PLJ 2007 Karachi 325 (DB)
Present: Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ.
GHULAM HUSSAIN BALOCH and another--Petitioners
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others--Respondents
Const. P. No. D-188 of 2007, decided on 4.5.2007.
Police Rules, 1934--
----Chapt. XXV, Rr. 25.2, 25.18 & 25.54--National Accountability Ordinance (XIII of 1999), Ss. 18 & 19--Constitution of. Pakistan (1973), Art. 199--Constitutional petition--Inquiry or investigation initiated against the petitioners by National Accountability Bureau--Validity--Chairman NAB had formed the opinion that any offence punishable under the National Accountability Ordinance, 1999 was committed by any person so as to empower him to initiate the inquiry or investigation in the matter--Silence on the part of the authorities in their comments on such very important aspect of the matter had adversely affected the entire process of inquiry and investigation--If there was no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation was bound to collapse without any further action--Chairman NAB had ordered for inquiry or investigation by itself was not sufficient to order for inquiry unless it was mentioned that inquiry or investigation was required to be conducted in an offence, which was punishable under the Ordinance, 1999--None of the notices issued by the investigating officer to the petitioners and other persons had disclosed the nature and commission of any offence and the same were also silent on the subject--Said notices were vogue as no specific offence or specific charge against the accused had been mentioned in them, no required or specified information, particulars of documents or things required to be produced before the investigating officer had been mentioned therein--All the notices, thus, suffered from material irregularity and illegality and they could not be termed as legal notices within the meaning of S. 19 of the Ordinance, 1999--Notices were consequently declared as illegal by the High Court--If the Investigating Officer wanted any information, document, thing or to examine any person, then he could issue fresh notices keeping in view the observations of High Court in respect of exercise of such powers--Constitutional petition was disposed of.
[Pp. 334 & 338] A & J
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about any contravention of the provisions of National Accountability Ordinance, 1999--Such power elaborated with instructions and guidelines--A bare reading of provisions of S. 19(a)(b)(c) of Ordinance, 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 the provisions or any rule or order made thereunder--"Any person" would mean all persons including witnesses and accused from whom the information is required--Question arises as to what sort of information the person is required to furnish to the competent authority--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 provided 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. [P. 335] B
National Accountability Ordinance, 1999 (XIII of 1999)---
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about contravention of the provisions of Ordinance, 1999--Constitutional petition--Improvements in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in petition and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner--This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under S. 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order--Copy of such order should find place and be made available in the case diary. [P. 336] C
Constitution of Pakistan, 1973--
----Art. 199--National Accountability Ordinance, (XIII of 1999), S. 19(a)(b)(c)--Constitutional petition--Power to call for information about contravention of the provisions of National Accountability Ordinance--If a person is called then in the summons or notice the date, time `and place of his appearance should be specifically mentioned--After doing the needful an endorsement be made on the notice or summon showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person--All such orders mentioning such facts and information should be attached to the case diary--It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
[P. 336] D
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)--Power to require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation--Procedure amplified with directions and guidelines--Under Section 19(b), National Accountability Ordinance, 1999 person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence--Investigating Officer is also required 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--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 reasons 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 required then he can be called by assigning valid and cogent reasons which shall appear in the case diary--The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons--After appearance and doing the needful, an 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 production of document or thing and departure from the said place which shall be delivered to the said person and the copy of such order shall be attached with the case diary. [P. 336] E
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Power to examine any person acquainted with the facts--Purposes of examination of witness, practice, procedure and safeguards for persons including accused detailed with guidelines--Under Section 19(c) National Accountability Ordinance, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there--In the cases before the NAB Authorities, the statements can also be recorded at the place of incident or residence of the person--For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of his appearance--As soon as he appears before him then his statement should be recorded--After doing the needful, an endorsement be made on the copy of notice or summon, 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 person and such order should also be filed with the case diary.
[P. 337] F
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine any person acquainted with the facts and circumstances--Purpose of examination of witness--Practice and procedure--It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make--Law does not permit such officer to beat the witness or confine him 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. [P. 337] G
Constitution of Pakistan, 1973--
----Arts. 4, 13 & 199--National Accountability Ordinance (XIII of 1999), S. 19(c)--Constitutional petition--Protection to citizen--Treated according to law--Natural justice--Principles of criminal law--The words "any person" appearing in Section 19(c) of the Ordinance include the accused person also--Constitution gives guarantee to the citizen under Art. 4 that they will be treated according to law--Under Art. 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 also 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 then base the charge on such evidence--During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions--The protection against self-incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers--Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself--It is also against the guarantee provided under Art. 13 of the Constitution. [P. 337] H
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine--Purpose of--In the last half of the Seventeenth Century privilege against self--incrimination was well established in England--The adoption of privilege marked a great advance over earlier practices when suspects were not only required to give testimony against themselves, but were tortured to force them to do so--Privilege has been incorporated in the Criminal Procedure Code--It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved `guilty--All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of S. 19(b)(c) of the Ordinance. [P. 338] I
116 U.S. 616 (1886), p.96 of Constitution of Pakistan, 1973 by Shaukat Mahmood ref.
Mr. Shaukat Hussain Zubedi, Advocate for Petitioners.
Mr. Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General Accountability for Respondents.
