SC orders NAB to probe ex-chief Fasih

ISLAMABAD: The Supreme Court Friday ordered NAB to probe its ex-chief Fasih Bokhari and directed Special Judge Anti-Corruption to proceed with the trial of criminal cases registered against Bahria Town for fraudulently transferring 1,401 kanal land in collusion with certain revenue officials of the Punjab.
A three-member bench of the apex court, headed by Chief Justice Jawwad S. Khawaja and comprising Justice Dost Muhammad Khan and Justice Qazi Faiz Esa, announced the reserved judgment in the petition filed by the Anti-Corruption Establishment (ACE).
The petition alleged that the respondents in collusion with certain revenue officials of the Punjab had fraudulently transferred 1,401 kanal land.
The ACE, Lahore through its DG General had made chairman and additional director NAB, a number of revenue officials and the chairman, CEO, site supervisor, and GM Bahria Town as respondents.
The judgment, authored by Justice Qazi Faiz Esa, directed that complete record of the case in respect of FIR Nos.29/2009 and 53/2009 be transmitted to the Special Judge Anti-Corruption who shall proceed with the trial of the case in accordance with the law.
“Since the NAB could not have exonerated a nominated accused after filing of a reference, its purported attempt to do so is declared to be of no legal effect and shall be disregarded, however, they will be entitled to fully defend the cases and if considered necessary lead evidence to substantiate their point of view,” the court ruled.
The ruling said: “Since these were old cases, we expect that the learned Special Judge shall proceed with them expeditiously.”
The court observed that as the then chairman NAB Fasih Bokhari was no longer in office and no longer had any concern with the NAB, therefore, if the NAB deemed appropriate it may submit a fresh application for the transfer of case to an accountability court constituted under the National Accountability Ordinance.
“If such an application is submitted, it shall be dealt with strictly in accordance with the law and upon transfer of case to an accountability court constituted under NAO it shall be deemed to be a reference under Section 18 of NAO”, the court ruled.
The court further ruled that the purported previous exoneration by the NAB of any person in respect of FIR Nos. 29/2009 and 53/2009 was however declared to be of no legal effect and shall be disregarded.
The court noted that Section 9 (a) (i), (iv) and (xii) of NAO stipulates that if the holder of a public office does any official act or forbears to do any official act that he is supposed to do or misuses his authority or aids, assists, abets, attempts or acts in conspiracy with another with regard thereto he commits the offence of corruption and/or corrupt practices.
“The material placed before us prima facie indicates that the then chairman NAB and possibly other officers of NAB as well, misused their official positions and authority to extend undue benefit/favour to Bahria Town and/or the Bahria Town respondents. Therefore, the NAB is directed to investigate the matter of application submitted by the then chairman NAB under Section 16-A (a) of NAO before the Special Judge Anti-Corruption, to complete the investigation expeditiously and proceed in accordance with section 18 (g) of NAO.”
The application submitted by the NAB to the court of Special Judge Anti-Corruption was under the hand and signatures of its Chairman Fasih Bokhari.
In the application, Fasih Bokhari submitted that the instant case was registered vide FIR No. 29 dated 04-11-2009 at PS ACE Rawalpindi through source report by Mr. Sohail Zafar, Inspector ACE-Rwp, against the accused person which is pending with the honorable court.
He further contended that Lt. Col. ® Akhtar Saeed, GM Bahria Town Pvt. Ltd. lodged a complaint with DG NAB Rawalpindi and alleged that officials of ACE Punjab had wrongfully involved him in a land fraud scam of Rs85 million where he himself was the complainant.
Factual position is that the accused Muhammad Ashfaq (Property Dealer) in connivance with officials of Revenue Department had defrauded management of Bahria Town in purchase of land in Malikpur & Khanpur on forged documents & the case was registered with PS Rawat and is under trial. Later on another FIR was registered [sic.] ACE Punjab wherein ACE illegally maneuvered & involved complainant in the scam and sighted him as accused.
He requested the NAB to get the case transferred for impartial investigation. Perusal of the report u/s 173 Cr.PC shows that the accused have also committed the offences of corruption and corrupt practices as defined in Section 9 (a) of National Accountability Ordinance 1999 and Schedule thereto.
The former NAB chairman further submitted that an inquiry against the said accused persons was also in progress at the NAB Rawalpindi regarding the allegations viz misuse of authority etc.
He had requested that the instant noted case may be transferred to Accountability Court Rawalpindi / Islamabad as per provision of Section 16-A (a) of National Accountability Ordinance 1999.
The court judgement says that if an application under Section 16-A (a) of NAO is submitted to a court it does not result in its automatic transfer, as an order thereon has to be passed by the court where the case was pending, which in the present case was Special Judge Anti-Corruption; however, no such order was passed; and that even if the case before the Special Judge Anti-Corruption stood recalled it had to be transferred to the Accountability Court and was to be treated as a reference under section 18 of NAO, therefore, NAB could not exonerate any of the nominated accused, and in exonerating the respondents NAB acted with mala fide and contrary to its own law, i.e. section 16-A (a) of NAO.
The court ruled that in the application submitted by the chairman NAB he repeated the contents of the application of the Bahria Town respondent, and in particular made a definite statement that, “Factual position is that the accused Muhammad Ashfaq (Property Dealer) in connivance of the revenue officials had defrauded management of Bahria town in purchase of land in Malikpur and Khanpur.”
“This conclusion could not have been arrived at without first having investigated the matter, and it is clear from the record that the NAB did not investigate the matter nor in fact it had the opportunity to do so”, the court ruled, adding that the facts, which have not been controverted, disclose that the exercise by Chairman NAB Mr. Fasih Bokhari of his discretion was mala fide, as the court ruled that the very day that NAB received an application from a nominated accused, and without determining the application’s merit or conducting any inquiry/investigation, the Chairman NAB with alacrity submitted an application for transfer of the case under section 16-A (a) of NAO;
“Section 16-A (a) of NAO stipulates that the transfer of a case shall be deemed to be a reference under Section 18 of NAO, but this provision was intentionally disregarded as some of the nominated accused were exonerated by NAB itself”, the court ruled.