Sardar Hayat Muhammad Khan Madokhel VS Chairman NAB etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.74 of 2017 Sardar Hayat Muhammad Mandokhel Versus.

Chairman, National Accountability Bureau and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 20.12.2017 Dr. Babar Awan and Mr. Tajjamal Hussain, Advocates for the petitioner.

Mr. Kashif Ali Malik, Advocate for the Capital Development Authority.

Mr. Raza Bashir, Special Prosecutor, National Accountability Bureau.

Mr. Muddassir Nawaz, I.O./A.D, National Accountability Bureau.

Through the instant writ petition, the petitioner, Sardar Hayat Muhammad Mandokhel, impugns the call up notice dated 04.05.2016, issued to the petitioner by the National Accountability Bureau (“N.A.B.”) under section 19 of the National Accountability Ordinance, 1999, calling upon the petitioner to attend the office of Syed Asif Mehmood, Deputy Director, N.A.B. (Rawalpindi) with respect to the recovery of Capital Development Authority land measuring 79 acres situated in Village Said Pur, Islamabad.

2.Learned counsel for the petitioner submitted that the said call up notice dated 04.05.2016, issued to the petitioner is not in accordance with the law laid down by the Honble High Court of Sindh in the case of Ghulam Hussain Baloch Vs. Chairman, National Accountability Bureau, Islamabad (PLD 2007 Karachi 469).

3.On the other hand, learned Special Prosecutor, N.A.B. submitted that the petitioner has unlawfully occupied valuable land, in Islamabad without any lawful authority; that the ownership in the said land vests in the Capital

Development Authority since it was acquired a long time ago; that the occupants of the said land had no right to give possession of the same to the petitioner; that the mere fact that a civil suit had been instituted by the petitioner is no ground to stop the N.A.B. from inquiring into the matter or proceeding against the petitioner; that the petitioner has no legal foundation to stand on, and had also withdrawn his case from the Hon'ble Supreme Court; and that the call up notice dated 04.05.2016 does not violate any law. Learned Special Prosecutor, N.A.B. prayed for the writ petition to be dismissed.

4.We have heard the contentions of the learned counsel for the petitioner as well as the learned Special Prosecutor, N.A.B., and have perused the record with their able assistance.

5.Since the petitioner confined his case to throwing a challenge to the legality of the call up notice dated 04.05.2016, we intend to confine ourselves to determine as to whether the said call up notice is in accordance with the law laid down by the superior Courts.

6.Perusal of the said call up notice shows that the same had been issued under section 19 of the National Accountability Bureau Ordinance, 1999, requiring the petitioner to attend N.A.B.’s office at Islamabad on the matter regarding the recovery of C.D.A. land measuring 79 acres in Village Said Pur, Islamabad. Additionally, it has been stated that the petitioner is in possession of information and evidence which relates to the commission of an offence. Nothing is mentioned as to a specific offence alleged to have been committed by the petitioner. The said notice has not specified the information or evidence required to be produced by the petitioner.

Therefore, we are of the view that the said call up notice is not in conformity with the guidelines/law laid down in the case of Ghulam Hussain Baloch Vs. Chairman, National Accountability Bureau, Islamabad (supra). In the said case, the Hon'ble High Court of Sindh after making reference to section 19 of the National Accountability Ordinance, 1999 held as follows:- “ A bare reading of the said provisions reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence the Chairman NAB or any officer duly authorized by him is authorized to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made thereunder. In this clause, "any person" would mean all persons including witnesses and accused from whom the information is required. The question arises as to what sort of information the person is required to furnish to the competent authority. The information would be in respect of offence alleged or any matter which can suggest that the provisions of the Ordinance, rule or order made thereunder have been contravened. For that purpose competent authority is required to ask any person from whom such information is required to provide 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 person against whom such information is required then how such person would be in a position to help the competent authority, therefore, while calling the information from any person, the person must be informed the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters of the provisions in the notice so that the person can furnish such information. If such specified information is of such a nature which, if furnished through any mode will serve the purpose, then such person should not normally be called to appear in person.” (Emphasis added)