Date of hearing: 4.5.2007.
Order
Rahmat Hussain Jafferi, J.--On 2-2-2007 the petitioners, who are husband and wife, filed the petition with the following prayer:--
(a) To declare that the Respondent No. 3 is not permitted under the law to harass or humiliate any citizen/petitioners under the cloak of National Accountability Ordinance, 1999.
(b) To declare that the Respondent No. 3 or any NAB Official is not permitted under the law to direct/compel attendance of any person under the garb of Section 19 of N.A.O. 1999.
(c) To refrain the Respondent No. 3 from harassing or humiliating the petitioners in any manner whatsoever.
(d) To direct the Respondent No. 3 to appear in person and explain the details of the inquiry so far conducted and what is its outcome with further direction to submit a copy of the enquiry report.
(e) Any other relief this Honourable Court may deem fit and proper in the circumstances of the case may also be granted.
The petitioners alleged that the Petitioner No. 1 was in the employment of Government of Sindh in Excise and Taxation Department. He retired as Excise and Taxation Officer on 9-11-2005 on attaining the age of superannuation. The Petitioner No. 2 being the wife of the Petitioner No. 1 is residing with her husband. After the retirement of Petitioner No. 1, the Secretary, Government of Sindh asked him to supply the following information through letter dated 13.1.2006:
(1) Permanent/temporary address.
(2) Passport No. (if any).
(3) Attested copies of Annual declaration of Assets form for all years.
(4) Details of Official/un-official bank accounts.
(5) Details of Loans, applied/availed during the service alongwith present status of the loans.
(6) Yearwise details of salaries and other benefits which were received during service.
(7) Names and particulars of children and dependents.
(8) National Tax No.
After supplying the said information to the Government, the officials of NAB authorities started harassing and humiliating the Petitioner No. 1 in various ways. The Respondent No. 2 through Shah Bharam, Junior Investigating Officer issued letters to the Petitioner No. 1 to attend before him and produce evidence whatsoever with him. The Petitioner No. 1 supplied the required information. He declared all assets and liabilities to the NAB authorities, but again the NAB authorities started issuing series of notices to him, his wife (the Petitioner No. 2), his children, his relatives and other persons. They complied with the directions, but the NAB authorities are still harassing the petitioners and their family members through various modes including issuing notices. Even after filing the petition the NAB authorities again started issuing notices to various persons including the petitioners, their children and relatives. The petitioners have filed the petition with the above mentioned prayers.
The respondents filed their comments in which they stated that the Chairman NAB ordered for initiating enquiry and investigation against the Petitioner No. 1 (without specifying the offence). They admitted the issuance of notices to the petitioners, their children and other persons. They also admitted that the persons to whom notices were issued appeared before them except the Petitioner No. 2, who avoided to appear before them. They further stated that the inquiry and investigation was conducted as per law and under Section 19 of the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance) authorizes the Chairman NAB or any officer authorized by him to call any person for the purpose of inquiry and investigation, therefore, they have not committed any illegality in calling the required persons for enquiring into the allegations.
We have heard the Advocate for the petitioners, DPG for NAB and perused the record of this case very carefully.
The learned Advocate for the petitioners in the beginning very strongly argued that under Section 19 of the Ordinance the Nab authorities have no jurisdiction to call any person, but subsequently, when the section was read and interpreted in Court he conceded that the NAB authorities have power to call any person, but further added that the summonses or notices should specifically contain the allegation against the accused person or specify the information, which is required by the NAB authorities to be furnished or specify the document or article, which is required to be produced or specify that the statement of the person is required to be recorded; that the notices issued by the NAB authorities do not fulfil such conditions, therefore, a person cannot be called on vague notices. He has relied upon an unreported decision of this Court delivered in Constitutional Petition No. D-807 of 2006 (Muhammad Akbar v. Chairman NAB and others) decided on 19-6-2006.
Conversely, the learned DPG has stated that after the Chairman NAB referred the allegation against the Petitioner No. 1 to the Investigating Officers for holding inquiry and investigation, the Inquiry Officer started the inquiry and investigation; that under Section 19 of the Ordinance the Investigating Officer has power to call any person for the purposes mentioned thereunder. He has further stated that no harassment was caused to persons, who were called by the Investigating Officer. He has emphasized that the inquiries and investigations are being conducted through modern methods giving all facilities to all concerned including the witnesses, accused and ladies; that the ladies are examined in presence of another lady; that the persons are allowed to appear before them through their Advocates; that the special reforms have been undertaken in the investigation; that instead of prolonged probe of the complaints received, complaints are verified on clearly defined parameters and timelines; that the Investigation Wings in Regional Bureaus have been reorganized on the basis of departmental jurisdiction and to develop specializations within investigation functions; that the Investigation Wings have been allocated dedicated resources in terms of experts and legal consultants, etc; that Financial Crime Investigation Wings in the regions have also been reorganized on the lines of Investigation Wings with matching resources; that concept of team work has been introduced in the investigation work of the Bureau; that instead of single Investigating Officer working on a case a team of investigation has been constituted to minimize discretion and eliminate chances of misuse of authority by the Investigating Officer; that typical instances of misuse could occur in the areas of issuing summons, calling of information from other agencies, interviewing of the accused/witness, etc; that the said tactics have been checked through team work which has enhanced transparency, facilitate monitoring and control; that the investigation function has been split into three groups (1) the investigation process which starts with complaint, handling/verification, (2) issuing of summons to accused/witnesses etc. and (3) the hardcore inquiry/investigation itself; that previously these functions were concentrated in a single person, but in order to avoid misuse these functions now stand separated and three separate entities have been created to carry out these vital and sensitive tasks. He has further stated that new Investigation Rooms have been created with modem facilities keeping in view the requirement of the offence and investigation, where all due respect is provided to all the concerned persons, who appear before the Investigating Officer; that the proceedings are recorded through audio and video devices which protect the accused and Investigating Officers against baseless accusations of harassment and misuse of the authority. He has further restated that a Special Operation Wing has been created at NAB Headquarters for investigation of high profile cases. After giving the above details of the reforms carried out in the Investigation Wings he has stated that no harassment was caused to the petitioners. However, he has admitted that the notices issued to the petitioners and witnesses require further clarification where the alleged offence, required information, production of documents and other related matters should be specifically mentioned which are missing in the notices, therefore, there is need for improvement in that direction too.
