre at advance ove r earlie r practi ces when suspe cts we re not only required to give testimony against themselves, but were tortured to force them to do so. The privilege has been incorporated in the Criminal Proce dure Code . It has been regarded as one of the gre at l andmark in man's struggle to make hi msel f civili ze d and assumi ng that a man i s pre sume d to be i nnoce nt until proved guil ty. All the othe r protecti on facili ties as discusse d unde r clause (a) should al so be provi ded to the persons in respect of clauses (b) and (c) of section 19 of the Ordinance”.

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7.The observations of Hon’ble Sindh High Court were approved by the august Apex Court in case reported as ‘Dr. Arsalan Iftikhar Vs. Malik Riaz Hussain and others’ (PLD 2012 Supreme Court 903).

8.Likewise, the Hon’ble Sindh High Court again approved the referred principles in case reported as ‘M/s Memon Motors Pvt. Ltd. through General Manager Vs. National Accountability Bureau through Chairman and 2-others’ (2014 P.Cr.LJ 1378).

9.On the touchstone of interpretation of section 19 of the Ordinance, when notice dated 26.08.2020 is examined, the same does not comply the legal requirements. Likewise, notice dated 10.11.2020, which was produced in the Court, is also in violation of the observations made hereinabove. It is observed that call up notices, issued in the instant case, are in violation of law declared by superior courts of the country. Decision to call someone, in an inquiry or investigation by NAB, is an executive decision however the person, who is being called either as witness or accused, is entitled to know the reasons/details for which he is called. In this behalf, it is appropriate that in light of dicta mentioned above, a call up notice should contain the following information:-

i)If notice is issued to a person, who is a suspect in inquiry or investigation, the nature of allegations against him ii) The name and identity of complainant; if NAB has initiated inquiry/investigation, then it should be stated so in notice.

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iii)Documents, if any, sought from person called as suspect or witness iv) If person is called as a witness, it should be so stated in call up notice.

v)If custodian of any material document or record is called for examination of same, the call up notice should state so and the details of documents and record.

vi)Date, time and place, where person called, is to appear.

vii)Any other relevant information.

10.In so far as bail before arrest is concerned, learned Deputy Prosecutor General, NAB contended that petitioner is neither required for arrest at the moment nor there is any proposal and the matter is still at an inquiry stage. Learned counsel for the petitioner apprehends that NAB may arrest the petitioner. In support of his claim, he placed reliance on order of this Court dated 17.12.2020 passed in case titled ‘Ghulam Qadir Mari Vs. Chairman, National Accountability Bureau, etc.” (W.P. No.282-2020).

11.In so far as arrest of the petitioner is concerned, since a specific statement has been made by learned Deputy Prosecutor General, NAB that they have no intention to arrest the petitioner at the moment, no order, to the effect, confirming bail, can be passed. However, it is expected that if and when any such action is proposed by NAB, it will take into account the observations made in judgment dated 18.12.2019 passed by this Court in case titled ‘Amjad Mustafa Malik Vs. Director General, National Accountability Bureau & 4- others’ (W.P. No.769-2019).

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12.For what has been stated above, impugned call up notices, being in violation of law, are set aside. The prayer to the effect of bail before arrest is disposed of on the basis of above statement of learned Deputy Prosecutor General, NAB.

(TARIQ MEHMOOD JAHANGIRI) (AAMER FAROOQ)

JUDGE JUDGE

Approved for reporting

Zawar

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