7.In the case of Dr. Arsalan Iftikhar Vs. Malik Riaz Hussain (PLD 2012 SC 903), the Hon'ble Supreme Court quoted the approval of the law/guidelines laid down by the Hon'ble High Court of Sindh in the case of Ghulam Hussain Baloch Vs. Chairman, National Accountability Bureau, Islamabad (supra), in the following terms:- “13. The clear and unambiguous pronouncements given in the case titled Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others (PLD 2007 Karachi 469) were violated by NAB in its two letters. In the cited precedent NAB has been given express guidelines as to its responsibilities while summoning or requiring the attendance of persons/witnesses in an inquiry. As per ratio of the case, before summoning a person to attend, NAB was duty bound to identify and particularize the information sought from any witness etc. and to state the nexus between such information and the subject of the inquiry being conducted by NAB. It was observed by the Court that "while calling [for] the information from any person, the person must be informed of the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters ... in the notice so that the person can furnish such information". None of this was done by NAB. The Sindh High Court also laid down the principle that if the specified information can be otherwise furnished, then the person "should not normally be called to appear in person". The case of Ghulam Hussain Baloch supra gave further clarity to NAB by declaring that "normally a person should not be asked to appear ... for the simple reason that when the document or thing is received by the investigating officer [it] will serve the purpose and if for any reason attendance of such person is [still] required then he can be called by assigning valid and cogent reasons which will appear in the case diary". None of these guidelines, reiterated in a number of subsequent cases [e.g. Muhammad Younus Arain v. Chairman, NAB and another (2008 MLD 1431), Niaz A. Baloch v. Chairman, NAB and 4 others (2008 MLD 1451) and Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary, Ministry of Cabinet Division and 2 others (PLD 2007 Karachi 597)] was followed by NAB. Instead an imperious and pernicious

"thana" mentality is apparent from the letter, which NAB persisted with obdurately, as discussed below. This raises serious questions, prima facie, as to the fairness, competence and professionalism of the members of the JIT.”

8.In the case of Memon Motors Private Limited Vs. National Accountability Bureau (2014 PcrlJ 1378), the Division Bench of the Hon'ble High Court of Sindh at Karachi allowed a writ petition challenging the issuance of a call up notice on the ground that the guidelines given in the case of Ghulam Hussain Baloch Vs. Chairman, National Accountability Bureau, Islamabad (supra) had not been observed by the N.A.B. while issuing the notice under section 19 of the National Accountability Bureau Ordinance, 1999. In paragraph 11 of the said report, it was held as follows:- “11. It is not out of context to mention here that in the case titled Ghulam Hussain Baloch and others, referred to above, the guidelines contained therein, reiterated in subsequent cases of M. Yousuf Arain v. Chairman NAB and another (2008 MLD 1431), Niaz Ahmed Baloch v. Chairman NAB and 4 others (2008 MLD 1451) & Raja M. Zarat Khan and another v. Federation of Pakistan through Secretary Ministry of Cabinet Division and two others (PLD 2007 Karachi 597) and verdict of Hon'ble apex Court in the case of Dr. Arsalan Iftikhar (PLD 2012 Supreme Court 903) have not been followed by the NAB, which raises serious question, prima facie, as to the affairs, competence and professionalism of the members of JIT. In the case of Dr. Arsalan Iftikhar, as supra, the Hon'ble apex Court has further been pleased to observe that in the given circumstances noted above any inquiry by NAB in the matter will not be free from perception of partiality or bias or lack of competence to ensure the fair, impartial, honest and competent inquiry.”

9.The Division Bench of this Court, vide order dated 07.12.2017, passed in writ petition No.3373/2017, titled “Inam Akbar Vs. National Accountability Bureau through its Chairman,

Islamabad etc.” disposed of the said writ petition with the direction to the National Accountability Bureau to issue call up notices in accordance with the principles laid down in the case of Ghulam Hussain Baloch Vs. Chairman, National Accountability Bureau, Islamabad (supra).

10.In view of the above, this petition is allowed to the extent that the call up notice dated 04.05.2016 is set-aside. However, the respondents are at liberty to issue a fresh call up notice which conforms to the guidelines given in the judgments referred to herein above. There shall be no order as to costs.

(ATHAR MINALLAH) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Ahtesham*

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