We have given due consideration to the arguments, gone through the material available on the record and found that the comments filed by the respondents do not show the specific offence alleged against the Petitioner No. 1. The comments are silent as to for which offence Chairman NAB ordered for holding the inquiry or investigation. Under Section 18(c) of the Ordinance it is incumbent upon the Chairman NAB, after receiving the complaint in any of the manners provided under Section 18(a) to form his opinion as to whether the inquiry or investigation is required of be conducted in respect of alleged offence. For that purpose the Chairman NAB is first to examine whether any offence punishable under the Ordinance has been alleged in the complaint or ingredients of that offence have been mentioned so as to attract his jurisdiction. If, from the information or complaint received as required under Section 18(a) he is not able to form the opinion that the offence punishable under NAB Ordinance has been made out then he is not required to order for the inquiry or investigation. If such offence is made out only then he can exercise jurisdiction as provided under Section 18(c) of the Ordinance.
In the present case, there is no material before this Court whether the Chairman NAB had dealt with the above subject and had formed the opinion that any offence punishable under the Ordinance was committed by any person so as to empower him to initiate the inquiry or investigation in the matter. If such opinion would have been formed by the Chairman NAB then the comments should have disclosed such fact by specifying the said offence. The silence on the part of the respondents on this very important aspect of the matter adversely affect the entire process of inquiry and investigation. If there is no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation is bound to collapse without any further action. In the comments, it has simply been mentioned that the Chairman NAB had ordered for inquiry or investigation which by itself is not sufficient to order for inquiry unless it is mentioned that inquiry or investigation is required to be conducted in an offence, which is punishable under the Ordinance. Further, none of the notices issued by the Investigating Officer to the petitioners and other persons disclose the nature and commission of any offence, but the notices are also silent on the subject.
As regards the powers under Section 19 of the Ordinance, it will be profitable to reproduce the said section which reads as under:--
"19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--
(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 thereunder;
(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;
(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 legers, 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; 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 concerned, direct that surveillance of that person may be carried out through such means as may be necessary 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 the 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."
For the purpose of present case, the provisions of Section 19(a), (b) & (c) are relevant, therefore, discussion would be in respect of said provisions. 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.
The improvements as pointed out by the learned DPG in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in person and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner. This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under Section 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order. The copy of such order should find place and be made available in the case diary.
It is pointed out that if a person is called then in the summons or notice the date, time and place of his appearance should be specifically mentioned. After doing the needful an endorsement be made on the notice or summons showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person. All such orders mentioning such facts and information should be attached to the case diary. It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
As regards the clause (b) under which the Chairman NAB and an officer duly authorized by him, is authorized to require any person to produce or deliver any document or thing useful or relevant to the inquiry and investigation of the offence. Under this clause, person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence. Under this clause, the Investigating Officer is also required 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 clause 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 reasons 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 required then he can be called by assigning valid and cogent reasons which shall appear in the case diary. The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons. After appearance and doing the needful, an 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 production of document or thing and departure from the said place which shall be delivered to the said person 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 authorized by him is empowered to examine any person, who is acquainted with the facts and circumstances of the case having nexus with the inquiry or investigation of offence. Under this clause also, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there. In the cases before the NAB authorities, the statements can also be recorded at the place of incident or residence of the person. For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of this appearance. As soon as he appears before him then his statement should be recorded. After doing the needful, an 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 person and such order should also be filed with the case diary.
It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, 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 witness or confine him 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 person" appearing in the clause include the accused person also. The Constitution gives guarantee to the citizen under Article 4 that they will be treated according to law. Under 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 also 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 then base the charge on such evidence. During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions. The protection against self incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers etc.
Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself. Reference is invited to 116 US 616 (1886) as reported at page 96 of Constitution of Pakistan, 1973 by Shaukat Mahmood. It is also against 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 marked a great advance over earlier practices when suspects were 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 Procedure Code. It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved guilty. All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of clauses (b) and ( c) of Section 19 of the Ordinance.
