PLJ 2020
Present: Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General, NAB,
versus
ABDUL HAKEEM, GENERAL MANAGER EXPORT, PSO,
Const. P. No. 457 of 2019, decided on 3.10.2019.
Constitution of
----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Application for re-investigation--Allowed--Constitutional petition--Allowed--Opinion of investigator--Challenge to--Under special circumstances re-investigation can be permitted after submission of report under Section 173, Cr.P.C., and during trial before learned trial Court but findings of such investigation are just an opinion of police and Court has to decide case after recording evidence of parties--Special Judge, Accountability Court would not be expected to blindly follow opinion of investigator--Court upon satisfaction, can order re-investigation by assigning reasons in this behalf--Investigation and inquiry was sanctioned against respondents by Chairman NAB in year 2002 for re-investigation and thereafter reopening of case after 17 years would be contrary to scheme of aforesaid law--An investigation was conducted on basis of allegation against, respondents and during course of investigation, investigation team of NAB has taken all relevant record/documents into his possession from concerned department through recovery memos and recorded statements of witnesses and thereafter on basis of collected evidence prepared final investigation report and recommended/ concluded that there was no incriminating material against respondents which involved respondents--It also reveals from record that thereafter on approval of Chairman NAB an application for closure of investigation was filed before trial Court in 2005 and said application was accepted--On same set of allegations four inquiries were initiated against respondents by Customs Department and respondents were charge sheeted and statement of allegation was served upon them but no effective proceedings were initiated against them--Respondents have been exonerated of four administrative inquiries--Respondents have suffered agony of inquiry and investigation for last 17 years for no fault on their part, therefore, investigation agency cannot be allowed to make mockery of law and keep sword of proceedings/prosecution hanging over head of respondents for any further period, as such, petition filed by petitioner is hereby dismissed--Petition was dismissed.
[Pp. 46, 47 & 48] A, B, C, D & E
PLD 1987 SC 13 and 2000 PCr.LJ 1739 ref.
Mr. Jaffar Raza, Special Prosecutor NAB for Petitioner.
None present for Respondents.
Date of hearing: 20.8.2019.
Judgment
Rozi Khan Barrech, J.--The fact of the case are that an inquiry/investigation was sanctioned against the respondents by the Chairman NAB in the year 2002 and after a detailed investigation, there was no evidence against the respondents, as such, an application on behalf of the Chairman NAB was filed before the Accountability Court-II, Quetta, to get permission for closure of the investigation. The application was allowed by means of order dated 03.09.2005, in result whereof the investigation stood closed.
2. Subsequently, the NAB Balochistan filed an application before the Accountability Court-II,
3. The respondents filed Constitution Petition No. 579 of 2009 before this Court, the said petition was partly allowed and the order dated 19.06.2009 passed by trial Court was set aside on 07.06.2016 with the following observations:-
“Thus, in view of above, the petitions are partly allowed. The order dated 19.06.2009 passed by the Accountability Court-II, Quetta, is set aside and the application for re-investigation so filed by the NAB shall be deemed to be pending before it, which shall decide the application, strictly in accordance with law and on its own merits, after providing opportunities of hearing to the parties. This is an old matter, therefore, the
4. The learned trial Court after hearing arguments of the parties, dismissed the application of the petitioner for reopening of the investigation on 07.03.2019, hence this petition.
5. We have heard the learned counsel for the parties and gone through the available record. There is no provision of law, preventing an investigating agency from conducting re-investigation or even multi-investigations, after discharging an accused in the earlier investigation, but subject to the condition that the investigator has discovered some new evidence, connecting the accused with the commission of the offence, which were not in his knowledge during the earlier investigation. Thus, if the investigating agency intends to reinvestigate the case, the right course is to seek permission from the Magistrate or a Court, which passed order for closure of earlier investigation.
6. It has further been noticed that when report under Section 173 Cr.P.C., is forwarded to Magistrate for taking cognizance of the offence, the Magistrate can direct the Officer Incharge of the Police Station to make further investigation keeping in view the provision of subsection (2) of Section 173, Cr.P.C. From the plain reading of above section, it becomes clear that even after submission of report under subsection (2) of Section 173, Cr.P.C, police has a right to further investigation but not fresh investigation or re-investigation. Although, under special circumstances re-investigation can be permitted after submission of report under Section 173, Cr.P.C., and during the trial before the learned trial Court but findings of such investigation are just an opinion of the police and Court has to decide the case after recording evidence of the parties.