Rule 25.2 of Chapter XXV of Police Rules, 1934 require the Investigating Officer to show the date, time and place of appearance of any person called with the date, time and place of his departure from such place in the copy of notice, which is to be delivered to the person summoned and keeping the duplicate copy of such endorsement in the case diary. The Rule reads as under:-
"25.2. Powers of Investigating Officers.--(1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code.
An officer so making an investigation shall invariably issue an order in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.
(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained.
(3) It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
It is pointed out that under Rule 25.18 of Chapter XXV of Police Rules, 161, Cr.P.C. statement of a witness is recorded in the manner pointed thereunder, which reads as under:-
"25.18. Statement recorded under Section 161, Code of Criminal Procedure.--Statements recorded by an Investigating Officer under Section 161, Code of Criminal Procedure, shall not form part of the case diary prescribed by Section 172, but shall be recorded separately and attached to the case diary, the necessary number of copies being made the carbon copying process on case diary continuation sheets (Form 25.54 (1)). The number of statements attached to a particular case diary, and number of pages in each such statement, shall be noted in the case diary. An Investigating Officer, after examining a person orally or recording a statement under Section 161, Code of Criminal Procedure, shall make a brief note of the fact in his case diary."
Thus, the gist or brief note of the statement of the witness is required to be mentioned in the case diaries.
Police Rules deal with the preparation of record and filing of the case diaries. It will be advantageous to reproduce the said rules for the future guidance of the Investigating Officers, who are conducting the investigation of the cases with direction that the case diaries should be maintained in the said manner. The said Rules 25.54 and 25.55 read as under:
"25.54. Case diaries.--(1) Section 172(i), Code of Criminal Procedure, requires that a case diary shall be maintained and submitted daily during an investigation by the investigating officer. In such diary shall be recorded, concisely and clearly, the steps taken by the police, the circumstances ascertained through the investigation and the other information required by Section 172(i), Code of Criminal Procedure.
(2) Case diaries shall be as brief as possible; shall not be swollen with lengthy explanation and theories, and shall be written either in English or in simple Urdu.
Only such incidents of the investigation shall be included as have a bearing on the case.
(3) Detailed lists of stolen property, or of property seized in the course of a search, shall be entered in the first case diary submitted after the facts relating to such property were reported to, or discovered by, the Investigating Officer.
(4) The fact that copies of the record prepared under the provisions of Section 165 or 166, Code of Criminal Procedure, have been sent to the nearest Magistrate empowered to take cognizance of the offence shall also be noted.
25.54. Record of case diaries.--(1) Case diaries shall ordinarily be submitted in Form 25.54 (1) and each sheet shall be numbered and stamped with the station stamp. Two or more copies, as may be ordered, shall be made by the carbon copying process by the officer conducting the investigation. The officer writing a case diary shall enter in such diary a list of the statements, record under Section 161, Criminal Procedure Code, which are attached to such diary and the number of pages of which each such statement consists.
(2) The case diaries shall be sent from the scene of investigation to the police station without delay.
(3) On arrival at the police station the number and date of each case diary shall be recorded on the reverse of the police station copy of the first information report, and the date and hour of receipt shall be entered on each copy of the diary.
(4) The original shall be dispatched with as little delay as possible to the inspector or other superior officer as may be for copies. Orders for the disposal and record of case diaries space provided in the form on both the original and the copy or copies. Orders for the disposal and record of case diaries in the headquarter's office are contained in Rule 11.70. Also see Rule 27.38.
(5) A copy of every case diary shall be retained at the police station, a separate file being maintained for each case. Such files shall be destroyed in accordance with the periods fixed in sub-Rule 27.39(5).
(6) Copies of all orders received at a police station in connection with case diaries and the replies thereto shall be made on blank sheets of paper and shall be attached to the case diary to which they refer.
25.55. Files of case diaries.--(1) When a case is sent for trial the police station file of case diaries shall be forwarded with the challan to the Magistrate, and on completion of the trial shall be returned to the police station for record.
(2) Such files when received back at the police station, also files of other cases in which the final reports has been submitted, shall be filed at the police station in an annual bundle A in accordance with the serial number of their first information report.
(3) Copies of case diaries in pending cases shall be kept in files at the police station in a separate bundle B in accordance with the numbers of their first information reports.
(4) A list shall be kept in each bundle A and B of all the files contained therein, merely quoting the numbers of their first information reports. Should it be necessary to remove a file from the bundle the fact will be noted in the list."
Thus, the Investigating Officer is required to maintain the case diaries as shown above.
We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer from material irregularity and illegality, because they cannot be termed as legal notices within the meaning of Section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the Investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers.
In the light of what has been discussed above, the petition is disposed of in the above terms.
(R.A.) Petition allowed
Present: Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ.
GHULAM HUSSAIN BALOCH and another--Petitioners
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others--Respondents
Const. P. No. D-188 of 2007, decided on 4.5.2007.
Police Rules, 1934--
----Chapt. XXV, Rr. 25.2, 25.18 & 25.54--National Accountability Ordinance (XIII of 1999), Ss. 18 & 19--Constitution of. Pakistan (1973), Art. 199--Constitutional petition--Inquiry or investigation initiated against the petitioners by National Accountability Bureau--Validity--Chairman NAB had formed the opinion that any offence punishable under the National Accountability Ordinance, 1999 was committed by any person so as to empower him to initiate the inquiry or investigation in the matter--Silence on the part of the authorities in their comments on such very important aspect of the matter had adversely affected the entire process of inquiry and investigation--If there was no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation was bound to collapse without any further action--Chairman NAB had ordered for inquiry or investigation by itself was not sufficient to order for inquiry unless it was mentioned that inquiry or investigation was required to be conducted in an offence, which was punishable under the Ordinance, 1999--None of the notices issued by the investigating officer to the petitioners and other persons had disclosed the nature and commission of any offence and the same were also silent on the subject--Said notices were vogue as no specific offence or specific charge against the accused had been mentioned in them, no required or specified information, particulars of documents or things required to be produced before the investigating officer had been mentioned therein--All the notices, thus, suffered from material irregularity and illegality and they could not be termed as legal notices within the meaning of S. 19 of the Ordinance, 1999--Notices were consequently declared as illegal by the High Court--If the Investigating Officer wanted any information, document, thing or to examine any person, then he could issue fresh notices keeping in view the observations of High Court in respect of exercise of such powers--Constitutional petition was disposed of.
[Pp. 334 & 338] A & J
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about any contravention of the provisions of National Accountability Ordinance, 1999--Such power elaborated with instructions and guidelines--A bare reading of provisions of S. 19(a)(b)(c) of Ordinance, 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 the provisions or any rule or order made thereunder--"Any person" would mean all persons including witnesses and accused from whom the information is required--Question arises as to what sort of information the person is required to furnish to the competent authority--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 provided 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. [P. 335] B
National Accountability Ordinance, 1999 (XIII of 1999)---
----S. 19(a)(b)(c)--Constitution of Pakistan, 1973--Art. 199--Power to call for information from any person about contravention of the provisions of Ordinance, 1999--Constitutional petition--Improvements in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in petition and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner--This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under S. 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order--Copy of such order should find place and be made available in the case diary. [P. 336] C
Constitution of Pakistan, 1973--
----Art. 199--National Accountability Ordinance, (XIII of 1999), S. 19(a)(b)(c)--Constitutional petition--Power to call for information about contravention of the provisions of National Accountability Ordinance--If a person is called then in the summons or notice the date, time `and place of his appearance should be specifically mentioned--After doing the needful an endorsement be made on the notice or summon showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person--All such orders mentioning such facts and information should be attached to the case diary--It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
[P. 336] D
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)--Power to require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation--Procedure amplified with directions and guidelines--Under Section 19(b), National Accountability Ordinance, 1999 person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence--Investigating Officer is also required 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--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 reasons 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 required then he can be called by assigning valid and cogent reasons which shall appear in the case diary--The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons--After appearance and doing the needful, an 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 production of document or thing and departure from the said place which shall be delivered to the said person and the copy of such order shall be attached with the case diary. [P. 336] E
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Power to examine any person acquainted with the facts--Purposes of examination of witness, practice, procedure and safeguards for persons including accused detailed with guidelines--Under Section 19(c) National Accountability Ordinance, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there--In the cases before the NAB Authorities, the statements can also be recorded at the place of incident or residence of the person--For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of his appearance--As soon as he appears before him then his statement should be recorded--After doing the needful, an endorsement be made on the copy of notice or summon, 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 person and such order should also be filed with the case diary.
[P. 337] F
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine any person acquainted with the facts and circumstances--Purpose of examination of witness--Practice and procedure--It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make--Law does not permit such officer to beat the witness or confine him 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. [P. 337] G
Constitution of Pakistan, 1973--
----Arts. 4, 13 & 199--National Accountability Ordinance (XIII of 1999), S. 19(c)--Constitutional petition--Protection to citizen--Treated according to law--Natural justice--Principles of criminal law--The words "any person" appearing in Section 19(c) of the Ordinance include the accused person also--Constitution gives guarantee to the citizen under Art. 4 that they will be treated according to law--Under Art. 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 also 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 then base the charge on such evidence--During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions--The protection against self-incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers--Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself--It is also against the guarantee provided under Art. 13 of the Constitution. [P. 337] H
National Accountability Ordinance, 1999 (XIII of 1999)--
----S. 19(b)(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power to examine--Purpose of--In the last half of the Seventeenth Century privilege against self--incrimination was well established in England--The adoption of privilege marked a great advance over earlier practices when suspects were not only required to give testimony against themselves, but were tortured to force them to do so--Privilege has been incorporated in the Criminal Procedure Code--It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved `guilty--All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of S. 19(b)(c) of the Ordinance. [P. 338] I
116 U.S. 616 (1886), p.96 of Constitution of Pakistan, 1973 by Shaukat Mahmood ref.
Mr. Shaukat Hussain Zubedi, Advocate for Petitioners.
Mr. Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General Accountability for Respondents.
Date of hearing: 4.5.2007.
Order
Rahmat Hussain Jafferi, J.--On 2-2-2007 the petitioners, who are husband and wife, filed the petition with the following prayer:--
(a) To declare that the Respondent No. 3 is not permitted under the law to harass or humiliate any citizen/petitioners under the cloak of National Accountability Ordinance, 1999.
(b) To declare that the Respondent No. 3 or any NAB Official is not permitted under the law to direct/compel attendance of any person under the garb of Section 19 of N.A.O. 1999.