7. An investigation in police cases is normally conducted by a police officer with limited resources, who is bound to complete the investigation within fourteen days as provided by Section 173 of Cr.P.C. whereas under the NAB Ordinance, before starting an investigation, an initial inquiry is conducted and if some material comes on the record, an investigation is sanctioned by the Chairman NAB. Such investigation is being conducted by a team of qualified investigators, who have sufficient time at their disposal for finalization of the investigation. If the police intends to close an investigation, it seeks permission of the Magistrate, which after satisfaction, agrees with the I.O. and passes an order for discharge of an accused. In case if the NAB authorities want closure of an investigation, they request the Special Judge,
8. There is a lot of difference between the manner and procedure of investigation conducted by the police and the NAB. The latter has more resources and time to collect all the possible evidence, therefore, after closure of earlier investigation, it is presumed that the accused has been granted a clean chit. But if in the same case, re-investigation is requested by the NAB authorities, it shall approach the Accountability concerned and must show that some new and important evidence has been collected, connecting the accused with the commission of the offence, which for the reason, cannot be collected at the time of the earlier investigation. The Special Judge,
9. The system of re-investigation was disapproved by Hon’ble Supreme Court of Pakistan in judgment reported as Bahadur Khan v. Muhammad Azam and others (2006 SCMR 373) wherein it has observed as under:--
“(c) Criminal Procedure Code (V of 1898).
----Ss. 156 & 173--Reinvestigation--System of reinvestigation is a recent innovation which is always taken up at the instance of influential people for obtaining favourable reports, which in no way assists the Courts in coming to a correct conclusion, rather they create more complications in the way of administration of justice--Such system of reinvestigation and successive investigations, therefore, was disapproved”.
10. Subsection (a) of Section 16 of National Accountability Bureau Ordinance, 1999 provides that an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within 30 days. The investigation and inquiry was sanctioned against the respondents by the Chairman NAB in the year 2002 for re-investigation and thereafter reopening of case after 17 years would be contrary to the scheme of aforesaid law.
11. The criminal justice system requires that a person accused of a crime is brought to justice as speedily as possible, so if he is found guilty he is punished and if he is found to be innocent he is discharged and/or acquitted. The maxim that justice delayed is justice denied comes true when a criminal trial or case remains pending indefinitely for no reason whatsoever. A procrastinated trial not only adversely affects the prosecution case but may also seriously hamper the defence.
12. In the case in hand, an investigation was conducted on the basis of allegation against the respondents and during course of investigation, the investigation team of NAB has taken all relevant record/documents into his possession from concerned department through recovery memos and recorded statements of witnesses and thereafter on the basis of collected evidence prepared final investigation report and recommended/concluded that there was no incriminating material against the respondents which involved the respondents. It also reveals from the record that thereafter on the approval of Chairman NAB an application for closure of investigation was filed before the trial Court in 2005 and said application was accepted on 03.09.2005 by trial Court with observations “that no prima facie case is made out against the respondents and investigation was ordered to be stopped for the reason that there is no further prosecution”.
13. It is also reflect from the record that on the same set of allegations four inquiries were initiated against the respondents by the Customs Department and respondents were charge sheeted and statement of allegation was served upon them but no effective proceedings were initiated against them. The respondents have been exonerated of the four administrative inquiries.
14. The petitioner (NAB authority) filed application for re-investigation/reopening of the Reference against the respondents on the basis of alleged new evidence which were collected subsequently, on perusal of the so-called new evidence/additional which were mentioned in para-5 in the application filed by the NAB authorities for reopening of the investigation are not in fact additional evidence/new evidence for the reasons that the alleged documents have already been examined by the NAB/FBR during multiple inquires conducted by NAB and Custom Department.
15. It is clear from the above facts that the respondents have not been dealt with in according with law. The respondents are facing inquiry and investigation for a long period as inquiry started in the year 2002. In between the period the respondents were called many times during inquiry as well as during investigation. In spite of the fact that the investigation/case was close on the request of Chairman NAB by the trial Court, and even when the trial Court noticed the respondents at the time of filing application for reinvestigation/ reopening of the case the same were received unserved to the extent of some respondents, as some of the respondents were reportedly died. In such circumstances, the respondents have suffered agony of inquiry and investigation for the last 17 years for no fault on their part, therefore, the investigation agency cannot be allowed to make mockery of law and keep the sword of proceedings/prosecution hanging over the head of respondents for any further period, as such, the petition filed by the petitioner is hereby dismissed.
(Y.A.) Petition Dismissed