(c) To refrain the Respondent No. 3 from harassing or humiliating the petitioners in any manner whatsoever.
(d) To direct the Respondent No. 3 to appear in person and explain the details of the inquiry so far conducted and what is its outcome with further direction to submit a copy of the enquiry report.
(e) Any other relief this Honourable Court may deem fit and proper in the circumstances of the case may also be granted.
The petitioners alleged that the Petitioner No. 1 was in the employment of Government of Sindh in Excise and Taxation Department. He retired as Excise and Taxation Officer on 9-11-2005 on attaining the age of superannuation. The Petitioner No. 2 being the wife of the Petitioner No. 1 is residing with her husband. After the retirement of Petitioner No. 1, the Secretary, Government of Sindh asked him to supply the following information through letter dated 13.1.2006:
(1) Permanent/temporary address.
(2) Passport No. (if any).
(3) Attested copies of Annual declaration of Assets form for all years.
(4) Details of Official/un-official bank accounts.
(5) Details of Loans, applied/availed during the service alongwith present status of the loans.
(6) Yearwise details of salaries and other benefits which were received during service.
(7) Names and particulars of children and dependents.
(8) National Tax No.
After supplying the said information to the Government, the officials of NAB authorities started harassing and humiliating the Petitioner No. 1 in various ways. The Respondent No. 2 through Shah Bharam, Junior Investigating Officer issued letters to the Petitioner No. 1 to attend before him and produce evidence whatsoever with him. The Petitioner No. 1 supplied the required information. He declared all assets and liabilities to the NAB authorities, but again the NAB authorities started issuing series of notices to him, his wife (the Petitioner No. 2), his children, his relatives and other persons. They complied with the directions, but the NAB authorities are still harassing the petitioners and their family members through various modes including issuing notices. Even after filing the petition the NAB authorities again started issuing notices to various persons including the petitioners, their children and relatives. The petitioners have filed the petition with the above mentioned prayers.
The respondents filed their comments in which they stated that the Chairman NAB ordered for initiating enquiry and investigation against the Petitioner No. 1 (without specifying the offence). They admitted the issuance of notices to the petitioners, their children and other persons. They also admitted that the persons to whom notices were issued appeared before them except the Petitioner No. 2, who avoided to appear before them. They further stated that the inquiry and investigation was conducted as per law and under Section 19 of the National Accountability Ordinance, 1999 (hereinafter referred to as the Ordinance) authorizes the Chairman NAB or any officer authorized by him to call any person for the purpose of inquiry and investigation, therefore, they have not committed any illegality in calling the required persons for enquiring into the allegations.
We have heard the Advocate for the petitioners, DPG for NAB and perused the record of this case very carefully.
The learned Advocate for the petitioners in the beginning very strongly argued that under Section 19 of the Ordinance the Nab authorities have no jurisdiction to call any person, but subsequently, when the section was read and interpreted in Court he conceded that the NAB authorities have power to call any person, but further added that the summonses or notices should specifically contain the allegation against the accused person or specify the information, which is required by the NAB authorities to be furnished or specify the document or article, which is required to be produced or specify that the statement of the person is required to be recorded; that the notices issued by the NAB authorities do not fulfil such conditions, therefore, a person cannot be called on vague notices. He has relied upon an unreported decision of this Court delivered in Constitutional Petition No. D-807 of 2006 (Muhammad Akbar v. Chairman NAB and others) decided on 19-6-2006.
Conversely, the learned DPG has stated that after the Chairman NAB referred the allegation against the Petitioner No. 1 to the Investigating Officers for holding inquiry and investigation, the Inquiry Officer started the inquiry and investigation; that under Section 19 of the Ordinance the Investigating Officer has power to call any person for the purposes mentioned thereunder. He has further stated that no harassment was caused to persons, who were called by the Investigating Officer. He has emphasized that the inquiries and investigations are being conducted through modern methods giving all facilities to all concerned including the witnesses, accused and ladies; that the ladies are examined in presence of another lady; that the persons are allowed to appear before them through their Advocates; that the special reforms have been undertaken in the investigation; that instead of prolonged probe of the complaints received, complaints are verified on clearly defined parameters and timelines; that the Investigation Wings in Regional Bureaus have been reorganized on the basis of departmental jurisdiction and to develop specializations within investigation functions; that the Investigation Wings have been allocated dedicated resources in terms of experts and legal consultants, etc; that Financial Crime Investigation Wings in the regions have also been reorganized on the lines of Investigation Wings with matching resources; that concept of team work has been introduced in the investigation work of the Bureau; that instead of single Investigating Officer working on a case a team of investigation has been constituted to minimize discretion and eliminate chances of misuse of authority by the Investigating Officer; that typical instances of misuse could occur in the areas of issuing summons, calling of information from other agencies, interviewing of the accused/witness, etc; that the said tactics have been checked through team work which has enhanced transparency, facilitate monitoring and control; that the investigation function has been split into three groups (1) the investigation process which starts with complaint, handling/verification, (2) issuing of summons to accused/witnesses etc. and (3) the hardcore inquiry/investigation itself; that previously these functions were concentrated in a single person, but in order to avoid misuse these functions now stand separated and three separate entities have been created to carry out these vital and sensitive tasks. He has further stated that new Investigation Rooms have been created with modem facilities keeping in view the requirement of the offence and investigation, where all due respect is provided to all the concerned persons, who appear before the Investigating Officer; that the proceedings are recorded through audio and video devices which protect the accused and Investigating Officers against baseless accusations of harassment and misuse of the authority. He has further restated that a Special Operation Wing has been created at NAB Headquarters for investigation of high profile cases. After giving the above details of the reforms carried out in the Investigation Wings he has stated that no harassment was caused to the petitioners. However, he has admitted that the notices issued to the petitioners and witnesses require further clarification where the alleged offence, required information, production of documents and other related matters should be specifically mentioned which are missing in the notices, therefore, there is need for improvement in that direction too.
We have given due consideration to the arguments, gone through the material available on the record and found that the comments filed by the respondents do not show the specific offence alleged against the Petitioner No. 1. The comments are silent as to for which offence Chairman NAB ordered for holding the inquiry or investigation. Under Section 18(c) of the Ordinance it is incumbent upon the Chairman NAB, after receiving the complaint in any of the manners provided under Section 18(a) to form his opinion as to whether the inquiry or investigation is required of be conducted in respect of alleged offence. For that purpose the Chairman NAB is first to examine whether any offence punishable under the Ordinance has been alleged in the complaint or ingredients of that offence have been mentioned so as to attract his jurisdiction. If, from the information or complaint received as required under Section 18(a) he is not able to form the opinion that the offence punishable under NAB Ordinance has been made out then he is not required to order for the inquiry or investigation. If such offence is made out only then he can exercise jurisdiction as provided under Section 18(c) of the Ordinance.
In the present case, there is no material before this Court whether the Chairman NAB had dealt with the above subject and had formed the opinion that any offence punishable under the Ordinance was committed by any person so as to empower him to initiate the inquiry or investigation in the matter. If such opinion would have been formed by the Chairman NAB then the comments should have disclosed such fact by specifying the said offence. The silence on the part of the respondents on this very important aspect of the matter adversely affect the entire process of inquiry and investigation. If there is no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation is bound to collapse without any further action. In the comments, it has simply been mentioned that the Chairman NAB had ordered for inquiry or investigation which by itself is not sufficient to order for inquiry unless it is mentioned that inquiry or investigation is required to be conducted in an offence, which is punishable under the Ordinance. Further, none of the notices issued by the Investigating Officer to the petitioners and other persons disclose the nature and commission of any offence, but the notices are also silent on the subject.
As regards the powers under Section 19 of the Ordinance, it will be profitable to reproduce the said section which reads as under:--
"19. Power to call for information.--The Chairman NAB [an officer of the NAB duly authorized by him] may, during the course of an inquiry or investigation of an offence under this Ordinance or any rule or order made thereunder:--
(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 thereunder;
(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;
(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 legers, 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; 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 concerned, direct that surveillance of that person may be carried out through such means as may be necessary 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 the 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."
For the purpose of present case, the provisions of Section 19(a), (b) & (c) are relevant, therefore, discussion would be in respect of said provisions. 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.
The improvements as pointed out by the learned DPG in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in person and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner. This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under Section 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order. The copy of such order should find place and be made available in the case diary.
It is pointed out that if a person is called then in the summons or notice the date, time and place of his appearance should be specifically mentioned. After doing the needful an endorsement be made on the notice or summons showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person. All such orders mentioning such facts and information should be attached to the case diary. It is also pointed out that no avoidable trouble should be given to any person from whom information is called for or inquiries are made and no person should be unnecessarily detained.
As regards the clause (b) under which the Chairman NAB and an officer duly authorized by him, is authorized to require any person to produce or deliver any document or thing useful or relevant to the inquiry and investigation of the offence. Under this clause, person can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence. Under this clause, the Investigating Officer is also required 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 clause 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 reasons 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 required then he can be called by assigning valid and cogent reasons which shall appear in the case diary. The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons. After appearance and doing the needful, an 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 production of document or thing and departure from the said place which shall be delivered to the said person 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 authorized by him is empowered to examine any person, who is acquainted with the facts and circumstances of the case having nexus with the inquiry or investigation of offence. Under this clause also, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there. In the cases before the NAB authorities, the statements can also be recorded at the place of incident or residence of the person. For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of this appearance. As soon as he appears before him then his statement should be recorded. After doing the needful, an 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 person and such order should also be filed with the case diary.
It is not out of place to mention here that the concerned officer is authorized to record statements of witnesses, 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 witness or confine him 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 person" appearing in the clause include the accused person also. The Constitution gives guarantee to the citizen under Article 4 that they will be treated according to law. Under 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 also 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 then base the charge on such evidence. During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions. The protection against self incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers etc.
Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself. Reference is invited to 116 US 616 (1886) as reported at page 96 of Constitution of Pakistan, 1973 by Shaukat Mahmood. It is also against 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 marked a great advance over earlier practices when suspects were 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 Procedure Code. It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved guilty. All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of clauses (b) and ( c) of Section 19 of the Ordinance.
Rule 25.2 of Chapter XXV of Police Rules, 1934 require the Investigating Officer to show the date, time and place of appearance of any person called with the date, time and place of his departure from such place in the copy of notice, which is to be delivered to the person summoned and keeping the duplicate copy of such endorsement in the case diary. The Rule reads as under:-
"25.2. Powers of Investigating Officers.--(1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code.
An officer so making an investigation shall invariably issue an order in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary.
(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained.
(3) It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
It is pointed out that under Rule 25.18 of Chapter XXV of Police Rules, 161, Cr.P.C. statement of a witness is recorded in the manner pointed thereunder, which reads as under:-
"25.18. Statement recorded under Section 161, Code of Criminal Procedure.--Statements recorded by an Investigating Officer under Section 161, Code of Criminal Procedure, shall not form part of the case diary prescribed by Section 172, but shall be recorded separately and attached to the case diary, the necessary number of copies being made the carbon copying process on case diary continuation sheets (Form 25.54 (1)). The number of statements attached to a particular case diary, and number of pages in each such statement, shall be noted in the case diary. An Investigating Officer, after examining a person orally or recording a statement under Section 161, Code of Criminal Procedure, shall make a brief note of the fact in his case diary."
Thus, the gist or brief note of the statement of the witness is required to be mentioned in the case diaries.
Police Rules deal with the preparation of record and filing of the case diaries. It will be advantageous to reproduce the said rules for the future guidance of the Investigating Officers, who are conducting the investigation of the cases with direction that the case diaries should be maintained in the said manner. The said Rules 25.54 and 25.55 read as under:
"25.54. Case diaries.--(1) Section 172(i), Code of Criminal Procedure, requires that a case diary shall be maintained and submitted daily during an investigation by the investigating officer. In such diary shall be recorded, concisely and clearly, the steps taken by the police, the circumstances ascertained through the investigation and the other information required by Section 172(i), Code of Criminal Procedure.
(2) Case diaries shall be as brief as possible; shall not be swollen with lengthy explanation and theories, and shall be written either in English or in simple Urdu.
Only such incidents of the investigation shall be included as have a bearing on the case.
(3) Detailed lists of stolen property, or of property seized in the course of a search, shall be entered in the first case diary submitted after the facts relating to such property were reported to, or discovered by, the Investigating Officer.
(4) The fact that copies of the record prepared under the provisions of Section 165 or 166, Code of Criminal Procedure, have been sent to the nearest Magistrate empowered to take cognizance of the offence shall also be noted.
25.54. Record of case diaries.--(1) Case diaries shall ordinarily be submitted in Form 25.54 (1) and each sheet shall be numbered and stamped with the station stamp. Two or more copies, as may be ordered, shall be made by the carbon copying process by the officer conducting the investigation. The officer writing a case diary shall enter in such diary a list of the statements, record under Section 161, Criminal Procedure Code, which are attached to such diary and the number of pages of which each such statement consists.
(2) The case diaries shall be sent from the scene of investigation to the police station without delay.
(3) On arrival at the police station the number and date of each case diary shall be recorded on the reverse of the police station copy of the first information report, and the date and hour of receipt shall be entered on each copy of the diary.
(4) The original shall be dispatched with as little delay as possible to the inspector or other superior officer as may be for copies. Orders for the disposal and record of case diaries space provided in the form on both the original and the copy or copies. Orders for the disposal and record of case diaries in the headquarter's office are contained in Rule 11.70. Also see Rule 27.38.
(5) A copy of every case diary shall be retained at the police station, a separate file being maintained for each case. Such files shall be destroyed in accordance with the periods fixed in sub-Rule 27.39(5).
(6) Copies of all orders received at a police station in connection with case diaries and the replies thereto shall be made on blank sheets of paper and shall be attached to the case diary to which they refer.
25.55. Files of case diaries.--(1) When a case is sent for trial the police station file of case diaries shall be forwarded with the challan to the Magistrate, and on completion of the trial shall be returned to the police station for record.
(2) Such files when received back at the police station, also files of other cases in which the final reports has been submitted, shall be filed at the police station in an annual bundle A in accordance with the serial number of their first information report.
(3) Copies of case diaries in pending cases shall be kept in files at the police station in a separate bundle B in accordance with the numbers of their first information reports.
(4) A list shall be kept in each bundle A and B of all the files contained therein, merely quoting the numbers of their first information reports. Should it be necessary to remove a file from the bundle the fact will be noted in the list."
Thus, the Investigating Officer is required to maintain the case diaries as shown above.
We have examined the notices issued to the petitioners, their children and relatives starting from 2-12-2005 till 5-3-2007 and found that these notices are vague, no specific offence has been mentioned in them, no specific charge against the accused has also been mentioned in them, no required or specified information, particulars of documents or things, which were required to be produced before the Investigating Officer have been mentioned, as such, all the notices suffer from material irregularity and illegality, because they cannot be termed as legal notices within the meaning of Section 19 of the Ordinance. The learned DPG has also admitted that necessary points are missing from the notices, therefore, they are required to be improved. Thus, the said notices are hereby declared as illegal. If the Investigating Officer wants any information, document, thing or examine any person then he can issue fresh notices keeping in view the above observation of this Court in respect of exercise of such powers.
In the light of what has been discussed above, the petition is disposed of in the above terms.
(R.A.) Petition allowed
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